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Reconsidering the Relationship among Voluntary Acts, Strict Liability, and Negligence in Criminal Law

  • Larry Alexander (a1)

This essay, as will become obvious, owes a huge debt to Mark Kelman, particularly to his article “Interpretative Construction in the Substantive Criminal Law.” That debt is one of both concept and content. There is rich irony in my aping Kelman's deconstructionist enterprise, for I do not share his enthusiasm for either the “insights” or the political agenda of the Critical Legal Studies movement. I do not believe that either the law in general or the criminal law in particular is radically indeterminate, rife with internal contradictions, or an expression of the interests of a dominant economic class. And although, like Kelman, I believe that the freedom/determinism, act/character, and rule/principle dichotomies must ultimately be dealt with in order to have a completely satisfactory account of criminal law, I also believe that these dichotomies loom just as large in other areas of law and in normative theory generally. They are problems for Crits as well as for liberal-legalists.

In any event, my intentions in undertaking this deconstructionist enterprise are modestly reformist, not revolutionary. I do not intend to shift any paradigms, but to work with well-established ones. I will assume that criminal law seeks to accomplish some blend of retributive response to and deterrence of culpable choices, choices to defy moral norms that are also legal norms. (I omit consideration of criminal laws premised on immoral norms.) I will also assume that a culpable choice is one that reflects negatively on the values held by the chooser. Beyond these quite modest assumptions, I need not and will not venture in this paper, realizing, of course, that much has and can be written about the proper aims of punishment and the proper account of culpability.

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Leo Katz , Bad Acts and Guilty Minds: Conundrums of the Criminal Law (Chicago and London: University of Chicago Press, 1987).

Yoram Shachar , “The Fortuitous Gap in Law and Morality,” Criminal Justice Ethics, vol. 6, no. 2 (Summer/Fall 1987), pp. 1236

Stephen Schulhofer , “Harm and Punishment: A Critique of Emphasis on the Results of Conduct in the Criminal Law,” University of Pennsylvania Law Review, vol. 122 (January 1974), pp. 14971607

Henry M. Hart , “The Aims of the Criminal Law,” Law and Contemporary Problems, vol. 23 (Summer 1958), pp. 401, 422–25

Frances B. Sayre , “Public Welfare Offenses,” Columbia Law Review, vol. 33, no. 1 (January 1933) pp. 52, 82

Larry Alexander , “Retributivism and the Inadvertent Punishment of the Innocent,” Law and Philosophy, vol. 2, no. 2 (August 1983), pp. 233–6.

George Fletcher , “The Theory of Criminal Negligence: A Comparative Analysis,” University of Pennsylvania Law Review, vol. 119, no. 3 (January 1971), pp. 401–38

Jerome Hall , “Negligent Behavior Should Be Excluded from Penal Liability,” Columbia Law Review, vol. 63, no. 4 (April 1963), pp. 632–4

Richard Wasserstrom , “H.L.A. Hart and the Doctrine of Mens Rea and Criminal Responsibility,” University of Chicago Law Review, vol. 35 (1967), pp. 92126.

J.W.C Turner , “The Mental Element in Crimes at Common Law,” Cambridge Law Journal, vol. 6, no. 1 (1936), pp. 31, 44–48.

Jeffrie Murphy , “Involuntary Acts and Criminal Liability,” Ethia, vol. 81 (1971), pp. 332, 340–42.

Brenda Baker , “Mens Rea, Negligence, and Criminal Law Reform,” Law and Philosophy, vol. 6, no. 1 (April 1987), pp. 53, 82.

Michael Moore , “Choice, Character, and Excuse,” Social Philosophy & Policy, vol. 7, no. 2 (Spring 1990).

Michael Zimmerman , “Negligence and Moral Responsibility,” Nous, vol. 20, no. 2 (June 1986), p. 199

Holly Smith , “Culpable Ignorance,” The Philosophical Review, vol. 92, no. 4 (October 1983), p. 543.

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Social Philosophy and Policy
  • ISSN: 0265-0525
  • EISSN: 1471-6437
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