Integrating Insanity with the Principle of Fault in Modern Criminal Law

Ono Academic College, Kiryat Ono, Israel


2.1 The Principle of Fault in Modern Criminal Law

The insanity defense is an integral part of substantive criminal law. Its place among the principles of criminal law may reflect the legal attitude and insights toward it, which are essential for understanding the boundaries between the insanity defense and the tangential in personam defenses (see Chap.​ 3). Below is described the manner in which insanity is integrated with the principle of fault in modern criminal law in three steps: (a) the outlines of criminal law theory, (b) the outlines of the principle of fault and of the negative fault elements, and (c) the relevant defenses that are art of the “family” of defenses of insanity.

2.1.1 The Basic Structure of Criminal Law Theory

Criminal law is part of the scientific sphere called “law,” or “the legal science”. Therefore, criminal law is a scientific sphere. In the past, in the Anglo-American legal systems, there was a conceptual difficulty in classifying law as a science because of its development through case-laws, which made use of the praxis of binding precedents (stare decisis). This attitude matched the general scientific development in Anglo-American countries, which was casuistic. By contrast, the European-Continental legal systems considered law to be a science,1 and therefore in Europe it was necessary to study at the university to become a jurist. In the first university in Europe, the University of Bologna, law was one of the scientific subjects being studied.2 The Faculty of Law of Bologna played a crucial role in the development of law in the Middle Ages (jus commune).3

In the modern era there seems to be no controversy that the law represents indeed a scientific sphere.4 The law should therefore develop through legal research, using the relevant research methodologies, some of which are unique to this particular scientific sphere. This is also the reason for placing the legal studies in the academia.5 If the law is as science and requires a scientific methodology, it is necessary to create a single scientific theory that governs the law. This is a fundamental endeavor in every science, including the law. Such a theory must meet two requirements: it must describe accurately all relevant events without using any random elements and it must predict accurately all relevant future events.6

The emergence of such a new theory is not always simple. The primary theory appears to be inconclusive after some time, and exceptions arise that the theory cannot explain. As a result, amendments or changes are introduced in the primary theory to account for the exceptions. When the theory can no longer explain the exceptions, it is replaced by a new one. The new theory may also turn out to be inconclusive, and must therefore be amended, changed, or replaced.7

Legal theory is developing in the same way. A single legal theory that would clarify all relevant legal issues would not be restricted to specific legal areas. In the context of this book, however, the theory is restricted to criminal law, therefore the theory under consideration is Criminal Law Theory. The need for such a theory in criminal law is crucial. The large number of doctrines, legal norms, exceptions, and exceptions to the exceptions muddied the waters of criminal law, which have become vague and unclear. The single theory of criminal law, which organizes all of criminal law and speaks with one coherent voice, is about legal social control. Society controls the individuals through criminal law, and therefore the justifications of criminal law theory must be based on social approaches and explanations.

A scientific theory has various levels of application. The levels are hierarchical, with lower levels subordinated to the higher ones. The highest level represents the essence of the theory, generalized into a supra-principle. This supra-principle is the core of the theory, and all other levels are subordinated to it. Exceptions at this level require replacing the entire theory. From the supra-principle derive the fundamental principles that break down the supra-principle into basic legal principles, which in turn guide the application of the supra-principle. From each fundamental principle derive secondary principles. It is the secondary principles that create the legal form of the concrete application of the fundamental principles. From each secondary principle derive specific legal provisions that make the secondary principles applicable to specific events. Figure 2.1 shows a schematic description of this four-level structure.


Fig. 2.1
The structure of scientific legal theory

According to this structure, specific legal provisions cannot contradict secondary principles, secondary principles cannot contradict fundamental principles, and fundamental principles cannot contradict the supra-principle. This structure functions as a template, which is then filled with content relevant to criminal law theory.

The supra-principle of criminal law theory is the principle of free choice. According to the supra-principle, no criminal liability can be imposed on an individual unless the individual has chosen to commit a criminal offense. When an individual is compelled to commit an offense, imposing criminal liability is not considered to be justified. The individual autonomy of the human being is the social concept behind the supra-principle.8 To function as the supra-principle of criminal law theory, the free choice must be well defined. Although free choice may seem to be related to the modern political philosophy of the eighteenth century, its origins reach back to the dawn of humanity.9 When certain regimes rejected the free choice concept, they were considered to be illegitimate.

The principle of free choice negates determinism. The basic assumption of free choice is that free choice is possible. Deterministic concepts, which regard individual behavior to be dominated by external forces, negate the principle of free choice.10 Determinism may be relative. Under certain circumstances, when an object falls from an individual’s hand, the path of the object may not be under the individual’s control, but causing the object fall may be.

From the supra-principle derive the fundamental principles. In criminal law theory there are four fundamental principles:


The principle of legality;



The principle of conduct;



The principle of fault (the principle of culpability); and-



The principle of personal liability.


The supra-principle of free choice refers to the individual’s choice between permitted and forbidden behavior. To enable free choice it is necessary to draw accurately the borderline between “permitted” and “forbidden.” The rules of formation of what is “permitted” and “forbidden” are embodied in the first fundamental principle of criminal law theory, the principle of legality.11

When an individual chooses to commit a forbidden act, the act must be physically carried out to duly enable the imposition of criminal liability. The rules of formation of the physical appearance of free choice are embodied in the second fundamental principle of criminal law theory, the principle of conduct, the objective expression of free choice.

Exercise of an individual’s free choice requires certain mental positions in the individual’s mind, including both positive and negative aspects. The positive aspects are embodied in the mental elements of the offense, the negative aspects in the general defenses.12 Thus, an offense may require specific intent in order to impose criminal liability—a positive aspect (mental element). When the individual is incapable to form culpability (doli incapax), owing to insanity, infancy, lack of self-control, uncontrollable intoxication, etc., the possibility of imposing criminal liability is negated because of subjective reasons related to the negative aspects.

The rules of formation of the mental appearance of free choice are embodied in the third fundamental principle of the criminal law theory, the principle of culpability, the subjective expression of free choice. This principle is most known as the principle of fault in criminal law.

Since imposition of criminal liability requires free choice on the part of the individual, it is necessary that the free choice be the individual’s own and personal free choice. One individual is not criminally liable for the free choice of another.13 Free choice and criminal liability are embodied in the same legal entity. The rules of formation of the personal appearance of free choice are embodied in the fourth fundamental principle of criminal law theory, the principle of personal liability. The four fundamental principles are the outcome of the supra-principle of free choice and derive from it.

From the four fundamental principles derive secondary principles. From each of the four fundamental principles derive four secondary principles. The secondary principles form a concrete and specific template for the application of the fundamental principles. From each of the secondary principles derive specific legal provisions, the specific applications of secondary principles. The specific legal provisions represent concrete rules of imposition of criminal liability upon the individual. Figure 2.2 illustrates schematically the four-level structure of criminal law theory.


Fig. 2.2
The structure of criminal law theory

There are no exceptions to criminal law theory, not in its structure and not in its content.

2.1.2 The Role and Development of the Principle of Fault in Modern Criminal Law

Because free choice is a supra-principle of criminal law theory, it is implemented, among others, through the principle of fault. This requires that no criminal liability be imposed on a offender without a fault (nullum crimen sine culpa). Fault, therefore, becomes an essential condition for the criminalization of offenses and the imposition of criminal liability. The development of the principle of fault in modern criminal law can be divided into three main stages.14 Initially there were some sporadic requirements of fault, but they were not considered as a general requirement. Second, the concept of fault emerged as one of the requirements for the imposition of criminal liability, and finally, in modern criminal law, as a general requirement. The requirement is relevant both for the legislator, when enacting criminal offenses, and for the court, when imposing criminal liability. The modern principle of fault is the result of the development of these three stages over the centuries.

The first stage of development, which included some sporadic requirements of fault, endured in most legal systems since ancient times until the thirteenth century. In the ancient East, the fault was necessary, albeit not as general requirement but as a unique one in certain offenses. No general defenses based on fault were developed in these legal systems, but certain situations were accepted as not justifying the imposition of criminal liability upon the offender. Specific requirements of fault appear in the Hammurabi codex,15 and even earlier codes include implicit requirements of fault, such as knowledge, for the enactment of certain offenses.16

For example, conviction for rape required proof of intent to the have sexual intercourse without the woman’s consent.17 If it is proven that the woman consented, it is not considered rape, but some other sexual offense, say, adultery.18 If the offender can prove a factual mistake with regard to the woman’s consent (ignorance or deliberate misleading on the part of the woman), he is acquitted of the charge for reason of lack of fault.19 Some of the fault requirements were relevant also to the imposition of civil liability in tort law.20

Hebrew law recognizes four degrees of fault, although not as a general requirement of fault but only in particular cases. The highest degree is malice, in the case of a free and aware choice to commit the offense, and it results in full liability of the offender.21 The second degree is quasi-malice, representing a free choice to commit the offense but as a result of mistaking the law (the offender did not consider his act to be a criminal offense). This situation presupposes an unverified suspicion regarding the criminality of the conduct, at it resembles the modern willful blindness. In these cases diminished liability is imposed on the offender.22 The third degree is negligence, which results in further diminished liability,23 and the forth degree is absence of fault, resulting in acquittal.24 Jewish law also recognizes some general defenses, including duress, necessity, and self-defense, but under restrictions such as reasonability, duty to confront the danger, disproportionality, mistake of fact, infancy, and insanity.25

Roman law did not recognize accidents as a basis for the imposition of criminal liability.26 Consequently, certain offenses required awareness (mens rea) for imposition of criminal liability, and others even required intent (dolus, fraus).27 Nevertheless, there was no general requirement of fault in Roman law.28 Before the classic period, the fault was considered objective, proven based on legal presumptions.29 Failure to prove fault, when it was required, was basis for diminished sentencing, but not of acquittal. From the classic era onward, the standard of fault was subjective.30 By specific statute (Lex Aquilia), fault also included recklessness, but resulting in diminished sentencing.31

Roman law recognized also negative fault elements. Some of these were considered defenses, whereas others were considered personal standards to be met to face a criminal trial and to be considered a offender. The standards referred to the personal data of the offender (in personam) and not necessarily to the offense (in rem). One standard required that the offender be alive at the time of the trial, unless the offense was high treason (perduellio), in which case the court had jurisdiction over dead offenders as well (and the consequences could be significant for the offender’s family).32

Another standard concerned maturity: the offender was required to be older than 7 years at the time of the commission of the offense, and under that age no criminal liability could be imposed.33 Offenders who were older than 7 years but not all their secondary gender indicators were present, were still not considered mentally mature unless the prosecutor could prove otherwise.34 If the offender’s infancy was accepted, it functioned as a defense against criminal liability and against torture.35

Sanity was also considered such a standard. Insane offenders were not acquitted or released, but they were remanded to custody for reasons of public safety.36 This was not considered to be a punishment of the insane offender, but merely a measure of caution. Sanity was not examined medically, but socially. If society considered the offender to be insane, the designation was absolute, final, and conclusive. Other standards had to do with personal immunities for senior public officials who could not be prosecuted while in office.37

Roman law recognized also some in rem defenses, having to do with the offense itself and not the person of the offender. For example, self-defense was accepted as a legitimate defense, the restriction being that the offender had to use the minimal measure of force required to neutralize the attacker.38 In some cases no such restrictions were considered, and self-defense was conceived more broadly.39 Roman law also recognized the defense of execution of a justified superior order,40 because by its nature, obedience negates mens rea.41

Mistake of fact and ignorance of the law were also considered to negate mens rea, because no evil was involved in the commission of the offense.42 Nevertheless, such mistakes did not lead to acquittal but to a lenient punishment, because it was the duty of Roman citizens to know the law, although it was not necessarily required of women, offenders under the age of 25, and non-citizens,43 subject to some restrictions.44 In 212 ad, Roman citizenship was extended to all residents of the Empire (Constitutio Antoniana), which automatically applied the obligation to know the law to all residents of the Empire.45

The sporadic fault requirements described above were not part of all ancient legal systems. In some legal systems, criminal liability rested on pillars of absolute liability: it was sufficient to prove the factual element of the offense in order to impose criminal liability. These legal systems did not distinguish properly between criminal law and tort law, as the elements of the offense and the tort were identical, and the remedy was the same. These include the Irish legal system before the Norman conquest,46 the Salic law in Europe,47 and early English law before the reign of Henri II.48 The turning point in these legal systems is related to the adoption of Christian theology.

The second stage of development is characterized by the formation of the general fault requirements, starting in the thirteenth century in Europe. Christian theology and canon law considered the person’s fault to be the prime factor in the relationships between man and God. Christian theology attached legal significance to terms derived from the concept of fault, such as regret, intent, awareness, and volition. Canon law accepted fault at two basic levels: intent and negligence. To impose criminal liability, intent and negligence were required, separately, in addition to the factual element.49

The burden to prove that neither intent nor negligence were present during the commission of the offense was on the offender.50 If intent could not be refuted, the punishment was severe compared to negligence.51 These basic fault requirements were complemented in canon law by factual mistake,52 duress,53 self-defense,54 intoxication,55 insanity,56 and legal mistake.57

Christian theology had a significant effect on English law. According to ancient English law, offenders found guilty of homicide were executed irrespective of the reasons of the homicide, including mistake and negligence. This approach contradicted basic tenets of Christian theology, therefore the Church opposed it, whereas the English courts insisted on conducting criminal trials under the traditional law. In the thirteenth century, the combined rise in the power of the Church and of the English monarchy made it possible to change the legal situation.

Thus, although the courts in England were sentencing to death offenders convicted of homicide, according to traditional English law, the king could use his power to pardon selected offenders.58 The king used his power to grant pardons in two main categories of cases: when the homicide was not accompanied by malice59 and when it was in self-defense.60 In some cases, the king used his power also in cases of homicide by negligence, because negligence was not considered a solid basis of criminal liability.61

At this time, in English law, fault was not considered the crucial element in criminal liability, but it functioned as key factor in sentencing considerations.62 During the thirteenth century, the influence of Roman law in most European legal systems increased greatly owing to the rise of the universities, where the Roman law had been taught since the eleventh century. Legal scholars from the continent brought the general concepts of Roman law to England. These concepts had been developed in European universities into general doctrines, suitable for a broad range of cases.63

One of these was the concept of fault. The requirements of Roman law with respect to fault in particular cases were generalized in European universities into a general requirement of fault in criminal law. Based on this generalization of Roman law, the concept of fault (culpa) was accepted in most legal systems. Furthermore, derivative principles were developed (e.g., nullum crimen sine culpa and non facit reum nisi mens rea), together with attempts to integrate the new developments with traditional local law64 in order to gain legitimacy for the new requirement of fault.65

The third stage of development is characterized by the development of a fundamental, general, and thorough principle of fault in criminal law, both with respect to the mental element requirement and to the general defenses. During this stage, general doctrines of mens rea and general defenses were developed. In the seventeenth century, these doctrines were considered to be binding legal rules that no court had jurisdiction to ignore. In England they were considered part of the English common law,66 and since the fifteenth century recorded cases attest to the fact that these principles were considered binding.67

The principle of fault was implemented as a fundamental principle in criminal law in three main ways. The first was the establishment of the general requirement for the mental element, especially mens rea, as a condition for imposing criminal liability.68 The second was the creation of new offenses that included explicit requirements of fault.69 The third was the acceptance of general defenses based on mental aspects of the offender or the offense, e.g., insanity, infancy, duress, necessity, intoxication, and factual mistake.70 Being able to use one of these defenses led to the acquittal of the offender.

Thus, two aspects of the principle of fault were accepted in the modern criminal law: one positive and one negative. The positive aspect (or positive fault elements) requires a mental element as an essential condition for the imposition of criminal liability. The negative aspect (or negative fault elements) requires the absence of any mental situation that negates the offender’s fault (e.g., absence of insanity during the commission of the offense). Together, the positive and negative elements form the general principle of fault. The general defenses in criminal law are based on the negative fault elements.

The principle of fault involves both the legislators, who create the offenses, and the courts, which apply the law. The legislators are required to include the fault within the elements of the offense and the general part of the criminal law. The courts are required to avoid imposing criminal liability when fault is not adequately proven. Thus, internal aspects of free choice, as a supra-principle of criminal law,71 relate to personal consciousness, and free choice is considered as such only if accompanied by proper fault.

The principle of fault includes four secondary principles. Two of them refer to the positive aspects of fault and two refer to its negative aspects. The positive aspects of the principle of fault comprise the secondary principles of cognition and volition; the negative aspects comprise the secondary principles of justification and exemption. Based on the structure of criminal law theory, specific legal provisions are derived from these secondary principles. The mental element requirements are derived from the positive aspects, and the general defenses from the negative aspects.

2.2 Negative Fault Elements

Under the principle of fault in criminal law, the insanity defense is part of the negative fault elements. It is necessary to understand the structure of these elements to be able to discuss the characteristics of the insanity defense in criminal law. As noted above, the principle of fault in criminal law involves the mental-internal aspects of criminal liability. The fault is an internal aspect that refers to the human mind rather than to external-objective characteristics. It takes place in the human mind, thought, and consciousness, and does not necessarily include overt external and objective acts. Nevertheless, for evidentiary purposes, some legal provisions may require certain objective actions to prove the internal fault, but these requirements are within the domain of evidentiary law.

Free choice, as a supra-principle in criminal law, requires awareness or informed choice.72 A person can make a free choice between right and wrong only if he is capable of distinguishing between the two. Otherwise, the free choice has no significance. Understanding the opportunities and their social value is part of internal consciousness. For example, only when a person understands that he has two choices—to steal and not to steal—he understands that the choice is under his mental control and he understands the social meaning of theft. This is a fundamental condition for free choice to be present. The principle of fault implements the internal aspects of free choice within the criminal law.

The internal examination of the human mind as part of the applications of the principle of fault includes two cumulative aspects: the positive aspect, which refers to the involvement of the offender’s consciousness in the commission of the offense, and the negative aspect, which refers to the possibility that the offender was coerced into committing the offense. The reasons for such coercion may be internal (referring to the in personam characteristics of the offender) or external (referring to the in rem characteristics of the offense).

2.2.1 The Secondary Principles: Positive Fault Elements

The positive aspect of the principle of fault focuses on the part of the offender’s consciousness in the commission of the offense. For legal purposes, the human consciousness consists of cognition and volition, which match two of the secondary principles of the principle of fault. Cognition is the individual’s awareness of the factual reality. In some countries, awareness is called “knowledge,” but in this context there is no substantive difference between awareness and knowledge, which may relate to data from the present or the past, but not from the future.73 A person may assess or predict what will be in the future, but not know or be aware of it. Prophecy skills are not required for criminal liability. Cognition in criminal law refers to a binary situation: the offender is either aware to fact X or not. Partial awareness has not been accepted in criminal law, and it is classified as unawareness.

Volition has to do with the individual’s will, and it is not subject to factual reality. An individual may want unrealistic events to occur or to have occurred, in past, the present, and the future. Volition is not binary because there are different levels of will. The three basic levels are positive (P wants X), neutral (P is indifferent toward X), and negative (P does not want X). There also may be intermediate levels of volition. For example, between the neutral and negative levels there may be the rashness level (P does not want X, but takes unreasonable risk towards it). If P would absolutely have not wanted X, he would not have taken any reasonable risk towards it.

Thus, a driver is driving a car behind a very slow truck. The car driver is in a hurry, but the truck is very slow. The car driver wants to detour the car, he makes the detour through crossing continuous line and hits a motorcycle rider who passed by. The hit caused the motorcycle rider death. The car driver did not want to cause the motorcycle rider’s death by purpose, but taking the unreasonable risk may prove an intermediate level of volition. If the car driver absolutely would not have wanted to cause any death to anyone, he would not have taken the unreasonable risk by committing the dangerous detour.

Both cognitive and volitive aspects are combined to form the mental element requirement as derived from the positive aspect of fault in criminal law. In most modern countries, there are three main forms of mental element, which are differentiated based on the cognitive aspect. The three forms represent three layers of positive fault and they are:


general intent;



negligence; and-



strict liability.


The highest layer of the mental element is that of general intent, which requires full cognition. The offender is required to be fully aware of the factual reality. This form involves examination of the offender’s subjective mind. Negligence is cognitive omission, and the offender is not required to be aware of the factual element, although based on objective characteristics he could and should have had awareness of it. Strict liability is the lowest layer of the mental element; it replaces what was formerly known as absolute liability. Strict liability is a relative legal presumption of negligence based on the factual situation alone, which may be refuted by the offender.

Cognition relates the factual reality, as noted above. The relevant factual reality in criminal law is that which is reflected by the factual element components. From the perpetrator’s point of view, only the conduct and circumstance components of the factual element exist in the present. The results components occur in the future. Because cognition is restricted to the present and to the past, it can relate only to conduct and circumstances.

Although results occur in the future, the possibility of their occurrence ensuing from the relevant conduct exists in the present, so that cognition can relate not only to conduct and circumstances, but also to the possibility of the occurrence of the results. For example, in the case of a homicide, A aims a gun at B and pulls the trigger. At this point he is aware of his conduct, of the existing circumstances, and of the possibility of B’s death as a result of his conduct.

Volition is considered immaterial for both negligence and strict liability, and may be added only to the mental element requirement of general intent, which embraces all three basic levels of will. Because in most legal systems the default requirement for the mental element is general intent, negligence and strict liability offenses must specify explicitly the relevant requirement. The explicit requirement may be listed as part of the definition of the offense or included in the explicit legal tradition of interpretation.

If no explicit requirement of this type is mentioned, the offense is classified as a general intent offense, which is the default requirement. The relevant requirement may be met not only by the same form of mental element, but also by a higher level form. Thus, the mental element requirement of the offense is the minimal level of mental element needed to impose criminal liability.74 A lower level is insufficient for imposing criminal liability for the offense.

According to the modern structure of mental element requirement, each specific offense embodies the minimal requirements for the imposition of criminal liability, and the fulfillment of these requirements is adequate for the imposition of criminal liability. No additional psychological meanings are required. Thus, any individual who fulfils the minimal requirements of the relevant offense is considered to be an offender, and criminal liability may be imposed upon.

The offender under modern criminal law is not required to be immoral or evil, but only to fulfill all requirements of the offense. This way, the imposition of criminal liability is very technic and rational. This legal situation has two main aspects: structural and substantive. For instance, if the mental element of the specific offense requires only “awareness”, no other component of mental element is required (structural aspect), and the required “awareness” is defined by criminal law regardless its meaning in psychology, philosophy, theology, etc. (substantive aspect).

The different layers of the mental element requirement have significant effect on the general defenses—the negative fault elements that are supplementary to the mental element requirements. Most exemptions in criminal law are a mirror image of the mental element requirement. It is therefore necessary to accurately define the positive fault elements, with all their layers.

Under modern criminal law of most legal systems, general intent (mens rea) expresses the basic type of mental element, since it embodies the idea of culpability most effectively. This is the only mental element which enables the combination of both cognition and volition. The general intent requirement expresses the internal-subjective relation of the offender to the physical commission of the offense.75 In most legal systems the general intent requirement functions as the default option of the mental element requirement.

Therefore, unless explicitly negligence or strict liability are required as mental elements of the specific offense, general intent would be the required mental element. This default option is also known as the presumption of mens rea.76 Accordingly, all offenses are presumed to require general intent, unless explicitly deviated. Since general intent is the highest level of known mental element requirement, this presumption is very significant. Consequently, indeed, most offenses in criminal law do require general intent and not negligence or strict liability. All mental elements components, including general intent components, are not independent or stand alone for themselves.

For instance, dominant component of general intent is awareness. If the requirement from the offender is to be aware, the question would be: “aware of what?”, since awareness cannot stand alone. Otherwise, it would be meaningless. Consequently, all mental elements components must relate to facts or to any factual reality. The relevant factual aspect for criminal liability is, of course, the factual element components (conduct, circumstances and results). Of course, factual reality contains much more facts than these components of factual element, but all other facts are irrelevant for the imposition of criminal liability.

For example, in rape the relevant facts are “having sexual intercourse with a woman without consent”.77 The rapist is required to be aware of these facts. If the offender was or was not aware of other facts as well (e.g., the color of the woman’s eyes, her pregnancy, her suffer, etc.), it is immaterial for the imposition of criminal liability. Thus, for the question of imposition of criminal liability, the object of the mental elements requirement is nothing but the factual element components. Of course, this object is much narrower than the whole factual reality, but the factual element represents the decision of the society on what is relevant for criminal liability and what is not.

However, the other facts and the mental relation to them may affect the punishment, although insignificant for the imposition of criminal liability. For instance, rapist who raped the victim in a very cruel way would be convicted in rape, whether he was cruel or not. However, his punishment is very likely to be much harsher than a more gentle rapist. Identifying the factual element components as the object of general intent components is the basis for the structure of general intent.

General intent has two layers of requirement. One is cognition and one is volition. The layer of cognition consists of awareness. Some legal systems use the term “knowledge” to express the layer of cognition, but it seems that awareness is more accurate. However, both awareness and knowledge function the same way and mean the same meaning in this context. A person is capable of being aware only to facts which occurred in the past or are occurring at present, but is not capable of being aware of future facts.

For instance, a person can be aware of the fact that A ate his ice-cream two minutes ago and he can be aware of the fact that B is eating his ice-cream right now. C said that he intend to eat his ice-cream, therefore most persons can predict it, foresee it or estimate the probability it will happen, but no person is capable of being aware of it, simply because it did not occur yet. If the criminal law would have required offenders to be aware of future facts, it would have required, in fact, prophecy skills. The offender’s point of view regarding time is the point the conduct is actually performed, in this context.

Therefore, the conduct component occurs always at present from the offender point of view. Consequently, awareness is relevant component of general intent in relation to conduct. Circumstances are defined as factual data that describes the conduct, but do not derive from it. In order to describe the current conduct, circumstances must exist at present as well. For instance, the circumstances “with a woman” in the specific offense of rape, described above, must exist simultaneously with the conduct “having sexual intercourse”. The raped woman should be a woman during the commission of the offense for the circumstances to be fulfilled.

Consequently, awareness is relevant component of general intent in relation to circumstances as well. However, things are different in relations to the results. Results are defined as factual component that derives from the conduct. In order to derive from the conduct, results must occur later than the occurrence of the conduct. Otherwise, the conduct would not be the cause for the results. For instance, B dies at 11:00:00, and A shoots him at 11:00:10. In this case, it is obvious that the conduct (the shot) is not the cause of the other factual event (B’s death), which does not functions as “results”. From the offender’s point of view, since the results occur later than the conduct and since the offender’s point of view regarding time is the point the conduct is actually performed, the results occur in the future.

Therefore, since results do not occur at present, awareness is not relevant through results. The offender is not supposed to be aware of the results, which have still not occurred from his point of view. However, although the offender is not capable of being aware of the future results, he is capable of predicting them and assessing their probability of occurrence. These capabilities are existed along with the actual performance of the conduct.

For example, A shoots B. At the point the shot is performed the B’s death has not occurred yet, but along with performing the shot, the shooter is aware of the possibility of the occurrence of B’s death as a result of the shot. Consequently, awareness is relevant component of general intent in relation to the possibility of the result’s occurrence, and not in relation to the results themselves. The awareness of this possibility is not required to relate to the reasonability or probability of the result’s occurrence. If the offender is aware of the existence of the possibility, whether of high or low probability, that the results occur from the conduct, this component of general intent is fulfilled.78

The additional layer of general intent is the layer of volition. This layer is additional to the cognition, and based upon cognition. Volition never comes alone, but always as an additional component to the awareness. Volition relates to the offender’s will towards the results of the factual event. In relatively rare offenses, volition may relate to motives and purposes, beyond the specific factual event, and it is expressed by “specific intent”.79 The main question regarding volition is, separately from the offender’s awareness of the possibility the results occur from the conduct, has the offender wanted the results to occur. Since these results occur in the future from the offender’s point of view, they are the only reasonable object of volition. From the offender point of view regarding time, the occurrence of both circumstances and conduct has nothing to do with the will.

The raped woman is a woman before, during and after the rape, regardless the rapist will. The sexual intercourse is such at that point of time, regardless the rapist will. If the offender argues that the conduct occurred against his will, i.e. the offender did not control it, this argument is related to the general defense of loss of self-control. Consequently, towards conduct and circumstances, only awareness is required, and no volition component is required in addition.

In the factual reality there are very many levels of will. However, the criminal law accepted only three of them:


intent (and specific intent);



indifference; and-





The first represents positive will (the offender wanted the results to occur), the second represents nullity (the offender was indifferent to the occurrence of the results), and the third is negative will (the offender did not want the results to occur, but has taken unreasonable risk which caused them to occur).

For example, in homicide offenses, at the moment in which the conduct is committed, if the offender-


wants the victim’s death, it is intent (or specific intent);



is indifferent as to the victim’s death, it is indifference;



does not want the victim’s death, but undertakes unreasonable risk in this regard, it is rashness.


Intent is the highest level of will accepted by criminal law. Intended homicide is considered murder in most countries. Indifference is intermediate level, and rashness is the lowest level of will. Both indifference and rashness are known as “recklessness”. Reckless homicide is considered manslaughter in most countries. Consequently, if the specific offense requires recklessness, this requirement may be fulfilled through proof of intent, since higher level of will covers lower levels. However, if the specific offense requires intent or specific intent, this requirement may be fulfilled only through intent or specific intent.

Summing up the structure of general intent is much easier if the offenses are divided into conduct-offenses and results-offenses. Conduct-offenses are offenses which their factual element requires no results, whereas the factual element of results-offenses requires.80 This division eases the understanding of the general intent structure, since volition is required only in relation to the results. Therefore, results require both cognition and volition, whereas conduct and circumstances require only cognition. Thus, in conduct-offenses, which their factual element requirement contains conduct and circumstances, the general intent requirement contains awareness to these components.

In results-offenses, which their factual element requirement contains conduct, circumstances and results, the general intent requirement contains awareness to the conduct, to the circumstances and to the possibility of the occurrence of the results. In addition, the general intent requirement contains in relation to the results intent or recklessness, according to the particular definition of the specific offense. This general structure of general intent is a template which contains terms from the mental terminology (awareness, intent, recklessness, etc.).

Negligence is sometimes used as requirement of mental element and as behavioral standard. It has been recognized as behavioral standard since the ancient ages. It has already been mentioned in the Eshnunna laws of the twentieth century bc,81 in the Roman law,82 in the Canonic law, and in the early English common law.83 However, negligence has been related to then as a behavioral standard rather than as a type of mental element in criminal law. That behavioral standard included a dangerous behavior, which lacks considering all relevant considerations for acting the way the individual did.

Only since the seventeenth century negligence has been related to as type of mental element in criminal law. In 1664 the English court ruled that negligence is not adequate for convicting in manslaughter, but it requires at least recklessness.84 This ruling gave birth to negligence as type of mental element in criminal law. During the nineteenth century the negligence has been related to as an exception for the general requirement of general intent.85 Accordingly, it should have been required explicitly and construed strictly.

The particular offense should have required explicitly, by its definition, negligence for it to be adequate for imposing criminal liability. In the nineteenth century negligence offenses were still quite rare. The more common use of negligence in criminal law became as transportation, by horses and automobiles, developed. Death cases on roads became more common, and manslaughter was not appropriate for these cases. A lower level of homicide was required, and negligent homicide was considered appropriate.86

When negligence came into common use, the confusion has begun. Negligence has been interpreted as requiring unreasonable conduct, and that caused confusion with recklessness of the lower level (rashness), which required taking unreasonable risk. That confusion caused creation of unnecessary terms of “gross negligence” and “wicked negligence”.87 Many misleading rulings were given on that basis in English law,88 until the House of Lords made the distinction clear, not before 2003.89 The American law developed negligence as mental element in criminal law parallel to and inspired by the English common law.90

The negligence has been accepted as an exception to general intent during the nineteenth century, but more accurately than in English law.91 The main distinction between recklessness and negligence has been developed towards the cognitive aspect of recklessness. Whereas recklessness requires cognitive aspect of awareness, as part of general intent requirement, negligence requires none.92 Both reckless and negligent offenders are required to take unreasonable risks. However, the reckless offender is required to be aware of the factual element components, whereas the negligent offender is not required to.93 The negligence functions as omission of awareness, and it creates social standard of conduct.

The individual is required to take only reasonable risks.94 Reasonable risks are measured objectively through the perspective of an abstract reasonable person. The reasonable person is aware of his factual behavior and takes only reasonable risks.95 Of course, the reasonability is determined by the court, and this is done retrospectively in relation to the particular case. The modern development of negligence in American law is expressed in the American Law Institute’s Model Penal Code as inspired by the European-Continental modern understandings of negligence.

Accordingly, negligence is a type of mental element in criminal law. It relates to the factual element components, as any other type of mental element. It requires unawareness to the factual element components, whereas the reasonable person could and should have been aware of them, and taking of unreasonable risk in regard to the results of the offense. This development has been embraced by American courts.96 On that basis the question is how can negligence function as mental element in criminal law, if the offender is not even required to be aware of his conduct.

Some scholars did call to exclude it from criminal law and leave it for tort law or other civil proceedings.97 However, the justification for negligence as mental element is concentrated on its function as omission of awareness. The very same way as act and omission are considered identical for the imposition of criminal liability, as discussed above in relation to the factual element,98 so may both awareness and omission of awareness be considered basis for mental element requirement.

Negligence is not parallel to inaction, in this analogy to the factual element, but to omission. If a person was just not aware of the factual element components, and nothing besides that, he is not considered negligent, but innocent. Omission to be aware means, that the person was not aware although reasonable person could and should have been. The individual is considered not to be using his existing capabilities of forming awareness. The individual was not aware, although he had the capabilities to be, and therefore had the duty to as well (non scire quod scire debemus et possumus culpa est).

Negligence does not incriminate persons who are incapable of forming awareness, but only those who failed to use their existing capabilities to form awareness. Negligence does not incriminate the blind person for not seeing, but only persons who have the capability of seeing, but they failed to use this capability. Wrong decisions are part of the human daily life and they are quite common, therefore negligence does not struggle against such situations. Taking risks is also part of human life, and not only negligence does not struggle against it, the society encourage risk taking in very many situations.

Negligence struggles only against taking unreasonable risks. If people do not take any risks at all, the human development is utterly stopped. If no risk was taken, our ancestors would have been still staring the burning branch after being stroke by lightning, and afraid of taking the risk of getting closer to it, grab it, and use it for our needs. People are constantly pushed by the society to take risks, but reasonable risks. The question is, how can modern society identify the unreasonable risk and distinguish it from the reasonable risks, which are legitimate.

For instance, scientists propose an advanced device that would significantly ease our daily lives. It is comfortable, fast, elegant and accessible. However, using it may cause death of about 30,000 people per year in the United States alone. Would it be considered reasonable risk to use this device or unreasonable? It may be thought that 30,000 victims each year is enormous number, and that makes the use of this device completely unreasonable. However, it is used to call that device “car”.99 Driving a car is not considered unreasonable in most countries in the world, today.

However, in the late nineteenth century it was. So is the situation with trains, planes, ships, and many other of our daily instruments. The reasonability of the risk is relative by its nature, and it is relatively determined in respect to time, place, society, culture and other circumstances. Different courts in different countries are determining different reasonable persons in this context of negligence. The reasonable person must be measured not only as general abstract person, but it should be adapted to the relevant circumstances of the specific offender.

For example, it is not enough to compare medical malpractice of physician to the behavior of an abstract reasonable person. This behavior should be compared to that of reasonable physician, of the same expertise, of the same experience, of the same circumstances of treatment (emergency treatment or other), the same sources etc. This may focus the standard of reasonability, and make it more subjective standard rather than pure objective. Most negligence offenses are results-offenses, since the society prefer to use negligence to protect from factual harms involved in unreasonable risk takings. However, negligence may be required for conduct-offenses as well.

The general structure of negligence includes no volitive aspect, but only cognitive. Since volition is supported by cognition, and since negligence does not require awareness, it cannot require components of volition. The cognitive aspect of negligence consists of omission of awareness in relation to all factual element components. The negligence requirements in relation to conduct and circumstances are identical. Both require unawareness of the component (conduct/circumstances) in spite of the capability to form awareness, when reasonable person could and should have been aware of that component.

The reasonability in these components of negligence is examined in relation to the capability and duty to form awareness, although actually no awareness has been formed by the offender. The negligence requirement in relation to the results requires unawareness of possibility of the results’ occurrence in spite of the capability to form awareness, when reasonable person could and should have been aware of that possibility as unreasonable risk. The reasonability in this component is focused on identifying the occurrence of the results as a possibility of unreasonable risk. It means that the risk taking of the offender in the specific event, under the relevant circumstances, is considered unreasonable.

The modern structure of negligence continues the minimal concept of criminal law. It contains both inner and external aspects. Inward, negligence is the minimal requirement of mental element for each of the factual element components. Consequently, if negligence is proven in relation to the circumstances and results, but in relation to the conduct awareness is proven, that satisfies the requirement of negligence. It means that for each of the factual element components at least negligence is required but not exclusively negligence. Outwards, negligence offenses’ mental element requirement is satisfied through at least negligence, but not exclusively. It means that criminal liability for negligence offenses may be imposed through proving general intent as well as negligence.

For negligence is still considered an exception for the general requirement of general intent, negligence has been required as an adequate mental element of relatively lenient offenses. In some legal systems around the world, negligence has even been restricted ex ante to lenient offenses.100 This general structure of negligence is a template which contains terms from the mental terminology (e.g., reasonability).

In general, strict liability has been accepted as form of mental element requirement in criminal law as a development from the absolute liability. Since the eighteenth century for some particular offenses it has been determined by English common law that they require neither general intent nor negligence. These particular offenses were related to as public welfare offenses.101 These offenses were inspired by tort law, that accepted absolute liability as legitimate.

Consequently, these particular offenses were criminal offenses of absolute liability, and imposition of criminal liability for them required proof of the factual element alone.102 These absolute liability offenses were considered exceptional for no mental element is required. In some cases the parliament intervened and required mental element,103 and in some other cases the court rulings added mental element requirements.104 By the mid-nineteenth century English courts began to consider efficiency considerations as part of criminal law in various contexts. That gave rise to the development of convictions on the basis of public inconvenience.

Offenders were indicted in particular offenses, and they were convicted although no mental element was proven, due to the public inconvenience caused by the commission of the offense.105 These convictions created, in fact, an upper threshold of negligence, a kind of increased negligence. Accordingly, the individual must be strict and make sure that no offense is committed. This standard of behavior is higher than in negligence, which requires just behaving reasonably.

In these offenses, it is required more than reasonability, but to make sure of no offense is committed whatsoever. Such offenses have clear preference of the public welfare over the strict justice with the potential offender. Since these offenses were not considered to be grave and severe, they were widened “for the good of all”.106 This development was considered necessary due to the legal and social developments of the first industrial revolution. For instance, the increasing number of workers in the cities brought the employers to decrease the worker’s social conditions.

The parliament intervened through social welfare legislation, and the efficient enforcement of this legislation was through absolute liability offenses.107 It was insignificant whether the employer knew or not what are the proper social conditions for the workers, he must make sure that no violation of these conditions occurs.108 In the twentieth century this type of criminal liability has been spread to other spheres of law, including traffic law.109 The American criminal law accepted absolute liability as basis for criminal liability in the mid-nineteenth century,110 while ignoring previous rulings that did not accept it.111

This acceptance was restricted only to petty offenses, that their violation was punished through fines, and not very severe fines. Similar acceptance occurred at the same time in the European Continental legal systems.112 Consequently, absolute liability in criminal law became global phenomenon. However, at the meanwhile the fault element in criminal law become much more important due to internal developments in criminal law, and the general intent became the major and dominant requirement for mental element in criminal law.

Thus, the criminal law should have made changes in the absolute liability for it to meet the modern understandings towards fault. That was the trigger for moving from absolute liability to strict liability. The core of the change lies in the move from absolute legal presumption (praesumptio juris et de jure) to relative legal presumption (praesumptio juris tantum), so that the offender has the opportunity to refute the criminal liability. The presumption was presumption of negligence, either refutable or not.113 The move from absolute liability towards strict liability eased the acceptance of the presumed negligence as another, third, form of mental element in criminal law.

Since that wide acceptance of strict liability in the world, legal systems justified it both in the perspective of fault in criminal law114 and constitutionally. The European court for human rights justified using strict liability in criminal law in 1998.115 Accordingly, the strict liability was considered as not contradicting the presumption of innocence, protected by the 1950 European Human Rights Covenant,116 and that ruling has been embraced in Europe and Britain.117 The federal supreme court of the United States ruled consistently that strict liability does not contradict the US constitution.118 So did the supreme courts in the states.119

However, it was recommended to restrict the usage of these offenses to the necessary minimum, and prefer using general intent or negligence offenses. The strict liability construction in criminal law is concentrated on the negligence relative presumption and the ways to refute it. The presumption defines that if all components of the factual element requirement in the offense are proven, it is presumed that the offender was at least negligent. Consequently, for the imposition of criminal liability in strict liability offenses, the prosecution does not have to prove the mental state of the offender, but only the fulfillment of the factual element. The mental state of the offender is learned from the conduct.

At this point, the strict liability is similar to the absolute liability. However, contradicted to absolute liability, strict liability may be refuted by the offender, since it is based upon relative legal presumption. For the offender to refute strict liability, there should be proven accumulatively two conditions:


No general intent or negligence were actually existed in the offender; and-



All reasonable measures to prevent the offense were taken.


The first condition deals with the actual mental state of the offender. According to the presumption, the commission of the factual element presumes that the offender is at least negligent. That means that the offender’s mental state is of negligence or general intent. Thus, at first, the conclusion of the presumption should be refuted so that the presumption is proven as incorrect at this case. The offender should prove that he was not aware to the relevant facts, and that no other reasonable person could have been aware of them under the certain circumstances of the case.

This proof resembles refuting general intent in general intent offenses and negligence in negligence offenses. However, strict liability offenses are not general intent or negligence offenses, for refuting general intent and negligence is not adequate for preventing imposition of criminal liability. The social and behavioral purpose of these offenses is to make the individuals conduct strictly and make sure that the offense is not committed. That should be proven as well. Consequently, the offender should prove that he has taken all reasonable measure to prevent the offense.120

The difference between strict liability and negligence is sharp. To refute negligence it is adequate to prove the offender has taken a reasonable measure, but to refute strict liability it is required to prove that all reasonable measure were actually taken. In order to refute the negligence presumption of strict liability the offender should positively prove each of these two conditions by a preponderance of the evidence, as in civil law cases. The offender is not required to prove these conditions beyond reasonable doubt, but in general it is not sufficient to only raise reasonable doubt. This burden of proof is higher than the general burden of the offender.

The possibility of the offender to refute the presumption becomes part of the strict liability requirement since it relates to the offender’s mental state. The modern structure of strict liability continues the concept of minimal requirement. It contains both inner and external aspects. Inward, strict liability is the minimal requirement of mental element for each of the factual element components.

Consequently, if strict liability is proven in relation to the circumstances and results, but in relation to the conduct negligence is proven, that satisfies the requirement of strict liability. It means that for each of the factual element components at least strict liability is required but not exclusively strict liability. Outwards, strict liability offenses’ mental element requirement is satisfied through at least strict liability, but not exclusively. It means that criminal liability for strict liability offenses may be imposed through proving general intent and negligence as well as strict liability.

For strict liability is still considered an exception for the general requirement of general intent, strict liability has been required as an adequate mental element of relatively lenient offenses. In some legal systems around the world, strict liability has been restricted ex ante or ex post to lenient offenses.121 This general structure of strict liability is a template which contains terms from the mental terminology.

The three layers, general intent, negligence, and strict liability (together with the “no-fault” layer, in case none of the requirements are met by the offender’s mental state), form the positive fault elements, i.e., the mental element requirement.

2.2.2 The Secondary Principles: Negative Fault Elements

The negative aspect of the principle of fault focuses on the possibility that the offender’s involvement in the commission of the offense was coerced. The reasons for such coercion may be internal (referring to the in personam characteristics of the offender) or external (referring to the in rem characteristics of the offense). Thus, negative fault elements are general defenses, in which the court is bound to consider when imposing criminal liability upon the offender, if claimed. General defenses in criminal law are complementary to the mental element requirement. Both deal with the offender’s fault concerning the commission of the offense.122

For instance, awareness is part of mental element requirement (general intent), and insanity is a general defense. Therefore, in general intent offenses the offender must be aware and must not be insane. Thus, the fault requirement in criminal law consists on both mental element requirement and general defenses. The general defenses were developed in the ancient world in order to prevent injustice in certain types of cases. For instance, a person who killed another out of self-defense was not criminally liable for the homicide, since he lacked the required fault to cause death.

Authentic factual mistake of the offender as to the commission of intentional offense was considered then as negating the required fault for imposition of criminal liability.123 In the modern era the general defenses became wider and more conclusive. However, the common factor of all general defenses remained the same one. All general defenses in criminal law are part of the negative aspect of the fault requirement, as they are meant to negate the offender’s fault.

The deep abstract question behind the general defenses is whether the commission of the offense was not imposed upon the offender. Thus, when a person really acts in self-defense, it is considered as imposed on him. For saving his life, which is considered a legitimate purpose, that person had no choice, but act in self-defense. Of course, such person could have given up his life, but that is not considered to be legitimate requirement, as it goes against the natural instinct of every living creature.

All general defenses may be divided into two main types: in personam and in rem defenses.124 In personam defenses are general defenses which are related to the personal characteristics of the offender (exempts), whereas in rem are related to the characteristics of the factual event (justifications). The personal characteristics of the offender may negate the fault towards the commission of the offense, regardless the factual characteristics of the event or the exact identity of the particular offense. In in personam defenses the personal characteristics of the offender are adequate to prevent imposition of criminal liability in any offense.

For instance, a child under the age of legal maturity is not criminally liable for any offense factually committed by him. So is the situation for insane individuals who committed the offense during the time they were considered insane. The exact identity of the particular offense committed by the individual is completely insignificant for the question of imposition of criminal liability. It, perhaps, may be relevant for further steps of treatment or rehabilitation triggered by the commission of the offense, but not for the imposition of criminal liability. The personal in personam defenses, as general defenses, are completed by the impersonal in rem defenses.

In rem defenses are impersonal general defenses. As such they are not depended on the identity of the offender, but only on the factual event actually occurred. The personal characteristics of the individual are insignificant for the in rem defenses. For instance, an individual is attacked by another person up to real danger to his life. The only way to be out of this danger was through pushing the attacker away. Pushing away a person is considered assault unless done under consent. In this case, the pushing person would argue for self-defense, regardless his identity, the attacker identity or any other personal attributes of them, since self-defense relates only to the factual event itself.

Since in rem defenses are impersonal, they have in addition a prospective value. Not only is the individual not criminally liable if acted under in rem defense, but also he should have been acting this way. In rem defenses define not only types of general defenses, but also the proper behavior.125 Thus, individuals should defend themselves under the conditions of self-defense, even though that may apparently seem as commission of an offense. This is not true for in personam defenses. An infant under the maturity age is not supposed to commit offenses, although no criminal liability would be imposed. So are not insane individuals.

The prospective behavioral value of the in rem defenses expresses the social values of the relevant society. If self-defense, for instance, is accepted as legitimate in rem defense, it means that society prefers individuals to protect themselves when the authorities are unable to protect them. Society prefers to reduce the state’s monopoly on power through legitimizing self-assistance rather than leave individuals vulnerable and helpless. Society does not enforce individuals to act in manner of self-defense, but if they do so, it does not consider them criminally liable for the offense committed through that self-defense.