Kennefick, Louise (2013) Towards a more contextual approach to blame attribution: the case of the Diminished Responsibility Offender. Australian Journal of Legal Philosophy, 38. pp. 123-152. ISSN 1440-4982
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Abstract
With the proliferation of nonstandard crimes which do not appear to have a clear
wrongdoer nor a clear wrong, and which do not denote a traditional, capacity based
approach to criminal responsibility, there exists a need within criminal law theory to
take stock. Many commentators (though not all) yearn for a reaffirmation of the true,
moral purpose of the criminal law and a delimitation of its boundaries.1* However, with
more formal recognition of an environment outside the criminal law which is ever
expanding and mutating, such an ambition is unlikely to materialise. Even scholars
such as Victor Tadros, who argues that the ‘central idea of holding an individual
responsible’ is, in fact constant or ‘historically stable’,2 acknowledges that this does not
entail that the idea of criminal responsibility is historically stable.3 It is argued that a
more attainable aim is for clearer insight into the workings and interconnectivity of
such aspects, with a view to informing future directions. To this end, this paper argues,
(albeit somewhat ambitiously), for a more particularised view of blame and takes the
example of the ‘Diminished Responsibility Offender’4 to promote contextualisation both in the structure and substance of the law, based on current trends in criminal law
theory, in addition to the behavioural sciences. Examining the issue of criminal
responsibility through the lens of a particular type of offender facilitates a deeper, and
arguably more tangible, understanding of the nature of the concept. This paper has
selected the doctrine of diminished responsibility as a pertinent prototype, given its
unique and dichotomous position within the criminal law; it vacillates between
presenting itself as a manifestation of the heart of individual responsibility, and
existing somewhat on the periphery of the criminal law, as a so called partial defence.
Furthermore, it reveals the capacity based approach to criminal responsibility as a
legitimating factor of its existence, while concurrently exposing the innate problems
pertaining to the same.
Item Type: | Article |
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Keywords: | blame attribution; Diminished Responsibility Offender; criminal responsibility; |
Academic Unit: | Faculty of Social Sciences > Law |
Item ID: | 8924 |
Depositing User: | Louise Kennefick |
Date Deposited: | 23 Oct 2017 16:10 |
Journal or Publication Title: | Australian Journal of Legal Philosophy |
Publisher: | Monash University |
Refereed: | Yes |
URI: | https://mu.eprints-hosting.org/id/eprint/8924 |
Use Licence: | This item is available under a Creative Commons Attribution Non Commercial Share Alike Licence (CC BY-NC-SA). Details of this licence are available here |
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