Ann, Robin --

Interesting discussion.  I remember how delighted I was (a long time ago)
to discover a pamphlet at the Alcohol Research Group library reporting that
Shona men, in what was then known as Rhodesia, granted no excuse value to
being under the influence.  The assertion, "I will drink this beer for
you," might mean that the drinker had the intention of punching you in the
nose -- and was going to strengthen his Dutch courage with the beer.  The
causal chain emphasized responsibility and not marginal exculpation.
Always wished there was more available on the way this much rarer normative
orientation worked in practice.  Maybe somebody on this list can fill in
more details!

Ron

P.S. Incidentally, the pamphlet was:  May, John (1973), Drinking in a
Rhodesian African Township,
Occasional Paper No. 8, Dept. of Sociology, University of Rhodesia,
Salisbury.

----------
From: Robin Room <[log in to unmask]>
To: [log in to unmask]
Subject: Drinking and law in early modern Germany
Date: Friday, February 18, 2000 11:38 AM

Ann --
    Very enlightening indeed.  Thanks for taking the time to educate me on
this.
    Any one else who feels like chipping in with the history in another
culture, it would be much welcomed.  I've often wondered, for instance,
about the actions of the Spanish colonial judges in Indian courts in
17th/18th century Mexico, allowing intoxication as an excuse (as described
in William Taylor, Drinking, Homicide and Rebellion in Colonial Mexico).
Did this reflect Spanish legal philosophy about Spaniards, or was the
exception specifically for Indians?  Robin

-----Original Message-----
From: Ann Tlusty <[log in to unmask]>
To: [log in to unmask] <[log in to unmask]>
Date: den 18 februari 2000 20:19
Subject: Re: Drinking and law


>Hi Robin,
>The "iron triangle" you describe, as you suspect, has indeed been around
at
>least since the days of medieval canon law.  Again, this is something I
>deal with in some detail in the forthcoming book, so it's hard to respond
>to this in a few sentences!  But I'll try - first, to answer your question
>about what "German law" is anyway, most German authorities were officially
>subject to two kinds of law - Imperial (decrees and edicts issued by the
>Emperor), and local (decrees issued by local courts or rulers).  In
>practice, they based their interpretations on law books that described
>standard practice and precedence (Emperor Charles's law code known as the
>Carolina, for example, and Benedikt Carpzov's 17th-c. book of legal
>theory).  Precedence in another jurisdiction was studied as an
>interpretation, so it had an effect, but it did not establish procedure.
>  As for drunkenness (to simplify greatly) - according to Roman law,
>drunkenness was an excuse.  According to canon law, drunkenness was a sin,
>and therefore punishable, but still could function as an excuse (intent to
>sin is the key here, obviously very hard to prove).  During the
>Reformation, when there was both a lot of temperance activity (not
>prohibition by any means) AND a lot of concern with sin, drunkenness was
>made illegal, but early on, ordinances still had it as diminishing
>culpability for some things (cursing, for example), not others (murder).
>Later 16th-c ordinances specifically stated that drunkenness would not
>function as an excuse, and the whole issue of drunkenness pretty much
>disappears from ordinances in the 17th century.  Meanwhile, Carpzov
>wrestled with it for a while and concluded that it "diminished capacity
>somewhat, but not entirely."  Some early modern theorists (including
>Carpzov) even considered the possibility that a person could get drunk on
>purpose in order to commit a crime, and then use drunkenness as an excuse.
>There were also complicated attempts to define "degrees" of drunkenness.
>The Carolina doesn't mention drunkenness at all and thus gives no
guidance.
>  So much for theory - in practice, magistrates decided guilt on a
>case-by-case basis, which means that when I wrote "Germany" I could really
>only speak for my experience with Augsburg sources.  What I found (and I
do
>suspect that it would be the norm) is that decisions whether to allow
>drunkenness as an excuse or not depended on 1)whether actual damage
>occurred, and 2)what the authorities had to gain from prosecuting the
>crime.  Examples - if someone accidently took someone else's coat home
from
>the pub and then later returned it, drunkenness counted - he was not a
>thief, and no harm was done.  But if he had sex with a prostitute,
>drunkenness didn't count.  Sin couldn't be retracted and he was
prosecuted.
> Drunkenness also did not function as an excuse when someone damaged
>property while riding on a horse (that was what I meant in my last mail).
>When it DID count was when the crime was something the council wanted to
>sweep under the rug and NOT make an example of.  A good example of this
>(and one which I presented at the 16th C. SC last year) is the case of a
>homosexual journeyman who attempted sodomy with his bed partner in a
>journeymen's hostel during the 17th c.  Times were hard, lots of
journeymen
>had to give up on ever being able to marry and become masters, and the
city
>didn't want to draw attention to sexual alternatives...
>
>  So, to respond to your comments: 1. the iron triangle was always an
>issue, at least as far back as the Romans; 2. the difference between the
>temperance movement view and the Reformation view is that in the 16th
>century, guilt didn't begin with the drink, but with the decision to get
>DRUNK; and 3. since "drunk" was an entirely subjective construct,
definable
>only by the drinker, and the decision to get drunk was even more difficult
>to establish, magistrates could do pretty much what they wanted.  Which
>early modern magistrates could pretty much do anyway, since they never got
>sued for wrongful imprisonment (or wrongful banishment)!
>  I hope this answers your questions....
>cheers,
>Ann
>
>At 04:39 PM 2/16/00 +0100, you wrote:
>>Ann --
>>    I look forward to your book.
>>    The iron triangle that modern British-tradition criminal courts keep
>wrestling with is the following:
>>        1. you have to have a "guilty mind" to have committed a crime
>(most crimes).  This included the idea that you have to have intended an
>act something like what you actually did.
>>        2.  intoxication affects intention and the capacity to have a
>"guilty mind": can a person who's very very drunk really be said to have
>the requisite intention and a guilty mind?.
>>        3. drunkenness should not be an excuse for crime.  3(a) modern
>feminist corolllary: nor should there be a "discount for drunkenness",
>where you get punished, but less, if you are drunk.
>
>>    (1) came into the British-style criminal law quite early, I am told,
>from medieval church courts.   (3) dates back a long way.  I don't know
how
>(1) and (3) were reconciled before the 19th century.  I'm not sure how far
>back the focus on "intention" goes.   (2) becomes an issue in the 19th
>century, mostly around capital cases, when judges start getting squeamish
>about condemning someone to death for something that happened when they
>were very drunk.   So they invent the (unworkable) distinction between
>"specific intent" crimes and "general intent" crimes.
>>    The iron triangle was reconciled for a long time in the British-style
>tradition by shifting the evidence of the guilkty mind back to the fact
>that the person chose to take the first drink.  But the idea that taking a
>drink at all was a guilty act obviously could only arise in the context of
>temperance-era thinking.  It is this reconciliation that courts in
>Australia, New Zealand and Canada have rebelled against, though the
general
>population seems to be horrified by the result, that drunkenness could
>excuse a violent crime.
>>    So I'm particularly interested in your sentence, "drunkenness rarely
>functioned as an excuse under diminished capacity, either".  Did German
law
>then have no requirement of a guilty mind?  Or was drunkenness not seen as
>affecting the capacity to have a guilty mind?  Or was the law determined
>backwards (as later in the British tradition) by the overriding concern
>that drunkenness not be available as an excuse?
>>    A more general question, out of ignorance: what does it mean to talk
>of "German law" when Germany is a collection of princely states,
>archbishoprics, free cities, and whatever?  Was there some common core of
>criminal law, and where did it come from? Did a precedent in one
>jurisdiction affect what happened in another?  Robin
>>
>>
>>-----Original Message-----
>>From: Ann Tlusty <[log in to unmask]>
>>To: [log in to unmask] <[log in to unmask]>
>>Date: den 16 februari 2000 16:20
>>Subject: Re: Drinking and driving
>>
>>
>>Robin,
>>I make the case very strongly in my book (forthcoming later this year
with
>>UVa Press) that although "drunkenness" was definitely "illegal" in early
>>modern Germany (starting with the Reformation), it was virtually never
>>prosecuted or punished as such.  Invariably, people were punished only
for
>>what they did while drunk, not for the drunkenness itself, although they
>
>>occasionally (not always) got a small "drunkenness fine" added to the
other
>>punishment.  Drunkenness rarely functioned as an excuse under diminished
>>capacity either.  It was pretty much ignored in the legal process. Of
>>course, they couldn't measure blood alcohol level, so "drunkenness" was a
>>pretty subjective construct.
>>cheers,
>>Ann
>>