Faultless Guilt: Toward a Relationship-Based Account of Criminal Liability

Abstract

There is in the criminal law perhaps no principle more canonical than the fault principle, which holds that one may be punished only where one is blameworthy, and one is blameworthy only where one is at fault. Courts, criminal law scholars, moral philosophers and textbook authors all take the fault principle to be the foundational requirement for a just criminal law. Indeed, perceived threats to the fault principle in the mid-Twentieth Century yielded no less an achievement than the drafting of the Model Penal Code, which had as its guiding purpose an effort to safeguard faultless conduct from criminal condemnation.

Yet notwithstanding its pedigree and predominance, I believe that the fault principle is false: Fault is not in fact necessary for one to deserve blame and punishment. Instead, and as made plain by the broader account of guilt I shall articulate here, one can be blameworthy, and so deserve punishment, even if one committed no element of the crime, and merely because one bears a particular kind of relationship to the criminal. Just when and why relationships, rather than fault, ought to ground criminal liability is what I seek to elucidate here.

To that end, the Article first interrogates the (very few) arguments made on behalf of the fault principle and finds these wanting. The Article then presents cases and examples that illustrate how it is that one could be blameworthy even though one is not at fault. Finally, the Article considers the criminal law implications for individuals who are blameworthy without fault, and it concludes that at least some of these individuals deserve prosecution and punishment.

This conclusion should not only shift our thinking about the conceptual relationships between blame, fault, guilt, culpability and criminal liability. It should also awaken us to salutary practical possibilities. For the Article’s account, we shall see, ultimately provides a way to prosecute individuals who are widely regarded as deserving criminal punishment (e.g., executives at banks responsible for the financial crisis) but whom the fault principle currently places outside of the criminal law’s reach.

[The Article’s positive account begins in Part IV. Readers pressed for time might read the Introduction and then skip the arguments and preliminaries set forth in Parts I-III.]

Keywords: Responsibility, criminal law, family law, shared responsibility, corporate criminal liability, legal philosophy, moral responsibility, blame