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Dispositional Concepts and Criminal Law

Dispositional Concepts and Criminal Law
Christos Mylonopoulos
Professor of Criminal Law
at the University of Athens
§1. Introductory remarks
1. What is “obscene”? For the Greek legislator publications are considered to be obscene ʺwhen they, according to the common sense, offend decencyʺ, namely when people’s peace of mind is disturbed by the unpleasant feeling of ʺshockʺ and aversion, caused by the sexual revelationsʺ . By contrast, the relevant English Act 1959 considers that a publication is obscene if its effect tends to morally understate and corrupt people who, under all relevant circumstances, are likely to read, see or hear the matter contained or incorporated therein . What is the common feature of these two efforts to conceive the conceptual meaning of ʺobsceneʺ? Regardless of the content of the offence, i.e. either it consists in a social and moral factum (Greek law) or in a moral erosion (English law), we can see that the word ʺobsceneʺ expresses an judgment on the ability, suitability and appropriateness of the object to cause certain forms of mental disturbance to the observer’s state of consciousness . In contrast to the purely descriptive words (ʺsquareʺ, ʺredʺ, ʺtallʺ) the word ʺobsceneʺ belongs to the category of the words which express that certain object or behavior has properties that enable it (are “apt”) to cause a certain reaction, emotion or series of emotions. ʺObsceneʺ is, as Feinberg notes, one of those words that Novell-Smith calls ʺaptness wordsʺ .
For our analysis, the fact that ʺaptness wordsʺ can be used to predict other people's reactions to the objects to which the corresponding properties are attributed, is of special importance. An object’s ability to cause a certain result is intrinsically linked to the relevant prediction. Therefore, the aptness word ʺobsceneʺ has, inter alia, a ʺpredictive validityʺ, as Feinberg notes. It expresses the prediction of other people’s reaction (disgust, aversion) when they perceive the object in question or the behavior in question. At the same time it also expresses the speaker’s personal attitude (ʺI felt disgusted seeing itʺ). It contains therefore a verification of the relevant ability that this specific word means to him. .
2. What do we gain from these observations? Certainly not a definition of the meaning of ʺobsceneʺ - at least not in the form of a complete definition . Is it possible, however, to obtain a satisfactory definition for this concept? This is widely challenged. That is why there is no shortage of less ambitious efforts to conceptualize the meaning of ʺobsceneʺ: ʺI will not attempt to define [ʺhardʺ pornographyʺ], and perhaps I never will. But I recognize it when I see itʺ, Judge Potter Stewart wrote in 1964 . Feinberg also admits: ʺIt is much easier to recognize the obscene than to define what it isʺ . However, from what was mentioned above, it is clear that we have at least attained a minimum of conclusions. We found out that to grasp the meaning of ʺobsceneʺ we used:
(a) an assumption: Obscene is something about which we can say that, if somebody sees (or reads etc.), it…
(b) a prediction: will feel a more or less identifiable disturbance of his mental state and
(c) empirical elements: the manifestation of the socio-moral fact of his consciousness being disturbed, or (if we start from the English law), related forms of behavior – caused by the mental erosion.
Therefore, these data are at least a starting point, even if the ʺnature of the objectʺ does not allow a more accurate comprehension of the above concept’s content.
3. Similar issues arise in a series of heterogeneous terms used in the criminal legislation and doctrine. When is the withdrawal of the attempt voluntary? According to Roxin’s famous criterion , ʺthe logic of criminalsʺ, this happens when the withdrawal «from the criminal act’s perspective» appears as ʺirrationalʺ, namely when that is not in accordance with the rules of ʺthe successful perpetration of crimesʺ . Is this, however, a complete, explicit definition of the word ʺvoluntaryʺ? The answer is also negative. But this does not mean that a more complete conceptualization would nevertheless be possible. Also here we proceed as in the previous case: The concept of ʺrationalʺ is specified by using assumptions and predictions, which would be impossible without the use of empirical elements (ʺWhat would an experienced burglar do if he was in the defendant’s position?ʺ etc.).
4.Furthermore: Α crime is committed ʺby professionʺ when the offender intends to repeatedly commit criminal offenses for the purpose of obtaining income for a living or, according to another opinion, when the offense is accompanied by the offender’s objectively manifested readiness to repeat it . Furthermore: the existence of ʺinclinationʺ to criminal activity presupposes a “propensityʺ to offend, which requires a repeated perpetration of crimes, that leads to further offending without inhibitions . It is also assumed that several (or at least two) acts or incidents of this kind are required to obtain ʺpropensityʺ in order to allow us to infer that the act has presents a professional’s ʺroutineʺ. Finally, according to Greek legislation, a criminal is considered as ʺparticularly dangerousʺ, when he acts ʺanti-sociallyʺ and has a ʺpropensityʺ to commit new crimes in the future, something that can be indicated by several empirical evidence such as the place and time and manner of offence, the importance and reasoning of offence etc . The attempts above to better explain certain concepts do not necessarily provide a definition for them. On the contrary, they are also based on assumptions: ʺReadinessʺ means inclination, for the person in question to commit a certain type of crime, if circumstances appear suitable, for example if the opportunity presents itself to him, whether the crime will be committed with certainty or not. So the propensity, the risk, the tendency, etc. could be classified as ʺaptness wordsʺ. Consequently, a criminal by profession is one who under certain circumstances, e.g. certain environment, socializing etc., or if he is released free (assumption) will commit some (more or less identifiable) crime (prediction) given that some empirical elements (e.g. perpetration of similar crimes in the past) lead us in this conjecture by applying a rule of thumb.
Similarly, a criminal is dangerous to the public order if he, under certain circumstances, is likely to commit offenses, which gravely disturb the peaceful legal order . In these cases also, the specification of the relevant concepts is effectuated be the use of assumptions, predictions and empirical elements.
5. The insufficiency of the criminal doctrine to provide a complete, explicit definition, appears even more clearly in the case of the concept of danger. Ηere we could also say that this is a concept expressed by an ʺaptness wordʺ. Generally, we speak for danger, as Spendel used to write, when a situation or behavior seems appropriate (apt) to cause specific damage . An abstract definition, without a prediction and empirical elements, seems also here impossible. Besides, that is why danger is often characterized as a concept of prediction (“Prognosebegriff”) . These thoughts have already been put forward, in one way or another, in criminal doctrine: If specific danger exists, as Weber writes, this can be judged only if we bear in mind all the circumstances of this specific case . The existence of a danger justifying emergency is described as a probability about evolution of the facts in the future . It is obvious, therefore, that a conceptual specification of ʺdangerʺ without the help of empirical assumptions and predictions does not seem possible. All the approaches mentioned above do not say anything more than that: A danger is given when the following sentence comes true: ʺIf this specific situation develops undisturbed (it is possible that) a damage will occur. Rightly, therefore, the German Supreme Court notes that the concept of danger ʺis not susceptible to a precise scientific description. It cannot be specified on a way which could be generally applicable and its nature is primarily real and not legalʺ.
The efforts to specialize the concepts mentioned above (“obscene”, “deliberate”, “dangerous”, “habitual and by profession”, “danger” etc.) have, as we see, a common feature. They point out our inability to formulate a scientifically satisfactory (ʺglobalʺ, ʺcompleteʺ) definition, namely a definition that covers the entire conceptual content of the definiendum so that between that and the definiens equivalence relation exists. We saw, in contrast, that the concepts examined above are specified by the use of hypothetical propositions, namely their existence is accepted provided that a hypothetical sentence is true. In this case, however, it is an imperfect, or as it is called, a partial or dependent definition (bedingte Definition), where the definiendum is only partially specified, without being fulfilled the principle of elimination , namely the definiendum is not always equivalent to the definiens, but only when certain conditions are fulfilled. But beyond this: Since these specifications are effectuated be the use of empirical elements and predictions, the field of the purely conceptual structures is abandoned. In reality, we have to do with an attempt ʺto translate scientific concepts into observable factsʺ thus creating ʺa dangerous confusion between conceptual structures and empirical analysisʺ . For this reason, these depending definitions are called ʺoperational definitionsʺ (operationale Definitionen) . These are namely partial definitions referring to the carrying out of a test and to the observation of its result.
§2. The dispositional concepts
1. At this point, we are able to note that the concepts of the criminal law vocabulary mentioned above have the characteristics of the so called dispositional concepts, which have long preoccupied the theory of science but they are relatively unknown in the field of law.
As disposition of an object or of a person is considered to be its tendency or aptness or propensity to react in a certain way under certain circumstances or to behave in a certain way if certain conditions are met . Therefore, the dispositional concepts (Dispositionsbegriffe) express exactly these peoples’ or objects’ tendencies or abilities. Such properties express for example, the concepts ʺfragileʺ, ʺlaw abidingʺ, ʺdangerousʺ etc. Αs it is rightly observed , the dispositional concepts constitute the majority of the scientific language.
2. A characteristic feature of dispositional predicates is that they do not describe obvious properties or relations, which are subject to direct observation, but inward tendencies that do not refer to objects of the external world and which can be only observed after a systematic observation of the object’ or person’s reactions, if that will be found in a certain situation . In other words, the disposition itself is not subject to direct observation (as for example, the object’s colors or dimensions) but only its symptoms, namely the means in which this disposition is expressed. We cannot see, for example, if an object is flexible as we can see that this same object is a wooden piece of 1 m length and of white color. We define it as flexible because we have previously accepted, that if we exert upon it appropriate strength (= pressure), it will flex (= prediction).
3. We use dispositional concepts not only to refer to properties of objects but also to describe the human’s internal realm. When we say, for example, that A is ingenious, unstable, introverted, aggressive, irritable etc., we ascribe dispositions to him, namely tendencies or abilities. For example, we attribute to the ʺingeniousʺ person the aptness to answer difficult questions in the right way, to the “unstable” the tendency to react in entirely different ways to the same stimulus, to the “irritable” the tendency to react with violence etc. As it is obvious, these properties are not subject to our senses. We can only see empirically if they concur or not, inferring the relative property from the person’s reactions under observation, if this is found in certain circumstances, namely when he/she needs to react to certain stimuli. The human dispositions, therefore, can be manifested only through certain types of behavior which express exactly the typical symptoms of each one.
§3. Dispositional concepts in Criminal law
1. Before we deal with the conditions of the dispositional concepts’ specification and the possibility to make useful the relevant doctrine in the criminal law, it would be useful to have a brief overview of the cases in which the legislator makes use the dispositional predicates. Their identification, the study of their singularities and their specialization are crucial not only for the correct interpretation of the relevant provisions and the rational application of the law, but also for the effective justification of criminal judgments and their control at the Supreme Court. The dispositional properties used in criminal legislation can be classified into three categories. Personal dispositions, dispositions of situations or conducts and dispositions of objects. More specifically:
People’s dispositional properties are for example, the defendant’s status as habitual or professional criminal , the moral perversion of one’s nature, the ability to be careful as an element of negligence and generally of avoidance of the result, the offender’s laziness, the propensity to naughty life , the repentance , the culpability, the selfishness , the defendant’s dangerousness , the witness’s reliability , the voluntary character of the withdrawal, and even the intention and purpose as it has already been argued by some authors , the possibility of having acted otherwise as an element of liability, and the offender’s «criminal disposition» in the art. 79 of the Greek P.C. on judicial sentencing.
Dispositional properties of human behavior or of situations are for example the dangerousness of the attack as a criterion for finding the measure of the necessary defensive act , the danger in which the emergency situation grounds on , the potential danger as part of the constituent elements of many commonly dangerous crimes , the dangerous operation of installations for workers’ lives , the common danger which exists or is imminent establishing an obligation of its prevention , but also the society’s confidence in the validity of law as a prerequisite for the application of the doctrine of impression (Eindruckstheorie) on the attempt, participation and concurrence.
Finally, dispositional properties of things or objects are included in the provision of the article 76 §2 of the Greek Criminal Code (objects which provoke danger for the public order), 148 (news which can expose in danger the state’s interests), 191 (news apt to cause concern or fear to citizens) 134 §2 (ways that are appropriate to disrupt the normal operation of the constitution), art. 4 and 12 of the Greek law no. 146/14 for the unfair competition (statements that are likely to mislead the consuming public, news capable of harming the work of a business) and, as we said at the beginning, the obscene character of a publication.
§4. Efforts to specialize the dispositional concepts
1. Since, as we said, a dispositional property is not subject to direct observation, its existence can only indirectly be diagnosed. From certain reactions (and hence behavioral manifestations) of an object or person under test which can be perceived as outwards activities, we ascribe to it by inference the corresponding disposition. Generally, it is said that a dispositional property D is attached to an object X, if that manifests the reaction R under test conditions. For example: if someone is habitual and dangerous criminal we do not find out by observing him, but only by inference, after examining his behavior, namely after exploring how he reacted or reacts under certain conditions. So it has been argued that the dispositional concepts could be defined with an explicit definition of the form:
Dx = op (BX→RX)
ʺAn object X has the dispositional property D, if it performs under certain conditions B the behavior R, which belongs to the content of the conceptʺ .
The above definition is explicit, namely a global definition, meaning that it captures all the conceptual content of the definiendum. But it is also an executive definition because it proceeds to the concept’s specification by using empirical assumptions so that the capture of hidden properties which cannot be subject to direct observation becomes possible .
2. The essential disadvantages, however, of using the above explicit executive definition are two: Firstly, this definition is not secure, because the definiens consists in a hypothetical proposition in the form of material implication (materiale Implikation). According, however, to the principles of propositional calculus, the material implication is always true when its precedent is false (ex falso sequitur quolibet) . Secondly, the explicit, executive definition does not attach to the dispositional concept its accurate meaning but always it is necessarily broader than this.
As Carnap already pointed out, this conclusion follows from the above mention observation: the material implication is true even if its precedent is false, namely even when the object has never been subjected to the test. So we should accept that objects that have never been tested, have also the relative dispositional property. For example that any witness who has made no deposition is also reliable, that any defendant who has not been released is particularly dangerous, that any offender who has not been examined by a psychiatrist is incapable of criminal liability etc .
3.For these reasons Carnap abandoned the effort to achieve an explicit definition of the dispositional concepts and made use of the doctrine of reducing sentences (Reduktionssätze) with the help of which he introduced an depending definition (bedingte Definition) of the dispositional concepts, namely a definition with partial character of the form:
ΛΧ (ΤΧ → (Dx → Rx))
ʺIf an object Χ has undergone the test T, it has the dispositional property D only when it shows the reaction R ʺ.
The method of reducing sentences has actually bypassed the problem arose from the use of explicit definitions, since they do not refer to objects that have not undergone the appropriate test. For example, if an object has never been dipped in water, the reducing sentences do not allow us to determine whether it is soluble in water or not. At this point, however, the main disadvantage of the use of reducing propositions is exactly arose, because in many cases numerous dispositional properties have to be ascribed without submitting the object to test since the latter may be either impossible, or illegal, or dangerous or undesirable. The dangerousness example could be once more useful. We need to diagnose it only by observation of the past, without subjecting the offender to test. Thus it becomes clear that the reducing propositions specify only a part of the meaning of the dispositional concepts, since by their use we can come to a conclusion only with regard to objects already submitted to a test (= which fulfill the requirements of the definition). If, however, ʺIVXʺ applies, namely no test takes place and therefore the terms of application are not fulfilled, there is vagueness as to the existence or not of the dispositional property and therefore it is impossible to decide whether it can be attributed or not .
Furthermore: the consistent application of reducing propositions leads us logically to the conclusion that in case of negative outcome of a test, the dispositional property is not satisfied. Nevertheless, there are cases leading to the opposite, namely that the observed object does have the relative disposition (tendency or aptness), although the outcome of the relevant test was negative. For example, the fact that a person has committed a crime of passion, although in the past his behavior was beyond reproach, makes absurd the conclusion that he has tendency to commit a crime, since there are a number of empirical elements to support the existence of the opposite disposition, namely of the law-abiding conduct .
4. For these reasons Carnap proposed the introduction of more than one tests while Trapp, by not modifying this approach, argued that we should make some hierarchy of tests so that the dispositional property is given only when those tests are becoming positive which belong to the core of the tests (Testkern), and therefore they constitute necessary conditions for the attribution of the dispositional property. Conversely, those who belong to the so-called entourage of the tests (Testhof) is not necessary to be met but only to strengthen the former . According to the example of Trapp, the fact that the witness, whose ʺreliabilityʺ is judged, has been convicted for perjury in the past, belongs to the core of the tests, while the question, whether he appeared exemplary or not, is part of the concept’s entourage. The conclusion, however, is the following: the more the tests are positive, the more defensible is the opinion that the dispositional property is given. Nevertheless, howsoever the thing is, the dispositional concepts’ reduction in the language of experience cannot be made to a thoroughgoing and secure way with reducing sentences.
5. The above efforts showed that the relationship between dispositional concepts and the requirements of their application needs a looser form, so that they could be ascribed without strict compliance of those conditions. Carnap sought to strike this by separating the overall scientific language in two levels: an observational language LO and a theoretical language LT. Between those two only the observational language is completely interpreted because it consists of elements subject to direct observation and they are themselves understood. The observational language, however, is insufficient itself for the dispositional concepts’ conceptual approach, as these relate to tendencies which are not subject to the senses. The theoretical language, in contrast, contains predicates that are not subject to direct observation (nor are amenable of an explicit definition). Although, they can be correlated with the experience, by the use of rules that connect certain sentences of the theoretical language to expressions of the observational one. With these rules the theoretical concepts are illustrated in terms of the observational language. In other words, these rules express the correlation between the expressions of theoretical language and the corresponding of the observational, thus connecting the first to the second. That is why they are called correlation rules (Korrespondenzregeln) or incorporation rules (Zuordnungsregeln) .
The elements of the observational language which depict, through application of correlation rules, the theoretical terms – namely the dispositional concepts – are called indicators (Indikatoren) because they indicate that the disposition can be ascribed . These are the immediately observable reactions and ways of behavior of the object which provide us evidence by applying the relevant correlation rule that the non-observable (theoretical) dispositional concept is given. Let’s take an example from the criminal law: Because we cannot adequately define the dispositional concept of ʺconfidenceʺ as understood in the § 2 of the art. 375 of the Greek P.C. (embezzlement at a felony level when committed by misuse of particular confidence) we use some indicators such as (1) the fact that the thing was delivered to the offender, (2) the fact that the offender was related to the owner with a long friendship, (3) the fact that it was a family heirloom etc.
Accordingly, the attribution of a dispositional property requires:
(a) The observation of an object (situation, thing, person, behavior) under certain test conditions and
(b) The knowledge of the correlation rule, namely the way in which we infer the existence of the disposition from the reactions of the object under the above conditions .
So, the correlation rules cannot operate without some observational conditions (indicators) of the disposition. The objective observer (e.g. the judge) can only conclude about a person’s disposition when it is reformulated in empirical data, namely when it acquires some empirical meaning through reduction to observational terms.
Consequently, our concept for the dispositional property depends on the indicators that we have selected as well as on the correlation rule that we have developed and in order to make use of them. The dispositional predicate ʺdangerousʺ, for example, is not explained properly if the defendant acted under such mental pressure as to preclude objectively and for anyone the possibility to act according to the law . The burden to formulate each of the correlation rule lies with the interpreter of law, though sometimes the legislator lies with it as well.
6. In view of the above evidence some authors have attempted to formulate the conditions needed to be met by the indicators so that they appear useful. Hassemer notes that the observational conditions should be:
1) Observable (necessarily!). Otherwise any possibility of reducing the dispositional concept in the world of experience is automatically ruled out. An observable element, suitable to serve as indicator of the existence or non-existence of the dispositional concept of ʺvoluntaryʺ (withdrawal) is, for example, the fact that the offender broke his actions after a policeman’s emergence.
2) Complete as possible. Because otherwise the disposition is not displayed at all or at least it is not correctly displayed. If οne crucial indicator is missing, for example there is not «lack of emotional closeness to the fact» on the dispositional property «reliability of the witness», the other observational terms necessarily indicate incorrectly. Since the indicators are not ʺcompleteʺ (because then we would have proof) they should be prioritized. We should know which indicator has more indicative power or less.
3) Directly relevant to the disposition (ʺdispositionsrelevantʺ). The observational terms which are unrelated to the dispositional property cannot, of course, typify it. For example, the ʺvoluntaryʺ withdrawal is directly linked to the (observable) fact that the offender stopped his action immediately after its launch, without the mediation of another fact, but not also the incident that for example he was disguised or he bore a gun.
At this point, however, it should be noted that even if there are observational terms that satisfy the above conditions, they have not sufficient ʺindicative powerʺ only for this reason but they should be evaluated. For example, an indicator should be reliable: The greater the likelihood of leading to the same conclusion in further measurements is, the higher the reliability is. They should also have the power we attach to it, namely to express indeed what supposedly counts or expresses. The measurement error should be as small as possible. Finally, for research economy (Forschungsökonomie), indicators, whose exploitation is unprofitable (to an extent that it ends up surreal), are useless, as for example the measurement of a witness reliability with expensive laboratory methods .
§5. Correlation rules in Greek criminal legislation, jurisprudence and doctrine
1. Both the criminal legislator and the jurisprudence and doctrine resort not infrequently to the formulation of correlation rules. Typical example: the rule formulated by the German jurisprudence, according to which if the alcohol concentration is greater than 1,3‰ (= observational term), the driver is unable to drive (dispositional concept) . To find out if the above case concurs, we have to subject the driver to the alcotest and to examine empirically whether the content of alcohol in his blood exceeds a certain threshold.
2. The Greek legislation does not ignore the use of correlation rules: To be diagnosed, for example, if the offender is particularly dangerous (dispositional property- theoretical term not subject to senses) the judge should be reduced to circumstances of the action, while, according to the art. 90§1 of the Greek C.C., he should consider if there have been preceded at least three convictions etc. and to combine his findings on the new action (observational terms). Similarly, to determine whether the culpability is missing or not he shall investigate among others elements wherever it is necessary, if the offender is younger than 12 years old (= observational term ).
Also: to diagnose if a material is explosive he must consider whether under certain conditions (shock, temperature elevation) it exhibits or not certain reaction (chemical change) to the outside world in the form of developing ʺlarge amount of gasʺ and ʺsufficient heatʺ, resulting ʺballistic or explosiveʺ .
Finally, the Greek Criminal Code’s provisions referred to offender’s active repentance are a typical case. We cannot see whether the thief ʺrepentedʺ. We see, nevertheless, the external observational terms required by the article 384 of the Greek C.C (return of thing without of a third person’s [unlawful] harm etc.). The fact that in such cases the disposition’s demonstration should be done ʺvoluntarilyʺ does not negate a correlation rule’s existence even if the ʺvoluntarinessʺ also expresses a disposition. This latter dispositional property is expressed, ultimately, by using observational terms.
3. The correlation rules encountered in doctrine and jurisprudence are more often used and more thoroughly formulated. So, the diagnosis of the ʺaptness for understanding the unlawful character of the act” is also often possible on simple empirical observation, for example of the thief’s precautions. The ʺpropensityʺ to commit new crimes (dispositional property which specifies the criminal’s ʺparticular dangerousnessʺ) ʺindicateʺ the circumstances of the act, namely place, time, method etc. (=observational terms ). The ʺvoluntarinessʺ of the withdrawal specifies Roxin’s correlation rule (“criminals’ logic”). To diagnose whether the remove of motorized means of transport creates or not a particular ʺdanger of the thing’s permanent deprivationʺ (theoretical term- dispositional property) and therefore it does not constitute merely a theft of use, we must understand, the offender’s modus operandi and social status (=correlation rule), using empirical evidences (observational terms- Indikators) such as: if the registration number has been changed, if the vehicle was burst in a professional way, if parts were removed, if damages were avoided, if the offender was a young person subject to tight social control or, instead, he had ʺexperienceʺ in the trade of stolen cars etc . The witness’ ʺliabilityʺ requires consideration of, for example, the witness’s detailed or not notion, the internal consistency and coherence, the description of personal reactions, the stability, the existence of withdrawals or additions, the witness’ competence for the tested matter etc. (observational terms) .
Further: Expropriation (with regard to the embezzlement), is given, according to art. 375 of the Greek C.C. and the prevailing opinion, when the offence is committed ʺshowing the manifestation of the purpose of expropriationʺ . However, it is obvious that we need to establish a correlation rule in the cases where the expropriation occurs with some personal contact between the holder and the owner. In this case the question whether the blurred dispositional concept of expropriation is given or not depends on ʺthe way of the owner’s reaction to the holder’s statementsʺ as well as ʺon the holder’s contradiction, from which his final decision not to return the thing is objectively judgedʺ (=correlation rule), as for example when the owner ʺputs with emphasis the holder in front of his responsibilitiesʺ and then he responds with an extrajudicial statement or accordingly act (=observational terms) .
4. The dispositional concepts’ operation has already been identified (unwitting) at the criminal law. Let’s take an example from the second part of the Greek Criminal Code which specializes each of the crimes: We consider as possession, in the frame of the actus reus of the theft , a real relationship of domination to the thing, necessarily accompanied by physical will of domination. This desire, however, whose assistance is deemed by the perceptions of everyday life, does not need to exist constantly. Instead, (and this is considered as self evident), the possibility of manifestation is sufficient . This is therefore a dispositional will, which is true, but which arises not constantly but under certain terms. The desire of possession does not express an incidence, an instant (internal fact), not even a situation: The possessor is not in a constant state of ʺwanting something constantlyʺ, like a ʺworkerʺ is not in a constant state of ʺhard workʺ. As it has been aptly observed (Ryle) that if someone knows French, he does not constantly think of that language. It simply means that if he needs to speak French, he will do so. The problem of the so-called ʺmarginal knowledgeʺ (Mitbewußtsein), as an element of mens rea, is faced on the basis of these considerations. And this form of knowledge (for example the offender’s knowledge of embezzlement in the (public) service that he is a ʺpublic officialʺ) is not a (internal) fact but an aptness to think the corresponding incident and express that knowledge in his behavior when neededʺ. The knowledge as an element of guile has not therefore, by logical necessity, eventful identity, but it may consist of disposition without ceasing to be present knowledge.
§6. Conclusions about the nature and function of the dispositional properties in criminal law
1. Thus the explanation of the dispositional predicates’ importance using correlation rules cannot be analytic judgment because it requires the use of empirical contentions (assumptions), which are not logical truths. The manifestations of the disposition do not logically derive from the dispositional predicate but can only be verified by comparison to the reality .On the other hand, the dispositional concepts are, as we usually say, ʺmultifariousʺ (mehrspurig), meaning that their empirical manifestations are not always the same. A ʺhesitantʺ person, for example, does not always show the same behavior to express this dispositional property. Thus the importance of a dispositional predicate cannot be attributed exhaustively, even if we have taken into account all the empirical evidences that we have at our disposal. This means that a complete specification of the dispositional concepts is not only impossible, but it would also be contrary to their nature. As even Aristotle used to say: ʺfor it is the mark of an educated man to look for precision in each class of things just so far as the nature of the subject admits ʺ .
The practical significance of these findings for the criminal law is obvious: The existence of the dispositional property (theoretical term) is always judged not only on the basis of observational terms but also in combination with other observational terms and marginal evidence of experience (Randbedingungen) and therefore it is never free of a percentage of vagueness and uncertainty. For example, the change of the plate on a stolen car does not mean logically also risk of permanent deprivation (i.e. theft) and vice versa: that fact that risk of permanent deprivation was really entered does not presuppose by logical necessity plate change. At this point the importance of using the comparative concepts (Komparative Begriffe) is also clear, since we need them to assess the combination of empirical evidence: the more indicators given and the more the tests are positive, the more defensible is the possibility to attribute the disposition, i.e. the more the court is bound to accept it.
3. In relation with the above, we can still observe the following: Attaching to someone a dispositional property of character, for example propensity to crime or being greedy, truant, dangerous etc., never allows us to exclude that in the future, despite the existence of opportunity (test condition) he can act in a contrary way to his disposition. This becomes evident if we consider that the sentences referring to dispositional properties simply summarize what generally tends to happen (what has the general tendency to happen) and do not express laws, namely universal sentences. This is a human nature’s feature. It is known that many times people behave in a way which is not in accordance with their character .
Consequently: if the defendant commits a new offence, the fact, that he was not put in custody because he was not considered as ʺparticularly dangerousʺ, does not mean by logical necessity an erroneous estimation by the investigating judge.
4. However: are there dispositional properties regardless of a submission to test? According to Quine the dispositional properties express natural properties, namely constant features, incorporated in the object’s structure («built-in, enduring structural traits») , of which we can have (as a rule) only imperfect knowledge and we can only partially understand, with the hope, however, to be fully analyzed by the progress of science. As for the dispositional properties, Quine says characteristically, the ignorance reigns everywhere and the only thing we can control is its level .
Thus, the dispositional properties of things exist independently of the cause of their manifestation, (i.e. the test) and of the conditions required for this manifestation. As a consequence , the fact that an object has not been submitted to test , does not force us to deny the existence of a dispositional property but it can merely mean vagueness for its existence. To put it simply: If we did not put fire to a quantity of powder, this does not mean non existence of an explosive material.
Quine also extends these findings to the dispositional properties of human nature. When we attribute to someone a dispositional property of his character (for example cleverness), we only do a sketchy (partial) assumption for his physiology, we suppose that there is a normal structure which would give us a satisfactory explanation for the mechanism of a specific man’s behavior, if it was ever identified and analyzed. For example, the dispositional property of ʺwillingnessʺ does not mean than the existence of a subtle neural condition which predispose someone to react accordingly to a certain stimulus (for example call for help) .
5. However, all these seem excessive. There are dispositional properties which if not manifested in facts within a period of time we cannot even see their existence. This applies namely to human nature’s dispositional properties. For example, can we say that someone is ambitious or generous or truant or avaricious or dangerous or has ʺpropensity to naughty lifeʺ etc. while denying that once (even once) he behaved in a consistent way to the disposition? If facts “creating” the disposition are missing, perhaps we fair to say that the individual can acquire (i.e. he has potential to) the dispositional aptness, or that he would have it under specific circumstances, but not that now he has the dispositional property, or that it is now possible to have it . Then, if human nature’s propensities exist, the truth of a dispositional statement depends on the truth of certain episode statements. For example, if the dispositional statement: ʺA is a smokerʺ is true, depends on if the episode statement: ʺA smokes nowʺ was at least sometimes true . Similarly, the truth of the statement ʺA is habitual criminalʺ depends on if the episodic statement: «A has committed a crime» was true at least once.
6. At this point, the crucial question of the use of dispositional concepts raises: does the disposition’s existence depend on the object’s submission to test and its externalization or can it exist regardless to it? Even more: Can we say that the property is given, even if the object was never submitted to test up to now? As Hampshire pointed out, at these cases, the dispositional predicate consists in a conflation and summary of several facts (events) pleading for or again the existence of the concept. If we cannot afford a prolonged observation of the object and if we cannot mention facts that express a manifestation of the disposition, we don’t have good reasons to attribute the dispositional predicate.
However, based on the foregoing, some authors (Hampshire) also infer the further conclusion that the meaning of a dispositional property is separated from any assumption or prediction, namely separated from any future realization of terms leading to its expression. According to that point of view, a person’s dispositional property exists even if never submitted to a new test. For example, if the defendant A is deemed to be ʺdangerousʺ on the basis of his precedent behavior (namely on the ground of the ʺepisodicʺ statements) that he committed a specific crime, or that after his arrest he tried to break free etc., this diagnosis is not negated by the fact that he is prevented (e.g. with custody) from expressing the disposition anew. So, the inability to make a new test is indifferent for the existence of the disposition and the application of the relevant provision of law.
However, this conclusion is not correct, as far as it is related to personal properties. For example, if the specific defendant, who committed a series of crimes, was totally paralyzed from a serious illness, we cannot say that now (=at the time of formulation of the judgment) concurs the property of ʺdangerousness»ʺ. So, the dispositional property’s expression in the past is not sufficient but only necessary condition for its acceptance during the time of the judgment’s expression.
But this means that the diagnosis of a person’s dispositional property is by logical necessity related to a prediction . The prediction for the dispositional property’s manifestation in the future is necessary for the judgment’s formality, that ʺthe disposition concurs now: Because, if I know that the disposition’s manifestation in the future is precluded, how can I claim that this can be attributed now? For example, if I know that A, for whom it is questioned if he is ʺavariciousʺ or ʺlazyʺ, will never show reactions in the future which justify this featuring, how could I accept the disposition’s existence now (=at the judgment’s time of expression)? Such an attitude would deprive criminal law of any preventive function and would attach to it exclusively retributive character.
§7. The issue of the control by the Supreme Court
Finally, I would like to refer in brief to the issue of the annulment control of the dispositional concepts.
A brief overview of the Supreme Court’s of Greece cases leads us to the conclusion that the Supreme Court does not face the dispositional concepts uniformly. Thus, it considers some of them as legal concepts and the others not. It accepts that among the legal concepts some of them are submitted to annulment control and the others not. For example, it accepts that the aptness of the disseminated false information of the art. 191 of the Greek C.C. is a legal concept, needing a specification with evaluation judgment, formulated on the base of objective criteria, which correct application is controlled by the Supreme Court . Similarly, it is assumed that concepts like the habitual and by profession perpetration and the offender’s particular dangerousness are subject to annulment control . For example, the Supreme Court accepts that the offender is “particularly dangerous” when by the place, time, way of the perpetration, the seriousness of the offence, the offender’s personality and the grounds of the act his anti-sociality and his propensity to commit new crimes is registered, namely ʺwell-founded likelihood to commit new crimes in the futureʺ .
According to the Supreme Court, the dispositional concepts referring to real facts and its concurrence, realized without control of the court of the merits, are much more. For example the danger, the dangerousness of the corporal damage, the particularly odious of the homicide, the ability of danger, the propensity of committing new crimes etc. have been considered as such.
To face the issue, we should remind that in order to specialize the dispositional concepts we use both a correlation rule and a series of indicators (real facts), namely theoretical and empirical evidences. However, the correlation rules do not operate only as partial definitions of the concepts, but they also list exactly these symptoms of the concepts (the manifestations of the disposition) which prove its existence. In other words: the statements, which define the dispositional concepts, are at the same time rules of evidence bounding the judge such as all the other legal definitions. Thus, the evaluation of the indicators, namely the proof, becomes a legal issue and is checked by the Supreme Court . What remains out of the Supreme Court’s control is only the diagnosis of the symptoms and indicators.
This conclusion applies indeed not only when the diagnosis of the concept is inferred by the use of empirical tests but also when it happens on the basis of empirical statements because the empirical statements are not law rules, but they precede the law and are presupposed from it logically, so that their wrong application drifts the application of the rule.
§8. Conclusions and perspectives
Thus, if we attempt to proceed to a comprehensive assessment of the dispositional concepts’ importance for criminal law, we find it much bigger than it appears by first sight. By the dispositional concepts’ introduction, we do not recognize only the limits of our interpretative possibility and how to approach the above predicates, but also we discover how relative is the distinction between actus reus and mens rea. Τhe great English philosopher Gilbert Ryle showed, in this context, that the traditional philosophy, based on the Cartesian dualism distinguishing clearly between mind and body, was impaired with a decisive error: it namely confused words referring to dispositions with words referring to facts. Ryle showed that by attributing to someone a dispositional property, we do not express a judgment upon a fact. For example, if someone is lazy or dangerous, he is not necessarily constantly in a condition of laziness or dangerousness (that’s why the expression of criminology ʺétat dangereuxʺ is wrong). The same also happens with reactions of the mind. When we say that someone is doing something by intention, this does not mean that he firstly aims to something and furthermore he is doing so, but that he is doing something by intention. Namely we do not mean two reactions, one of the mind, the volitional (volition, Willensakt) and a corporal, but a single action, interpreting by an objective observer (namely the speaker) as intentional . Behind the visible body movements is not some unseen (occult) spirit, ʺthe phantom in the machineʺ that performs spiritual actions which provokes causally human body’s mechanical movements, but the body and mind are a united whole which expressions the speaker / observer interprets with the appropriate words.
So, with the dispositional properties’ introduction we do not add in bodily movements some spiritual cause but we interpret them as human behavior, we explain them as facts full of meaning. Only this last note is sufficient to show the fundamental philosophical issues associated with the questions that were raised and which go far beyond the limits of this paper.