Folia Theologica et Canonica 6. 28/20 (2017)

IUS CANONICUM - Peter Artner, Psychical imputability and punishability in the current penal system of the Canon Law

PSYCHICAL IMPUTABILITY AND PUNISHABILITY

235

stances. A notoriously discard man may fall under this category, if he does not habitually lack the use of reason, but his behavior or psychical capacity is limited. Ignorance or error may cause a marnage'’'' or any juridical act'4 invalid.

3) A person who acted due to physical force or a chance occurrence which the person could not foresee or, if foreseen, avoid.'5 If the person could not foresee the outcome of his deed, the subjective element is totally absent from the offense, leaving only psychical imputability without moral imputability.'6

4) A person who acted coerced by grave fear'7, even if only relatively grave, or due to necessity or grave inconvenience.'11 Both the physical force and the chance occurrence or grave fear can alter the personality, limit the freedom, at least for that very moment of the act. We may imagine a situation where the person is completely shocked by something, goes blank and he does not even know what he is doing or cannot control his acts properly. If he is panicking, whether there is a reasonable cause for the panic or not, the person cannot control his deeds, his imputability is limited, and maybe not only limited but lifted, so because of psychical reasons he is not completely imputable and cannot be punished. The fear can be absolutely or relatively grave. If it is absolutely grave, no one can resist; if it is relatively grave it may be grave only for a weaker person. In both cases the canon accepts the fear as grave."* There is only one exception to this canon: the offender can be punished if the act he committed is intrinsically evil or tends to the harm of souls, but even in such cases the punishability is limited.

5) A person who acted with due moderation against an unjust aggressor for the sake of legitimate self-defense or defense of another, cannot be punished. Everybody has the right for self-defense and an obligation to protect the innocents, but not without limits. As the Bible writes: “Eye for an eye and tooth for a tooth.”33 34 35 36 37 38 39 40 This ancient proverb, the so called ius talionis, is not as brutal as it

33 ClCCann. 1096 § 2; 1097.

34 CICCan. 126.

35 As it is already written in the Roman Law: “maioris rei impetus qui repelli non potest” (Dig. 4.2.2).

36 Marzoa, Á. - Miras, J. - Rodriguez-Ocana, R. (ed.), Exegetical Commentary, IV/1.281 (Mar- zoa, Á.).

37 Fear (timor) according to Ulpian: instantis vel futuri periculi causa mentis trepidatiti (Dig. 4.2.1).

38 Physical force and fear may render a juridical act invalid; see: CIC Can. 125 § 1. An act placed out of force inflicted on a person from without, which the person was not able to resist in any way, is considered as never to have taken place. § 2. An act placed out of grave fear, unjustly inflicted, or out of malice is valid unless the law provides otherwise. It can be rescinded, however, through the sentence of a judge, either at the instance of the injured party or of the party’s successors in law, or ex officio.

39 Calabrese, A., Diritto penale canonico, 55.

4(1 Ex 21: 24.