Abstract

Professor Brenda Baker's recent critique of the Canadian Law Reform Commission's treatment of general standards for criminal liability adds to a growing body of critical theory concerning such standards and their relation to criminal justice. From within the perspective of this same critical movement, I assess the strengths and weaknesses of Professor Baker's efforts and of similar lines of argument in the work of Professor George Fletcher. I find two significant flaws in their shared approach. The first is confusion as to the proper level for analysis of liability standards and, hence, for criticism of the "orthodox" view. This leads Professors Baker and Fletcher to concentrate on issues of culpability rather than responsibility (and to conflate these issues). The second flaw is an error in comprehension of the faults of the orthodox view and, hence, in recognition of the fundamental character of views opposed to that orthodoxy. This leads both theorists to overemphasize a suspect and unilluminating distinction between normative and descriptive approaches to liability problems. The rest of the article is devoted to an overview of my own approach to problems of liability and a general critique of the orthodox view in light of that approach. I argue that the fundamental issue is the relation of liability standards to a conception of agent responsibility. The primary fault of orthodoxy lies, then, in the cognitivist model of responsibility on which it relies. Against this, I propose use of a capacities model of responsibility as the basis for standards of liability. These two models are outlined and compared in final sections