1. By “judicial punishment” I mean state coercion justified by criminal desert; sanctions justified by welfare goals I call “noncriminal penalties,” which are typically imposed either without fault or subject to a due diligence defence.

2. See, e.g., R.A. Duff, Intention, Agency, and Criminal Liability 150–151 (1990); Arthur Ripstein, Equality, Responsibility, and the Law 174 (1999).

3. H.L.A. Hart, Punishment and Responsibility 145–157 (1968).

4. For example, Glanville Williams saw manslaughter, where death need only be foreseeable, as “an exception to the requirement of full mens rea in crime.” See Glanville Williams, Criminal Law: The General Part 106 (2nd ed. 1961); see also Turner, J.W.C., The Mental Element in Crimes at Common Law, 6 Cambridge L.J.31 (1936)Google Scholar.

5. [1981] 1 All E.R. 961 (H.L.).

6. Duff, supra note 2.

7. Id. at 150.

8. [1976] A.C. 182.

9. Bayles, Michael, Character, Purpose, and Criminal Responsibility, 1 L. & Phil.5–20 (1982).Google Scholar

10. George Fletcher, Rethinking Criminal Law 799–802 (1978); Nicola Lacey, State Punishment 68–78 (1988).

11. John Gardner, The Gist of Excuses, 1 Buff. Crim. L. Rev. 575 (1998).

12. But Lacy, because she is dubious about our responsibility for our characters, rejects attribution to character as a retributivist side constraint, viewing it instead as integral to the forward-looking ends of punishment; see Lacey, supranote 10, at 72.

13. See Moore, Michael, Choice, Character, and Excuse, 7 Soc. Phil. & Pol'y29, 54–56 (1990)Google Scholar.

14. Bayles, supra note 9, at 17–19.

15. Jeremy Horder seeks to avoid this result of the character theory by judging the defendant's criminal act against an idealized moral character for whom such an act would be impossible. But this takes the character theory out of the frying pan of act-marginalization into the fire of no-fault criminal liability. Because the ideal moral character is a construct of reason, it is by definition unattainable by flesh-and-blood characters, who might uncharacteristically slip on occasion. To judge the real character as “bad” by an impossible standard of perfection, however, is to impose criminal liability without fault (and to turn every judge into a hypocrite). True, the defendant has broken the law with some form of mens rea; but the character theory (as modified by Horder) must see this as revealing a culpable character only because the real character has fallen short of the ideal one. And since he cannot help but fall short, this is to blame without fault. See Horder, , Criminal Culpability: The Possibility of a General Theory, 12 L. & Phil.193, 207–208 (1993)Google Scholar.

16. Hart, supra note 3, at 152.

17. Moore, supra note 13, at 35.

18. R. v. Adomako, [1994] 3 All ER 79 (H.L.); R. v. Hundal, [1993] 1 SCR 867; Model Penal Code, s. 2.02.

19. [1932] A.C. 562 (H.L.). The plaintiff drank from a bottle of ginger beer purchased from a café owner, in which was found the decomposed remains of a snail. As a result, she suffered stomach pains diagnosed as gastroenteritis. The plaintiff sued the bottler for damages, and the House of Lords acknowledged her cause of action, thus founding the modern tort of negligence as actionable outside the bounds of contract.

20. I. Kant, The Metaphysics of Morals 140–145 (Mary Gregor trans., 1991); G.W.F. Hegel, Philosophy of Right paras. 90–103 (T.M. Knox trans., 1967).

21. Of course, this skeletal account of retributivist punishment gives rise to many further questions. Does it entail giving literally like for like? If not, how is the conceptual link between crime and punishment to be translated into a practicable scheme of specific punishments? However, discussion of these questions lies beyond the scope of this essay, which is concerned solely with the appropriate fault threshold for criminality given the liberal premise of individual inviolability.

22. Thus the oft-heard argument that subjectivism ignores victims tells a half-truth. It forgets that subjectivism does not stand alone but comes on top of a theory of tort that sees tort law as vindicating the rights of victims and so as the proper sphere for objective standards of fault and even (in some cases) strict liability. Subjectivism assumes that the parties to a criminal action are the state and the accused; the accused is criminally culpable, not because he infringed this particular victim's right but because, in willfully infringing this particular person's right, he denied the very idea of a right and gave this denial practical force. Accordingly, to exculpate someone on the ground that, through an unreasonable mistake, he did not deny rights is perfectly compatible with a finding that he infringed this victim's right and is therefore liable in tort.

23. Though this can be deterred by a noncriminal penalty for a public-welfare offence, for which the penalty need not be deserved and to which other constraints protective of individual autonomy apply; see Alan Brudner, Agency and Welfare in the Penal Law, in Action and Value in the Criminal Law 40–45 (Stephen Shute, John Gardner, & Jeremy Horder eds., 1993).

24. Duff, supra note 2, at 159–162; Ripstein, supra note 2, at 178.

25. But now the empiricist will protest: Why is it legitimate to fix the empirical agent with the knowledge, choice, and assent of the thinking Agent? Why should the thinking Agent's consent to punishment count as that of the empirical agent, who, after all, must be assumed not to consent? One response is that a public standpoint is required to make law, crime, and punishment conceivable, and a public standpoint is possible only if we conceive the empirical human being as a particularized agency—a self individuated in various ways. But if the empirical individual is a particularized agency, then he or she may be fixed with the universal capacities (logical thought, free will) belonging to agency without external imposition; these capacities are not alien to the empirical agent, however well or ill the agent may realize them.

26. See Brudner, supra note 23. In confining a subjective fault requirement to the sphere of right-violations, the subjectivist position I defend departs from that of Jerome Hall, who would have banished negligence from the penal law generally; see Hall, Negligent Behavior Should Be Excluded from Penal Liability, 63 Colum. L. Rev. 632 (1963).

27. R. v. Williams, [1987] 3 All ER 411, 415 (C.A.).

28. R. v. Bailey (1800), Russell and Ryan 1, 168 E.R. 651.

29. I deal below with the objection that the thinking Agent would define consent only as publicly given.

30. [1843–60] All E.R. Rep. 229.

31. R. v. Borg, [1969] C.C.C. (4th) 262. However, the fact that capacity is present leaves open the question whether an extraordinary difficulty in controlling impulses because of mental disease might afford a partial defence of diminished responsibility mitigating crimes carrying a mandatory sentence.

32. Hadfield's Trial (1800), 27 St.Tr. 1281.

33. O.W. Holmes, The Common Law 41–43 (M. Howe ed., 1963); Fletcher, George, The Theory of Criminal Negligence: A Comparative Analysis, 119 U. Pa. L. Rev. 401 (1971)Google Scholar; Ripstein, supra note 2, at 179–214.

34. Fletcher, supra note 33, at 422.

35. Criminal Code, R.S.C. 1985 c. C-46, ss. 39(1), 322(1), 429(2).

36. Brudner, supra note 23.

37. Ripstein, supra note 2, at 186.

38. Id. at 186.

39. Id. at 187.

40. Id. at 187–188.

41. Id. at 209–214.

42. Restatement (Second) of Torts, s. 217: “It is not necessary that the actor should know or have reason to know that [his] intermeddling is a violation of the possessory rights of another.”

43. Does the monadic view of consent to bodily contact collapse the distinction between choice and wish? No, because there is room for the distinction even within the agent's private perspective. Thus, in the case of the rape victim fearful that her assailant will murder her if he knows he is raping her, we can intelligibly say she is choosing to feign acceptance while wishing she could manifest her rejection. To map the distinction between choice and wish onto that between the external and inward dimensions of the self is to settle a normative question by definitional fiat.

44. Duff, supra note 2, at 139–142.

45. Id. at 157, 163.

46. Id. at 164–165.

47. Larry Alexander's idea of “insufficient concern” as the unifying idea of culpability is also vulnerable to this slide into negligence. Alexander wants to unify culpability under advertent recklessness, but since the “basic moral vice” underlying culpability is the insufficient concern for others' interests shown by imposing unjustified risks, it is unclear why this lack of regard is not also shown by unreasonable mistakes (caused, say, by partiality to oneself) concerning when one's interests sufficiently outweigh those of others to justify imposing risks on them. Alexander believes that negligence is morally nonculpable even if the agent has the mental capacity to notice and appreciate the unjustified risk, because one has no control over one's absentmindedness unless one foresees it. But why should this be true absolutely, given that someone might fail to appreciate an unjustifiable risk not from absentmindedness but from a narcissistic tendency to overvalue his interests and undervalue others'? Even if forgetting or failing to notice is never blameworthy (a doubtful proposition in itself, since they might be caused by self-absorption), negligence need not always take these forms. It may consist in misvaluing because of insufficient concern the interests at stake. See Alexander, Larry, Insufficient Concern: A Unified Conception of Criminal Culpability, 88 Cal. L. Rev.931 (2000)Google Scholar.

48. Duff, supra note 2, at 165.

49. Horder, Jeremy, Gross Negligence and Criminal Culpability, 47 U. Toronto L.J. 495 (1997)Google Scholar.

50. Id. at 502–509.