Results for 'mens rea'

845 found
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  1. Mens Rea Ascription, Expertise and Outcome Effects: Professional Judges Surveyed.Markus Kneer & Sacha Bourgeois-Gironde - 2017 - Cognition 169:139-146.
    A coherent practice of mens rea (‘guilty mind’) ascription in criminal law presupposes a concept of mens rea which is insensitive to the moral valence of an action’s outcome. For instance, an assessment of whether an agent harmed another person intentionally should be unaffected by the severity of harm done. Ascriptions of intentionality made by laypeople, however, are subject to a strong outcome bias. As demonstrated by the Knobe effect, a knowingly incurred negative side effect is standardly judged (...)
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  2. The Prejudicial Effects of 'Reasonable Steps' in Analysis of Mens Rea and Sexual Consent: Two Solutions.Lucinda Vandervort - 2018 - Alberta Law Review 55 (4):933-970.
    This article examines the operation of “reasonable steps” as a statutory standard for analysis of the availability of the defence of belief in consent in sexual assault cases and concludes that application of section 273.2(b) of the Criminal Code, as presently worded, often undermines the legal validity and correctness of decisions about whether the accused acted with mens rea, a guilty, blameworthy state of mind. When the conduct of an accused who is alleged to have made a mistake about (...)
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  3. Honest Beliefs, Credible Lies, and Culpable Awareness: Rhetoric, Inequality, and Mens Rea in Sexual Assault.Lucinda Vandervort - 2004 - Osgoode Hall Law Journal 42 (4):625-660.
    The exculpatory rhetorical power of the term “honest belief” continues to invite reliance on the bare credibility of belief in consent to determine culpability in sexual assault. In law, however, only a comprehensive analysis of mens rea, including an examination of the material facts and circumstances of which the accused was aware, demonstrates whether a “belief” in consent was or was not reckless or wilfully blind. An accused's “honest belief” routinely begs this question, leading to a truncated analysis of (...)
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  4. Mistake of Law and Sexual Assault: Consent and Mens Rea.Lucinda Vandervort - 1987-1988 - Canadian Journal of Women and the Law 2 (2):233-309.
    In this ground-breaking article submitted for publication in mid-1986, Lucinda Vandervort creates a radically new and comprehensive theory of sexual consent as the unequivocal affirmative communication of voluntary agreement. She argues that consent is a social act of communication with normative effects. To consent is to waive a personal legal right to bodily integrity and relieve another person of a correlative legal duty. If the criminal law is to protect the individual’s right of sexual self-determination and physical autonomy, rather than (...)
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  5.  37
    Mens Rea Element in Superior Responsibility Under Customary International Law and the Rome Statute.Justinas Žilinskas & Tomas Marozas - 2011 - Jurisprudencija: Mokslo darbu žurnalas 18 (4):1519-1541.
    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 (...)
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  6.  21
    Negligence, Mens Rea, and What We Want the Element of Mens Rea to Provide.Marcia Baron - 2020 - Criminal Law and Philosophy 14 (1):69-89.
    It is widely agreed that the top three Model Penal Code culpability levels suffice for criminal liability, but the fourth is controversial. And it isn’t just the particular MPC wording; that negligence should be on the list at all is controversial. My question is: What makes negligence so different? What is it about negligence that gives rise to the view that it should not suffice for criminal liability? In addressing it, I draw attention to how we conduct the debate, and (...)
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  7.  37
    The Prospects of a Theory of Criminal Culpability: Mens Rea and Methodological Doubt.Jacqueline A. Laing - 1994 - Oxford Journal of Legal Studies 14 (1):57-80.
    This article discusses the role of the mental in the analysis of criminal liablity. The relation between the general conditions for mens rea and those of criminal liability are considered. Claims made by John Gardner and Heike Jung are considered. Their suggestion that there is a hard and fast distinction between the principles of moral and criminal culapability are considered and shown to have some absurd conclusions.
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  8.  35
    Mens Rea in Tort Law.Cane Peter - 2000 - Oxford Journal of Legal Studies 20 (4):533-556.
    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 (...)
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  9.  20
    Mens Rea, the Achilles’ Heel of Criminal Law.Michal Zacharski - 2018 - The European Legacy 23 (1-2):47-59.
    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 (...)
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  10.  21
    Mens Rea by the Numbers.Gideon Yaffe - 2018 - Criminal Law and Philosophy 12 (3):393-409.
    Before the recent presidential election, a bipartisan congressional effort was made to pass a criminal justice reform bill. The bill faltered in part because of a proposed default mens rea provision: statutes silent on mens rea, that were not explicitly identified as strict liability by the legislature, would be taken to require for guilt proof of knowledge with respect to each material element. This paper focusses on a prominent line of disagreement about the default mens rea provision. (...)
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  11.  50
    Sexual Activity, Consent, Mistaken Belief, and Mens Rea.Peg Tittle - 1996 - Philosophy in the Contemporary World 3 (1):19-22.
    The gendered subcultures of our society may have different value systems. Consequently, sexual activity that involves members of these subcultures may be problematic, especially concerning the encoding and decoding of consent. This has serious consequences for labelling the activity as sex or sexual assault. Conceiving consent not as a mental act but as a behavioural act (that is, using a performative standard) would eliminate these problems. However, if we remove the mental element from one aspect, then to be consistent we (...)
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  12.  39
    Towards a Redefinition of the Mens Rea of Rape.Helen Power - 2003 - Oxford Journal of Legal Studies 23 (3):379-404.
    Definitional problems in the law of rape prompted the recommendation by the Home Office Sex Offences Review Team (Setting the Boundaries: Reforming the law on sex offences, 2000) that the ‘defence’ of mistaken belief in the victim's consent should be denied to defendants unable to show that they took reasonable procedural care to establish consent: such failure would have amounted to recklessness. This article contends that this proposal did not go far enough in recognizing the moral culpability of those who (...)
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  13.  20
    Untying the Gordian Knot of Mens Rea Requirements for Accomplices.Heidi M. Hurd & Michael S. Moore - 2016 - Social Philosophy and Policy 32 (2):161-183.
    :This essay undertakes two tasks: first, to describe the differing mens rea requirements for accomplice liability of both Anglo-American common law and the American Law Institute's Model Penal Code; and second, to recommend how the mens rea requirements of both of these two sources of criminal law in America should be amended so as to satisfy the goals of clarity and consistency and so as to more closely conform the criminal law to the requirements of moral blameworthiness. Three (...)
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  14. 'Too Young to Sell Me Sex!?' Mens Rea, Mistake of Fact, Reckless Exploitation, and the Underage Sex Worker.Lucinda Vandervort - 2012 - Criminal Law Quarterly 58 (3/4):355-378.
    In 1987, apprehension that “unreasonable mistakes of fact” might negative mens rea in sexual assault cases led the Canadian Parliament to enact “reasonable steps” requirements for mistakes of fact with respect to the age of complainants. The role and operation of the “reasonable steps” provisions in ss. 150.1(4) and (5) and, to a lesser extent, s. 273.2 of the Criminal Code, must be reassessed. Mistakes of fact are now largely addressed at common law by jurisprudence that has re-invigorated judicial (...)
     
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  15. Unconscious Mens Rea: Criminal Responsibility for Lapses and Minimally Conscious States.Katrina Sifferd - 2016 - In Dennis Patterson & Michael Pardo (eds.), Philosophical Foundations of Law and Neuroscience. Oxford University Press.
    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 (...)
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  16.  15
    Deontic Epistemic Stit Logic Distinguishing Modes of Mens Rea.Jan Broersen - 2011 - Journal of Applied Logic 9 (2):137-152.
  17.  48
    The Point of Mens Rea: The Case of Willful Ignorance.Gideon Yaffe - 2018 - Criminal Law and Philosophy 12 (1):19-44.
    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 (...)
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  18.  56
    State Aggression, Collective Liability, and Individual Mens Rea.Larry May - 2006 - Midwest Studies in Philosophy 30 (1):309-324.
  19.  23
    Conditional Intent and Mens Rea.Gideon Yaffe - 2004 - Legal Theory 10 (4):273-310.
  20.  62
    Mens Rea, Negligence and Criminal Law Reform.Brenda M. Baker - 1987 - Law and Philosophy 6 (1):53 - 88.
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  21.  24
    Making Sense of Mens Rea: Antony Duff's Account.John Gardner & Heike Jung - 1991 - Oxford Journal of Legal Studies 11 (4):559-588.
  22.  13
    Mens Rea.Peter Cane - 2000 - Oxford Journal of Legal Studies 20 (4).
  23. Rape and Mens Rea.M. T. Thornton - 1982 - Canadian Journal of Philosophy, Supplementary Volume 8:119.
  24.  30
    Intention and Side Effects: The Mens Rea for Murder.Anthony Kenny - 2013 - In John Keown & Robert P. George (eds.), Reason, Morality, and Law: The Philosophy of John Finnis. Oxford University Press. pp. 109.
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  25.  13
    Mens Rea and Murder by Torture in California. Stanford Law Review, Vol. 10 No. 4 , Pp. 672–693.Layman E. Allen - 1958 - Journal of Symbolic Logic 23 (4):450-451.
  26.  12
    Rape and Mens Rea.M. T. Thornton - 1982 - Canadian Journal of Philosophy 12 (sup1):119-146.
  27.  21
    State Aggression, Collective Liability, and Individual Mens Rea.M. A. Y. Larry - 2006 - Midwest Studies in Philosophy 30 (1):309–324.
  28.  7
    The Moral Blindness of the Positivistic Legal Hermeneutic and the Non-Proximate Mens Rea in the Law of Criminal Negligence.P. M. O'Neil - 1996 - American Journal of Jurisprudence 41 (1):289-305.
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  29.  3
    Natural Law Mens Rea Versus the Benthamite Tradition.K. L. Flannery - 1995 - American Journal of Jurisprudence 40 (1):377-400.
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  30. The Doctrine of Mens Rea: A Study in Legal and Moral Responsibility.James B. Brady - 1970 - Dissertation, The University of Texas at Austin
     
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  31. Responsibility and the Requirement of Mens Rea.Thomas Fay - 1989 - Reason Papers 14:59-69.
     
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  32. Making Sense of Mens Rea: Antony Duffs Account.Gardner John & Jung Heike - 1991 - Oxford Journal of Legal Studies 11 (4).
  33.  10
    Felonia Felonice Facta: Felony and Intentionality in Medieval England.Elizabeth Papp Kamali - 2015 - Criminal Law and Philosophy 9 (3):397-421.
    This paper explores the meaning of the word “felony” in thirteenth and fourteenth century England, i.e., during the first two centuries of the English criminal trial jury. To compile a working definition of felony, the paper presents examples of the language of felony drawn from literary and religious sources, in addition to considering the word’s more formulaic appearance in legal records. The paper then analyzes cases ending in acquittal or pardon, highlighting the factors that might take a criminal case out (...)
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  34.  19
    The Elusive Object of Punishment.Gabriel S. Mendlow - 2019 - Legal Theory 25 (2):105-131.
    All observers of our legal system recognize that criminal statutes can be complex and obscure. But statutory obscurity often takes a particular form that most observers have overlooked: uncertainty about the identity of the wrong a statute aims to punish. It is not uncommon for parties to disagree about the identity of the underlying wrong even as they agree on the statute's elements. Hidden in plain sight, these unexamined disagreements underlie or exacerbate an assortment of familiar disputes—about venue, vagueness, and (...)
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  35. Mistake of Law and Obstruction of Justice: A 'Bad Excuse' ... Even for a Lawyer!Lucinda Vandervort - 2001 - University of New Brunswick Law Journal 50: 171-186.
    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 (...)
     
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  36. 'Reasonable Steps': Amending Section 273.2 to Reflect the Jurisprudence.Lucinda Ann Vandervort - 2019 - Criminal Law Quarterly 66 (4):376-387.
    This piece proposes amendments to section 273.2 of the Canadian Criminal Code. Section 273.2, enacted in 1992 and revised in 2018, specifies circumstances in which belief in consent is not a defence to sexual assault. The amendments proposed here are designed to ensure that the wording of this statutory provision properly reflects the significant jurisprudential developments related to mens rea and the communication of voluntary agreement (i.e., affirmative sexual consent) achieved by Canadian judges since the original enactment of section (...)
     
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  37. World Without Design: The Ontological Consequences of Naturalism.Michael C. Rea - 2002 - Oxford University Press.
    Philosophical naturalism, according to which philosophy is continuous with the natural sciences, has dominated the Western academy for well over a century, but Michael Rea claims that it is without rational foundation. Rea argues compellingly to the surprising conclusion that naturalists are committed to rejecting realism about material objects, materialism, and perhaps realism about other minds.
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  38. Did I Do That? Brain–Computer Interfacing and the Sense of Agency.Pim Haselager - 2013 - Minds and Machines 23 (3):405-418.
    Brain–computer interfacing (BCI) aims at directly capturing brain activity in order to enable a user to drive an application such as a wheelchair without using peripheral neural or motor systems. Low signal to noise ratio’s, low processing speed, and huge intra- and inter-subject variability currently call for the addition of intelligence to the applications, in order to compensate for errors in the production and/or the decoding of brain signals. However, the combination of minds and machines through BCI’s and intelligent devices (...)
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  39. Temporal Parts Unmotivated.Michael C. Rea - 1998 - Philosophical Review 107 (2):225-260.
    In debate about the nature of persistence over time, the view that material objects endure has played the role of "champion" and the view that they perdure has played the role of the "challenger." It has fallen to the perdurantists rather than the endurantists to motivate their view, to provide reasons for accepting it that override whatever initial presumption there is against it. Perdurantists have sought to discharge their burden in several ways. For example, perdurantism has been recommend on the (...)
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  40.  52
    Criminally Ignorant: Why the Law Pretends We Know What We Don't.Alexander Sarch - 2019 - New York, NY, USA: Oup Usa.
    The willful ignorance doctrine says defendants should sometimes be treated as if they know what they don't. This book provides a careful defense of this method of imputing mental states. Though the doctrine is only partly justified and requires reform, it also demonstrates that the criminal law needs more legal fictions of this kind. The resulting theory of when and why the criminal law can pretend we know what we don't has far-reaching implications for legal practice and reveals a pressing (...)
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  41.  47
    Metaphysics: The Basics.Michael Rea - 2014 - Routledge.
    Metaphysics: The Basics is a concise and engaging introduction to the philosophical study of the world and universe in which we live. Concerned with questions about reality, existence, time, identity and change, metaphysics has long fascinated people but to the uninitiated some of the issues and problems can appear very complex. In this lively and lucid book, Michael Rea examines and explains key questions in the study of metaphysics such as: • Can two things be in the same place at (...)
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  42.  46
    What Are Intoxicated Offenders Responsible For? The “Intoxication Defense” Re-Examined.Susan Dimock - 2011 - Criminal Law and Philosophy 5 (1):1-20.
    I provide a brief history of the common law governing the criminal liability of intoxicated offenders, and the codification and application of the intoxication rules in Canada. I argue that the common law and its statutory application in Canada violate a number of principles of criminal justice. I then argue that the rules cannot be saved by attempts to subsume them under principles of prior fault. I end with a modest proposal for law reform.
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  43.  89
    Minds, Brains, and Norms.Dennis Patterson - 2011 - Neuroethics 4 (3):179-190.
    Arguments for the importance of neuroscience reach across many disciplines. Advocates of neuroscience have made wide-ranging claims for neuroscience in the realms of ethics, value, and law. In law, for example, many scholars have argued for an increased role for neuroscientific evidence in the assessment of criminal responsibility. In this article, we take up claims for the explanatory role of neuroscience in matters of morals and law. Drawing on our previous work together, we assess the cogency of neuroscientific explanations of (...)
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  44. McGrath on Universalism.Michael C. Rea - 1999 - Analysis 59 (3):200–203.
    Mereological Universalism is the thesis that, for any disjoint Xs, the Xs automatically compose something. In his book, Material Beings, Peter van Inwagen provides an argument against Universalism that relies on the following crucial premiss: (F) If Universalism is true, then the Xs cannot ever compose two objects, either simultaneously or successively.1 I have argued elsewhere (Rea 1998) that van Inwagen’s defence of (F) fails because it relies on the false assumption that Universalism is incompatible with the view that, for (...)
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  45.  56
    Intention and Attempt.Vincent Chiao - 2010 - Criminal Law and Philosophy 4 (1):37-55.
    Anglo-American criminal law traditionally demands a criminal purpose for an attempt conviction, even when the crime attempted requires only foresight or recklessness. Some legal philosophers have defended this rule by appeal to an alleged difference in the moral character or intentional structure of intended versus non-intended harms. I argue that there are reasons to be skeptical of any such differences; and that even if conceded, it is only on the basis of an unworkable view of criminal responsibility that such a (...)
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  46.  25
    Comments on Doug Husak: The Low Cost of Recognizing (and of Ignoring) the Limited Relevance of Intentions to Permissibility.Alec Walen - 2009 - Criminal Law and Philosophy 3 (1):71-78.
    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, (...)
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  47. Sexual Assault: Availability of the Defence of Belief in Consent.Lucinda Vandervort - 2005 - Canadian Bar Review 84 (1):89-105.
    Despite amendments to the sexual assault provisions in the Criminal Code, decisions about the availability and operation of the defence of belief in consent remain vulnerable to the influence of legally extraneous considerations. The author proposes an approach designed to limit the influence of such considerations.
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  48.  14
    Is Strict Criminal Liability in the Grading of Offences Consistent with Retributive Desert?Kenneth W. Simons - 2012 - Oxford Journal of Legal Studies 32 (3):445-466.
    Notwithstanding the demands of retributive desert, strict criminal liability is sometimes defensible when the strict liability pertains, not to whether conduct is to be criminalized at all, but to the seriousness of the actor’s crime. Suppose an actor commits an intentional assault or rape, and accidentally brings about a death. Punishing the actor more seriously because the death resulted is sometimes justifiable, even absent proof of his independent culpability as to the death. But what punishment is proportionate for such an (...)
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  49.  77
    The Defence of Belief in Consent: Guidelines and Jury Instructions for Application of Criminal Code Section 265(4).Lucinda Vandervort - 2005 - Criminal Law Quarterly 50 (4):441-452.
    The availability of the defence of belief in consent under section 265(4) is a question of law, subject to review on appeal. The statutory provision is based on the common law rule that applies to all defences. Consideration of the defence when it is unavailable in law and failure to consider it when it is available are both incorrect. A judge is most likely to avoid error when ruling on availability of the defence if the ruling: (1) is grounded on (...)
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  50.  25
    How is the Culpability We Assign to Recklessness Best Accounted for in Criminal Law?Joe Slater - 2014 - Dissertation,
    In order to be properly applied, criminal law must determine what conduct warrants punitive action. Figuring out exactly how one must act to be criminally liable is a difficulty that faces any legal system. In many jurisdictions criminal recklessness is regarded as an important notion for liability. However, recklessness is difficult to define, and attempts at this exercise have been a problem in legal philosophy since the mid-twentieth century, and persist today. This thesis discusses accounts of recklessness with the aim (...)
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