Philosophical Analysis and the Criminal Law

An important aspect of philosophical analysis is the method of identifying the set of necessary and sufficient conditions for an object to be what it is. This method can be very fruitful for the understanding of the criminal law and for the drafting and reform of criminal codes. Though this method is sometimes used regarding specific Anglo-American criminal law concepts, it is not used enough. Continental legal systems apply this method in a more decisive manner, and in particular, they apply this method to the very notion of ?crime?. Identifying the set of necessary and sufficient conditions for an event to be a crime sheds considerable light on the nature of this concept as well as on the purposes of criminal legislation. The application of this method reveals important conception, political, and ethical distinctions between different aspects of the concept of a crime. It reveals, too, inadequacies with well-known and allegedly foundational distinctions in Anglo-American law, such as the actus reus/mens rea distinction, the objective/subjective distinction, the act requirement/actus reus requirement distinction, the justification/excuse distinction and others. I shall show that while the conceptual scheme of continental criminal law shares some of the infelicities of the Anglo-American criminal law, it nonetheless has some analytical advantages. I shall focus on one problem whose treatment is similarly inadequate in both traditions: the distinction between acts and thoughts. And I shall argue that making this distinction is valuable, insofar as it is a way of bringing intelligibility and organization to the criminal law in general and to criminal codes in particular. Sadly, this distinction does not gain in intelligibility by appealing to the actus reus/mens rea distinction, or to the act requirement/mens rea distinction, or to the action/culpability distinction of continental criminal law. In order to make a sensible distinction between acts and thoughts, it is necessary to abandon theories that define acts in terms of thoughts. The Model Penal Code, as many codes in Europe and Latin America, defines acts in terms of thoughts, and thus they render any attempt to sharply distinguish one of these phenomena from the other hopelessly confused. I conclude here by attempting to show the problems of the volitional theory of action, the Model Penal Code?s underlying theory of action, and by suggesting alternative ways of defining human acts.