Mensrea

1990 ◽  
Vol 7 (2) ◽  
pp. 1-28 ◽  
Author(s):  
Jean Hampton
Keyword(s):  
Daily Life ◽  
Mental States ◽  
Penal Code ◽  
Detailed Account ◽  
Mens Rea ◽  
Model Penal Code ◽  
States Of Mind ◽  
Criminal Conviction ◽  
The Law ◽  
The Right

Accusing, condemning, and avenging are part of our daily life. However, a review of many years of literature attempting to analyze our blaming practices suggests that we do not understand very well what we are doing when we judge people culpable for a wrong they have committed. Of course, everyone agrees that, for example, someone deserves censure and punishment when she is guilty of a wrong, and the law has traditionally looked for a mens rea, or “guilty mind,” in order to convict someone of a criminal wrongdoing. But philosophers and legal theorists have found it interestingly difficult to say what mens rea is. For example, noting the way in which we intuitively think people aren't culpable for a crime if they disobey the law by mistake, or under duress, or while insane, theorists such as H.L.A. Hart have tried to define mens rea negatively, as that which an agent has if he is not in what we consider to be an excusing state. But such an approach only circumscribes and does not unravel the central mystery; it also fails to explain why the law recognizes any excusing states as mitigating or absolving one of guilt, much less why all and only the excusing states that are recognized by the law are the right ones. Moreover, the Model Penal Code, which gives a very detailed account of the kinds of mental states which justify criminal conviction, does not tell us (nor was it designed to tell us) why these states of mind (e.g., knowledge, purposiveness, intention, assumption of risk of harm, negligence) are relevant to an assessment of legal guilt.

The draft code and reliance upon official statements

Legal Studies ◽  
1989 ◽  
Vol 9 (2) ◽  
pp. 177-188 ◽  
Author(s):  
Glanville Williams
Keyword(s):  
Criminal Code ◽  
Penal Code ◽  
Model Penal Code ◽  
Draft Code ◽  
American Law ◽  
The Law ◽  
Political Realities ◽  
Law Commission

Any project to draft a criminal code has to compromise between the desirable and the politically possible. It may be that the draft now produced by the Law Commission, or something like it, is the best that can safely be backed, though the contrast between it and the American Law Institute's Model Penal Code (which also had to take account of political realities, and yet has been adopted in many States) is a painful reflection on our stodginess. It is hard to avoid the impression that the Law Commission have been too cautious in their approach, leaning too much in favour of bare restatement of the existing law and against modifications that experience or reflection show to be necessary.

scholarly journals SEX TANPA NIKAH: Dilema Hukum Positif dan Moralitas Bangsa

AKADEMIKA ◽  
2020 ◽  
Vol 13 (02) ◽  
Author(s):  
Achmad Fageh
Keyword(s):  
Criminal Law ◽  
Penal Code ◽  
Front Door ◽  
Positive Law ◽  
The Subject ◽  
The Law ◽  
The Right ◽  
Local Cultures

Abstract: Efforts to bring together the synergity of positive legal products and the value of morality of the nation as the wisdom of local cultures to-Indonesiaan needs the seriousness of various parties. Specifically, the provisions of the law governing adultery that truly reflect the aspirations and values that live in the community and are moral mirroring, are indispensable to the attention of many other aspects that Need to also note. While awaiting its realization, the author considers it to be no longer the time when all parties excuse that the freedom and privacy of a person in the sex field is ' closed ' to the law, so that the criminal law stops at the front door of the room. Therefore, maintaining the notion of adultery according to the PENAL code (which is now in force), is the same by validating the sofsion of the values of goodness that live in society. Do we have to be flashed and want to keep that detrimental ' privacy '? Do we still have to ' endure ' by skipping.The formulation of TP fornication in the RUU KUHP has a wider scope than arranged in the KUHP. This is reflected in article 417 and article 419 RUU KUHP, which arranges about the deed of intercourse with a person who is not a husband or his or his/her "collect Kebo" act. Controversy appear as the Delik fornication arranged in both of the article is a complaints delics (still equal to the Delik fornication in article 284 KUHP). The fornication act is not changed to a common delics that can be reported by anyone who knows the deeds. From the subject side, the right to complain has been expanded in a RUU KUHP, which can be complained by a husband, wife, parent, or child.Keywords: Free sec, positive law, national morality

UNTYING THE GORDIAN KNOT OF MENS REA REQUIREMENTS FOR ACCOMPLICES

2016 ◽  
Vol 32 (2) ◽  
pp. 161-183
Author(s):  
Heidi M. Hurd ◽  
Michael S. Moore
Keyword(s):  
Criminal Law ◽  
Common Law ◽  
Penal Code ◽  
Mens Rea ◽  
Model Penal Code ◽  
American Law ◽  
General Part ◽  
The Common ◽  
Anglo American ◽  
Responsibility Model

Abstract:This essay undertakes two tasks: first, to describe the differing mens rea requirements for accomplice liability of both Anglo-American common law and the American Law Institute's Model Penal Code; and second, to recommend how the mens rea requirements of both of these two sources of criminal law in America should be amended so as to satisfy the goals of clarity and consistency and so as to more closely conform the criminal law to the requirements of moral blameworthiness. Three "pure models" of the mens rea requirements for complicity are distinguished, based on the three theories of liability conventionally distinguished in the general part of Anglo-American criminal law. One of these, the vicarious responsibility model, is put aside initially because of both its descriptive inaccuracy and its normative undesirability. The analysis proceeds using the other two models: that of the mens rea requirements for principal liability for completed crimes, and that of the mens rea requirements for attempt liability. Both the common law and the Model Penal Code are seen as complicated admixtures of these two models, the common law being too narrow in the scope of its threatened liability and the Model Penal Code being both too broad and too opaque in its demands for accomplice liability. The normative recommendation of the paper is to adopt the model for the mens rea of complicity that treats it as a form of principal liability, recognizing that the overbreadth of liability resulting from adoption of that model would have to be redressed by adopting a "shopkeeper's privilege" as an affirmative defense separate from any mens rea requirement.

scholarly journals Approaches to the Reform of the Law of Theft

2005 ◽  
Vol 29 (2) ◽  
pp. 469-490
Author(s):  
L. H. Leigh
Keyword(s):  
Penal Code ◽  
Model Penal Code ◽  
The Law

Cet article compare les propositions législatives que fait la Commission de réforme du droit du Canada (CRD) au sujet du vol, dans son Rapport n° 30, avec les dispositions du English Theft Act 1968 et du Model Penal Code. Dans son examen critique des suggestions de la CRD, l'auteur considère d'abord l'élément moral du crime de vol. Il souligne les problèmes qu'a soulevés le mot « dishonesty » devant les tribunaux anglais. La simplification que la CRD propose, à l'effet de remplacer les expressions anciennes par des formulations plus abstraites, lui semble peu satisfaisante en ce qu'elle pourrait avoir pour effet d'élargir le crime de vol. Ce danger serait d'autant plus grand que l'élément moral du vol comprend l'intention de priver temporairement la victime de sa propriété. Parmi les autres problèmes traités se trouve la notion d'apparence de droit reconduite par la CRD. La définition de la propriété semble insatisfaisante à l'auteur en ce qu'elle réfère aux biens immobiliers. L'occupation illicite d'une propriété doit-elle être considérée comme du vol ? Quels seraient alors les effets en droit criminel des règles de droit civil relatives au transfert de la propriété ? Peut-on envisager que des règles de droit criminel autonomes pourraient solutionner le problème ? En conclusion, l'auteur exprime l'opinion que les suggestions de la CRD doivent être réexaminées à la lumière de l'expérience des juridictions sur lesquelles elles sont basées.

scholarly journals Rationales: rejected, imagined and real – provocation, loss of control and extreme mental or emotional disturbance

2021 ◽  
Vol 72 (2) ◽  
Author(s):  
Vera Bergelson
Keyword(s):  
Emotional Disturbance ◽  
Penal Code ◽  
Self Control ◽  
The Other ◽  
Model Penal Code ◽  
Loss Of Control ◽  
England And Wales ◽  
Loss Of Self ◽  
The Law ◽  
Law Commission

What makes intentional killing under provocation less reprehensible than murder? The answer to this question determines the rationale for the law; and the choice of the primary rationale – justificatory or excusatory – determines the scope and fundamental features of the partial defence.In this article, I attempt to parse through two reforms – one promulgated by the Model Penal Code 1980 (MPC), the other by the Law Commission for England and Wales – and compare their versions of the defence both to each other and to the ‘loss of self-control’ defence of the Coroners and Justice Act 2009 in the hope of determining and appraising the governing rationales for each version of the defence. I conclude that the largely justificatory defence of provocation developed by the Law Commission (and to a lesser degree the ‘loss of self-control’ defence) is legally and morally preferable to the largely excusatory defence proposed by the MPC.

Blowing Hot and Cold: The Role of Estoppel

2020 ◽  
pp. 131-154
Author(s):  
Larissa Katz
Keyword(s):  
Detailed Account ◽  
Private Rights ◽  
Personal Authority ◽  
Normative Significance ◽  
The Law ◽  
The Right ◽  
Formal Statement ◽  
Made In

This chapter provides a detailed account of a particular kind of estoppel. It argues that the law knows of a doctrine of “formal estoppel,” as contrasted with other, more familiar, variants. Formal estoppel is an extension of estoppel by deed, whereby a person who makes a formal statement as to their rights is estopped from subsequently denying that statement. It explains the nature and normative significance of formal estoppel in terms of the personal authority wielded by right-holders over the determination of their rights. Part of what it means to have a private right, as this chapter shows, is for the right-holder to have personal authority in relation to others’ understanding of their rights. The exercise of this authority extends to public statements made in respect of an individual’s rights. Statements by right-holders are an important way in which clarity can be reached in what an individual owes another. Recognition of the authority and responsibility of right-holders for public statements as to their rights implies that the law should treat them as binding and final. Formal estoppel is, then, the means by which courts recognize a question as to private rights as having been irrevocably decided by the right-holder.

Applying the Model Penal Code Insanity Defense to Sleepwalking Killers and Psychopaths

2020 ◽  
Vol 23 (4) ◽  
pp. 471-515
Author(s):  
April Xiaoyi Xu
Keyword(s):  
Insanity Defense ◽  
Penal Code ◽  
Model Penal Code ◽  
Philosophical Beliefs ◽  
Scientific Disciplines ◽  
The Status ◽  
The Subject ◽  
The Law ◽  
American Legal System ◽  
Insight Into

The American legal system currently tends to excuse sleepwalking killers, particularly based on the involuntary act defense, more so than the insanity defense. By contrast, the law generally does not excuse psychopathic murderers. However, the status quo may not be the optimal or most just solution to this legal dilemma; depending on one’s philosophical beliefs regarding the tension between society’s interest and the accused’s rights, one can identify various flaws within the prevailing application of the insanity defense in cases involving sleepwalking and psychopathy. As the law is constantly evolving, there is space for growth in this area, especially with the advancement in neuroscience, which can offer more insight into sleepwalkers’ and psychopaths’ brains. In approaching the complex questions of whether and how the law should excuse sleepwalking killers and psychopaths from punishment, this article turns to relevant findings from neuroscience for support and focuses on one particular approach, that of the Model Penal Code (MPC) insanity defense. We begin with an overview of the relevant criminal law doctrine in contextualizing the MPC’s approach to insanity defense. We then apply the relevant MPC section, § 4.01, to the sleepwalking killer and psychopath contexts, bearing in mind relevant studies and findings in neuroscience and related scientific disciplines, as well as their limitations at this stage. Part of the analysis considers the U.S. Supreme Court’s latest insanity law decision, Kahler v. Kansas (2020), in relation to the subject matter of this article.

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