Structure and Function in Criminal Law

By Paul H. Robinson | Go to book overview
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8
The Doctrines of Liability

The liability function of criminal law doctrine, recall from Chapter 6, is performed by two sets of doctrines. The doctrines stating the rules of conduct make up the first part of the liability inquiry; liability cannot be imposed in the absence of a violation of the rules. The additional doctrines that contribute to the liability function, the 'doctrines of liability', include such doctrines as those that establish the minimum offence culpability requirements, those imputing culpability requirements, and the excuse defences.1

Because of the special condemnatory nature of criminal law, most doctrines of liability are designed to gauge whether an actor's violation of the rules of conduct was performed with sufficient blameworthiness to merit the condemnation of criminal conviction. If an actor's violation is blameless, the actor ought to be free from liability even though he may well have brought about the prohibited harm or evil. If an actor's violation is blameworthy, he ought to be liable.

Does current doctrine impose liability on blameworthy violations and avoid liability for blameless violations? The legal literature contains a number of criticisms of current doctrine for perceived failures. Two well-known examples are the lack of a general defence for a reasonable mistake as to the lawfulness of one's conduct and continued use of the felony-murder rule. A functional analysis suggests some less obvious failures, failures both in setting culpability requirements and in formulating excuse defences. This Chapter gives an example of each.


A. ELEVATING BASE AND AGGRAVATION CULPABILITY
REQUIREMENTS TO THE STATUS OF CRIMINALIZATION
MENTAL STATES: IMPROPERLY LIMITING
ATTEMPT LIABILITY

Chapter 6 describes several distinguishable kinds of culpability requirements: future conduct intention, present circumstance culpability, and future result culpability.2 Only the first is used as a criminalization mental state

____________________
1
For a more complete list, see the chart in Ch. 6, sect. B.
2
The present conduct intention is somewhat superfluous.

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