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There are two competing conceptions of mens rea. The first conception is descriptive. We look to a person's mental state to determine if the mental state element is satisfied. This is a question of fact. Alternatively, there is the normative conception of mens rea. This is the question of whether the defendant is blameworthy. The term, mens rea, or "culpability," can therefore refer to the descriptive usage (did the defendant have the requisite mental state, i.e, purpose or knowledge?) or to the normative usage (is the defendant blameworthy, wicked, indifferent?). The tension between descriptive and normative terminology was first identified by Professor George Fletcher more than thirty years ago. In this essay, I aim to dissolve it. Descriptive terms are culpability's grammar; normative terms are culpability's meaning. I begin with Professor Fletcher's discussion of the conflict between descriptive and normative mens rea in his new work, The Grammar of Criminal Law, and his clear preference for normative terminology. I then turn to analyze the subject of the debate - an agent's culpable choice, and argue that there are several different aspects of that choice. Next, I argue that in assessing culpability, we do not focus upon one aspect; rather, the grammar gives meaning to the whole. Although I contend that descriptive and normative culpability can be reconciled, I claim there is a more unified conception of culpability, which simplifies, but does not distort, how the parts give meaning to the whole. In the final part of this essay, I discuss negligence, which admittedly cannot be explained by my theory. I argue, however, that liability for negligence presents problems within the grammar of criminal law as Professor Fletcher finds it.


criminal law, culpability, mens rea

Publication Title

Cardozo Law Review

Publication Citation

28 Cardozo L. Rev. 2523 (2007)