7.4.2 Two Frameworks for Assessing Criminal Liability
7.4.2.1 The Bipartite Structure of Crime
Criminal liability is often assessed according to a certain structure or framework.
Legal theorists have developed two distinct ways of thinking about the internal
structure of criminal offenses. Common law courts have traditionally followed a
bipartite structure, simply distinguishing between objective (external) and subjec-
tive (internal) aspects of crime. Thus, the framework for assessing liability in this
case simply requires that the two basic elements of a criminal offense, i.e.actus
reusandmens rea, are fulfilled.
Although the bipartite system offers the convenience of theoretical simplicity, it
also has some inherent shortcomings. For one, it fails to account for the entire range
of defenses that are grouped under the categories of justification and excuses.
Notions such as self-defense or insanity show many complexities that cannot easily
be analyzed as part of eitheractus reusormens rea.
A related but nevertheless distinct problem is that this approach seems to
conflate the concept ofmens reawith (moral) blameworthiness. The two concepts
arguably denote different things, however. A person could have fulfilled theactus
reusof a criminal offense with the correspondingmens reabut still escape liability
due to the absence of blameworthiness. Just think of a person who fatally stabs his
wife with a knife. From an objective point of view, theactus reusandmens rea
requirements of murder seem clearly fulfilled here. The defendant killed another
human being (actus reus), and he did so intentionally (mens rea). However, whether
he can also be blamed for this offense is an entirely different question. It is, for
instance, conceivable that the person at the time of the offense suffered from
delusions as an unexpected side effect of his multiple sclerosis medication, which
would raise doubts as to his (personal) blameworthiness.
7.4.2.2 The Tripartite Structure of Crime
Many civil law systems, such as those of Germany and the Netherlands, have
therefore developed an entirely different framework for assessing criminal liability.
According to the there prevalent tripartite structure of crime, the assessment of
criminal liability takes place in three stages. In stage one, it needs to be assessed
whether or not the legal elements of the statutory offense definition (i.e.,actus reus
andmens rea) have been fulfilled. In the second stage, the wrongfulness (Rechtswi-
drigkeit) of the conduct in question is assessed, while the third stage is devoted to
assessing the blameworthiness of the defendant (Schuld). Thus, the issues in the
tripartite framework of criminal liability line up in the following way:
- Fulfillment of offense definition (actus reusandmens rea),
- Wrongdoing,
- Blameworthiness.
When it can be proven that a person has committed an act that falls within the
definition of an offense, the presence of wrongdoing and blameworthiness is
130 J. Keiler et al.