ABSTRACT
This chapter focuses on a debate that is still very relevant today and of which Hart was too quickly declared the winner, namely the Hart/Wootton debate. I explain why this debate is not just about the doctrine of mens rea, but more generally about the merits of the penal system: why not replace it with a fully forward-looking preventive system? First, I try to present Wootton’s alternative as charitably as possible: I argue that it is best construed as a non-evaluative system in which we bypass the question of whether the accused had a fair opportunity to obey the law and instead focus on facts and the appropriate measures to be taken to prevent recidivism. I show that her proposal is, in many ways, very close to the increasingly popular risk-need-responsivity (RNR) model of correctional treatment. Second, I present Wootton’s arguments which are mainly arguments against the traditional penal (punitive) system. Finally, I examine Hart’s various objections and the significant concession he makes to Wootton regarding offenders with mental disorders.
