The notion of “wrongdoing” is not recognized by the Draft Code. Nor does it classify the criminal law defences as either justification or excuse. Rather, the Draft Code distinguishes between “an offence” and “an act”. The term “offence” is used to cover cases where the actus reus is committed with the mental state required by the definition of the offence, by an offender who is criminally liable. An offender who has a defence, even a personal one, such as insanity, mistake, or duress, commits “an act”. The term “act” is used to indicate that defences negate the criminal nature of the act.

I have elsewhere elaborated on the question whether or not a criminal code which aims to reform the criminal law should distinguish between justification and excuse. There I have both discussed and evaluated, inter alia, the proposals of the Draft Code in this context. Therefore, I shall not elaborate on this subject any further. I shall rather focus on the law of complicity and shall discuss three main issues.

My lecture deals with three loosely connected topics, which are treated together in German textbooks.

1. Acts authorized by law as mentioned in article 49, section 1, of the draft.

2. Acts on the order of an authority, as mentioned in article 49, section 2, of the draft.

3. Acts for the purposes of education, as mentioned in article 49, section 5, of the draft.

Initially, a German scholar would be tempted to view the provision in article 49, section 1, as redundant. From a German point of view, it is evident that someone, who is authorized by law to act in a certain way, does not do so unlawfully. One of the first principles German students learn in their criminal law lectures, is that every act permitted by statute is in effect the justification of what is by definition a criminal offence. This is derived from a principle, which we call “unity of law”. This means that there may not be any contradictions in the law, and that an act permitted by it cannot also be forbidden by criminal code.

In this era of increasingly extensive legal regulation of human behavior, there is one type of human conduct which seems almost unpermeable to legal regulation: the education of children. The problematics of exercising educational or disciplinary powers against children concern a variety of situations, including the prima facie infringements of many personal rights of children. The most typical limitation of the rights of children by disciplinary measures is, of course, corporal punishment, that is, by actual chastisement conducted by a parent, a guardian, a schoolteacher or any other adult responsible for the training or education of children. However, children are also liable to the infringement of other rights. To a great extent, a child does not fully enjoy many personal physical rights considered to be indisputable for an older person. Thus, for example, a child's detention against his will may not constitute false imprisonment, and the seizure of a child's most intimate personal property may not be considered trespass. It is only for the sake of simplicity, therefore, that I prefer to focus our short discussion on the most conspicuous instance of this general phenomenon, namely, the deliberate physical assault of children.

Self-defence and necessity are central institutions of the General Part of German Penal Law. Numerous problems of considerable practical and theoretical relevance are connected with them. How to deal with “self-defence” and “necessity” is also an indicator of liberality or, on the other hand, of the minimum solidarity and public spirit which a State can concede to its citizens or demand of them. In German criminal theory, “self-defence” and “necessity” are closely connected with the release of the distinction between justification and excuse and all conclusions derived thereof.

Instead of elaborating on fundamental or purely theoretical problems concerning self-defence and necessity, an illustration of the contents of the German provisions of self-defence and necessity from a more technical, but nevertheless practical, point of view will be discussed. In the course of the discussion, some differences between the Israeli Draft law and the German law will be pointed out, and some problems which are unsolved in German law and may possibly confront Israeli law in the future will be brought to your attention.

The defenses of Duress, Self-Defense (or private defense) and Necessity are today set forth in sections 21, 22 and 22A, respectively, of the Israel Penal Law, 1977. However, in order to understand these defenses fully, it is necessary to go back to the provisions of the Criminal Code Ordinance, 1936, wherein the ruling British Mandatory authorities replaced the Ottoman Penal Law which had prevailed in Palestine before the Mandate. For, its name to the contrary notwithstanding, the 1977 Penal Law was not primarily an original Israeli enactment. Rather, it was in considerable measure merely a Hebrew translation of the original Criminal Code Ordinance. This is especially the case in connection with the Ordinance's General Part, which includes the defenses that concern us here. It was only in 1992 that the Knesset enacted original Israeli legislation concerning these defenses.

The relevant section of the Israeli draft concerning “Mistake of Law” reads as follows:

The corresponding section of the German Criminal Code (StGB) concerning mistake of law (§ 17) reads as follows:

Generally speaking, the definition of the mental element in crime does not even strive to encompass all the varieties of the psychological processes which accompany the commission of an offence, but sorts out only such components of it which legal policy dictates to be useful and workable. For instance, generally speaking, no notice is taken of the motive or of the intensity of passion, or whether the mental element was spontaneous or premeditated. In sorting out what parts of the psychological process should form part of the definition of the mental element, many considerations come into play, such as the ability to verbalize and define such processes, difficulties of proof, etc. One of the components of the psychological processes which is disregarded in the definition of the mental element is knowledge of the existence and scope of the criminal norm, and the existence and scope of “defences” (as they were called in the old Penal Law, 1977) or “limitations to penal liability” as they are now called in the new Preliminary Part and General Part of Penal Law (hereinafter the New Code).