The notion of 'Culpa' under criminal law : a comparative analysis

Abstract

The aim of this thesis is to enquire into the legal concept of 'culpa', not just as it stands in Maltese Criminal Law, but also as it stands under other codes and foreign legislation. In all truth, the concept of 'culpa' has already been the subject of theoretical discussion under our law in a previous dissertation, (1979), however, the purpose of this thesis is to discuss and analyse the notion of 'culpa' from a different perspective, that is, on a comparative basis. Therefore, this comparison, in substance, will help us to see how the various notions of 'culpa' have been adopted both locally, that is to say, under our law as well as internationally. In this thesis, I will not be enquiring into the historical aspect of my thesis, since the notion of 'culpa' is already 'per se' a vast legal concept, let alone the fact that, my thesis concerns the various notions of 'culpa' as they subsist in Maltese Law and in the Mediterranean basin, as well as how these had been adopted in our case-law, together with a comparison with the notions of 'culpa' under other codes and foreign legislation. The latter include: the notion of 'culpa' under English Common Law, French Law and last but not least African Criminal law. With regard to 'culpa' under Maltese Law, emphasis is made on our case-law, which reflect, mainly the intention of the legislator. In fact, it was often held by our Courts that we lack a precisenotion of 'culpa'. Moreover, in this chapter we will be concerned with the definitions of 'culpa', which assumes undefmed terms such as 'negligence', 'imperitia', 'carelessness' and 'unskillfulness in an art or profession'. Nevertheless, this concept can be inferred from certain sections of the Maltese Criminal Code, as well as from the works of Italian writers, such as Francesco Carrara and Francesco Antolisei. It follows, therefore, that the Continental law theory is that which is mostly adopted by our system of law, subject to exceptions, when the Courts have adopted English Common Law. In the subsequent chapters as mentioned supra, I will be discussing 'culpa' under foreign legal systems, including a comparison with Maltese law where necessary.