Tuesday, June 10, 2014
The criminal law holds an actor liable only if he acts with a guilty mind (mens rea). But in what does a guilty mind consist? We tend nowadays to regard the guilty mind as consisting in nothing more than the various mental states a state happens to require itself to prove in order to prove that an actor committed this or that criminal offense. Knowing in what the guilty mind consists thus requires nothing more than reading and interpreting the statute defining the crime. The guilty mind, in other words, consists in whatever the state in the exercise of its authority to define crimes says it consists.
I suggest we regard the guilty mind, not simply as that which results from the state’s exercise of its authority, but as a limit on the exercise of that authority as well. My thesis is this: An actor possesses a guilty mind if and only if he freely chooses to φ, where φ-ing is a crime, and where the actor’s choice to φ manifests, either in the choice itself, or in the actor’s failure to realize that in φ-ing he commits a crime, a quality of will inconsistent with that of a law-abiding citizen.