Virtue, Vice, and Criminal Liability: Do We Want an Aristotelian Criminal Law?

Abstract

In criminal law theory, as in other kinds of theorizing, there is a powerful temptation (or, less question-beggingly, a powerful disposition) to search for a grand, unitary theory of criminal liability: some unitary account of what we are or should be liable for, of the conditions under which we are or should be held liable, of the basic structure and elements of liability, which applies across the whole range of criminal offenses. Such theorizing is typically an exercise in censorial rather than in purely analytical jurisprudence: although theorists of a Herculean disposition might claim that their account makes best sense of the values and aspirations that can be discerned within our existing legal systems and structures, their claim has in the end to be that this is how the law ought to be, not that this is how the law actually is in its contingent historical complexity. Such theories thus offer us, as any good normative theory should offer us, a standard against which we can assess and criticize existing legal doctrine and practice. The most ambitious theory would specify necessary and sufficient conditions of criminal liability: for instance that we are liable for and only for the choice to do or to risk doing what the law defines as the actus reus of a crime. Others, more modestly, claim only to specify a necessary condition of liability: for instance that criminal liability always requires, or must always be for, an “act” or a