ABSTRACT
The criminological positivists at the turn of the century started a good deal of creative rethinking about the criminal law. In recent years there has been a resurgence of the controversy produced by serious proposals to eliminate the defence of legal insanity and, more radical still, to eliminate across the board the requirements of mens rea from the definition of criminal offences and defences. Moral innocence should, it is urged, give way to social dangerousness as the basis for a criminal disposition. The neo-reactionary criticism recommends that efforts to find improved definitions of the test of legal insanity be abandoned and that legal insanity as a defence be eliminated from the criminal law. Lady Wootton proposes that the entire body of qualifications to criminal liability embraced in the mens rea principle be eliminated. The proposed reconstitution of the criminal law would create insecurity in the general community when the central function of the criminal law is to create that security.
