Abstract
Among the most noteworthy and impressive aspects of A.P. Simester’s monumental Fundamentals of Criminal Law is its pervasive pluralism. Many philosophers of criminal law, I have frequently complained, are excessively monistic on a number of basic questions about which pluralism is the more defensible option. I fear, however, that Simester’s views are sometimes too pluralistic. In particular, he assigns five separate functions to mens rea, and advances the novel claim that “mens rea is not, uniquely or even predominately, about culpability.” He alleges that “the so-called ‘fault’ requirements plays an important role in mediating the scope of prohibitions.? My central objective is to challenge whether Simester is correct about whether mens rea has this alleged.
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Notes
Douglas Husak: “Sentencing Pluralism,” in Andrew Altman, ed.: The Palgrave Handbook on the Philosophy of Punishment (Palgrave, forthcoming, 2023); Douglas Husak: “Pluralistic Theories of Punishment,” in Jesper Ryberg, ed.: Oxford Handbook of Punishment Theory and Philosophy (Oxford University Press, forthcoming, 2022). I do not mean to indicate, of course, that there are no other exceptions to the dominance of monism among criminal theorists. Most notably, see Mitchell N. Berman: “The Justification of Punishment,” in Andrei Marmor, ed.: The Routledge Companion to Philosophy of Law (New York: Routledge, 2012), p.212; Mitchell M. Berman: “Two Kinds of Retributivism,“ in R.A. Duff and Stuart P. Green, eds.: Philosophical Foundations of Criminal Law (Oxford: Oxford University Press 2011), p.433; Michael T. Cahill: “Punishment Pluralism,” in Mark D. White, ed.: Retributivism: Essays on Theory and Policy (Oxford University Press 2011).
See Douglas Husak: “The Price of Criminal Law Skepticism: Ten Functions of the Criminal Law,” 23 New Journal of Criminal Law (2020) 27.
FCL, p.72 (emphasis in original).
For a nice discussion of what it means to attribute functions to the criminal law, see Andrew Cornford: “Aims and Functions of Criminal Law,” (forthcoming).
FCL, p.53 (emphasis in original).
Id., p.53.
Id., p.54.
Id., p.53.
Id., p.53.
Id., p.61. For a more thorough discussion, see David O. Brink: Fair Opportunity & Responsibility (Oxford: Clarendon Press, 2021).
FCL, p.64.
Id., pp.64–65 (italics in original).
Id., pp.65–66 (italics in original).
Oliver Wendell Holmes: “The Path of the Law,” 10 Harvard Law Review (1897) 457.
See Douglas Husak: Overcriminalization (Oxford: Oxford University Press, 2008).
For two of such many discussions, see Stuart P. Green: “Legal Moralism, Overinclusive Offenses, and the Problem of Wrongfulness Conflation,” 14 Criminal Law and Philosophy (2020) 417; and Andrew Cornford: “Rethinking the Wrongness Constraint on Criminalisation,” 36 Law and Philosophy (2017) 615.
See also John Gardner: Offences and Defences (Oxford: Oxford University Press, 2007), especially p.150.
I hope it is clear that the same general conclusions in this paragraph could be drawn if the offense were construed to include the mens rea of recklessness or negligence.
Hence the possibility of rapes without rapists. See Douglas Husak and George C. Thomas III: “Rapes Without Rapists: Consent and Reasonable Mistake,” 11 Philosophical Issues (2001) 86.
Samuel W. Buelle: “Fraud,” in Larry Alexander and Kimberly Kessler Ferzan, eds.: The Palgrave Handbook of Applied Ethics and the Criminal law (New York: Palgrave MacMillan, 2019), p.265.
Id., p.274.
Id., p.275.
Unlike many theorists, Simester himself equates “culpability” and “blameworthiness.” See FCL, p.237n2.
See R.A. Duff: Answering for Crime (Oxford: Hart Publishing Company, 2007), especially Chap. 3.
R.A. Duff: “How Strict Can Moral Responsibility Be?” (forthcoming).
Id., p.5.
FCL, p.260.
Duff: op. cit. p.5n24.
Id., p.4.
FCL, p.238.
FCL, p.65 (emphasis added).
FCL, p.242.
Id., p.58.
Although I am certain he is not an authoritarian, the suggestion that persons commit crimes by “undermining a regime” sounds Stalinistic. The notorious “principle of analogy” in the former Soviet Union proscribed the punishment of any “socially dangerous act.”
FCL, p.238.
Simester seemingly concedes as much in Id., p.242n22.
See the discussion of “civic arrogance” in R.A. Duff: “Crime, Prohibition, and Punishment,” 19 Journal of Applied Philosophy (2002) 97, 104.
For a contrary position, see Adam R. Pearce: “Evaluating Wrongness Constraints on Criminalisation,” 16 Law and Philosophy (2022) 57.
See Douglas Husak: “Retributivism and (Over)Punishment,” 41 Law and Philosophy (2022) 167.
See Douglas Husak: “The De Minimis ‘Defence’ to Criminal Liability,” in Douglas Husak, ed.: The Philosophy of Criminal Law: Selected Essays (Oxford: Oxford University Press), p.410.
Model Penal Code, Sect. 213.
FCL, p.242 (emphasis in original).
For the most thorough treatment of morality and action guidance, see Holy M. Smith: Making Morality Work (Oxford: Oxford University Press, 2017). I doubt that Smith would concur with the analysis I pursue here.
FCL, p.66.
Id., p.170.
id, pp.326–342.
Id., p.340.
See Adam R. Pearce: “Evaluating Wrongness Constraints on Criminalisation,” 16 Criminal Law & Philosophy (2022) 57.
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Husak, D. The Role of Mens Rea in Mediating the Scope of Prohibitions. Criminal Law, Philosophy (2023). https://doi.org/10.1007/s11572-023-09684-6
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DOI: https://doi.org/10.1007/s11572-023-09684-6