The Role of Harm and Evil in Criminal Law: A Study in Legislative Deception?

Abstract:     
What is the role of the occurrence of harm or evil in criminal law? What should it be? Answers to these questions commonly use the distinction between what is called an objective and a subjective view of criminality. To oversimplify, the objective view maintains that the occurrence of the harm or evil defined by the offense is highly relevant. The subjectivist view maintains that such harm or evil is irrelevant; only the actor's culpable state of mind regarding the occurrence of the harm or evil is important.

The labels tend to overstate a rather subtle distinction. The objectivist or harmful consequences view is not so objective as to require that the harm or evil of the offense actually occur in order to impose liability. The objectivist imposes liability for inchoate conduct, as for example, when the actor comes close to bringing about a real offense harm or evil. The subjectivist view, in turn, is not so subjective as to only require a culpable state of mind. An intention alone is insufficient for liability; some act is required to prove the actor's willingness to act upon, to externalize, his or her subjective culpability. And, while the occurrence of the harm or evil may not be important to the subjectivist, the nature of the harm or evil intended or risked is important to determine the degree of the actor's culpability. Intending to cause death is more serious than intending to trip. The primary difference between the two views, then, is the role of resulting harm or evil. The objectivist thinks it central, the subjectivist thinks it marginal.

The different perspectives also have been labelled as the difference between traditionalists and modernists. Common law is said to embody the traditional objective view of criminality, where the gravamen of an offense is its resulting harm or evil. The modernist subjective view of criminality, in contrast, focuses upon the actor's culpable state of mind toward bringing about the offense harm or evil, without regard for whether the harm or evil actually occurs.

As currently expressed, these are distinctions that in many important respects obscures rather than sharpens the points of dispute in criminal law debate.

Keywords: Criminal law, liability, punishment, traditionalists, modernists, criminality

JEL Classifications: K14

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