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.

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