We all know the basic idea behind the legal system. Modern society requires that the state protect itself against those who would act against the public good and the government itself. These people are considered guilty, as they have committed an act that is considered against society's morals. We may all know the basic idea, but what is the basis of this? How are we supposed to justly judge people if we don't have an instrument to measure them against; an instrument to render them criminal? Our current fix for this question is the concept of Fault.
Fault, obviously, is the basis of most of the functions of International Law (specifically the punitive function), yet very few enthusiasts really realise the importance of this one concept. Nor do they realise the fact that the most minute change in that concept could do more harm than good. Below, I hope I shall show you.
As I have shown above, Fault is an immensely important concept. Yet, it still has no accepted legal definition. In this essay, I shall contribute to this discourse with my own definition using the concepts of causation and moral blameworthiness. I will provide my understanding of fault’s significance, which is that of a fair mechanism to provide justice to all. I will support my definition using the two elements of all crimes, actus reus (physical element) and mens rea (mental element). This will lead to my conclusion that fault based on causation and blameworthiness is the most just method for criminal law as all judgements are then based on the actual elements of the crime.
The principle of correspondence is now relevant. According to the Common Law of England and Wales, every actus reus should have a corresponding mens rea to convict, with one exception, strict liability (fault where no mental element is needed to convict). However, strict liability is used very rarely. It was found in the case R v K that a statute must be blatant in its requirement of Strict Liability for it to apply, thus rendering it of little importance to the arguments below. The definition of Correspondence is crucial to understand the following paragraph.
Definition of Fault
I have defined the fault concept through Causation and Moral Blameworthiness; these being linked to actus reus and mens rea. Thus, my definition requires that fault be proven by referring to the Actus and Mens Rea. I illustrate this with the case of R V White where a son attempted to poison his mother, yet she died of an unrelated heart attack. The son was only convicted of attempted murder, as his actus reus (the act of poisoning her) implied the requisite mens rea (the wish to kill her). There was no way to link his poisoning of her to the fatal heart attack, so using the principle of correspondence and the definition of fault, the only crime he could be convicted of was attempted murder.
Understanding the link between Causation, Blameworthiness, Actus Reus, and Mens Rea is important as it supports the following significance argument.
Significance of Fault
The above definition of fault is significant for various reasons, but primarily because of its impact on the level of moral blameworthiness a criminal deserves, and therefore on their sentence and the crime they are convicted of. However, if we relied only on a purely jury system, where opinions decided the outcome, the man would have been convicted of Murder.
Justice requires that people are given fair warning to comply with the law; lack of culpability if they had no control over their actions; and the fairest certainty that they will not be convicted for something they are not at fault for. Justice Systems are never perfect, but one where the fault is based upon the actual elements of the crime Is the best way to fulfil the above requirements and give citizens true justice, as it keeps arbitrary judgement out of legal decisions.
A system where the concept of fault is based upon the actual elements of the crime is the optimum way to provide justice. Through the cases provided, I have established that a fault definition relying on causation and blameworthiness is the most appropriate as it dictates the criminal law system’s capacity to deliver that justice.
Committee, H. o. L. J., 2001. Regina V K, London: Lords Publications.
differencebetween.com, 2015. differencebetween.com. [Online]
Available at: https://www.differencebetween.com/difference-between-mens-rea-and-vs-actus-reus/
[Accessed 30 08 2022].
IPSA LOQUITOR, n.d. ipsaloquitor.com. [Online]
Available at: https://ipsaloquitur.com/criminal-law/cases/r-v-white-1910/
[Accessed 30 08 2022].
- Horder, Jeremy. “Ashworth's Principles of Criminal Law (9th edn)” Oxford University Press. London: UK, 2016: Chapter 6.
Liverpool, John Moores University, 2016. https://www.studocu.com. [Online]
Available at: https://www.studocu.com/en-gb/document/liverpool-john-moores-university/law/fault-in-criminal-liability/1684617
[Accessed 2022 08 2022].
 K, R v.  UKHL 41 (25th July, 2001)
 White V White  2 KB 124.