Legalizing Blame II: Doctrinal Problems in the General Part


in Punishment, Responsibility, and Justice

Published in print October 2000 | ISBN: 9780198259565
Published online January 2010 | e-ISBN: 9780191710636 | DOI:

Series: Oxford Monographs on Criminal Law and Justice

Legalizing Blame II: Doctrinal Problems in the General Part

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This chapter analyses problems of law within the general part and shows that legal issues which have resisted successful analysis can be understood once one sees that the law's key move is to separate a ‘technical’ definition of the offence from a morally substantive periphery of justification and excuse. Two problems are highlighted: the definition of the offence and the demarcation of the defence. The attempt to create a technical definition of mens rea which seeks to marginalise and exclude matters of moral substance is discussed. The focus is on the law of intention, and this chapter contends that a factual and technical definition in terms of what the individual knows, intends, or foresees denies full access to substantive moral issues inherent in the concept of intention. Two related controversies in the law of self-defence are also considered: one involving the use of public or private defence where there is an ‘unknown justification’, and the other concerning the question of mistaken self-defence. Both issues are linked to dualism and tripartism in offence and defence.

Keywords: general part; law; defence; offence; justification; excuse; self-defence; mens rea; intention; dualism

Chapter.  13556 words. 

Subjects: Comparative Law

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