generally assumed. Only if exceptional circumstances present themselves, wrong-
doing or blameworthiness might be negated. A successful justificatory defense
may, for instance, deny wrongdoing, while a successful excusatory defense is
sought to deny blameworthiness (see also Sect.7.7).
One critical feature of the tripartite system deserves emphasis here. In the
bipartite framework of common law, the ordering of the elements is not important.
One can consider issues bearing onmens reaeither before or after those related to
theactus reus. In the tripartite system, on the other hand, the order is crucial. The
offense definition needs to be evaluated first, followed by the requirements of
wrongdoing and blameworthiness. The three are logically connected. A certain
conduct can only be considered wrongful if it first fulfills the offense definition.
And conduct can only be considered blameworthy if it is found to be wrongful. In
other words, in the tripartite system, there can be wrongdoing without blamewor-
thiness but there can never be blameworthiness without wrongdoing.
From a comparative perspective, an interesting question in this context is how
the bipartite and the tripartite structure can be reconciled. The differences seem
great on first sight, but matters may become clearer once we come to realize that the
common law concept ofmens reacarries a descriptive as well as a normative
connotation. On a descriptive level,mens reasimply refers to the question whether
intention or negligence according to the offense definition can be established.
However, on a normative level, the termmens reacarries overtones of (moral)
blameworthiness and refers to the question whether the offender can be blamed for
his conduct. In the tripartite structure, the concept ofmens reain the first stage of
the evaluation scheme is thus reduced to its purely descriptive connotation, while
the normative aspect of the concept has been forged into a separate assessment
category (stage 3). Likewise, the notion of wrongdoing is, in common law systems,
often implied in the concept ofactus reus, which is often seen to require that the
conduct in question was in violation of the law and thus wrongful. From a
comparative perspective, the picture that emerges is that of Fig.7.1.
7.5 Actus Reus: Commission Versus Omission
It has already been indicated that under the label ofactus reus, a variety of different
doctrines are subsumed. One fundamental notion is the doctrine of conduct, also
often referred to as the “act requirement.” The doctrine of conduct traditionally
plays an important role in establishing and describing general preconditions for
liability. It has close ties to the principle of individual autonomy, which constitutes
a cornerstone of any liberal criminal justice system. The conduct requirement aims
to ensure that the law treats citizens as responsible subjects, capable of rational
choice, rather than objects of arbitrary state coercion. Holding people liable, for
instance because of their race, religious belief, political or sexual orientation, or
their political affiliations, even though they did nothing wrongful, would not only
fail to respect citizens’ autonomy but also furthermore make the application of
criminal law an arbitrary and oppressive enterprise. Therefore, all penal systems
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