Should Criminal Law Mirror Moral Blameworthiness or Criminal Culpability? A Reply to Husak

2020 ◽  
Author(s):  
Alex F. Sarch
Keyword(s):  
Criminal Law ◽  
Criminal Culpability

What Is Criminal Culpability?

2019 ◽  
pp. 27-82
Author(s):  
Alexander Sarch
Keyword(s):  
Criminal Law ◽  
Criminal Liability ◽  
Explanatory Power ◽  
Mental States ◽  
Criminal Culpability

Chapter 2 aims to elucidate the concept of criminal culpability. Since the project of the book is to analyze, evaluate, and ultimately defend certain criminal law doctrines that impute mental states on the basis of equal culpability, the chapter explains what criminal culpability is. Chapter 2 presents the author’s theory of culpability and aims to show why it offers an attractive way to think about this concept. The theory falls squarely within the insufficient regard tradition, but the chapter fleshes out details in new ways to strengthen the theory and solve certain problems for this sort of position. The chapter is divided into two main parts. The first is ecumenical and aims to bring as many into the broad church of the insufficient regard theory as possible. The chapter does this by highlighting the explanatory power of the author’s version of the theory (particularly the requirement to manifest bad attitudes in action before criminal liability attaches and the criminal law’s general disinterest in motives and other unmanifested mental states). The chapter also shows how the theory can accommodate both sides in certain controversies about the criminal law. The second half of the chapter adopts a normative stance and provides arguments for how these controversies should be resolved. This insufficient regard theory is used as the basis for the arguments going forward in the book.

The Limits of Criminal Culpability

2012 ◽  
Vol 25 (1) ◽  
pp. 159-175
Author(s):  
Mark Thornton
Keyword(s):  
Criminal Law ◽  
Core Concept ◽  
The Core ◽  
Criminal Culpability ◽  
Subjectivist Theory

The authors of Crime and Culpability hold a subjectivist theory of criminal culpability according to which the core concept in culpability is subjective recklessness, negligence is not culpable, and it is irrelevant to culpability whether or not a criminal act results in harm. I argue against these three theses and criticize the authors’ views on the structure of criminal law, criminal defences, criminal attempts, and codification.

An exploration of the semantic domain of legal language

Semiotica ◽  
2016 ◽  
Vol 2016 (209) ◽  
pp. 187-208
Author(s):  
Pi-Chan Hu ◽  
Jian Li
Keyword(s):  
Criminal Law ◽  
Legal Language ◽  
Legal Professionals ◽  
Semantic Domain ◽  
Criminal Culpability

AbstractWhenever necessary, legal professionals expand or restrict the semantic domain of legal terms to justify their reasoning or ruling. The semantic domain expands or contracts in size depending on the different approaches towards interpretations adopted by legal professionals. This research illustrates the interpretations of judges and prosecutors of legal terms with empirical cases and court opinions. In the field of Criminal Law, the semantic domain often leads to the domain of criminal culpability and punishment. The shift in the semantic domain of legal terms matters a great deal to all of the stakeholders in a case. When the domain grows too broad, it will criminalize citizens beyond the intention of the Legislature. When the domain shrinks too much, the victims will not receive justice. Therefore, legal professionals have to be exceedingly modest and cautious when playing their roles as law interpreters.

scholarly journals The inconvenience of the reasonable person standard in criminal law

Derecho PUCP ◽  
2014 ◽  
pp. 505-509
Author(s):  
Juan Pablo Pérez-León Acevedo
Keyword(s):  
Criminal Law ◽  
Minority Groups ◽  
Case Law ◽  
Human Behaviour ◽  
Criminal Cases ◽  
Reasonable Person ◽  
Objective Standard ◽  
Reasonable Person Standard ◽  
Criminal Culpability ◽  
Self Defence

Following American legal sources, I argue that the use of the reasonable person standard in criminal law is inaccurate and unfair, and, therefore, inconvenient to evaluate human behaviour based on three arguments which address flaws of the standard under analysis. Firstly, this standard is  by definition  abstract, theoretical  and  general, not  reflecting appropriately the person’s sensory and ideational perception of the situation. Secondly, the trend in American legislation and case-law is to apply, in criminal cases, e.g., self-defence, a hybrid criterion, which consists in the consideration of a person’s belief and the correspondence of such a belief to what a reasonable person would believe under the circumstances, as opposed to a purely objective standard. The principle of individual criminal culpability underlies this. Thirdly, the reasonable person standard imposes a sort of majority’s dictatorship by perpetuating a predominant culture disregarding the viewpoints from minority groups.

scholarly journals Should Criminal Law Mirror Moral Blameworthiness or Criminal Culpability? A Reply to Husak

2021 ◽  
Author(s):  
Alexander Sarch
Keyword(s):  
Criminal Law ◽  
Legal Systems ◽  
Legal Moralism ◽  
Moral Ideal ◽  
Ignorance Of Law ◽  
Criminal Culpability ◽  
Critical Morality

AbstractIn Ignorance of Law, Doug Husak defends a version of legal moralism on which ‘we should recognize a presumption that the criminal law should…be based, on conform to, or mirror critical morality’. Here I explore whether substantive criminal law rules should directly mirror not moral blameworthiness, but a distinct legal notion of criminal culpability – akin to moral blameworthiness but refined for deployment in legal systems. Contra Husak, I argue that the criminal law departing from the moral ideal embodied in the standard of moral blameworthiness is not always to be regretted. After showing how criminal culpability might come apart from moral blameworthiness, I argue that my alternative to Husak’s view has practically interesting upshots. In particular, it allows us to resist Husak’s central conclusions about the exculpatory force of normative ignorance. There are good reasons for the criminal law to make certain charitable presumptions about citizens as competent agents, which the standard of moral blameworthiness needn’t similarly embody, and this calls into question Husak’s argument for the claim that normative ignorance exculpates.

Outcome and Other Luck

2021 ◽  
pp. 326-347
Author(s):  
A P Simester
Keyword(s):  
Moral Responsibility ◽  
Criminal Law ◽  
Outcome Luck ◽  
Criminal Culpability ◽  
In Virtue Of

This chapter argues that the consequence elements of any crime form a constitutive part of the criminal wrong, in virtue of which criminal culpability is sensitive to outcome luck. Outcomes change what one is culpable for, and they rightly affect what one is convicted of. Yet it does not follow that they alter the degree of one’s culpability, or the quantum of punishment that one deserves. The dependence of outcomes on luck is compatible with moral responsibility, and indeed culpability, for such outcomes. However, because outcome luck occurs after the defendant behaves as she does, it cannot change the manner in which that behaviour reflects a moral vice on the defendant’s part. The chapter also considers challenges posed by other forms of luck. Characteristically, both the criminal law and ordinary blaming judgements accommodate circumstantial luck by means of justifications and excuses; not by irresponsibility defences. In so doing, they disavow the thought that circumstantial luck, too, can undermine moral responsibility.

Criminal Culpability, Criminal Attempts and the Erosion of the Choice Theory

2013 ◽  
Vol 77 (1) ◽  
pp. 78-90
Author(s):  
Hannah Wishart
Keyword(s):  
Criminal Law ◽  
Choice Theory ◽  
Criminal Responsibility ◽  
Criminal Culpability ◽  
Do So

This article considers whether the leading perspectives of the theory of choice can provide the criminal law with a map to establishing when and where on the commission of a crime the agent should be held criminally culpable for a criminal attempt contrary to s. 1(1) of the Criminal Attempts Act 1981. In order to do so, this article will focus on examining the modern views of choice theory and their application in relation to the criminal attempter, namely, the last-act-attempter and non-last-act-attempter. As a result of such an inquiry it will be revealed that choice theory does not adequately correspond to reconciling the attribution of criminal culpability for both the last-act and non-last-act-attempter because theorists are eroding the theory of choice by supporting the reconcilement of criminal responsibility upon various views of subjectivism.

Extended Confiscation in Criminal Law

2017 ◽  
Author(s):  
Malin Thunberg Schunke
Keyword(s):  
Criminal Law
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