The concept of criminal responsibility refers to the quality or state of being morally, legally, or mentally accountable for the intentional commission of an act prohibited and punishable under criminal law. The principle of individual autonomy whereby the individual is endowed with free will and the independent capacity to choose his or her conduct is a central principle in modern criminal law. No one may be held accountable for an act he has not performed, or for the commission of an act in which he has not participated. A person can only be held criminally liable if he is involved in the commission of a crime and has a frame of mind that expresses or implies mental participation in the offense.
According to the principle of nullum crimen sine lege, there can be no crime without an established law prohibiting the action committed. Criminal offenses must be provided for in specific written legislation that was enacted at the time the conduct was undertaken. A crime consists of both the physical element or act (actus reus) and the concurrent mental element (mens rea), most often considered to be the intention to commit the crime. Criminal responsibility applies to both those who perform criminal acts (principals in the first degree) and to those who aid and abet perpetrators by encouraging or knowingly helping in the commission of a criminal act, either at the time of the offense (principals in the second degree) or before the crime takes place (accessories before the fact).
The question of criminal responsibility relates to an individual’s mental state at the time of the offense. To convict a person charged with a crime, the behavior of the individual must have been a product of free will. Although the definition of criminal responsibility varies depending on jurisdiction and context, the concept generally implies that the perpetrator understands what they are doing and that it is wrong. Most countries establish an age below which a child cannot be held criminally responsible for their actions. It is also generally agreed that persons suffering from serious mental disorders should be relieved from the consequences of criminal conduct; however, there is much debate and controversy over what the appropriate legal standard for responsibility should be.
History and Philosophy of Criminal Responsibility
The term responsibility grew in usage in modern Europe during the 18th century in a political context within debates over representative government. This term was prevalent in discussions relating to the U.S. Constitution in The Federalist Papers of 1787 and in the writings of political philosopher Edmund Burke. John Stuart Mill also wrote about responsibility in the 19th century relating to principles of responsible action. At the end of the 19th century, Max Weber discussed the ethics of responsibility for the politician, arguing that the vocation of politics requires attention to the facts of the situation and the consequences of action. The discussion of responsibility in 20thcentury philosophy shifted to emphasize questions of free will and determinism, how responsible agency can be compatible with the causal order of the universe.
Moral and Legal Responsibility
In Nicomachean Ethics, Aristotle discusses moral responsibility as based on the actions and character of a moral agent, one who possesses a capacity for decision resulting from deliberation. It is appropriate to hold a moral agent responsible for a particular action only if the action is voluntary. Voluntary actions must have their origin in the agent and cannot be compelled externally. The agent must be aware of what he is doing in his actions. Saint Augustine and Thomas Aquinas root their discussion of freedom and responsibility in theological determinism. In his Groundwork for the Metaphysics of Morals, Immanuel Kant argues that morality is based on human reason. In contrast, David Hume in his Treatise of Human Nature argues that reason cannot provide individuals with moral guidance, but rather their tendency to feel shame and guilt for how others see their actions and character dictates their moral conduct.
Legal institutions assign responsibilities to individuals and hold them accountable for failing to uphold such duties through criminal and civil law. Legal philosophers such as H. L. A. Hart have written extensively on the philosophy of responsibility. Legal and moral responsibility often overlap, but also diverge in relation to the concern for outcomes versus intentions. The idea that law punishes those who choose their actions emphasizes both the consequentialist emphasis on outcomes with the mental element that punishment is only appropriate when relating to competent choice. Legal responsibility also provides for conditions under which individuals are not responsible for their agency, such as in cases where the agent is mentally ill or under a certain minimum age.
Individual and Collective Responsibility
The modern conception of criminal responsibility rests on the principle of individual agency. Psychology and metaphysics are often used to explain what constitutes a person who can be held responsible for his or her actions. Responsibility can also be framed in the context of moral agency and duties and has been utilized not only in describing the individual, but also in discussions on the responsibility of government or what it means to be a socially responsible corporation.
Increasing attention has been given to the question of collective or shared responsibility in cases where the actions of a group of people combine to create a specific result, for example, the actions of a corporation, citizens of a state, or members of an organization. Responsibility, in this case, could be framed as both the duty of the collective as well as the obligations of the individual. The question of whether a collective can be held responsible if it lacks the psychological capacities of an individual can be addressed in framing the discussion in terms of responsibility as the capacity to interact in the context of shared norms. As such, arguments have been made for collective responsibility, as well as for individual accountability.
Elements of Crimes
A crime must include both a voluntary act or omission (actus reus) and a certain state of mind (mens rea). The harm done must also have been caused by the accused. An individual can be held criminally liable if he or she fails to act under legal obligation when reasonably capable of doing so. Under mens rea, guilt can be attributed to persons acting purposely, knowingly, recklessly or negligently. Penal offenses that do not require demonstration of a culpable mind on the part of the accused, also considered strict liability offenses, traditionally have included statutory rape, economic regulations, and laws concerning public safety. Individuals who act in ignorance of the facts of their actions should not be held criminally responsible; however, ignorance of the law is not generally considered an acceptable defense, with exceptions in the criminal codes of Germany, Switzerland, and Austria.
Legal Standards for Criminal Responsibility
There are substantial differences in the definition of criminal responsibility between legal systems. Continental European law frequently outlines the grounds for mitigating circumstances, including situations in which the use of lethal and nonlethal force is justified. This is often considered only in sentencing or by juries in Anglo-American law. This topic occurs in the area of law relating to self-defense when the agent reasonably believes that there is an imminent threat and action is necessary to avoid such peril (for example, the 1842 case of the United States v. Holmes or the rejection of the principle of necessity in the 1884 British case of Regina v. Dudley and Stephens). The use of nonlethal force may be permitted if the defendant reasonably believed himself to be acting under duress or coercion. Under Anglo-American law, offenses known as inchoate crimes relate to crimes committed in preparation of committing other crimes. Such crimes include attempt, incitement, solicitation, and conspiracy. Inchoate crimes must include mens rea elements of intent or recklessness.
In the United States, the two most common standards for criminal responsibility are the M’Naghten test and the American Law Institute (ALI) standard. The case of Daniel M’Naghten (1843) established standards regarding the knowledge or right-wrong test of insanity. This standard held that it must be clearly proven that the accused was acting without ability to reason or know the nature of the act as being wrong at the time the act was committed in order to establish a defense on the grounds of insanity. From this case, it was established that the defendant’s mental disorder must be directly related to an impairment that causes the defendant to not understand the nature of his actions or to not know that those actions were wrong.
The ALI standard (1962) established that the accused is not criminally responsible due to mental disease or defect if he lacks substantial capacity to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of law. This standard includes both the cognitive element found in the M’Naghten test, as well as a volitional component. Currently, the only published instrument developed for use in the assessment of criminal responsibility is the Rogers Criminal Responsibility Assessment Scales (R-CRAS, 1984). R-CRAS was developed to standardize the collection of information to evaluate criminal responsibility using the ALI standard, but can also be adapted for use with the M’Naghten standard.
Juveniles and Criminal Responsibility
The mens rea element of criminal responsibility focuses on the agent’s cognitive ability and capacity to make choices in determination of guilt. In this determination, there can be a focus on the minimum age at which a state may find the individual guilty of an offense. As long as the actor has the capacity to choose his actions, he may be held responsible. This determination of whether the individual knew right from wrong entails a minimal rational understanding of wrongful conduct. The defense of infancy excludes defendants falling within the definition of infant from criminal liability for their actions. Issues relating to responsibility also may arise in sentencing stages of legal proceedings. The severity of punishment depends heavily on mental capacity and free will. It is argued that juveniles that demonstrate diminished capacity may not be punished as severely, as they are less culpable. In the case of Roper v. Simmons (2005), the U.S. Supreme Court prohibited the use of the death penalty for juveniles on the grounds that they are less culpable.
The United Nations (UN) Standard Minimum Rules for the Administration of Youth Justice, also known as the Beijing Rules, adopted in 1985 by the UN General Assembly, provides a bill of rights for young offenders and juvenile prisoners in member nations. This resolution recognized the need to develop specialized systems of juvenile justice to address the special needs of young people, and emphasizes the fact that custody should be used as a last resort for children, as well as the need for anonymity of child offenders. The UN Convention on the Rights of the Child (UNCRC) in 1989 expanded on these principles, and states that children below a minimum age shall be presumed not to have the capacity to infringe on penal law. This minimum age is not specified in the convention; however, international standards recommend that the age of criminal responsibility be set according to developmental capacities of children, including emotional, mental, and intellectual maturity. Currently, 193 countries are party to the UNCRC, including all UN member nations except Somalia, South Sudan, and the United States.
The minimum age of criminal responsibility varies greatly throughout the world, ranging from the age of 6 to the age of 18. In the United States, the age is determined by each state, ranging from the age of 6 to the age of 12. Common law states that the minimum age of responsibility is the age of 7, while federal crimes set the age at 11. The International Criminal Court sets the standard for responsibility at the age of 18.
Individual Criminal Responsibility Under International Law
The topic of individual criminal responsibility under international law raises various questions regarding the imposition of criminal responsibility on a state and distinctions between the criminal responsibility of individuals and public and private legal entities. In cases where collective individual conduct is performed under authority of a legal entity, that conduct may be ascribed to that legal entity as well as individuals as part of the entity. If a group or organization to which an individual belongs is deemed to be a criminal organization, individual members may be tried for membership in that criminal organization, but only if the individual had knowledge that the organization was being used for the commission of crimes or was personally implicated in the commission of such crimes.
This idea is analogous to a criminal conspiracy in cooperation for criminal purposes, as the group must be organized for a common purpose in connection with specific crimes. These ideas, highlighted in the International Military Tribunal at Nuremberg, were subsequently fleshed out at the International Criminal Tribunal for the former Yugoslavia in the Tadic case, which set out the principles that nobody may be held accountable for criminal offenses perpetrated by other persons, and that a person may be held criminally responsible only if he is involved in the commission of a crime and mentally participates in the offense.
- Ashworth, A. J. Principles of Criminal Law. 5th ed. Oxford: Oxford University Press, 2006. Bassiouni, M. Cherif. International Criminal Law. 3rd ed. Vol. 1. Leiden, Netherlands: Martinus Nijhoff Publishers, 2008.
- Cassese, Antonio. International Criminal Law. 2nd ed. Oxford: Oxford University Press, 2008.
- Chambliss, William J. Juvenile Crime and Justice. Thousand Oaks, CA: Sage, 2011.
- Husak, Douglas. The Philosophy of Criminal Law: Selected Essays. Oxford: Oxford University Press,
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