EVENT DETAILS

David O. Brink, UCSD, discusses "Two Kinds of Culpability"

Presented by Law, Reason and Value, the new colloquium in jurisprudence co-sponsored by the School of Law and the School of Humanities

David O. Brink, Distinguished Professor of Philosophy at UC San Diego and Director of the Institute for Law and Philosophy at the University of San Diego School of Law. Professor Brink will discuss "Two Kinds of Culpability."

Introduction

There are two kinds of culpability at work in the criminal law, corresponding to two different senses of mens rea or guilty mind.  An older tradition of criminal jurisprudence conceives of mens rea broadly as signifying blameworthiness. However, in more recent criminal jurisprudence mens rea typically has a narrower sense, signifying the mental elements of an offense, such as whether the agent intended harm, foresaw harm, recklessly caused harm, or negligently caused harm.  On this elemental view, mens rea is the mental dimension of the offense, complementing the objective dimension contributed by the specification of actus reus or guilty act.

However, criminal law theory is not as clear as it might be about the roles these two kinds of culpability play in an adequate criminal jurisprudence.  I want to remedy this situation by offering an account of these two kinds of culpability and their relationship to each other. On this account, broad and narrow culpability are complementary, rather than rival, conceptions.  Each is an important part of an adequate criminal jurisprudence.  This is because they correspond to different parts of a broadly retributive view that sees blame and punishment as fitting responses to culpable or responsible wrongdoing.  The elemental sense of mens rea is the mental or subjective dimension of wrongdoing, whereas the broader sense of culpability attaches to wrongdoing for which the agent was responsible and blameworthy.  Each kind of culpability plays an important role in a broadly retributive rationale for the criminal law that predicates blame and punishment on the fair opportunity to avoid wrongdoing. This analysis of the two kinds of culpability contributes to conceptual clarity in discussions of the role of culpability in criminal law and criminal jurisprudence.  But it pays other dividends as well.  The two kinds of culpability are tied to two different faces of responsibility -- responsibility as attributability and as accountability.  Narrow culpability is concerned with responsibility as attributability, because it reflects morally significant qualities of the agent’s will, whereas broad culpability is concerned with responsibility as accountability, because fairness norms require that only wrongdoing for which the agent was responsible be punished.  Moreover, the two kinds of culpability give rise to two different conceptions of strict liability crimes that are worth distinguishing -- liability without narrow culpability and liability without broad culpability.  The second sort of strict liability is even more problematic than the first; both are condemned by fairness norms in a broadly retributive criminal jurisprudence.