Holistic Culpability
posted by Kim Ferzan
I just uploaded onto SSRN my paper, “Holistic Culpability” from Cardozo Law Review’s symposium on George Fletcher’s new book, The Grammar of Criminal Law.
Here’s the abstract:
There are two competing conceptions of mens rea. The first conception is descriptive. We look to a person’s mental state to determine if the mental state element is satisified. This is a question of fact. Alternatively, there is the normative conception of mens rea. This is the question of whether the defendant is blameworthy. The term, mens rea, or “culpability,” can therefore refer to the descriptive usage (did the defendant have the requisite mental state, i.e, purpose or knowledge?) or to the normative usage (is the defendant blameworthy, wicked, indifferent?).
The tension between descriptive and normative terminology was first identified by Professor George Fletcher more than thirty years ago. In this essay, I aim to dissolve it. Descriptive terms are culpability’s grammar; normative terms are culpability’s meaning. I begin with Professor Fletcher’s discussion of the conflict between descriptive and normative mens rea in his new work, The Grammar of Criminal Law, and his clear preference for normative terminology. I then turn to analyze the subject of the debate – an agent’s culpable choice, and argue that there are several different aspects of that choice. Next, I argue that in assessing culpability, we do not focus upon one aspect; rather, the grammar gives meaning to the whole. Although I contend that descriptive and normative culpability can be reconciled, I claim there is a more unified conception of culpability, which simplifies, but does not distort, how the parts give meaning to the whole. In the final part of this essay, I discuss negligence, which admittedly cannot be explained by my theory. I argue, however, that liability for negligence presents problems within the grammar of criminal law as Professor Fletcher finds it.
Comments welcome!
April 6, 2007 at 9:43 am
Posted in: Criminal Law, Law School (Scholarship)
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Responses (5)
Patrick S. O'Donnell - April 6, 2007 at 11:04 am
I’m privileged to be the first to download your paper.
As a layperson, I very much enjoyed the argument, indeed, found it persuasive (conceding the aformentioned cognitive liability).
Nothing urgent or profound to say, but after an admittedly quick reading…
When you refer to the ‘affective aspects of practical reasoning’ it sounds rather expressivist or emotivist (non-cognitive) with regard to morality. I trust this is not your intent, however (even if there is an important emotional component to moral reasoning and judgments), when speaking of our abilitiy to be moved by moral reasons. Why not simply–after Aristotle if memory serves me correctly, simply speak of the moral dimension of practical reasoning (in reference to norms, ends, goals, values, etc.)?
In reference to mental states, I wonder what is gained by describing them as ‘subjective.’ Does this imply the absence of an objective dimension?
And ‘same shared grammar’ (p. 118) might be, simply, ‘shared grammar.’
Patrick S. O'Donnell - April 6, 2007 at 11:04 am
I’m privileged to be the first to download your paper.
As a layperson, I very much enjoyed the argument, indeed, found it persuasive (conceding the aformentioned cognitive liability).
Nothing urgent or profound to say, but after an admittedly quick reading…
When you refer to the ‘affective aspects of practical reasoning’ it sounds rather expressivist or emotivist (non-cognitive) with regard to morality. I trust this is not your intent, however (even if there is an important emotional component to moral reasoning and judgments), when speaking of our abilitiy to be moved by moral reasons. Why not simply–after Aristotle if memory serves me correctly, simply speak of the moral dimension of practical reasoning (in reference to norms, ends, goals, values, etc.)?
In reference to mental states, I wonder what is gained by describing them as ‘subjective.’ Does this imply the absence of an objective dimension?
And ‘same shared grammar’ (p. 118) might be, simply, ‘shared grammar.’
Patrick S. O'Donnell - April 6, 2007 at 11:06 am
sorry for the spelling errors and ‘simply’ redundancy
Patrick S. O'Donnell - April 6, 2007 at 11:06 am
sorry for the spelling errors and ‘simply’ redundancy
reader - April 8, 2007 at 11:51 pm
Snore.
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