Intention vs. Negligence

Abstract

This chapter explores the role of mental state in criminal cases, considering the concept of negligence. Lawyers trained in the common law tradition are familiar with the concept of mens rea and the maxim actus non facit reus nisi mens sit rea. Literally this means that there is no criminal (or guilty) act without a criminal (or guilty) mind. The problem is that there are both descriptive and normative interpretations of mens rea and of the maxim. The normative or moral interpretation of mens rea holds that the term equivalent to a guilty mind, for example, a basis for blaming the actor for their conduct, is something not possible in the face of the defenses considered in the last chapter. Meanwhile, negligence is based, as in the classic definition from the law of torts, on the conduct of “a reasonable person under the circumstances.” The important point is that negligence is based on the fault of not knowing.