Intoxication and self-induced criminal incapacity in Norwegian law

Abstract

This article provides an explanation and analysis of the regulation of criminal incapacity and intoxication in Norwegian criminal law. The current rule on this matter is found in section 20 of the Norwegian Penal Code. This rule is strict and does not require that the defendant was culpable in creating his or her incapacity (or for committing the crime in this condition). The authors explain how this rule has been subject to critique, in particular because it compromises the principle of guilt. On this background, they offer a broader picture of Norwegian criminal law, by examining the alternative solutions found in the Penal Code of 1902 and in the two recent law proposals NOU 2014:10 and Prop. 154 L (2016-2017) – which provide for a shift in focus to self-induced criminal incapacity. The authors argue that the guilt principle must be the guiding perspective for the construction of rules on intoxication and self-induced criminal incapacity. On this basis, they argue that the current rule should be abolished, and that the proposal in NOU 2014:10 is the most adequate alternative, although it is also coupled with some problems. They conclude that the operationalisation of the guilt principle requires a larger engagement in the philosophical debate on the matter than what has so far been the case in Norwegian criminal law.