There are a number of criminal law doctrines that evade the �doctrine of conjunction�1 � the precondition for culpability that the commission of a prohibited act be proven as accompanied by the intention to achieve the unlawful consequence.2 In general, they do so by ignoring, presuming, imputing or fictionally creating either actus reus or mens rea. This thesis contends that these are techniques which are deliberately constructed to manage incidental harm3 and which, together with the inchoate or anticipatory offences, form a patchwork of methods to supervise the citizen�s choices to inflict risks. It further argues that, by artificially converting secondary or incidental intention into malice, the doctrines disguise that modern criminal law has fate-management as its primary focus. The thesis illustrates that there are significant gaps in this regime. For instance, the inchoate offences can generally only address direct intention,4 and the outcome-based prohibitions cannot intercept fate. The thesis also maintains that fictions such as objective and constructive liability offend the rule of law, in that they modify fact rather than place values on it.5 The work suggests that current criminal law is an interim step towards a fully subjective fate-managing law. It proposes a radical revision to the existing approach: that the core criminal offence be �conscious disproportionate endangerment of the legal rights of others�.
| Identifer | oai:union.ndltd.org:ADTP/283096 |
| Date | January 2004 |
| Creators | Kennedy, William Brian |
| Publisher | University of Sydney. Law |
| Source Sets | Australiasian Digital Theses Program |
| Language | English, en_AU |
| Detected Language | English |
| Rights | Copyright Kennedy, William Brian;http://www.library.usyd.edu.au/copyright.html |
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