The criminal law on intoxicated offending is notoriously complex and technical, featuring distinctive doctrinal constructs and exceptions to otherwise general rules. In order to contribute to scholarly understanding of the law on intoxicated offending, and with a focus on the law in Australia (Victoria and New South Wales), England and Wales, Germany and Switzerland, in this article, we present a two-part analysis of the law. First, we reveal the ways in which, in varying configurations, the legal rules on intoxicated offending in the civil and common law contexts are suspended across a tension between principle and pragmatism. Second, we explore the significance of legal culture — broadly, non-doctrinal components of the legal order including traditions, practices and institutions — making the case that dimensions of legal culture relating to intoxicated offending achieve a reconciliation of legal principles with pragmatic concerns to discourage drunken crime, thereby ameliorating the costs of honouring or attempting to honour legal principle when it comes to intoxicated offending.
Social and legal attitudes to intoxication are profoundly mixed. On the one hand, intoxication (at least by alcohol) is socially sanctioned and forms part of fabric of many cultural and other practices in different societies. Getting drunk is an acceptable way for individuals “to care a little less for a short time”. But, on the other hand, when connected with crime, drinking — and the consumption of illicit drugs or the abuse of prescription medication — is condemned and may lead to criminal convictions and heavy penalties.
These mixed attitudes have generated a complex and technical criminal law on intoxicated offending, marked by novel doctrinal constructs and exceptions to otherwise general rules. In common law jurisdictions like England and Wales, and some Australian jurisdictions, the law determining when intoxication is relevant to criminal liability rests on a legalistic distinction between “specific intent” and “basic intent” offences (discussed below). In civil law jurisdictions such as Switzerland, the construction of an extended timeframe which applies to intoxicated defendants means that if a person voluntary intoxicates himself, being aware that he might commit a crime while in that state, he is liable for the offence, because the actio praecedens (ie getting drunk) was free. This model opens the door to uphold the principle of free will and at the same time allows for exceptions. In addition, drunken individuals may be caught by an offence specifically aimed at drunken offending, even as they escape the web of generic offences informed by a philosophy of free will.
By way of contributing to scholarly understanding of the law on intoxicated offending, this article presents a two-part analysis of the law. Our analysis is based on an assessment of the law in England and Wales, the Australian state jurisdictions of Victoria and New South Wales (NSW)1 and Germany and Switzerland. In the first part of our analysis, we reveal the ways in which, in both the common law and civil law traditions, the criminal law governing intoxicated offending is suspended across a tension between principle and pragmatism. As we discuss, this tension produces varying configurations of law in civil and common law systems. On the one hand, in the common law tradition, the principle of subjective liability has been “honoured in the breach”, with the social problem of intoxicated offending forcing departure from criminal responsibility based on subjective fault. On the other hand, in the civil law tradition, the law operates to reduce guilt-based responsibility for offences committed while drunk, in order to preserve the overarching principle of appropriate punishment (nulla poena sine culpa), but pragmatic concerns are accommodated in the detail of the law: doctrinal constructions “time-frame” intoxicated offenders in a particular way, and statutory provisions criminalise offences committed “in a senselessly drunken state” and provide for a two-tier system of penalties and measures meaning that an intoxicated offender is unlikely to escape a criminal sanction.
The second part of our analysis relates to legal culture. The significance of legal culture is an element of the explanatory framework around intoxicated offending that is too often overlooked. Legal culture — which we define broadly, as non- doctrinal components of the legal order including legal traditions, practices and institutions2 — is important for a nuanced understanding of the law on intoxication and its operation. For instance, as discussed further below, in the common law system, prosecutorial practice has a significant impact on the operation of the law. In the civil law context, dimensions of legal culture relating to intoxicated offending are equally significant for an understanding of the operation of the law. Since the Enlightenment, jurists have expressed a strong belief in the need for a strict approach to guilt3 and adopted an exceptional imputation in cases of intoxicated offending.4 As we discuss, parts of this legal tradition have acquired a life of their own, taking on an elevated significance as evidence of both professional competence and faithful adherence to doctrinal orthodoxy. We make the case that dimensions of legal culture achieve a de facto reconciliation of legal principles with pragmatic concerns about intoxicated offending (in the common law), and a specific principle-driven reconciliation of the same (in the civil law). This reconciliation has the effect of reducing or ameliorating the costs of honouring or attempting to honour legal principle when it comes to intoxicated offending.
It is worth clarifying a terminological issue at this point. Although sometimes called a “defence”, the law on intoxicated offending is more accurately understood as a doctrine of imputation.5 In the common law of crime, this means that intoxication is evidence that may be raised by the defence to cast doubt on whether the prosecution has proved the elements of the offence to the “beyond reasonable doubt” standard.6 Similarly, in the civil law, intoxication is understood as imputation: even if the individual’s will is impaired at the crucial moment of acting, imputation works if his act of getting drunk was free. Thus, for reasons of accuracy, this article refers to the law on intoxicated offending rather than to intoxication as a defence.
The two-part analysis offered in this article is presented across three subsections. In Sections II and III, we reveal the ways in which the law on intoxicated offending straddles a tension between principle and pragmatism in both common law systems (with a focus on England and Wales and within Australia, Victoria and NSW) and in civil law systems (with a focus on Germany and Switzerland). In Section IV, we turn to assess the role of legal culture in the legal approach to intoxicated offending, making a case for the role of dimensions of legal culture in achieving a reconciliation of principle and pragmatism.