The Normative Basis of Fault in Criminal Law: History and Theory

Lesley H. Morley is a practising lawyer with a particular interest in
immigration law.

This monograph is intended to help legal theorists resolve the problem
of the legitimacy of the concepts of strict liability and negligence as
a basis for criminal liability. At present, neither concept is
considered to be compatible with penal law; for a conviction to occur,
it must be shown that one intended to commit the wrongful act, not that
one was merely negligent in its commission. Odujirin sets out to show
that this need not always be the case.

The conventional approach is that of the analytical criminal
jurisprudentialists, who believe that crimes should be distinguished
from other legally defined acts, because crimes alone contain the
elements of intention or recklessness. Acts committed negligently do not
meet that high level of intention and are therefore not criminal. As a
consequence, they are not subject to penal prosecution.

Odujirin argues that as a developed society, we see this theory of law
as a refinement of the cruder concepts from which it developed, and we
therefore understand the broadening of the intention requirement of
criminal law to include negligence and strict liability as a retrograde
step. He further argues that in the roots of the English common law, the
concept of legal wrong was not as restricted as it is today and yet was
just as legitimate then as our concept of legal wrong is now. In
rejecting the earlier concept, he asks, have we not rejected a part of
the available legal experience and thus limited our opportunity to
transcend the formal requirements of positive law? According to Adekemi,
the modern approach “constrains our moral sensibilities and shrinks
our intellectual horizons.”

Not a book for crime buffs or dabblers, The Normative Basis of Fault in
Criminal Law will be of greatest interest to those with a passion for
legal theory.