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The Limits of Criminal Culpability
Published online by Cambridge University Press: 20 July 2015
Extract
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.
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- Copyright © Canadian Journal of Law and Jurisprudence 2012
References
Crime and Culpability: A Theory of Criminal Law by Alexander, Larry and Ferzan, Kimberly Kessler with contributions by Morse, Stephen J. New York: Cambridge University Press, 2009, xiii+358pp. ISBN 978-0-521-51877-2 hardback, ISBN 978-0-521-73961-0 paperCrossRefGoogle Scholar. Page references in the text are to this work. It appears, somewhat misleadingly, in a series of Cambridge Introductions to Philosophy and Law.
1. Model Penal Code (Philadelphia, PA: American Law Institute, 1985) §2.02.Google Scholar
2. The alternative view is that the culpability of purpose and knowledge lies in the absence of justification or excuse. Whether the culpability of purpose and knowledge is the same as the culpability of recklessness therefore depends on the analysis of defences as well as on the analysis of recklessness.
3. Criminal Code (RSC,1985, c C-46) ss 220, 221.
4. So-called “deviant causal chains” (where the outcome is intended but in fact comes about accidentally) excluded.
5. On the history of this doctrine see Hart, HLA, Punishment and Responsibility (Oxford: Clarendon Press, 1968) at 97–99.Google Scholar
6. HLA Hart, supra note 5 at 11-13, 17-24.
7. Kant, I, Foundations of the Metaphysics of Morals, translated by Beck, LW (New York: Liberal Arts, 1959) at 47.Google Scholar
8. Thomas Hobbes, Leviathan (1651) at ch14.
9. Criminal Code, supra note 3 at s 8(3).