Abstract

In the first of these two lectures Professor Hart is concerned with certain controversies and changes of attitude towards the question of moral guilt—mens rea,’ the guilty mind’—in criminal proceedings according to English law. There is, on the one hand and at one extreme, the attitude of the McNaughten Rules which excludes guilt only in the case of a ‘defect of reason’; at the other extreme there is the modern position, represented by Lady Wootton according to which the conception of metis rea should be dropped altogether—criminal proceedings are concerned with ‘social hygiene’ and have nothing to do with responsibility: the question of responsibility comes up only after a verdict has been reached in estimating what steps are likely to have the best consequences for the ‘criminal’ and for society. Between these extremes Professor Hart takes a kind of middle course, what he calls ‘a moderate form of the new doctrine’: ‘Under this scheme mens rea would continue to be a necessary condition of liability to be investigated and settled before conviction except so far as it relates to mental abnormality. The innovation would be that the accused person would not be able to adduce any form of mental abnormality as a bar to conviction. The question of his mental abnormality would under this scheme be investigated only after conviction and would primarily be concerned with his present rather than his past mental state’. He admits that there are some practical difficulties against this view, but he does not consider the theoretical difficulty that the theory does away with the principle that criminal conviction must be based on guilt and responsibility.