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14 LEG 1 (2008)

handle is hein.journals/legthory14 and id is 1 raw text is: Legal Theory, 14 (2008), 1-38. Printed in the United States of America @ 2008 Cambridge University Press 0361-6843/08 $15.00 +00 doi 10.1017/S1352325208080014 SUBJECTIVE FAULT FOR CRIME: A Reinterpretation* Alan Brudner Faculty of Law, University of Toronto This essay develops a liberal account of the mens rea requirement of criminal liabi- lity and identifies the fault level required by that account. By a liberal account is meant one that interprets the meaning of mens rea in a way that reconciles liability to coercion with the individual's inviolability. The article argues that the wrongdoer's choice to interfere or to risk interfering with another agent's capacity to act on his own ends is the level of fault required to make punishment implicitly self-imposed by the recipient and thus distinguishable from the wrongdoer's violence. Such a choice is one to which a denial of rights of agency may be logically imputed, a denial by which the wrongdoer implicitly authorizes his own coercibility. This version of subjectivism is, I argue, invulnerable against criticisms leveled against other versions. While staking out defensible subjectivist ground, the article criticizes the character, choice, and opportunity theories of mens rea proposed by Fletcher, Moore, and Hart, and elaborates the interpretations of exculpatory conditions flowing from the subjectivist thesis. Finally, it addresses arguments advanced by Ripstein, Duff, and Horder for eliminating the requirement of a conscious choice to do that which amounts to a denial of rights. Of all political institutions, judicial punishment is the one most problematic for a liberal state, for it seems directly to contradict the inviolability of the individual. Punishment physically restrains and confines persons. Unlike other forms of social censure, it does things to individuals that violate their rights of agency-exactly the things that those it condemns as criminals do. Moreover, it does these things when it is too late for the state to claim a right of preemptive self-defence on behalf of those under its protection and even though private law institutions exist for correcting wrongs after the fact. The reasons typically adduced to justify it (deterrence, incapacitation of the dangerous) appeal to goals external to those of the recipient of punishment, who thus seems to be coerced for the benefit of others-hardly the sort of justification punishment needs. In these circumstances, the criminal law's role is to constrain the state's penal power by principles that, to the *1 thank Jeff McMahon, Arthur Ripstein, my workshop colleagues in the Faculty of Law, University of Toronto, and an anonymous reviewer for helpful comments on an earlier draft of this essay. 1

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