Should the Criminal Law Abandon the Actus Reus-Mens Rea Distinction?
Many criminal lawyers, judges, and professors see the distinction between actus reus and mens rea as one of the more basic of criminal law. Along with the offence-defence distinction, it helps us organize the way we conceptualize and analyse liability. It is said to be ‘the corner-stone of discussion on the nature of criminal liability’. And, the concepts of actus reus and mens rea have ‘justified themselves by their usefulness’. This chapter argues that this most basic organizing distinction is not coherent. Rather than being useful to criminal-law theory, it is harmful because it creates ambiguity in discourse and hides important doctrinal differences of which criminal law should take account. It suggests that we abandon the distinction in favour of other conceptualizations.
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