My claim is that all cultures of criminal law posit theories both of wrongdoing and attribution. They may not use this precise language, but the theories are implicit in the doctrines they use. Take, for ex- ample, the common law's reliance on the maxim: Actus non facit reus nisi mens sit rea. [There can be no criminal liability without the joinder of actus reus and mens rea.] In this formula the actus reus stands for the wrongful act, and mens reafor the criteria of attribution. In other words: there can no criminal liability without culpable (or blameworthy) wrongdoing.
This proposition does not resolve, however, the conflict between the psychological and moral theories of attribution. And in fact, both theories run through the common law. ***The practical difference between them is whether excuses are seen to negate mens rea(culpability or blameworthiness) or whether excuses are regarded as "defenses," as claims of confession and avoidance. *** According to the Model PenalCode § 2.02, excuses do not negate the "kinds of culpability" required for commission of an offense. *** Claims of duress, insanity, and mistake of law lie outside the boundaries of culpability.
In many common law decisions, however, we find judges treating insanity and other excuses as factors negating mens rea.There may be some practical virtue in maintaining ambiguity between these conflict- ing approaches toward attribution, or it may be that in common law thinking on these matters, the structuring of issues has simply never received the intellectual attention that it deserves引自第85页
the conflict between psychological and moral theories of attribution;<< didnt get it...
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