Two Kinds of Culpability

Abstract

There are two kinds of culpability at work in the criminal law, corresponding to two different senses of mens rea or guilty mind. An older tradition conceives of mens rea broadly as signifying blameworthiness. However, mens rea often has a narrower sense, signifying the mental elements of an offense, such as whether the agent intended harm, foresaw harm, recklessly caused harm, or negligently caused harm. On this elemental view, mens rea is the mental dimension of the offense, complementing the objective dimension contributed by the specification of actus reus. Whereas the narrower sense of culpability associated with elemental mens rea is well understood, the broader sense of culpability as blameworthiness and especially the relationship between the two kinds of culpability are not always clearly articulated. In this essay I offer an account of these two kinds of culpability and explain their relationship to each other. In particular, broad and narrow culpability are complementary, rather than rival, conceptions. Each is an important part of an adequate criminal jurisprudence. This is because they correspond to different parts of a broadly retributive rationale for blame and punishment, which sees these attitudes and practices as fitting responses to culpable or responsible wrongdoing. The elemental sense of mens rea is the mental or subjective dimension of wrongdoing, whereas the broader sense of culpability attaches to wrongdoing for which the agent was responsible and blameworthy. Each kind of culpability plays an important role in this account of the architecture of a broadly retributive rationale for the criminal law that predicates blame and punishment on the fair opportunity to avoid wrongdoing. Being clear about the role of both kinds of culpability in an adequate criminal jurisprudence is valuable in itself but also pays other dividends as well. The two kinds of culpability are tied to two different faces of responsibility -- responsibility as attributability and as accountability. Narrow culpability is concerned with responsibility as attributability, whereas broad culpability is concerned with responsibility as accountability. Moreover, the two kinds of culpability give rise to two different conceptions of strict liability crimes that are worth distinguishing -- liability without narrow culpability and liability without broad culpability. The second sort of strict liability is even more problematic than the first; both are condemned by fairness norms in a broadly retributive criminal jurisprudence.