Antony Duff: Two Models of Criminal Fault
Høstens første instituttseminar er ved Antony Duff fra University of Stirling / University of Minnesota. Et sammendrag finnes nedenfår. Åpent for alle interesserte.
"We find in Anglo-American criminal law a standard account of criminal fault: a hierarchy of four types of fault. The American Model Penal Code (§ 2.02(2)) defines them—
• Purpose: it is D’s ‘conscious object’ to bring X about.
• Knowledge: D is ‘aware’ of the ‘practical certainty’ that X will ensue.
• Recklessness: D ‘consciously disregards a substantial and unjustifiable risk’ that X will ensue.
• Negligence: D ‘should be aware of a substantial and unjustifiable risk’ that X will ensue.
And, ‘unless otherwise provided’, criminal liability requires at least recklessness.
There are at least two kinds of objection to the role that recklessness plays in this account—
• That it is too broad a category, encompassing both an agent who realises that X will very probably ensue, and doesn’t care; and an agent who thinks that X will probably not ensue and hopes that it will not.
• That the distinction between advertent and inadvertent risk-taking does not always have the kind of normative significance that the standard account ascribes to it.
I’ll consider the force of these objections by contrasting this account with the German model of criminal fault, which distinguishes—
• Vorsatz (‘intention’) which can take the form of purpose, knowledge, or dolus eventualis;
• Fahrlässigkeit (‘negligence’), which can be advertent or inadvertent.
(German criminal law theory has influenced other continental systems, including Norway(?).)
The discussion has wider implications for our understanding of moral blameworthiness; in particular—
• the importance of attending to the agent’s conception of the reasons for and against her action;
• how our understanding of and judgment on an action can depend on the agent’s reaction to it after the event;
• why it is a mistake to make (conscious) choice the primary measure of an agent’s fault.
But a further question will be whether, or how far, the criminal law should seek to capture the different dimensions of moral culpability."