Two Models of Criminal Fault

Citation

Duff RA (2019) Two Models of Criminal Fault. Criminal Law and Philosophy, 13 (4), p. 643–665. https://doi.org/10.1007/s11572-019-09504-w

Abstract
I discuss two problems for the standard Anglo-American account of recklessness, and the distinctions between intention, recklessness, and negligence. One problem concerns the over-breadth of recklessness as thus defined—that it covers agents whose actions display different kinds of culpability. The other problem concerns the importance attached to awareness of risk in distinguishing recklessness from (mere) negligence—that one who is unaware of the risk that he takes or creates sometimes displays just the same kind of fault as an advertent risk-taker. We can work towards solutions to these problems by contrasting the Anglo-American schema with the German schema: this distinguishes intention (Vorsatz, consisting in purpose, or knowledge, or ‘dolus eventualis’) from negligence (Fahrlässigkeit, which can be either advertent or inadvertent). Dolus eventualis, properly understood, constitutes a distinctive kind of fault, which should be distinguished from advertent negligence within the category of what the Anglo-American schema counts as recklessness: this helps to solve the first problem, of over-breadth. As for the second problem, we can see why the difference between advertent and inadvertent risk-taking is not always normatively significant by noticing that an agent’s failure to realise the risk he is creating can itself display a significant fault in the structure of the practical reasoning that informs his action—just the same kind of fault as that displayed by an advertent risk-taker. The upshot of this discussion is a new schema of types of criminal fault; I finally note some problems with the practicability of such a new schema.

Keywords
Criminal fault; Recklessness; Negligence; German law; Dolus eventualis

Journal
Criminal Law and Philosophy: Volume 13, Issue 4