Abstract
In this article, I try to do two things. First I analyse critically the suggestion that the principles of criminal culpability can be explained by reference to a single, all-encompassing concept, such as “defiance of the law”. I then go on to explain the foundations of criminal culpability by reference to three interlocking theories — the capacity theory, the character theory, and the agency theory. I conclude that even these three theories may not be sufficient to explain the complex structure of culpability, which is shaped as much by shared cultural understanding as by moral theory.
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In crimes such as criminal damage, for example, it is part of our moral understanding of them that they can be committed inadvertently, at least where the harm stemmed from carelessness. For whereas we may say “Take care not to damage X's property”, it makes little moral sense to say “Take care not to murder X”. Hence the law may well permit conviction for crimes such as criminal damage where the harm was brought about by (gross) carelessness: see R. v. Caldwell [1981] 1 All E.R 961.
See in particular, J. Hampton, ‘Mens Rea’,Social Philosophy and Policy 7 (1990): 1–28; M. Moore, ‘Choice, Character and Excuse’, ibid.: 29–58.
J. Hampton, loc. cit. n. 2 ante.
M. Moore, loc. cit. n. 2 ante.
Moore, loc. cit. n. 2 ante, 29.
See, e.g., Hegel,Philosophy of Right ed. and trans. of A. W. Wood, Cambridge University Press, Cambridge (1991), secs. 80–103, 217–25; P. Nicholson, ‘Hegel on Crime’,Journal of the History of Political Thought iii (1982: 103–21.
Nicholson, loc. cit. n. 6 ante, 113/114.
Hampton, loc. cit. n. 2 ante, 15.
Ibid., 25.
Hampton, loc. cit. n. 2 ante, 1.
Hampton, loc. cit. n. 2 ante, 27.
For damning criticism of this notion see, e.g., M. Moore, loc. cit. n. 2 ante, 44–46.
Hampton, loc. cit. n. 2 ante, 17.
M. Moore, loc. cit. n. 2 ante, at 57.
M. Moore, loc. cit. n. 2 ante, at 56.
M. Moore, loc. cit. n. 2 ante, 57.
See generally H. L. A. Hart'sPunishment and Responsibility (Oxford: Clarendon Press, 1968, 136–57.
M. Moore, loc. cit. n. 2 ante, at 57.
See A. Duff,Intention, Agency and Criminal Liability (Oxford: Blackwell, 1990), 44–47.
See n. 18 ante.
Contrast, by way of example, the cases ofR. v. T. (1990 Crim. L.R. 256 andRabey v. R. (1978 79 D.L.R. (3rd.) 414. In the former case, a dissociative state induced by rape was held to negative culpability for subsequent wrongdoing, whereas in the latter case, a similar mental state induced by disappointment at a lover's rejection was held not to negative culpability. For the complex capacity theorist, the difference between the two cases lies in the fairness of the opportunity each defendant had to avoid wrongdoing. It is normally fair to expect people to overcome or contain pressures stemming from the ordinary stresses and strains of life, such as rejection, whereas one cannot usually expect this where extraordinary and unusual mental disturbances overwhelm people.
For different expositions of the theory, see, e.g., M. Bayles, ‘Character, Purpose and Criminal Responsibility’,Law and Philosophy 1 (1982): 5; G. Fletcher,Rethinking Criminal Law (New York: Little, Brown, 1978), p. 800; N. Lacey,State Punishment (London: Routledge, 1988), pp. 65–68.
See M. Bayles, loc. cit. n. 23 ante.
Bayles, loc. cit. n. 23 ante, 18.
See, e.g., N. Lacey, loc. cit. n. 23 ante, 66.
The example is essentially the one discussed by Moore: see M. Moore, loc. cit. n. 2 ante, 36–40.
ibid., 40.
Bayles, loc. cit. n. 23 ante, 7.
See, e.g., A. Brudner, ‘A Theory of Necessity’,Oxford Journal of Legal Studies 7 (1987): 339–68, 345–47.
See, e.g., N. Lacey, loc. cit. n. 23 ante, 65–66.
See the criticisms made, in this regard, of the defiance theory, in the text at n. 10 ante.
See the penetrating critique by M. Moore, loc. cit. n. 2 ante, 51–54.
If one excludes provocation as an anomaly, duress, necessity and self-defence are the only instances in which such a shift of focus from harm-to-victim to plight-of-the-accused is permitted, where the harm has been inflicted by a sane and mature adult; and the factor linking these exceptions is the imminent threat of coercion or natural disaster. See J. Horder, ‘Autonomy, Provocation and Duress’, Criminal Law Review (1992): 706–15.
I put on one side here the special problem of whether the accused was capable of reaching the generalised standard, given some mental or physical disability not amounting to insanity: see H. Hart, loc. cit. n. 18 ante, 152–57.
Although the character theory provides more sophisticated standards for evaluating the quality of actions than the capacity theory.
See, e.g.,R. v. Cocker [1989] Crim. L.R. 740; see also A Duff, loc. cit. n. 20 ante, 157–67 for a limited defence of the character theory against this criticism.
See on thisR. v. Cunningham [1957] 2 QB 396.
See further J. Horder,Provocation and Responsibility (Oxford: Oxford University Press, 1992), chapter 8.
The agency theory is inspired by (but not necessarily identical to) the work of Antony Duff. See A. Duff, loc. cit. n. 20 ante, chapter 5; and his ‘Auctions, Lotteries and the Punishment of Attempts’,Law and Philosophy 9 (1990): 1–37, 30–37.
See, e.g., the distinctions marked in the Offences Against the Person Act 1861 between crimes where the wrongs involve, respectively, bringing about a particular harm, attempting to bring about a harm, and merely risking a harm.
Offences against the Person Act 1861, sections 18/20.
By “mere” behaviour I have in mind such phenomena as mannerisms, deportment, and so on. These phenomena are voluntary and we must usually take responsibility for them, but they are different from “mere” bodily movement, which is involuntary, such as spasms, tics, and so forth. Clearly there can be intermediate cases, such as noisy breathing. It is not really appropriate to evaluate mere behaviour, still less mere bodily movements, in terms of success or failure, since such behaviour is not intentional [see A. Duff, loc. cit. n. 20 ante, 99], although obviously an attempt to rid ourselves of a distracting mannerism, for example, would be intentional conduct.
I do not wish to draw here Duff's distinction between intending to do something and doing something intentionally (Duff, loc. cit. n. 20 ante, chapter 4). I will treat the latter as the same thing as the former.
Of course, in the law of homicide a mistake as to the identity of the victim is irrelevant to the law's conception of the paradigm case of successful action — the “bull's-eye” — which is simply killing a human being. The law is entitled to set down its own descriptions of what counts as success, and the points made in the text are not affected by this.
I should not be taken to be suggesting that attempts to commit crimes are a “concentric circle” of agency that is in principle further away from the “bull's-eye” than the unintended wrongful infliction of harm. That would be to suggest that the two kinds of wrongdoing are commensurable, which they are not. it is only when we measure them both against the paradigm of successful agency that we can judge them in terms of how close to or far from the paradigm each of them is, in any given case. Sometimes attempts will seem nearer to the paradigm than unintended wrongdoing, and sometimes vice versa.
See, e.g.,Ryan v. R. (1967) 40 ALJR 488, for a real similar, although not identical, case.
Although it does so in a confused way, the law accommodates this kind of departure from the paradigm of successful agency in the principle that theactus reus must coincide with themens rea. See. e.g., the discussion in Smith and Hogan'sCriminal Law (London: Butterworths. 1992, 7th ed.), pp. 76–77.
See generally K. J. M. Smith, ‘Liability for Endangerment. English ad hoc Pragmatism and American Innovation’,Crim. L.R. (1983): 127–38.
See A. Duff, ‘Auctions, Lotteries and the Punishment of Attempts’,Law and Philosophy 9 (1990): 1, 30–37, for amplification on this controversial point. The controversiality of the point is illustrated by the recent division of opinion over it in the House of Lords inR. v. Gotts [1992] 1 All E.R. 832.
As by entering a competition with a view to winning, but where the payment of the entrance fee fills charity coffers.
The agency theory does not explain the moral difference, if any, between advertent recklessness and negligence. This difference, if it exists, must in part be explained by a theory that sets out the role that different kinds of knowledge do and should play in practical reasoning. See A. Duff, loc. cit. n. 20 ante, 159–61.
See text at n. 39 ante.
See M. Nussbaum,The Fragility of Goodness: Luck and Ethics in Greek Tragedy and Philosophy (Cambridge: Cambridge University Press, 1986), chapter 1.
See A. Brudner, loc. cit. n. 32 ante, 339–40 and 354; see alsoR. v. Sang [1980] A.C. 402, rejecting any defence of entrapment.
it is probably also cultural factors in part that explain the perceived relative gravity of different crimes. The moral horror of rape normally exceeds that of, say, wounding, just as the horror of indecent assault exceeds that of assault, because in Western societies the stigma attaching to the sexual nature of harm caused aggravates the culpability of the knowing wrongdoer.
SeeLaw'sEmpire (London: Fontana, 1986, pp. 208–15.
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Horder, J. Criminal culpability: The possibility of a general theory. Law Philos 12, 193–215 (1993). https://doi.org/10.1007/BF02346478
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DOI: https://doi.org/10.1007/BF02346478