Reflections on Prince, Public Welfare Offenses, American Cyanamid, and the Wisdom of the Common Law
HASNAS, John - Personal Name
t The fundamental requirement of Anglo-American criminal law is that crime
must consist of the concurrence of a guilty mind—a mens rea—with a guilty act—an actus
reus. And yet, the criminal law is shot through with discordant lumps of strict liability—
crimes for which no mens rea is required. Ignoring the conventional normative objections
to this aberration, I distinguish two different types of strict criminal liability: the type that
arose at common law and the type associated with the public welfare offenses that are the
product of twentieth and twenty-first century legislation. Using famous cases as exemplars,
I analyze the two types of strict liability, and then examine the purposes served and
incentives created by subjecting individuals to strict liability. I conclude that common law
strict liability is rational in that it advances the purposes of the criminal law, while the
public welfare offenses are at best pointless and at worst counterproductive. I suggest that
in this respect the common law contains more wisdom than the results of the legislative
process.
must consist of the concurrence of a guilty mind—a mens rea—with a guilty act—an actus
reus. And yet, the criminal law is shot through with discordant lumps of strict liability—
crimes for which no mens rea is required. Ignoring the conventional normative objections
to this aberration, I distinguish two different types of strict criminal liability: the type that
arose at common law and the type associated with the public welfare offenses that are the
product of twentieth and twenty-first century legislation. Using famous cases as exemplars,
I analyze the two types of strict liability, and then examine the purposes served and
incentives created by subjecting individuals to strict liability. I conclude that common law
strict liability is rational in that it advances the purposes of the criminal law, while the
public welfare offenses are at best pointless and at worst counterproductive. I suggest that
in this respect the common law contains more wisdom than the results of the legislative
process.
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E-Jurnal
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Subject(s)
Strict liability
Public welfare offenses
Regina v. Prince
United States v. Dotterwich
Indiana Harbor Belt R. R. v. American Cyanamid
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Statement of Responsibility
John Hasnas1
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