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9363 results in The Cambridge Law Journal

Page 227 of 469

  • Professor Williams and Conditional Subjectivism

  • R. A. Duff
  • Journal:
    The Cambridge Law Journal / Volume 41 / Issue 2 / November 1982
    Published online by Cambridge University Press:
    16 January 2009, pp. 273-285
    Print publication:
    November 1982

  • Professor Williams has done much to explicate and defend the subjectivist account of mens rea, which makes conscious risk-taking central to the idea of recklessness. It is thus not surprising that he should be critical of the rulings in Caldwell and Lawrence; nor would I quarrel with many of his objections to those decisions. My concern here is with his own views on the proper definition of “recklessness,” and on the proper use of that definition, in the criminal law: for his Textbook of Criminal Law suggests, and his discussions of Caldwell show, that he is willing to extend the concept of recklessness beyond the strict limits of subjectivism. Such an extension is indeed warranted: but I will argue that it can be explained and justified only by a more radical revision of subjectivism than he seems to allow (I ignore Lawrence and reckless driving here: Professor Williams is willing to accept an objectivist account of recklessness as gross negligence in the context of reckless driving, so long as it retains a suitably subjective meaning in other criminal contexts (R.R. 273–275)).

Page 227 of 469