Necessary defense and other circumstances, excluding criminality of an act under the provisions of the German Codification Carolina of 1532

The article is devoted to the criminal law provisions on circumstances excluding the criminality of an act in the German Ordinance Carolina of 1532. It analyzes the definition and conditions for the legitimacy of necessary defense as outlined in the Criminal Court Ordinance of Charles V Habsburg. Among the circumstances excluding the criminality of an act, the German codification of 1532 devoted the most attention to necessary defense, allocating as many as seven articles (139–145) to it. To provide a more precise characterization of the state of necessary defense, 16th-century German legislators included examples of both the state itself and the circumstances that excluded its legitimacy. According to the Carolina Ordinance of 1532 provisions, necessary defense was permissible only when it was impossible to flee from an attacker threatening a person’s life or health. Such an attack had to be direct, but the defending person was not required to wait for an actual physical blow if the circumstances indicated the attacker’s intent to cause harm to the mentioned legal interests. The Carolina Ordinance of 1532 provided detailed regulations regarding the grounds and features of proving the state of a necessary defense and its legitimacy. In particular, it placed the burden of proving the legitimacy of a necessary defense on the defending person. They were subject to criminal liability if they failed to prove their legitimacy. The German ordinance specifically regulated the state of a necessary defense committed by a man in response to an attack by a woman (Article 144). Additionally, it determined the legal consequences of a necessary defense committed under a bona fide mistake (essentially, a putative defense). In addition to necessary defense, the German ordinance of 1532 outlined several other circumstances that excluded the criminality of an act. Among them was «direct starving necessity,» which, under certain conditions, could exempt a person from criminal liability for theft due to extreme hunger. All circumstances, excluding the criminality of an act, had to be determined in each case by judges and assessors based on a prior conclusion from legal scholars. In this legal opinion, they could also recognize that any other circumstance not explicitly provided for in the legislation would also exclude the criminality of an act.