Should the Criminal Law Abandon the Actus Reus-Mens Rea Distinction?

Abstract

Many criminal lawyers, judges, and professors see the distinction between actus reus and mens rea as one of the more basic of criminal law. Along with the offense-defense distinction, it helps us organize the way we conceptualize and analyze liability. It is said to be the corner-stone of discussion on the nature of criminal liability. The concepts of actus reus and mens rea have justified themselves by their usefulness.

I will argue that this most basic organizing distinction is not coherent. Rather than being useful to criminal law theory, it is harmful because it creates ambiguity in discourse and hides important doctrinal differences of which criminal law should take account. I suggest that we abandon the distinction in favor of other conceptualizations.

Keywords: criminal, actus reus, mens rea criminal liability

JEL Classification: K14