Re-examining the Underlying Principles of the New Zealand Criminal Responsibility

1. Re-examining the Underlying Principles of the New Zealand Criminal Responsibility Amir Bastani, B.A., M.A., PhD student in Law. Email: basam118@student.otago.ac.nz

2. Outline • Doctrine of Criminal Liability and Excuse • Attack against the law • Two Interpretations of Criminal Law: • As If view • Folk Psychology • Conclusion

3. Current Assumption of Responsibility • Criminal liability is the ascription of guilt for an offence to a person. • The criminal law assumes that individuals are responsible agents capable of making choices and intending the results of their conducts. • Even if all elements of crime are proved, defendant can avoid liability: • Justification • Excuse: Legal insanity. Criminal Responsibility> Attack> as if> Folk Psychology> Conclusion

4. Avoiding Liability • The tests of insanity in New Zealand. • At the time of the crime the accused must suffered from disease of mind • As a result of the mental abnormality he could not understand the nature and quality of the behavior • Also he did not know that the behavior is morally wrong Criminal Responsibility> Attack> as if> Folk Psychology> Conclusion

5. Criminal law Vs. Science Criminal responsibility Scientific explanation Criminal law’s explanation X is insane X is sane Broad view Narrow view Criminal Responsibility> Attack> as if> Folk Psychology> Conclusion

6. Attack • Theoretical basis of criminal law is incoherent and it is inconsistent with the nature of human behavior. • Some scholars persist in arguing that the principles of criminal law must evolve to comport with a more scientifically conclusive evidence understanding of human nature. Criminal Responsibility> Attack> as if> Folk Psychology> Conclusion

7. As if View • Legal vs. Theoretical Free Will (Alexander, Staub, Hall, Packer) • Theoretical free will: Philosophical, psychiatric, biological perspectives on free will. • Legal free will:Criminal law is based on social norm, not scientific or philosophical notions. • The idea of free will in relation to conduct is not, in the legal system, a statement of fact, but rather a value preference having very little to do with the metaphysics of determinism or free will . . . the law treats man's conduct as autonomous and willed, not because it is, but because it is desirable to proceed as if it were. (Packer) Criminal Responsibility> Attack> as if> Folk Psychology> Conclusion

9. As If View ... • Social system is strengthened by holding people responsible and undermined by shifting liability to the many factors affecting human conduct. • A government should be empowered to force individuals only for what they do and not for what they are. • Law’s view on insanity: some conduct is not the product of the free exercise of conscious volition. • To sum up: criminal law and science can not be reconciled. Criminal Responsibility> Attack> as if> Folk Psychology> Conclusion

10. Folk psychology • The law’s concept of liability is based on its conception of the human being and the nature of the law: • Law is a system of rules • Humans are practical reasoning and rule-following creatures Criminal Responsibility> Attack> as if> Folk Psychology> Conclusion

12. Folk Psychology ... • Science can make profound contribution but can not dictate any normative. • The criminal law is coherent and can accommodate scientific claims. • Therefore, some of new claims can be brought within the ambit of current criminal law defense, albeit with reasonable changes. Criminal Responsibility> Attack> as if> Folk Psychology> Conclusion

13. Conclusion • As if view: law and science are incompatible. The law views on human as if they are conscious even though scientifically there is no such freedom. As if narrow view on insanity • Folk psychology: the law is compatible with science. New claims based on scientific discoveries can be brought within the boarder of the criminal law. Folk psychology broad view on insanity Criminal Responsibility> Attack> as if> Folk Psychology> Conclusion