Oblique intent

Why the name? Well criminal law afficionados will recognise the phrase 'oblique intent' as referring to a problem of mens rea:can a person who intends to do x (such as setting fire to a building to scare the occupants) also be said to have an intention to kill if one of the occupants dies? This is a problem that has consumed an inordinate amount of time in the appeal courts and in the legal journals, and can be taken to represent a certain kind of approach to legal theory. My approach is intended to be more oblique to this mainstream approach, and thus to raise different kinds of questions and issues. Hence the name.

Friday, 13 April 2012

On responsibility and criminalisation

One of the commonplaces of criminal law theory is that responsibility acts primarily as a constraint on criminalisation. This is in part seen as a matter of certain types of legislation introducing e.g. strict liability, where it is argued that reading in a requirement of responsibility (or mens rea) would limit the impact of the law. But it is mostly because the principle of responsibilty - that punishment of individuals by the state is only justified where individuals have chosen to break the law - is interpreted as a constraint on state power, a way of establishing the limits of permissible state action.

This is undoubtedly a powerful argument, but it should not exhaust or limit our own thinking about responsibility and criminalisation. What I am concerned with here is the question of how responsibility might help to shape or define the scope of that which is criminalised, which is something which has been neglected in criminal law theory. This requires that we think about responsibility not just in terms of capacity or choice, but as something which has more substantive content. This thought might be captured by asking not only who we are responsible to, but also what we are responsible for: that is to say that responsibility is not ony a matter of answering to others for our conduct, for there also have to be pre-existing expectations about the scope of our duties, roles or relations with others. These are also important questions of political theory, for the exact nature or scope of these duties (as parents, as officers within an organisation, as citizens) are not given but will be shpaed by the kind of society or political community that we live in. It thus seems that to think of responsibility primarily in terms of limits is to put the cart before the horse, for how can we talk of limiting state power without having first talked about the nature of the state.

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