A short guide to the Anglo-American debate on criminal responsibility

Abstract

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/provocation 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 not engaged in understanding the grounds upon which certain behaviour is or should be criminalised, involving matters such as the role of the harm principle or the legitimate reach of inchoate liability; his concern is with the grounds of liability once criminal wrongdoing is in place, and it is those grounds that constitute the notion of criminal responsibility. This article explores how Anglo-American criminal law theory has explored this question