How is the culpability we assign to recklessness best accounted for in criminal law?
Abstract
In order to be properly applied, criminal law must determine what conduct warrants
punitive action. Figuring out exactly how one must act to be criminally liable is a
difficulty that faces any legal system. In many jurisdictions criminal recklessness is
regarded as an important notion for liability. However, recklessness is difficult to define,
and attempts at this exercise have been a problem in legal philosophy since the mid-twentieth century, and persist today (Crosby 2008). This thesis discusses accounts of
recklessness with the aim of defining it in a way that overcomes several problems which
have arisen in recent legal history. It is widely accepted, as well as prima facie intuitive,
that people can be culpable for acts committed recklessly. Despite this, whether or not a
state of mind is reckless is difficult to define, let alone define in a way that is not only
conceptually sound, but also pragmatically apt.
Recklessness occurs when an agent engages in some risky activity, but factors like
the agent’s attitude and whether the risk is foreseen have been cited as relevant when
ascertaining their recklessness. I discuss some difficulties in legally framing
recklessness, before criticising some definitional manoeuvres made by judges and
scholars in the past. With some problems in previous accounts noted, I consider the
foundations of culpability in general. I suggest that two accounts of culpability – the
agency theory and the choice theory – are both plausible, and each correlates to a
prominent contemporary position on recklessness (and criminal law in general). After
serious consideration of both positions, I conclude that the position advocated by
Antony Duff, which I see as in keeping with the agency theory of culpability, is both
more generally useful for criminal law and much more coherent with our everyday
practices of blaming and punishing.
Type
Thesis, MPhil Master of Philosophy
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