The Myth of Morality and Fault in Criminal Law Doctrine

By Diamond, John L. | American Criminal Law Review, Fall 1996 | Go to article overview
Save to active project

The Myth of Morality and Fault in Criminal Law Doctrine


Diamond, John L., American Criminal Law Review


I. Introduction

It is difficult, but very tempting, to justify criminal law in moral terms.(1) The criminal is morally condemnable.(2) Murder, robbery, larceny, and kidnapping are repulsive acts against society perpetrated by a culpable actor who chooses to violate fundamental social norms. Under this analysis, the defendant's evil intent should be punished.(3) The criminal is deserving of punishment, and society deserves to be protected from the criminal's conduct.(4)

The difficulty with this analysis is that there are too many important exceptions where subjective moral culpability is not a prerequisite to criminality. It is, of course, possible to marginalize these inconsistencies from a model of criminal law that punishes only the blameworthy. The pervasiveness of the exceptions, however, argues against such marginalization.(5) This is not to suggest that criminal law does not address the morally repugnant. Furthermore, I do not argue that cultural relativism precludes identifying culpable attacks on society. Rather, criminal law groups selective samples of the reprehensible with the innocent and effectively condemns both. What is fascinating is how and why criminal law makes such selections and, to a large extent, achieves general acceptance in society.

Ultimately, criminal law can be perceived usefully as a constellation of symbolic behavioral guideposts that project value and directional mandates. The immorality is not necessarily that of an individual transgressor or criminal, but the potentially inadvertent and, in a normative (but not positive) sense, nonculpable transgression of those directional boundaries. In essence, criminal law can be understood as a strict liability regime where personal condemnation is imposed on the transgressor for intentional or innocent boundary broaching.(6) What partially obscures this strict liability regime is that "mens rea" or individual state of mind is often, though not consistently, a part of the regime's directional mandates. Indeed, the criminalization of certain states of mind is part of the culture's mythology of individual culpability. This is a myth not because the criminal law never includes clear examples of intentional transgression, but because intentional violations are too selectively woven for the law to be steered by that principle.

While the criminal law historically may have imposed punishment based on objective deviations without reference to personal culpability, contemporary scholarship and public perception generally embrace the conception that personal moral culpability and blameworthiness delineate modem criminal law.(7) For over thirty years, the Model Penal Code has attempted to define and mold criminal law as a neutral condemnation of individual moral wrongdoing.(8) In doing so, the Code has attempted to reenforce this moral model; nevertheless, it has in fact given more evidence of a regime grossly inconsistent with that notion. In short, criminal law is not explained by moral individual culpability, but utilizes the imagery of morality to define directional boundaries within society, even when the law requires punishing a blameless individual as a pawn in this broader agenda.

Some recent scholarship has expressed concern over a perceived proliferation in regulatory crimes imposing very serious criminal sanctions without requiring proof of a culpable mens rea.(9) This Essay contends that the issue is more fundamental. While such regulatory offenses, historically associated with minor monetary punishment, generally have been marginalized by commentators as inconsistent with the thrust of criminal law, the dispensing of individual moral culpability is far more pervasive and indigenous to criminal law theory.(10)

This Essay examines moral fault in the criminal law by looking at three broad areas of the criminal law where individual moral fault is not required before the defendant can be convicted: Strict liability crimes, negligence based crimes, and result based crimes.

The rest of this article is only available to active members of Questia

Sign up now for a free, 1-day trial and receive full access to:

  • Questia's entire collection
  • Automatic bibliography creation
  • More helpful research tools like notes, citations, and highlights
  • Ad-free environment

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
Loading One moment ...
Project items
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

Cited article

The Myth of Morality and Fault in Criminal Law Doctrine
Settings

Settings

Typeface
Text size Smaller Larger
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

While we understand printed pages are helpful to our users, this limitation is necessary to help protect our publishers' copyrighted material and prevent its unlawful distribution. We are sorry for any inconvenience.
Full screen

matching results for page

Cited passage

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

Cited passage

Welcome to the new Questia Reader

The Questia Reader has been updated to provide you with an even better online reading experience.  It is now 100% Responsive, which means you can read our books and articles on any sized device you wish.  All of your favorite tools like notes, highlights, and citations are still here, but the way you select text has been updated to be easier to use, especially on touchscreen devices.  Here's how:

1. Click or tap the first word you want to select.
2. Click or tap the last word you want to select.

OK, got it!

Thanks for trying Questia!

Please continue trying out our research tools, but please note, full functionality is available only to our active members.

Your work will be lost once you leave this Web page.

For full access in an ad-free environment, sign up now for a FREE, 1-day trial.

Already a member? Log in now.

Are you sure you want to delete this highlight?