Should Criminal Law Mirror Moral Blameworthiness or Criminal Culpability? A Reply to Husak

24 Pages Posted: 13 Oct 2020

See all articles by Alex F. Sarch

Alex F. Sarch

University of Surrey School of Law

Date Written: September 30, 2020

Abstract

In "Ignorance of Law," Doug Husak defends a version of legal moralism on which “we should recognize a presumption that the criminal law should derive from, be based on, conform to, or mirror critical morality.” He thinks “we should regret…retreats from our ideal and do our best to find ways to avoid them,” even while agreeing “retreat is almost certainly needed.”

In this paper, however, I ask whether this claim about regret true across the board. I argue that criminal law departures from the moral ideal need not always be regretted. Instead, I explore whether the substantive rules of the criminal law should mirror not moral blameworthiness, but a distinct legal notion of criminal culpability—akin to moral blameworthiness, but which is cleaned up to be deployed in legal systems. Rather than relegating institutional design considerations to a secondary position reached only after the moral ideal has been mapped, I suggest that they should be built into the criminal law theorist’s inquiry from the outset.

This methodological gambit pays practical dividends as well. Distinguishing criminal culpability from moral blameworthiness opens up alternatives to Husak’s central conclusions about the exculpatory force of normative ignorance. There are good reasons for the criminal law to make certain charitable presumptions about citizens as competent agents, which morality needn’t similarly make, and this calls into question a key premise in Husak’s argument for the claim that normative ignorance exculpates. As a result, we would be able to preserve the traditional view that ignorance of law is no excuse at least with respect to core mala in se behaviors.

Keywords: Mens Rea, Culpability, Blame, Morality, Criminal Law

JEL Classification: K14

Suggested Citation

Sarch, Alex F., Should Criminal Law Mirror Moral Blameworthiness or Criminal Culpability? A Reply to Husak (September 30, 2020). Available at SSRN: https://ssrn.com/abstract=3702237 or http://dx.doi.org/10.2139/ssrn.3702237

Alex F. Sarch (Contact Author)

University of Surrey School of Law ( email )

United Kingdom

HOME PAGE: http://www.surrey.ac.uk/law/people/alexander_sarch/

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