ABSTRACT
Introduction In the dominant view, criminal law contains a ‘general part’ containing principles and rules which reflect a philosophical understanding of the relationship between the individual, law and the state. This liberal and Kantian understanding is elegantly expressed by Andrew Ashworth in the idea of respect for individual autonomy, from which stems desert for punishment (Ashworth, 1991). Criminal law is, or should be, reflective of the idea of individual choice, and penal sanction should only follow a freely chosen act. From these premises is born the subjective approach to criminal law principles affirming the need for intention, foresight, knowledge and belief concerning actions and their consequences. These constitute, in Ashworth’s terminology, the ‘positive fault requirements’ which have to be established in order to prove an offence (ibid, Chapter 5). Beyond these, however, there exist certain ‘negative fault requirements’ which operate to supplement and qualify judgments of responsibility that might otherwise be made on the basis of the positive requirements (ibid, Chapter 6). Into this category, there fall the various ‘defences’ – ‘excuses’ and (on some analyses) ‘justifications’ – which may negate responsibility otherwise established on the basis of the positive criteria. It is this relatively simple picture of a general part consisting of acts and mental elements, qualified by justificatory and excusatory defences, and based upon principles of individual autonomy, that I wish to examine.
