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the consequences of the actions, in the civil remedy available or in the puni-
tive sanction. Criminal conduct is probably best described as the kind of
conduct acts or omissions that the law seeks to discourage or prevent
through the threat or implementation of punitive sanctions, whether or not
it actually is morally wrong or harmful. It is the unlawfulness of the conduct
that is central to the definition.
Criminal law is concerned, however, not only with acts, but also with the
states of mind accompanying them. Liability to the sanctions of law can be
either subjective or objective in the sense that it is related to the subjective
state of the agent s mind, or solely to the act. When it is the latter, liability is
said to be objective or strict . The performance of the unlawful act is suffi-
cient to confirm guilt. The established norm in English criminal law is that
liability is not strict, but requires proof of a guilty state of mind (mens rea)
in addition to the unlawful act (actus reus). In other words, some degree of
fault on the part of the offender is required. This norm is the outcome of a
complex doctrine that has evolved in the history of common law. The basic
idea is that, in order to be held criminally liable, the agent must have
committed an offence freely, knowingly and deliberately. To many legal
writers today, full commitment to the doctrine of mens rea is at least in its
basic implications an essential condition for a just legal system.
This interpretation, however, is not self-evident. There are numerous
exceptions to the norm of fault-requirement, which are by no means univer-
sally condemned as injustices. Strict liability controversially imposed by
Parliament in 1994 on owners of dangerous dogs, for example, is thought by
many to be wholly justified. This kind of unconditional shouldering of
responsibility without fault also exists in civil law, as illustrated by Rylands v.
158 Criminal responsibility and punishment
Fletcher (1868), in which a mill-owner was held liable for inadvertently
causing the flooding of neighbouring property. This landmark case estab-
lished a comprehensive rule laying down strict liability in the case of the
escape of dangerous things from a man s land (Baker 1991: 277).
Furthermore, quite apart from instances in which unconditional liability is
stipulated by law, there are numerous grey areas, especially in the context of
unlawful injury or killing, in which it is not always readily agreed that lack
of mens rea should absolve the agent from responsibility. The uncertainty in
such cases will be one of the central themes in this chapter.
Free agency and responsibility
One of the fundamental conditions for attributing moral responsibility to
anyone for a harmful act they have committed is the assumption that we are
talking about a free agent. The general question to be dealt with here
concerns situations and circumstances in which we might be inclined to say
that, although an act that is normally understood to be criminal has been
committed, there is insufficient blame to warrant criminal prosecution
because the agents were genuinely not in control of their own actions. In
such cases, it is commonly argued, we cannot make the assumption that we
are dealing with a free agent. If circumstances place the will of the agent
under such pressure that there was no alternative to the course of action
taken, it seems that we cannot meaningfully say that a free choice was made.
If we cannot say this, then we cannot in all fairness hold the agent liable to
punishment. It is this question about the meaningfulness of choices that has
to be examined closely.
Excuse or justification
In the context of wrongful or harmful acts, there are many ways in which it
can be argued that the agent is blameless. In the case of the volitional argu-
ment that there was no unconstrained will, hence an absence of real choice
the distinction between excuse and justification is vitally important. The
distinction is familiar to everyday moral arguments for exonerating harmful
behaviour. If the agent is justified, the contention is that despite the harm,
no wrong has been committed. A violent act in self-defence, for example, is
presented as a justification rather than an excuse. If, by contrast, excusing
conditions are cited, the argument is that the act was wrongful but under-
standable in the circumstances. The claim, for example, that one was in an
impossible situation because provoked beyond endurance, is more plausibly
interpreted as an excuse than as a justification. With a justification, it is
presumed that if faced with the same situation again, one would take the
same course of action; with an excuse, which is inherently an admission of
human weakness, the tacit argument is that in similar circumstances one
would not do it again.
Responsibility and guilt 159
Both arguments of excuse and justification have been employed regularly in
legal defences based on necessity or duress. The distinction is important,
despite the fact that in many senses the legal consequences are identical. This is
because the moral plausibility of any particular defence rests upon a clarifica-
tion of the different implications of excuse and justification. A justified act is
not regarded as wrongful or unlawful, hence the agent is free of blame and
criminal liability. An excused act is a wrongful and unlawful act, but the agent
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