Elements of Blameworthiness in the Law of Homicide: Harmfulness, Wrongness, and Culpability

Abstract

The concept of blameworthiness plays a central role in the retributive theory of criminal law, in both its negative and positive forms. But what exactly makes conduct blameworthy? In this chapter, I seek to develop a framework for thinking systematically about that question. In particular, I identify a collection of three basic “elements” -- harmfulness, wrongness, and culpability -- to which the concept of blameworthiness can be reduced. All three terms appear widely in the literature of criminal law theory, but they have often been used inconsistently and without clear definition. What one theorist calls “culpability” another calls “wrongness,” and vice versa. Concepts that should be understood as analytically distinct are conflated. One or more key elements is left out. The relationship among the three concepts is insufficiently explained. Focusing particularly on the conduct that underlies the homicide offenses, I show what the three key concepts mean on their own, in relation to each other, and with respect to criminal law defences such as consent, duress, and necessity. Special attention is given to questions about which of these elements can exist in the absence of the others -- if harmfulness can exist without wrongness, wrongness without harmfulness, harmfulness without culpability, culpability without harmfulness, culpability without wrongness, and wrongness without culpability.

Keywords: blameworthiness, harmfulness, wrongness, culpability, duress, necessity, consent, homicide

JEL Classification: K14