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Punishment and Freedom$
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Alan Brudner

Print publication date: 2009

Print ISBN-13: 9780199207251

Published to Oxford Scholarship Online: September 2009

DOI: 10.1093/acprof:oso/9780199207251.001.0001

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Culpable Mind

Culpable Mind

Chapter:
(p.59) 2 Culpable Mind
Source:
Punishment and Freedom
Author(s):

Alan Brudner

Publisher:
Oxford University Press
DOI:10.1093/acprof:oso/9780199207251.003.0003

This chapter criticizes the character and choice theories of the culpable mind as incapable of justifying judicial punishment specifically as opposed to moral censure generally. It develops from legal retributivism an account of the culpable mind requirement that reconciles judicial punishment with the inviolability of the person. The chapter argues that the wrongdoer's choice to interfere or to risk interfering with another agent's capacity to act on ends it chooses is the level of fault required to make punishment implicitly self-imposed by the recipient and thus distinguishable from the wrongdoer's violence. Such a choice is one to which a denial of rights of agency may be logically imputed, a denial by which the wrongdoer implicitly authorizes his own coercibility. Exculpatory conditions are those which block an inference from the agent's choice to a denial of rights. The chapter argues that this version of subjectivism is invulnerable against the criticisms levelled against other versions.

Keywords:   punishment, mens rea, subjectivism, character theory, choice theory, involuntariness, legal insanity, mistake of fact, mistake of law

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