Hearts and Minds: Understanding the New Culpability

Abstract

How does the modern criminal law understand mens rea? Conventionally, we moderns have for some time imagined mens rea as individual mind, as “psychical fact,” as subjectivity and personality. Very few, at least until recently, have doubted that we have made progress with this view of mens rea. One of the central tenets of late twentieth century criminal law scholarship is that the thin, descriptive ideas of culpability of the Model Penal Code are the essence of goodness and wisdom and clarity. Eschewed as hopelessly archaic and cruel are the mens rea terms of the common law, ideas dismissed precisely because they are full of emotion, attachments, and even passion, defiance, and contempt. The modern criminal law scholar regularly celebrates, instead, an idea of mens rea aspiring to fact and prediction, one in which states of mind