Under what circumstances should ignorance that someone is violating a moral or criminal rule preclude or lessen his moral responsibility and/or penal liability? In this chapter, I first construct a schema or framework for how to think about this issue. Quite a bit of confusion and uncertainty, I am sure, derives from a failure to understand exactly what this question is asking. I next defend some substantive views about how this question should be answered. If my defense is cogent, (...) I conclude that a person who is ignorant that his conduct violates a moral or legal rule is almost never as blameworthy and/or deserving of as much punishment as someone who is fully aware that his behavior is wrongful and/or criminal. The best general accounts of responsibility and blameworthiness are far more receptive than positive law to allowing ignorance of wrongdoing as a complete or partial excuse. (shrink)

Does criminal liability require an act? -- Motive and criminal liability -- The costs to criminal theory of supposing that intentions are irrelevant to permissibility -- Transferred intent -- The nature and justifiability of nonconsummate offenses -- Strict liability, justice, and proportionality -- The sequential principle of relative culpability -- Willful ignorance, knowledge, and the equal culpability thesis : a study of the significance of the principle of legality -- Rapes without rapists : consent and reasonable mistake (...) -- Mistake of law and culpability -- On the supposed priority of justification to excuse -- Partial defenses -- The "but everybody does that!" defense -- The de minimis "defense" to criminal liability -- Why punish the deserving -- Malum prohibitum and retributivism -- Already punished enough. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:Key Concepts: Criminal ResponsibilityCarl Elliott (bio)AbstractMentally disordered persons occasionally do things for which we would ordinarily blame or even punish a non-disordered person. We often do not blame mentally disordered persons for these actions, however, because we regard mental disorders, at least in some circumstances, as an excuse from moral responsibility. For moral philosophy and the law, the challenge is to understand the specific circumstances under which a (...) mental disorder should excuse an offender from responsibility for his or her actions. Because different types of psychopathology influence a person’s intentions and character in very different ways, judgments of responsibility crucially depend upon the specific nature of a mental disorder. They also depend on adequate understandings of concepts such as moral understanding, especially in the case of psychopathy, as well as an understanding of the reasons why mental disorders may excuse a person from responsibility.Keywordsintention, M’Naghten Rules, irresistible impulse, personality disorders, psychopathyThe mentally ill often do things for which they are not responsible. This has long been recognized, by both morality and the law. But just which mentally ill persons should be excused, and under what circumstances, is an altogether more complicated affair.In the Nicomachean Ethics, Aristotle distinguishes two types of involuntary actions, for which (by implication) a person might be excused from responsibility: those done in ignorance, and those that were compelled. Both excuses are variations on the theme of non-intention. If a person did not intend to act as he did—either because he did not know what he was doing, or because he could not help acting as he did—then he is not responsible for the action. Intention is also a key point for the law, which traditionally has said that for a crime to have been committed, it must be accompanied by evil intent, or mens rea (literally, “guilty mind.”)The problem comes in saying how these distinctions play out for the mentally ill offender. The most widely used standards for determining criminal (legal) responsibility are based on the M’Naghten Rules, which excuse a person from responsibility for an act if, as a result of a mental disorder, he did not know the nature and quality of the act, or did not know that the act was wrong. This standard works nicely for the paradigmatic cases of mentally ill offenders; it would excuse, for example, the person with paranoid schizophrenia who strikes out violently at a person he falsely believes is threatening his life. However, it is unclear on several other points, the most famous of which relates to Aristotle’s excusing condition of compulsion. How should we regard those people, for example, whose psychosis impairs their ability to control their behavior, or whose mental disorders involve the control of their unusual desires, such as kleptomania, pyromania, pedophilia and voyeurism? Many of the [End Page 305] latter such persons are aware of the nature and quality of what they desire to do, and they are aware that it is wrong, but they find great difficulty in resisting their desires.One well-known effort to remedy this deficiency was the “irresistible impulse” test, which excused those persons who as a result of their condition had acted on desires that were irresistible. Yet the difference between an irresistible desire and a desire not resisted has proven notoriously difficult to distinguish, in practice as well as in theory.Another chronic source of philosophical controversy is the question of responsibility for one’s character. In psychiatry, this debate surfaces most often with patients who have personality disorders. Ordinarily, since persons cannot control whether they incur a mental illness, they can be excused from responsibility for some actions they have taken while they were mentally ill. However, personality disorders are also (in some sense) beyond a person’s control, being the product of genetic inheritance and upbringing. This raises old issues of psychological determinism: if personality disorders are beyond a person’s control, is it just to hold that person responsible for the actions that result from them?On the other hand, even if personality disorders are within the proper domain of psychiatry, they are obviously quite different from... (shrink)

I describe how our understanding of some of the central principles long held dear by most criminal theorists may have to be interpreted in light of the need to devise lenient responses for low-level offenders. Several of the most plausible suggestions for how to deal with minor infractions force us to take seriously some ideas that many legal philosophers have tended to resist elsewhere. I briefly touch upon four topics: whether informal can substitute for or count against the appropriate (...) state sanction; the significance of repeat offending for sentencing; whether punishment for culpable public wrongdoing has intrinsic value; and the scope of police powers in a liberal democratic state. The context for this discussion is R. A. Duff’s insightful examination of whether and under what conditions we should criminalize a public wrong or respond to it in some other manner. (shrink)

This book argues that ignorance of law should usually be a complete excuse from criminal liability. It defends this conclusion by invoking two presumptions: first, the content of criminal law should conform to morality; second, mistakes of fact and mistakes of law should be treated symmetrically.

Douglas Husak’s book is an intelligent, wide-ranging exploration of the legal principle ‘ignorance of law is no excuse’. This principle is one of the few pieces of legal doctrine known by many regular folks, along with the criminal standard of proof ‘beyond a reasonable doubt’. The traditional approach to the doctrine might be explained in this way: in some cases, ignorance of the law fails to excuse offenders from culpability because as a matter of policy we feel (...) they ought to have known the law governing their behaviour. Placing upon citizens the responsibility to know the law is good policy because it may increase both knowledge of law (by inspiring persons considering questionable action to investigate legal rules, etc.) and law-abiding behaviour (by dissuading those who discover their possible act is illegal from acting). Although many believe the criminal law’s primary purpose is state-imposed backwards-looking ‘just deserts’ for moral wrongs, the law also serves to accomplish forward-looking aims such as enhancing moral agency and decreasing crime. From this perspective, the principle that ignorance of the law does not excuse contributes to rule of law and social order by encouraging awareness of legal rules. Husak’s position on ignorance of law is sometimes difficult to discern amongst the detailed critique and commentary on competing views that occupy most of the first 100 pages. In the end, Husak bucks a forward-looking account of the principle and concludes that ignorance of the law – or more exactly, ignorance of the law related to ignorance of the morality underpinning the law – ought to serve as an excuse to criminal guilt in most cases. Further, he claims ignorance of law ought to excuse in the same way that that ignorance of an important fact regarding one’s crime excuses. That he is mistaken regarding an important fact about his crime matters to a defendant’s blameworthiness – e.g. if the defendant kills in self-defence, mistaking the toy gun their victim is carrying with a real gun. A person who honestly believes they are in immediate danger from an armed aggressor is less than fully blameworthy for killing that aggressor even if they were mistaken about the threat. Similarly, knowledge or ignorance that some act is morally wrong clearly matters to moral blameworthiness, says Husak: other things being equal, a person who is ignorant of the moral wrongness of her act is less blameworthy than someone who is aware that what she is doing is wrong. Where ignorance of that an action violates a criminal law is related to ignorance regarding the morality of the act, a person is less than fully culpable. (shrink)

I challenge the adequacy of David Brink’s “master principle” of culpability. I allege that it fails to account for the moral relevance of ignorance of wrongdoing. I describe three cases in which I believe that Brink’s theory of normative competence cannot account for the significance of a variable that bears on culpability. In most of this paper I attempt to anticipate and reply to the various responses Brink might offer to my challenge.

Christian theology’s concern for the individual whatever their station expanded the scope of criminal law from protection of the interests of the regime to the security of all in society. The concept of mens rea was first mentioned by Augustine of Hippo and became a key part of the Church’s canon law. From there it was adopted by the secular legal systems of both civil law and common law. Such systems imposed criminal liability on those whose state (...) of mind was adjudged to make them guilty for serious wrongs they did to others. Christian theology also offered the West’s legal systems a grammar for criminal law built around the idea of criminal responsibility for personal, voluntary, culpable acts. These requirements protected against scapegoating and stereotyping, led to the presumption of innocence, and limited the range of actions for which one could be punished. (shrink)

Superior responsibility has been a widely recognised form of responsibility for omission in both treaty and customary international law. Superiors are held responsible for the acts of their subordinates when they fail in fulfilling their duties to prevent or punish crimes of subordinates. Duties to prevent and punish arise only after the superior knows about the subordinate’s crimes or has a reason to know about it. ‘Has a reason to know’ is a form of constructive knowledge and could be defined (...) as absence of actual knowledge about subordinates’ crimes where that knowledge should exist because of information available to the superior from the content of which it could be easily concluded that there is a possibility that subordinates intend to commit, are committing or have already committed crimes and the lack of that knowledge is a cause of willful disregard of his duties or at least disregard based on gross negligence. (shrink)

When does a defendant not deserve punishment because he is unaware that his conduct breaches a penal statute? Retributivists must radically rethink their answer to this question to do justice to our moral intuitions. I suggest that modest progress on this topic can be made by modeling our approach to ignorance of law on our familiar approach to ignorance of fact. We need to distinguish different levels of culpability in given mistakes and to differentiate what such mistakes may be about. (...) I discuss the advantages and disadvantages of this approach with special attention to how to contrast offenses from defenses. The alternative I tend to favor probably should not be implemented in existing penal codes. As a result, we are likely to remain dissatisfied with the decisions made by our criminal justice system about the exculpatory effect of ignorance of law. (shrink)

This paper discusses Douglas Husak’s view that ignorance of the law always reduces culpability since the only fully culpable agents are those who are akratic—who act, that is, in a way that they judge to be wrongful, all things considered. The paper argues that this position is in tension with Husak’s avowed commitment to a reasons-responsiveness theory of culpability, given a plausible way of understanding what that means, and what a reason is.

In Regina v. Murray, (2000, Ont S.Ct.J.) the learned trial judge, Justice Gravely, errs in his interpretation and application of the law of mens rea in the offense of willfully attempting to obstruct justice under section 139(2) of the Criminal Code of Canada. In view of his findings of fact and law, including the determination that the accused knowingly and intentionally committed the actus reus of the offense and the absence of any suggestion that he lacked awareness of (...) any relevant facts, there is no question in law but that Kenneth Murray was liable to be, and actually should have been, convicted. Nonetheless, the trial judge concluded that Murray’s alleged belief, that his actions were required by his duty to his client, raised a reasonable doubt about his intention to obstruct justice and entitled him to be acquitted. -/- In his reasons for judgment, the trial judge analyzes mens rea as if there is a “color of right” defense to the offense of obstruction of justice. In law, however, no such defense exists to this offense. Consequently, even if Mr. Murray did “honestly believe” that he had a duty to his client not to disclose the existence of the video tapes, that belief could not provide him with an exculpatory defence. In Canada, pursuant to common law and section 19 of the Criminal Code, mistakes of law do not excuse accused persons from responsibility for criminal conduct in the absence of a statutory exception. No exception exists for the offense of obstruction of justice. Yet the Crown did not choose to appeal and thereby signaled its acceptance of the legal analysis adopted by the trial judge. By contrast, if the analysis proposed in this piece had been adopted, the Crown should have prevailed at trial and, if unsuccessful at trial, would have had a right of appeal on a question of law. -/- At least two tendencies converge as significant influences shaping the outcome in the Murray case. The central tendency, discussed in Part I of this article, is the trial judge’s treatment of the accused’s alleged mistake about his legal duty as if it were a mistake about a question of fact which therefore could give rise to a reasonable doubt about intention or culpable awareness. This approach to mistaken beliefs ignores the distinction between mistakes of law and mistakes of fact, and then characterizes all mistakes as mistakes of fact. Unfortunately, this is not uncommon in the case law. In recent years however, as explained below, the judiciary has rejected that approach in a number of leading cases and ruled that mistakes which are actually mistakes about the meaning, scope, or application of the law are subject to the general rule and do not provide an accused with an exculpatory defense. The relationship between mistake of law and mens rea in Canadian criminal law has also been the subject of critical scholarly comment in Canada in recent years. The Murray decision provides evidence that, despite clarification by the Supreme Court, in some lower courts the unrefined approach to mistaken belief continues to shape the legal analysis of criminal culpability, even when the mistaken belief is overtly a belief about the law. This will not change until the proper characterization of mistaken beliefs as legal or factual becomes a deliberate and common-place aspect of case analysis at the trial court level. -/- The other tendency, discussed in Part III of this article, is one that often appears as a companion to the first - the judicial tendency to perceive and invoke analytical legal ambiguity in favour of accuseds more readily in cases in which the impugned conduct involves the discretionary exercise of authority which, when used appropriately, is fully legitimate and essential to the normal functioning of the existing socio-legal order. Of course, courts are strongly influenced by the arguments put to them by counsel. And counsel, acting on behalf of client groups with particular group interests may, consciously or unconsciously, favour the development of those lines of analysis which are protective of that interest or associated institutional interests. One of the reasons for scrutinizing the Murray case is that it provides a concrete context for discussion of those issues in relation to an actual decision made by Crown prosecutors. The case provides an occasion to examine a specific example of the exercise of prosecutorial discretion, its implications for the administration of criminal justice, and its broader potential impact on the public interest. [See also errata in UNBLJ 2002 volume 52 at pp 309-310.]. (shrink)

Doug Husak frames a worry that makes sense in the abstract, but in reality, there is not much to worry about. The thesis that intentions are irrelevant to permissibility (IIP) is a straw man. There are reasons to think that the moral significance of intentions is not properly registered in criminal law. But the moral basis for criticism is not nearly as extreme as the IIP, and the fixes are not that hard to make. Lastly, if they are (...) not made, some people may not get the punishments they deserve, and there will be some extra inequities in the criminal law as a result. But these inequities are not so great that change must be made now. The moral categories that are used may be too crude, but they are also familiar and easy to work with, and that counts for something. (shrink)

I focus on the set of problems that arise in identifying both the actus reus and (to an even greater extent) the mens rea needed by an abettor before she should be criminally liable for complicity in a crime. No consensus on these issues has emerged in positive law; commentators are enormously dissatisfied with the decisions courts have reached; and critics disagree radically about what reforms should be implemented to rectify this state of affairs. I explicitly deny that I (...) will be able to solve these problems, although I hope at least to identify a central source of the confusion. In my view, the problem results largely from conceptualizing the liability of abettors as derivative. This diagnosis helps us to understand why the problem is likely to remain insoluble in positive law. If the test of an adequate theory consists primarily in its ability to produce results that conform to our moral intuitions about how particular cases should be resolved, no approach that can be implemented in the real world will prove wholly satisfactory. I advance a hypothesis about why failure is inevitable and what should be done in light of this predicament. Legal realities compel us to adopt a position that is suboptimal from a moral point of view. (shrink)

In ‘Why Criminal Law: A Question of Content?’, Douglas Husak argues that an analysis of the justifiability of the criminal law depends upon an analysis of the justifiability of state punishment. According to Husak, an adequate justification of state punishment both must show why the state is permitted to infringe valuable rights such as the right not to be punished and must respond to two distinct groups of persons who may demand a justification for the (...) imposition of punishment, namely, individuals subjected to punishment and the society asked to support the institution of punishment. In this discussion, I analyse Husak’s account of the right not to be punished with an eye to showing that the parameters of that right do not extend to the cases that would make it controversial. I also consider two other distinct groups of persons who have equal standing to alleged offenders and society to demand justification for the imposition of state punishment, namely, direct victims of crimes and criminal justice officials. (shrink)

In a recent book, Neil Levy argues that culpable action – action for which we are morally responsible – is necessarily produced by states of which we are consciously aware. However, criminal defendants are routinely held responsible for criminal harm caused by states of which they are not conscious in Levy’s sense. In this chapter I argue that cases of negligent criminal harm indicate that Levy’s claim that moral responsibility requires synchronic conscious awareness of the moral significance (...) of an act is too strict, and that tracing conditions cannot be successfully used to bolster Levy’s account. Instead, current legal practices indicate that criminal responsibility requires the capacity for diachronic agency and self-control, not synchronic conscious control. (shrink)

This volume collects 17 of Douglas Husak's influential essays in criminal law theory. The essays span Husak's original and provocative contributions to the central topics in the field, including the grounds of criminal liability, relative culpability, the role of defences, and the justification of punishment. The volume includes an extended introduction by the author, drawing together the themes of his work, and exploring the goals of criminal theory.

In this article I examine one condition a minimalist theory of criminalization might contain: the criminal law should be used only as a last resort. I discuss how this principle should be interpreted and the reasons we have to accept it. I conclude that a theory of criminalization should probably include the (appropriately construed) last resort principle. But this conclusion will prove disappointing to those who hope to employ this principle to bring about fundamental reform in the substantive (...) class='Hi'>criminal law. I argue that the last resort principle may not help to reverse the growth of the criminal law to any degree that could not be achieved more directly and less controversially by other principles that a theory of criminalization is generally thought to include. Unless we reject others parts of conventional wisdom about crime and punishment, the application of a last resort principle is unlikely to bring about sweeping changes that theorists might have anticipated. (shrink)

Punishment should, at least normally, be reserved for blameworthy actions. But to make sense of that claim, we need an account of blame and of why it might license or even call for punishment. Doug Husak, in whose honor this paper is written, rejects quality of will theories of blame as relevant to criminal punishment – what I call ‘criminal blame’. He offers instead a reason-responsive account of blameworthiness, according to which blame applies to wrongful actions chosen (...) by agents who knew that what they were doing was or was likely to be wrong, and who nonetheless acted wrongly because of weakness of will. I agree with Husak about quality of will theories, but I argue that weakness of the will is often exculpating, and that when it is not it is because of normative negligence with regard to the reasons to steel one’s will. Thus, I argue his reason responsive account fails too. I offer instead an account of blame the key idea of which is that criminal blame is normatively appropriate as a way of communicating the importance of self-blame. Self-blame properly responds to normative negligence. Moreover, it comes with the emotion of guilt in which an agent experiences a kind of suffering for her unexcused wrongdoing. Punishment, based on criminal blame, reinforces the importance of guilt for maintaining a community of mutual respect. (shrink)

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. (shrink)

The evolution of criminal law in Western legal systems is often portrayed as a path leading from objective to subjective notions of criminal responsibility. By examining the historical development of the notions of subjective responsibility, this article suggests that the function of a wrongdoer’s subjective mental state, in both its substantive and procedural aspect, as an element in the process of attributing criminal responsibility, remains much the same today as it was in antiquity. This is indicated by (...) what subjectivity, as an essential condition of culpability, is said to imply: the distinction between intentional and unintentional acts. Although the notions of intent and malice aforethought are attested to in various sources on ancient Athenian law, there are several kinds of cases in which the role played by these aspects—traditionally referred to as mens rea —remain unsolved in contemporary jurisprudence and legal practice. Yet despite the difficulties of establishing facts in particularly complex criminal cases, setting the boundary between “intentional” and “unintentional” remains crucially important in determining criminal responsibility and thus in distinguishing the “licit” from the “illicit,” which is the very foundation of the rule of law. (shrink)

I take it as obvious that attempts to justify the criminal law must be sensitive to matters of criminalization—to what conduct is proscribed or permitted. I discuss three additional matters that should be addressed in order to justify the criminal law. First, we must have a rough idea of what degree of deviation is tolerable between the set of criminal laws we ought to have and the set we really have. Second, we need information about how the (...) criminal law at any given time and place is administered, since the law in action is bound to differ radically from the law on the books. Finally, we must have some basis for speculating what life would be like in the absence of a system of criminal justice—if the state ceased to impose punishments. (shrink)

Reflections on Crime and Culpability seeks to elaborate, extend, and occasionally qualify the insights reached by Larry Alexander and Kim Ferzan in their influential prior collaboration, Crime and Culpability. They deftly explore any number of new issue that all criminal theorists should be encouraged to address. In my essay, I discuss and challenge their positions on omissions as well as on moral ignorance. Their treatment of the latter issue is a clear improvement over that in their earlier book. But (...) their views on omissions suggest to me that they should have had reservations about some of the most fundamental claims of their overarching theory. (shrink)

Culpability is not a unitary concept within the criminal law, and it is important to distinguish different culpability concepts and the work they do. Narrow culpability is an ingredient in wrongdoing itself, describing the agent’s elemental mens rea. Broad culpability is the responsibility condition that makes wrongdoing blameworthy and without which wrongdoing is excused. Inclusive culpability is the combination of wrongdoing and responsibility or broad culpability that functions as the retributivist desert basis for punishment. Each of these kinds (...) of culpability plays an important role in a unified retributive framework for the criminal law. Moreover, the distinction between narrow and broad culpability has significance for understanding and assessing the distinction between attributability and accountability and the nature and permissibility of strict liability crimes. (shrink)

In Ignorance of Law, Douglas Husak’s main thesis is that ignorance of the law typically provides an excuse for breaking the law, but in the case of recklessness he claims that the excuse it provides is only a partial one, and in the case of willful ignorance he claims that it provides no excuse at all. In this paper I argue that, given the general principle to which Husak appeals in order to support his main thesis, he (...) should revise his position on the exculpatory significance of both recklessness and willful ignorance. (shrink)

What makes someone responsible for a crime and therefore liable to punishment under the criminal law? Modern lawyers will quickly and easily point to the criminal law's requirement of concurrent actus reus and mens rea, doctrines of the criminal law which ensure that someone will only be found criminally responsible if they have committed criminal conduct while possessing capacities of understanding, awareness, and self-control at the time of offense. Any notion of criminal responsibility based (...) on the character of the offender, meaning an implication of criminality based on reputation or the assumed disposition of the person, would seem to today's criminal lawyer a relic of the 18th Century. In this volume, Nicola Lacey demonstrates that the practice of character-based patterns of attribution was not laid to rest in 18th Century criminal law, but is alive and well in contemporary English criminal responsibility-attribution. Building upon the analysis of criminal responsibility in her previous book, Women, Crime, and Character, Lacey investigates the changing nature of criminal responsibility in English law from the mid-18th Century to the early 21st Century. Through a combined philosophical, historical, and socio-legal approach, this volume evidences how the theory behind criminal responsibility has shifted over time. The character and outcome responsibility which dominated criminal law in the 18th Century diminished in ideological importance in the following two centuries, when the idea of responsibility as founded in capacity was gradually established as the core of criminal law. Lacey traces the historical trajectory of responsibility into the 21st Century, arguing that ideas of character responsibility and the discourse of responsibility as founded in risk are enjoying a renaissance in the modern criminal law. These ideas of criminal responsibility are explored through an examination of the institutions through which they are produced, interpreted and executed; the interests which have shaped both doctrines and institutions; and the substantive social functions which criminal law and punishment have been expected to perform at different points in history. (shrink)

Offences and Defences is an outstanding collection of eleven of John Gardner's previously published papers in the philosophy of criminal law. I briefly examine his views on five central issues: his claims about basic responsibility and whether it should be construed as relational; his positions on agent neutrality; his arguments about whether moral and criminal wrongs are typically strict; his thoughts about the structure of defences, and, finally, what his account of rape reveals about the content of the (...) harm principle. (shrink)

This chapter considers arguments by Neil Levy for the proposition that direct conscious awareness is a prerequisite for responsibility. It argues that cases of negligent criminal harm indicate that Levy’s claim that moral responsibility requires synchronic conscious awareness of the moral significance of an act is too strict. Furthermore, the chapter claims that tracing conditions cannot be successfully used to bolster Levy’s account. Instead, current legal practices indicate that criminal responsibility requires the capacity for diachronic agency and self-control, (...) not synchronic conscious control. This means that an agent may be responsible for harm related to lapses even if they at no point could have reasonably foreseen the possibility of causing criminal harm. (shrink)

This chapter contains sections titled: The Meaning of Overcriminalization Why Overcriminalization Is Worrisome Political and Scholarly Causes of Overcriminalization A Normative Theory of Criminalization References.

Larry Alexander and Peter Westen each critically examine different topics from my recent collection of essays, The Philosophy of Criminal Law. Alexander focuses on my “Rapes Without Rapists,” “Mistake of Law and Culpability,” and “Already Punished Enough.” Westen offers a more extended commentary on my “Transferred Intent.” I briefly reply to each critic in turn and try to extend the debates in new directions.

Criminal responsibility refers to a person’s ability to understand his action, behavior at the time a crime is committed, what a person is thinking when he commits a crime or the expected result when a crime is committed. Crime is defined in terms of an act or omission (actus reus) and a mental state (mens rea). In this paper, is presented the general concept of irresponsibility and essentially reduced responsibility as a reason to be exempted from the punishment (...) provided by the Criminal Code. Any perpetrator of a criminal offense who is capable of undertaking any action can be an active subject of a criminal offense, with the fact that regarding their sanctioning by the criminal system is concerned there are some restrictions related to age as well as dividing the perpetrators into responsible and non-responsible ones. For a person to be convicted of a crime, there must be evidence that proves his guilt, and that proves whether the perpetrator was in a regular state of mind or committed the criminal offense due to his irresponsibility. Another important element of this scientific paper is the historical aspects of how irresponsibility has been treated from the customary law to the present day, a huge focus gets also the treatment of the biological-psychological concept on one hand and the treatment of the legal concept on the other hand for this category of people. A criminal defendant who turns out to have been incapacitated at the time he committed a crime may be acquitted because of his incapacity, or he may be sentenced leniently because he was unable to understand the importance of his actions. Legally, the defendant must prove and convince the court that he was not able to understand his actions, or he is not able to distinguish right from wrong, or he must prove that he committed the act in uncontrolled impulses. (shrink)

Commentators seemingly agree about what negligence is—and how it is contrasted from recklessness. They also appear to concur about whether particular examples (both real and hypothetical) portray negligence. I am less confident about each of these matters. I explore the distinction between recklessness and negligence by examining a type of case that has generated a good deal of critical discussion: those in which a defendant forgets that he has created a substantial and unjustifiable risk of harm. Even in this limited (...) kind of example, no single perspective on blame and liability proves to be defensible. Nonetheless, a discussion of this type of case is helpful because it enables us to appreciate the difficulties in understanding the nature of negligence and the ensuing uncertainty about whether penal liability for negligence is ever warranted. (shrink)

Gideon Yaffe is to be commended for beginning his exhaustive treatment by asking a surprisingly difficult question: Why punish attempts at all? He addresses this inquiry in the context of defending (what he calls) the transfer principle: “If a particular form of conduct is legitimately criminalized, then the attempt to engage in that form of conduct is also legitimately criminalized.” I begin by expressing a few reservations about the transfer principle itself. But my main point is that we are justified (...) in punishing attempts only when and for a different reason than Yaffe provides. I argue that attempts are legitimately punished only when they raise the risk that a harm will actually occur. To overcome the problems my explanation encounters with factually impossible attempts, I suggest an account of risk that relies on ordinary language and possible worlds. (shrink)

This paper explores analyzing criminal responsibility from the Humean position that blame is for character traits. If untoward acts indicate undesirable character traits, then the agent is blameworthy; if they do not, then the actor is not blameworthy — he has an excuse. A distinctive feature of this approach is that that voluntariness of acts is irrelevant to determining blameworthiness.This analysis is then applied to a variety of issues in criminal law. Mens supports inferences to character traits, (...) and the Humean approach provides a reason for rejeting strict criminal liability. The Humean approach also helps resolve a number of issues about attempts, such as punishment for impossible attempts and the defense of abandonment. It also supports the broad outlines of the defense of mistake and provides a third alternative in the Wooton-Hart debate over punishment and treatment. (shrink)

In ethical terms, intention is widely felt to be the strongest basis for the attribution of personal responsibility for conduct and outcomes. By contrast, in tort law intention is a much less important ground of liability than negligence. This article analyses the meaning of intention in tort law and its relationship to other concepts such as voluntariness, recklessness, motive, and belief. It also discusses difficulties associated with proving intention and other mental states, and the idea of a general principle of (...) tort liability for intention. The key to explaining the relatively minor role of mens rea in tort law is found to lie in the emphasis tort law gives to the interests of victims, and to social values, in constructing its concept of responsibility. This approach also helps to explain the greater importance of mens rea in criminal law. (shrink)

Our drug policy has been widely deemed a failure because the criminalization of drug use has not succeeded in reducing prevalence rates. I contend that the most promising basis to defend the justifiability of drug offenses is to construe them as proxy crimes: offenses designed to prevent the commission of other, more serious crimes. I make a case that many law enforcement officials use drug proscriptions for this purpose in the real world. When construed as proxy crimes, drug prohibitions are (...) less vulnerable to some of the familiar objections brought against their legitimacy. Nonetheless, the justification for punishing those who violate drug proscriptions remains unpersuasive. (shrink)

I respond to Michael Zimmerman and Gideon Yaffe, both of whom have written thoughtful and constructive criticisms of my “Ignorance of Law”. Zimmerman believes I do not go far enough in exculpating morally ignorant wrongdoers; he accuses me of lacking the courage of my convictions in allowing exceptions for reckless wrongdoers and for willfully ignorant wrongdoers. Yaffe, by contrast, thinks I rely on a defective foundation of moral blameworthiness. He proposes an alternative account he alleges to conform more closely to (...) common sense. In responding to both critics, I emphasize that our points of agreement may be more significant than our disagreements. (shrink)

This thesis examines some of the legal philosophical issues that are implicated in the problem of outcome luck. In the context of criminal law, the problem asks whether we should hold agents criminally liable for the consequences of their actions given that those consequences are never wholly within anyone’s control. I conclude that outcomes should matter to an agent’s liability and punishment, and I make this argument indirectly by examining some of the foundational questions in legal theory. The thesis (...) begins by considering a current trend in some areas of philosophy. This trend involves attempts to address philosophical problems surrounding luck by doing conceptual analyses on the nature of luck. Chapter 1 critically examines modal theories, which conceptualize luck, as well as the related concept of risk, in terms of close possible worlds rather than probabilistic likelihood. I argue that not only are modal theories uninformative, but conceptual analyses on luck are unhelpful in addressing philosophical questions surrounding luck. Chapter 2 then returns to the traditional notion of luck as lack of control, and focuses on the relationship between luck, risk, and culpability. Some theorists argue that culpability, for any offence, is in part a function of the degree of risk the agent imposes on others. In the context of criminal law, degrees of luck and risk can both be understood in terms of degrees of control, so the suggestion that culpability is a function of the level of risk imposed (and thus of the degree of control an agent exercises) is attractive for insulating culpability judgments from luck. However, I argue that this view is mistaken because culpability is only sensitive to risk in reckless actions, but not in purposeful actions. The problem of outcome luck may raise different questions for reckless actions and purposeful actions. Chapter 3 looks at the mens rea element of criminal attempts, which is crucial for understanding the problem of luck in the context of purposeful actions. I discuss a variation of what are sometimes referred to as impossible attempts, which have helped shape current English law. I argue that the current doctrine is largely correct, and that perhaps with the exception of few paradigm sexual offences, the mens rea element for attempts should require a direct intention as to the consequence element of an offence, and knowledge or belief as to the circumstance element of that offence. Chapters 4 and 5 then look at normative justifications of criminal punishment. In order to understand whether outcomes should matter for punishment, we must first understand whether and why punishment is an appropriate response to criminal offending. Here, I defend a communicative theory, where punishment is a communicative process between the offender, the political community, and the victim. What punishment communicates is the appropriate degree of censure that is warranted in response to the offender’s wrongdoing. And in doing this, it publicly recognizes the wrong that has been committed by the offender. Chapter 4 offers a detailed explanation of this account, and argues that the political community’s recognition of wrongdoing is a valuable aim of communication. Chapter 5 then takes up a crucial challenge against communicative theories of punishment, which is that such theories fail to take crime prevention seriously. Against this criticism, I will show that general prevention can in fact be an essential part of communicative punishment. And I will show that it is specifically the political community’s recognition of wrongdoing that entails punishment’s preventive aims. (shrink)

I tackle the difficult problem of specifying how voluntary intoxication affects criminal culpability generally and recklessness in particular. I contend that the problem need not be conceptualized as an instance of actio libera in causa, namely the situation in which persons do something at t1 to culpably create the conditions of their own defense at t2. Instead, I argue that we need only consider intoxicated defendants at t2 in order to justify their punishment. In the course of defending my (...) view, I challenge conventional wisdom about both the nature of recklessness and the effects of intoxicants. I conclude by discussing a possible ground on which involuntary intoxication might be treated differently. (shrink)

I examine how deferred-prosecution agreements employed against suspected corporate criminality amount to a form of social engineering that infringes the presumption. I begin with a broad understanding of the presumption itself. Then I offer a brief description of how these agreements function. Finally I address some of the normative issues that must be confronted if legal philosophers who hold retributivist views on punishment and sentencing hope to assess this device. My judgment tends to be favorable. More importantly, I caution against (...) the facile assumption that any means to infringe the presumption is necessarily an illegitimate part of penal practice. (shrink)

Written by a noted expert in criminal law, this book explores the philosophical underpinnings of the law's major doctrines concerning actus reus, mens rea, and defences, showing that they are not always driven by culpability. They are grounded also in principles of moral responsibility, ascriptive responsibility, and wrongdoing. As such, they engage wider debates about wrongdoing, and about the boundaries between liability and freedom. This multi-textured analysis allows this book to take more nuanced positions about many important controversies (...) in criminal law. It argues, for example, that liability for omissions and for negligence-and even some strict liability elements-can sometimes be legitimate yet, at the same time, should be relatively rare. It also explains why principles of causation can differ in the criminal law from other contexts; what is wrong with the 'voluntary act' requirement; and why luck can affect the wrongs we commit without changing our degree of blameworthiness for committing them. The book concludes with an account of the major types of defences, and of how they interact with an agent's wrong and her underlying motivations.This volume presents a coherent and rich vision of the criminal law that, by its sheer breadth, makes a distinctive contribution to the literature, of interest to lawyers and philosophers alike. (shrink)

Under the “Willful Ignorance Principle,” a defendant is guilty of a crime requiring knowledge he lacks provided he is ignorant thanks to having earlier omitted inquiry. In this paper, I offer a novel justification of this principle through application of the theory that knowledge matters to culpability because of how the knowing action manifests the agent’s failure to grant sufficient weight to other people’s interests. I show that, under a simple formal model that supports this theory, omitting inquiry manifests precisely (...) the same degree of disregard of others’ interests as manifested in knowingly acting criminally. Several surprising implications of this view are described, including that when the agent’s method of inquiry has a non-zero false positive rate, his omission of inquiry does not make the same contribution to his culpability as knowledge, while it does, by contrast, when the false negative rate is non-zero. (shrink)

I argue for three conclusions. First, responsibility skeptics are committed to the position that the criminal justice system should adopt a universal nonresponsibility excuse. Second, a universal nonresponsibility excuse would diminish some of our most deeply held values, further dehumanize criminals, exacerbate mass incarceration, and cause an even greater number of innocent people (nonwrongdoers) to be punished. Third, while Saul Smilansky's ‘illusionist’ response to responsibility skeptics – that even if responsibility skepticism is correct, society should maintain a responsibility‐realist/retributivist (...) class='Hi'>criminal justice system – is generally compelling, it would not work if a majority of society were to convert, theoretically and psychologically, to responsibility skepticism. In this (highly improbable) scenario, and only in this (highly improbable) scenario, the criminal justice system would need to be reformed in such a way that it aligned with the majority's responsibility‐skeptical beliefs and attitudes. (shrink)

The purpose of this paper is to discuss and to relate to each other two topics: the admissibility of ignorance and mistake of fact as defences against negligence in crime; and the inadmissibility of ignorance and mistake of law as defences against criminal charges. I am in not concerned at all with torts negligence, only with criminal offences which can be committed negligently, where negligence suffices for liability, as in the law of homicide. This produces an untidy classification (...) of elements, one or other of which is needed to provide the required mens rea : intention, knowledge, recklessness and negligence. It is untidy, because the last does not belong on the same list as the other three, each of which can appropriately be called a state of mind in what we might say to be a positive sense, for each of them includes some degree of awareness of and/or attitude to relevant facts. If negligence is to be called a state of mind, it is so in a very stretched and negative way: to be told that a person was not attending to, thinking of or noticing something that he should have been is to be given some information, of a negative sort, about his state of mind, but it tells us very little, for it eliminates only one of an unlimited range of states of mind. His not attending, noticing, etc., is equally compatible with his daydreaming and with his concentrating hard on something else. If negligence requires inadvertence, as is commonly maintained, then there was a state of mind which the agent should have been in but was not; if, as I would argue, it does not require inadvertence, then there was a state of mind which the agent should have been in, and maybe he was not in it, maybe he was in it. would not require it; the definition runs, ‘a person is negligent if he fails to exercise such care, skill or foresight as a reasonable man in his situation would exercise’. However, that is only a proposal; at present advertent negligence is rare in criminal law, although common in torts.) On this view, the questions are whether his performance fell below scratch, what are to be the excusing conditions for such a performance, and if the answer to is yes, whether his performance was covered by the excusing conditions. (shrink)

The purpose of this paper is to discuss and to relate to each other two topics: the admissibility of ignorance and mistake of fact as defences against negligence in crime; and the inadmissibility of ignorance and mistake of law as defences against criminal charges. I am in not concerned at all with torts negligence, only with criminal offences which can be committed negligently, where negligence suffices for liability, as in the law of homicide. This produces an untidy classification (...) of elements, one or other of which is needed to provide the required mens rea : intention, knowledge, recklessness and negligence. It is untidy, because the last does not belong on the same list as the other three, each of which can appropriately be called a state of mind in what we might say to be a positive sense, for each of them includes some degree of awareness of and/or attitude to relevant facts. If negligence is to be called a state of mind, it is so in a very stretched and negative way: to be told that a person was not attending to, thinking of or noticing something that he should have been is to be given some information, of a negative sort, about his state of mind, but it tells us very little, for it eliminates only one of an unlimited range of states of mind. His not attending, noticing, etc., is equally compatible with his daydreaming and with his concentrating hard on something else. If negligence requires inadvertence, as is commonly maintained, then there was a state of mind which the agent should have been in but was not; if, as I would argue, it does not require inadvertence, then there was a state of mind which the agent should have been in, and maybe he was not in it, maybe he was in it. would not require it; the definition runs, ‘a person is negligent if he fails to exercise such care, skill or foresight as a reasonable man in his situation would exercise’. However, that is only a proposal; at present advertent negligence is rare in criminal law, although common in torts.) On this view, the questions are whether his performance fell below scratch, what are to be the excusing conditions for such a performance, and if the answer to is yes, whether his performance was covered by the excusing conditions. (shrink)

In the 1950s and 60s, H. L. A. Hart's writings were responsible for the revitalizing of legal philosophy in the UK and worldwide. This new collection of essays by distinguished philosophers and legal theorists addresses the enduring significance of Hart's work, focusing upon some of its more neglected aspects, including his work on causation and the philosophy of action. Two essays discuss Hart and Honore;'s Causation in the Law, a book that has been undeservedly overlooked in many philosophical discussions of (...) causation. The majority of the essays consider Hart's views on the justification of punishment. They discuss Hart's dislike of retribution, his claim that harmless immorality should not be punished, and his search for a non-retributivist theory of mens rea and excuses. Other topics examined include Hart's definitions of key legal and philosophical concepts, including 'punishment', 'responsibility' and 'voluntariness', and his views on punishing negligent acts. (shrink)

In the United States today, the use or possession of many drugs is a criminal offense. Can these criminal laws be justified? What are the best reasons to punish or not to punish drug users? These are the fundamental issues debated in this book by two prominent philosophers of law. Douglas Husak argues in favor of drug decriminalization, by clarifying the meaning of crucial terms, such as legalize, decriminalize, and drugs; and by identifying the standards by (...) which alternative drug policies should be assessed. He critically examines the reasons typically offered in favor of our current approach and explains why decriminalization is preferable. Peter de Marneffe argues against drug legalization, demonstrating why drug prohibition, especially the prohibition of heroin, is necessary to protect young people from self-destructive drug use. If the empirical assumptions of this argument are sound, he reasons, drug prohibition is perfectly compatible with our rights to liberty. (shrink)