What Is Criminal Culpability?

Abstract

Abstract Chapter 2 aims to elucidate the concept of criminal culpability. Since the project of the book is to analyze, evaluate, and ultimately defend certain criminal law doctrines that impute mental states on the basis of equal culpability, the chapter explains what criminal culpability is. Chapter 2 presents the author’s theory of culpability and aims to show why it offers an attractive way to think about this concept. The theory falls squarely within the insufficient regard tradition, but the chapter fleshes out details in new ways to strengthen the theory and solve certain problems for this sort of position. The chapter is divided into two main parts. The first is ecumenical and aims to bring as many into the broad church of the insufficient regard theory as possible. The chapter does this by highlighting the explanatory power of the author’s version of the theory (particularly the requirement to manifest bad attitudes in action before criminal liability attaches and the criminal law’s general disinterest in motives and other unmanifested mental states). The chapter also shows how the theory can accommodate both sides in certain controversies about the criminal law. The second half of the chapter adopts a normative stance and provides arguments for how these controversies should be resolved. This insufficient regard theory is used as the basis for the arguments going forward in the book.