Re-examining the Underlying Principles of the New Zealand Criminal Responsibility

Amir Bastani, B.A., M.A., PhD student in Law.

Email: basam118@student.otago.ac.nz

Outline

• Doctrine of Criminal Liability and Excuse• Attack against the law• Two Interpretations of Criminal Law:

I. As If view

II.Folk Psychology• Conclusion

Criminal Responsibility> Attack> as if> Folk Psychology> Conclusion

• Criminal liability is the ascription of guilt for an offence to a person.

• The criminal law assumes that individuals are responsible agents capable of making choices and intending the results of their conducts.

• Even if all elements of crime are proved, defendant can avoid liability: – Justification– Excuse: Legal insanity.

Current Assumption of Responsibility

Criminal Responsibility> Attack> as if> Folk Psychology> Conclusion

• The tests of insanity in New Zealand.–At the time of the crime the accused must

suffered from disease of mind –As a result of the mental abnormality he

could not understand the nature and quality of the behavior –Also he did not know that the behavior is

morally wrong

Avoiding Liability

Criminal law Vs. Science

Criminal responsibility

Scientific explanation Criminal law’s explanation

X is insane X is sane

Criminal Responsibility> Attack> as if> Folk Psychology> Conclusion

Broad view Narrow view

Attack

• Theoretical basis of criminal law is incoherent and it is inconsistent with the nature of human behavior.

• Some scholars persist in arguing that the principles of criminal law must evolve to comport with a more scientifically conclusive evidence understanding of human nature.

Criminal Responsibility> Attack> as if> Folk Psychology> Conclusion

Criminal Responsibility> Attack> as if> Folk Psychology> Conclusion

• Legal vs. Theoretical Free Will (Alexander, Staub, Hall, Packer)

– Theoretical free will: Philosophical, psychiatric, biological perspectives on free will.

– Legal free will:Criminal law is based on social norm, not scientific or philosophical notions.

• The idea of free will in relation to conduct is not, in the legal system, a statement of fact, but rather a value preference having very little to do with the metaphysics of determinism or free will . . . the law treats man's conduct as autonomous and willed, not because it is, but because it is desirable to proceed as if it were. (Packer)

As if View

Criminal Responsibility> Attack> as if> Folk Psychology> Conclusion

• Social system is strengthened by holding people responsible and undermined by shifting liability to the many factors affecting human conduct.

• A government should be empowered to force individuals only for what they do and not for what they are.

• Law’s view on insanity: some conduct is not the product of the free exercise of conscious volition.

• To sum up: criminal law and science can not be reconciled.

As If View ...

Criminal Responsibility> Attack> as if> Folk Psychology> Conclusion

• The law’s concept of liability is based on its conception of the human being and the nature of the law:– Law is a system of rules– Humans are practical reasoning and rule-following

creatures

Folk psychology

Criminal Responsibility> Attack> as if> Folk Psychology> Conclusion

• Science can make profound contribution but can not dictate any normative.

• The criminal law is coherent and can accommodate scientific claims.

• Therefore, some of new claims can be brought within the ambit of current criminal law defense, albeit with reasonable changes.

Folk Psychology ...

Criminal Responsibility> Attack> as if> Folk Psychology> Conclusion

• As if view: law and science are incompatible. The law views on human as if they are conscious even though scientifically there is no such freedom.

As if narrow view on insanity • Folk psychology: the law is compatible with science.

New claims based on scientific discoveries can be brought within the boarder of the criminal law.

Folk psychology broad view on insanity

Conclusion