Rethinking Culpability and Wronging (In the Criminal Law - and In Everyday Life)

University of Cincinnati Law Review

27 Pages Posted: 29 Aug 2023 Last revised: 13 Feb 2024

See all articles by T. Markus Funk, PhD

T. Markus Funk, PhD

University of Colorado School of Law; University of Oxford

Date Written: February 12, 2024

Abstract

"Culpability” for good reason plays a central role in justice systems around the world. Yet, as this article argues, in the U.S. this foundational concept tied to moral responsibility (relevant in the criminal law and beyond) has traditionally received a surprisingly crimped construction. The Model Penal Code, for example, narrowly uses moral culpability of perpetrators as a means of “grading” offenses and calibrating sentences. State and federal legislative enactments and scholarly analysis follow suit.

Under this prevailing perpetrator-centric approach, “harm” refers to the concrete damage (or the “injury”), such as physical pain and damage or loss of property, the alleged offender caused. Culpability, on the other hand, is thought to tell us what was going on in the perpetrator’s mind so that we can assess how morally blameworthy the perpetrator’s conduct was.

What is missing is the recognition that criminal conduct in fact inflicts two very distinguishable forms of “injury” to the victim. First, there is the concrete harm to the victim’s person or property. Second is the extent to which the perpetrator’s conduct imposed “unequal standing” on the victim. This article demonstrates that it is this second category of injury that the U.S. justice system fails to appropriately consider.

“Unequal standing,” after all, is rooted in the understanding that a democratic society tethered to a common set of legal ground rules and presumes a willing and engaged population. The essential precondition for such success is that people have an equal concern and reciprocal respect for one another’s rights. Put another way, the population voluntarily buys into the system because the individuals in it in broad terms respect those rules, including the obligation to recognize and safeguard each other’s “equal standing” in the public sphere. This takes its most stark form in terms of criminal sanction for those who transgress the most basic rules - but also applies in non-criminal social settings where we expect others to abide by this common set of ground rules.

Unlike totalitarian systems that resort to brute force to conform the public’s behavior, democracies founded on the rule of law must truly earn the public’s respect for their legal rules. They depend on the public’s willingness to voluntarily self-police conduct in the sense of voluntarily conforming their conduct to these rules. Only when the people maintain such relationships of restraint between and among each other can a justice system effectively preserve fundamental human rights.

The position advanced here, then, is that the U.S. justice system’s prevailing offender-centric perspective is due for a rethink. We must recognize that a perpetrator’s decision to unjustifiably elevate his or her own interests over those of the victim inflicts a very distinct injury. Viewing culpability through a more victim-centric lens opens the avenue to a holistic understanding of the full scope of a perpetrator’s conduct. By recognizing and labeling the imposition of unequal standing as a distinct injury we, in turn, acknowledge and reinforce the equality-supporting civic bonds so vital to a flourishing society.

Keywords: culpability, criminal law, equal standing, wronging, harming, social norms, social contract, deviant, deviance, labeling, moral, restraint, disregard, disrespect, respect, ethics, antisocial, social, democratic, ground rules, citizen, erosion, justice, system, guilt, responsible, punishment

Suggested Citation

Funk, PhD, T. Markus, Rethinking Culpability and Wronging (In the Criminal Law - and In Everyday Life) (February 12, 2024). University of Cincinnati Law Review, Available at SSRN: https://ssrn.com/abstract=4552101 or http://dx.doi.org/10.2139/ssrn.4552101

T. Markus Funk, PhD (Contact Author)

University of Colorado School of Law ( email )

401 UCB
Boulder, CO 80309
United States

University of Oxford ( email )

Mansfield Road
Oxford, Oxfordshire OX1 4AU
United Kingdom

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