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Why the Criminal Law Is Irrational

NCJ Number
University of Toronto Law Journal Volume: 35 Dated: (Winter 1985) Pages: 25-42
D Galloway
Date Published
18 pages
This paper reveals basic inadequacies in the doctrine of mens rea and presents a more coherent network of ideas on which the criminal law could be based.
It is argued that the criminal code should not be conceived to be merely a set of definitional instructions outlining the means by which certain crimes can be identified along with the measures that should be applied. Instead, the code ought to be regarded as a set of imperatives outlining the conduct and results of conduct that must be avoided to fulfill one's basic social obligations. Arguments are presented concerning the nature of the social obligations involved. Three mental states used to differentiate basic criminal liability are discussed: the mental state of the individual who cannot choose to avoid harm, the mental state of the person who neither chooses to avoid the harm nor chooses to do the harm, and the mental state of the person who chooses to do harm and who is fully cognizant of the circumstances in which he is acting. The criminal law model suggested would serve as a mechanism to provide security to individuals and groups by protecting their basic interests from interference from both those who know what they are doing and those who do not realize what they are doing. Advantages of the model are examined. It is argued that if the criminal law concept of culpability were realigned with the noncriminal concept (i.e. whether or not excuses should be operable), delicate judgments about the nature of culpability would have to be made. As it now stands, judges are restrained from implementing excuses in the way they are applied in noncriminal contexts. The mens rea requirement operates as a surrogate for excuse-oriented decisionmaking; it is further argued that the lack of rationality makes mens rea an unsatisfactory surrogate. Twenty-five reference notes are provided.


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