Publication of the week: Dr James Slater

Slater, J., “A short guide to the Anglo-American debate on criminal responsibility”, in J. Motte dit Falisse (ed.), De la faute et du crime: Natures et cultures (Paris: L’Harmattan Criminologie / ICES, 2014), 129-167. ISBN: 978-2-343-04377-7.

Examination of the rules and principles of Anglo-American criminal law reveals that there is often more to criminal liability than the presence of criminal wrongdoing per se, understood as certain instances of harm risking or harm causing behaviour. The frequent requirement for mental states such as intention, recklessness and belief make a conviction on certain occasions not only dependent on wrongdoing, but also the presence of a morally culpable state of mind; when available, the defences of loss of control and duress, with their reference to the conditions and emotional states under which intentional wrongdoing occurs, accept that, though wrongdoing is in place, exculpation in some form is nevertheless appropriate; the focus on mental health exhibited by the defences of insanity and diminished responsibility, and on age by the defence of infancy, reflects a concern not with the wrong committed, but with the defendant’s mental faculties and development at the time of wrongdoing. All of these elements of Anglo-American criminal law exhibit a common feature: a concern not so much with what the accused has done, but with whether, how and why he should be held to account for having done it. In seeking theoretical understanding of such elements, the theorist is concerned with the grounds of liability once criminal wrongdoing is in place, and it is those grounds that constitute the notion of criminal responsibility.

Criminal responsibility has generated considerable debate in Anglo-American criminal theory. Contributions to this debate have sought to describe the theoretical underpinnings of criminal responsibility and to offer a blueprint for its normative development. In this debate, two theories vie for descriptive and normative dominance: character and capacity. This article is conceived as a guide through this debate for those possessing some general familiarity with Anglo-American criminal law, but who are not immersed in the debate. The aims of this article are threefold: to give an overview of the various arguments that inform the debate, to supply theoretical perspective on the nature of the conflict between the rival theories and, finally, to propose an overall winner.

Read more about the book at: http://www.editions-harmattan.fr/index.asp?navig=catalogue&obj=livre&no=44772.

Dr James Slater is Senior Lecturer in Law at Buckingham and Director of the Part-time LLB.