1. Joel Feinberg, The Moral Limits of the Criminal Law, vol. 1, Harm to Others (New York: Oxford University Press, 1984), 11.

2. Id.

3. Feinberg would also allow offense to others as a criterion of permissible criminalization; see Feinberg, The Moral Limits of the Criminal Law, vol. 2, Offence to Others (New York: Oxford University Press, 1985).

4. Feinberg, Harm to Others, 37.

5. Id., 112.

6. Restatement (Second) of the Law of Torts (St. Paul: American Law Institute Publishers, 1965), chap. l, sec.

7. Id.

8. Feinberg, Harm to Others, 113, 206-214.

9. The defense of necessity has sometimes been interpreted as a counterexam-pie to this principle, but I have elsewhere offered an interpretation that coheres with it; see Alan Brudner, "A Theory of Necessity," 7 Oxford J. Leg. Stud, 339 (1987). Moreover, the utilitarian theory of necessity has been rejected by the Supreme Court of Canada; see Perks v. The Queen, [1984] 2 S.C.R. 232.

10. See Sherras v. De Rutzen, [1895] 1 Q.B. 918; R. v. Ewart, 25 N.Z.L.R. 709 (1905); Proudman v. Dayman 67 G.L.R. 536 (Aust. H.C. 1941); Morissette v. United States, 342 U.S. 246 (1952); R. v. City of Sault Ste. Marie, [1978] 2 S.C.R. 1299.

11. Jerome Hall, "Negligent Behavior Should Be Excluded from Penal Liability," 63 Col. L. Rev. 632 (1963).

12. Oliver Wendell Holmes, The Common Law, ed. M. Howe (Cambridge: Belk-nap Press, 1963), 42-62.

13. See Reference Re Section 94(2) of the Motor Vehicle Act, [1985] 2 S.C.R. 486, 514, per Lamer, C.J.

14. See H. L. A. Hart, Punishment and Responsibility (Oxford: Clarendon Press, 1968), 22-24, 44-53, 180-185. The drive to enforce a single principle of penal justice heedless of boundaries is evident in the following statement by Holmes, Common Law, 39: "Again, a malum prohibitum is just as much a crime as a malum in se. If there is any general ground of punishment, it must apply to one case as much as to the other."

15. See David Nelken, "Critical Criminal Law," in Peter Fitzpatrick and Alan Hunt, eds., Critical Legal Studies (Oxford: Blackwell, 1987), 112-115; Mark Kelman, "Interpretive Construction in the Substantive Criminal Law," 33 Stan. L. Rep. 591 (1981).

16. [1989] 1 S.C.R. 1392.

17. R.S.C., 1985, Chap. C-46, sec. 219.

18. See R. v. Caldwell, [1981] 1 All E.R. 961 (H.L.).

19. See Hart, Punishment and Responsibility, 152-157.

20. This is the view of the American Law Institute (ALI), Model Penal Code (Official Draft, 1962), sec. 2.02 (2)(c); see also O'Grady v. Sperling, [1960] S.C.R. 804.

21. Hart, Punishment and Responsibility, 136-157; a similar argument has been advanced by George Fletcher, "The Theory of Criminal Negligence: A Comparative Analysis," 119 Univ. Pa. L. Rev. 401 (1971).

22. J. W. C. Turner, "The Mental Element in Crimes at Common Law," 6 Cambridge L. J. 31 (1936).

23. Hart, Punishment and Responsibility, 149-150.

24. Id., 152.

25. Id., 180-183.

26. Id., 8-10.

27. [1955] N.Z.L.R. 471 (S.C.).

28. [1924] N.Z.L.R. 865 (N.Z.C.A.); cf. People v. Bowen, 158 N.W.2d 794 (Mich. 1968).

29. Salmond, J.'s precise formulation was (above n. 28, at 875): "That a man's unfulfilled criminal purposes should be punishable they must be manifested not by his words merely, or by acts which are in themselves of innocent or ambiguous significance, but by overt acts which are sufficient in themselves to declare and proclaim the guilty purpose with which they are done." See also J. W. C. Turner, "Attempts to Commit Crimes," 5 Cambridge L. J. 230, 237-238 (1934).

30. Above n. 27, at 477.

31. See New Zealand Crimes Act (1961), sec. 72(3).

32. Glanville Williams, Criminal Law: The General Part, 2d ed. (London: Stevens, 1961), 630.

33. See ALI, Model Penal Code (Official Draft, 1962), sec. 5.01; Deutsch v. The Queen, [1986] 2 S.C.R. 2.

34. See Commonwealth v. Skipper, 294 A.2d 780 (Pa. 1972).

35. R. v. Sorrell and Bondett, 41 C.C.C. (2d) 9 (Ont. C.A. 1978).

36. 10 C.C.C. (2d) 26 (Alberta District Court 1972).

37. R.S.C. 1985, Chap. C-46, sec. 19.

38. Above n. 36, at 31; see also Holmes, Common Law, 41.

39. For an analogous American case, see State v. Striggles, 210 N.W. 137 (Iowa 1926).

40. Sir Matthew Hale, The History of the Pleas of the Crown (London: Professional Books, 1971), I, 42.

41. See Liparota v. United States, 471 U.S. 419 (1985); Lambert v. California, 355 U.S. 225 (1957); Long v. State, 65 A.2d 489 (Del. 1949).

42. See, e.g., Molis v. The Queen, [1980] 2 S.C.R. 356.

43. Holmes, Common Law, 41-43.

44. Fletcher, "The Theory of Criminal Negligence," 422.

45. G. W. E Hegel, Philosophy of Right, trans. T. M. Knox (Oxford: Oxford University Press, 1967), pars. 90-104. Numbers in the text refer to paragraphs of this work. I will also refer occasionally to G. W. E Hegel, Vorlesungen über Rechtsphilosophie 1818-1831, ed. K.-H. Ilting (Stuttgart-Bad Cannstatt: Frommann-Holzboog, 1974).

46. Immanuel Kant, Foundations of the Metaphysics of Morals, trans. L. W. Beck (Indianapolis: Bobbs-Merrill, 1959), 43-47.

47. See, e.g., Plato, Laws, 642b-645c; Gorgias, 472d-479d.

48. The common-law view of the status of values is classically articulated by Thomas Hobbes, Leviathan (Oxford: Blackwell, 1957), 32: "But whatsoever is the object of any man's appetite or desire, that is it which he for his part calls good; and the object of his hate and aversion, evil ; and of his contempt, vile and inconsiderable. For these words of good, evil, and contemptible are ever used with relation to the person that uses them, there being nothing simply and absolutely so, nor any common rule of good and evil to be taken from the nature of the objects themselves." (Emphasis in original.)

49. See also Hegel's Phenomenology of Spirit, trans. A. V. Miller (Oxford: Oxford University Press, 1977), 109-111.

50. See Bamford v. Turnley, 122 E.R. 27, 33 (1862), per Bramwell, B.

51. Bolton v. Stone, [1951] A.C. 850 (H.L.).

52. Hegel identifies three ways, putting fraud midway between tort and crime as involving intentional wrongdoing but with a pretense of respect for the victim's consent; see Philosophy of Right, pars. 87-89. Since fraud's oblique tribute to rights has implications for sentencing but not (as far as I know) for substantive doctrine, I will treat fraud as a species of crime. For a discussion of the difference between tort and crime along Hegelian lines, see Bruce Chapman, "A Theory of Criminal Law Excuses," 1 Can. J. Law and Jurisprudence 75, 81-84 (1988).

53. For a lucid account of Hegel's theory of crime, see Peter Nicholson, "Hegel on Crime," 3 History of Political Thought 103 (1982).

54. See Robert Pippin, Hegel Idealism: The Satisfactions of Self-Consciousness (Cambridge: Cambridge University Press, 1989), 19-24.

55. See Allen Wood, Hegel's Ethical Thought (Cambridge: Cambridge University Press, 1990), 116-117; Mark Thornton, "Against Retributivism," in Wesley Cragg, ed., Retributivism and Its Critics (Stuttgart: Steiner, 1992), 83-84.

56. G. W. F. Hegel, The Philosophical Propaedeutic , trans. A. V. Miller, eds. Michael George and Andrew Vincent (Oxford: Blackwell, 1986), 31.

57. I take this to be the meaning of Hegel's statement that "[t]he infringement of right as right is something that happens and has positive existence in the external world" (Philosophy of Right, par. 97).

58. No doubt the criminal's law leaves everyone's right vulnerable, and one might ask why the criminal is singled out to bear the force ora principle that logically applies to all. Why does not crime call forth universal destruction as its punishment, as in the story of the Flood? The answer is that crime's claim to validity has an existence solely in the criminal's will; the challenge to the validity of rights exists only in the person who actively denied their validity, and so it is sufficient to defeat this challenge to visit the self-contradictory implications of crime on the criminal. Moreover, the intersubjective will can apply no more force than is necessary to defeat the challenge to its normative validity, or else it is another wrong. See Vorlesungen, IV, 284.

59. Allen Wood has recently directed a number of criticisms against Hegel's theory of punishment; see Hegel's Ethical Thought, 115-124. In addition to making the points answered in the text of this chapter, he argues that Hegel (a) assumes that those punished see themselves as persons and thus gives no guidance for the treatment of people who, because of extreme poverty, do not see themselves as persons and who can therefore assert no law in their actions; (b) shows why it is permissible to punish but does not show that punishment is demanded; (c) has no account of punishment for mala prohibita, the penalization of which would be unjust on his theory (since the lawbreaker violates no abstract right of another and so does not will his own punishment).

(a) The sense of personality underlying Hegel's theory of punishment is very thin. One need only have a sense of oneself aa formally free (i.e., not an automaton) in order to qualify as someone to whom principled action may be imputed. There is no reason to think that poverty vitiates this minimal sense of self, and it degrades the poor to think that it does.

(b) It is true that Hegel's theory does not tell us why the state must punish, but this is a virtue of the theory, since it explicitly leaves room for the power of pardon (see Philosophy of Right, par. 282). A theory of punishment that (like Kant's) left no such room would be deficient.

(c) It is true that Hegel has no explicit account of punishment for male prohibita, but such an account may be elaborated from his theory of welfare and of the good, and this is what I try to do. Hegel's retributive theory of punishment does not rule out or render unintelligible penalties for negligently committed public welfare offenses, because the theory applies specifically and narrowly to crimes, i.e., paradigmatically to intentional infringements of abstract right and by analogy to intentional violations of positive law. It thus leaves open the possibility of a different theory of punishment for public welfare offenses. Hegel no doubt sometimes refers to offenses such as counterfeiting as crimes (suggesting to Wood that he meant retributive theory to apply across the board). But this is because he sees crime as any intentional violation of the framework of rights (see Vorlesungen , IV, 273); and an intentional violation of positive law is indeed punishable under the same retributive theory as an intentional infringement of abstract right. In both cases the wrongdoer denies the validity of the legal order that makes rights possible and so contradicts his own right-claim to absolute liberty. There remain, however, the many regulatory offenses that may be committed through negligence or through no fault at all, and nothing Hegel says suggests he thought that retributive theory applied to these.

60. See R. A. Duff, Intention, Agency and Criminal Liability: Philosophy of Action and the Criminal Law (Oxford: Blackwell, 1990), 58-63.

61. The fact that in exceptional cases omissions suffice for the actus reus does not contradict this account of the act requirement. Sometimes omissions are culpable because they are best seen as part of a larger act; see Fagan v. Commissioner of Metropolitan Police, [1969] 1 Q.B. 439. At other times they are culpable because they are part of a context in which the accused has actively created a danger to property or life; see R. v. Miller, [1983] 1 All E.R. 978 (H.L.).

62. The mens rea for attempts is properly determined not by semantic considerations (which might lead one to conclude that there is no "attempt" without an intention to produce a state of affairs) but by the role of mens rea in the justification of punishment. Since the requirement of an explicit denial of the intersubjecttive basis of rights is satisfied by a reckless disdain for the end-status of another no less than by an intentional one, there is no reason to limit the mens rea for attempts to intention. For a case in agreement with this view, see People v. Castro, 657 P.2d 932 (Colo. 1983); to the contrary are People v. Harris, 377 N.E.2d 28 (Ill. 1978) and R. v. Ancio, [1984] 1 S.G.R. 225.

63. Although the impossibility (whether due to factual circumstances alone or to the interplay between fact and law) of completing the intended offense should be irrelevant to culpability once the unequivocality test is satisfied, impossibility may affect a court's judgment as to whether the act unequivocally manifests a criminal intent. Suppose, for example, D, believing he is selling a fake Picasso, actually sells a genuine one. Here (assuming otherwise ordinary circumstances), the impossibility of committing a fraud renders D's act easily amenable to an innocent interpretation. Though not itself a defense, impossibility here goes to the question of remoteness. Conversely, suppose D, believing he is selling a large shipment of heroin, completes a transaction under very incriminating circumstances (in a secluded place in the dead of night, each party backed up by armed guards, a suit-case full of money, etc.). It turns out, however, that the merchandise is milk powder. Here the impossibility of completing the offense has little bearing on how we interpret the act.

In Anderton v. Ryan, [1985] 2 All E.R. 355, the House of Lords followed the approach suggested here; however, it overruled itself in R. v. Shivpuri, [1986] 2 All E.R. 334, on the ground that, because all acts short of the completed criminal purpose are by definition "objectively innocent," the essence ora criminal attempt lies in the intent alone—a principle that will anomalously (as the Court conceded) convict the seller of the genuine Picasso as well as someone who "steals" his own umbrella. However, the reasoning in Shivpuri fails to do justice to the Court's own intuition in Anderton. The unequivocality test does not require that we consider whether incomplete acts are guilty or innocent "objectively" or independently of intent; on the contrary, it holds that an attempt is criminal only if it embodies a criminal intent. But to determine whether it does so, we must look at the act in its context and ignore evidence aliunde of intent. In this way alone is the traditional principle that a crime requires both a guilty intent and a guilty act preserved without compromise in the context of attempts.

64. See Sir James F. Stephen, A History of the Criminal Law of England, vol. 2 (London: Macmillan, 1883), 94-95.

65. This is currently the view of a majority of the Supreme Court of Canada; see R. v. Martineau, [1990] 2 S.C.R. 633.

66. Hart, Punishment and Responsibility, 149-157; Brenda Baker, "Mens Rea, Negligence, and Criminal Law Reform," 6 Law and Phil. 53, 79-86 (1987).

67. As the House of Lords held in D.P.P. v. Morgan, [1975] 2 All E.R. 347; and as the Supreme Court of Canada held in R. v. Pappajohn, [1980] 2 S.G.R. 120. By contrast, few American courts allow an unreasonable mistake regarding consent to excuse from rape, and some reject even an excuse of reasonable mistake; see Susan Estrich, "Rape," 95 Yale L. J. 1087, 1097-1099 (1986). Although an honest mistake as to consent should excuse from the crime of sexual assault, anyone acquitted on this ground could be guilty of a less serious public welfare offense if his mistake was negligent or rooted in sexist assumptions.

68. Incapacity to know the act's wrongfulness is crucial here, for every criminal impliedly asserts a right to do the wrong and in that sense is ignorant of the wrongfulness of his act. What distinguishes the legally insane actor from the criminal is that the latter knowingly exalts his claim of right above the intersubjective will (or the standard of reasonable persons), while the legally insane person (much like the tortfeasor) believes that his act conforms to that standard. Since the incapacity distinguishes innocent from culpable ignorance of wrongfulness, proposals to abolish the insanity defense in favor of a straightforward inquiry into mens rea are, in my view, misguided; see J. Goldstein and J. Katz, "Abolish the Insanity Defense—Why Not?" 72 Yale L. J. 853 (1963).

69. The American Law Institute's Model Penal Code adds this defense to the traditional M'Naghten test of culpability; see sec. 4.01(1). See also United States v. Brawner, 471 F.2d 969 (D.C. 1972), which follows the ALI. The irresistible impulse defense has been rejected in Canada; see R. v. Borg, [1969] S.G.R. 551.

70. Thus, someone may be excused who, while knowing that his deed was against the law, acted under the delusion of necessity or of self-defense; see R. v. Chaulk, [1989] 1 S.C.R. 369; People v. Skinner, 704 P.2d 752 (Cal. 1985); Stapleton v. The Queen, 86 G.L.R. 358 (Aust. H.G. 1952).

71. Hegel, Vorlesungen, IV, 270-271.

72. See David Cooper, "Hegel's Theory of Punishment," in Z. A. Pelczynski, ed., Hegel's Political Philosophy: Problems and Perspectives (Cambridge: Cambridge University Press, 1971), 157-158.

73. For a contrary view, see Michael Moore, "The Moral and Metaphysical Sources of the Criminal Law," in J. R. Pennock and J. W. Chapman, eds., Nomos, vol. 27: Criminal Justice (New York: New York University Press, 1985), 14.

74. Mouse's Case, 12 Coke's Rep. 63 (1608); Reg. v. Gill, [1963] 1 W.L.R. 841.

75. See R. v. Dudley and Stephens, 14 Q.B.D. 273 (1884); R. v. Howe, [1987] 1 All E.R. 771 (H.L.).

76. See George Fletcher, Rethinking Criminal Law (Boston: Little, Brown, 1978), 802-804; see also Perka v. The Queen, [1984] 2 S.G.R. 233.

77. For the irrelevance of motive to culpability, see United States v. Pomponio, 429 U.S. 10 (1976); Lewis v. The Queen, [1979] 2 S.C.R. 821.

78. Above n. 75.

79. In Dudley and Stephens, the convicts' death sentences were commuted by the Crown to imprisonment for six months. In a similar American case, where the occupants of a lifeboat threw some of their number overboard to prevent the boat from sinking, the accused was sentenced to six months hard labor and a fine of $20; see United States v. Holmes, 26 Fed. Cas. 360 (1842).

80. See ALI, Model Penal Code (1962), sec. 210.3(b); D.P.P. v. Camplin, [1978] 2 All E.R. 168 (H.L.); R. v. Hill, [1986] 1 S.G.R. 313.

81. Jeremy Horder has recently offered a different understanding of provocation. On his view, a wrong committed in the heat of passion may, according to the logic (which he contests) of the defense, be justified if the accused acted in accordance with the mean appropriate to the virtues connected with anger; or it may be excused to some extent if the accused exceeded the mean by some small degree given the nature of the provocation; see Jeremy Horder, Provocation and Responsibility (Oxford: Clarendon Press, 1992), 134-136. The difficulty with this view is that it confuses the circumstances of legal justification, excuse, and mitigation with those relevant to moral praise or blame. Apart from circumstances of self-defense, a person's rights are consciously violated by a killing in anger even if (if such a thing were possible) the killer acted virtuously. Otherwise, one's rights would be at the disposal of the man of virtue. The considerations Horder adduces are relevant to the exercise of sentencing discretion, not to the determination of legal culpability. A similar problem arises with the theory of excuse put forward by George Fletcher in "The Individualization of Excusing Conditions," 47 S. Cal. L. Rev. 1269 (1974). Here Fletcher elevates the peripheral relevance of motive in necessity (of the Dudley and Stephens type) and provocation into a general theory of excuse based on the illicitness of an inference from act to moral character. However, this move illustrates the dangers of raising subordinate principles into ruling ones. If the breakdown of the inference from act to moral character excuses from criminal liability, then someone who intentionally commits wrongs from worthy motives should be acquitted, and so once again the private moral conscience is above the law.

82. There are no doubt other conceptions of welfare (e.g., as the fulfillment of human nature or of humanity's supernatural end), but we can ignore them in a work on the common law as being interpretively unilluminating.

83. These elements of the paradigm have, of course, been thoroughly worked out by John Pawls and Ronald Dworkin; see especially John Rawls, A Theory of Justice (Cambridge: Belknap Press, 1971), 150-192; Ronald Dworkin, Taking Rights Seriously (Cambridge: Harvard University Press, 1977), 184-205, 266-278. We shall presently see that there are rational limits to the requirement of state neutrality toward preferences.

84. A nde enjoining the equalization of happiness or permitting only those increases that make no one worse off in the short run would also conform to the egalitarian requirements of the agency-based justification. However, the "maximin" principle (enjoining us to maximize the long-run advantage of the least well off) allows greater levels of preference satisfaction within the egalitarian constraint. Since the agency-based justification bids us to conceive projects and to pursue them enthusiastically for the sake of freedom, it prefers the nde that allows the greatest scope for this activity.

85. I am speaking here of the situation anterior to the enactment of a statute. Once a welfare statute is in place, punishment can be deserved, since an intentional breach of positive law also implies an elevation of serf above the legal order that, when universalized, negates rights. However, because the rationale for the penal sanction is in the first place a goal, desert (in the strong sense) will not here be a necessary condition of penalization.

86. This, I believe, is the underlying rationale for the doctrine in Sherras v. De Rutzen, above n. 10 (cf. Morissette v. United States, above n. 10), that mens rea is not required for convictions for public welfare offenses.

87. See Proudman v. Dayman, above n. 10; R. v. City of Sault Ste. Marie, [1978] 2 S.C.R. 1299.

88. See Pawls, A Theory of Justice, 40-45.

89. Absolute liability (i.e., liability in the absence even of negligence) has been ruled unconstitutional in Canada if the accused faces the possibility of a prison sentence; see Reference Re Section 94(2) of the Motor Vehicle Act, [1985] 2 S.C.R. 486; see also ALI, Model Penal Code, sec. 2.05. Moreover, in Canada and Australia, a court will construe a public welfare statute as allowing a defense of due diligence unless the statute explicitly dispenses with fault; see R. v. City of Sault Ste. Marie, above n. 87; Proudman v. Dayman, above n. 10. For the contrary position, see State v. Stepniewski, 314 N.W.2d 98 (Wis. 1982).

90. The Supreme Courts of both the United States and Canada have held that excessively vague penal laws violate constitutional guarantees of "due process" or "fundamental justice"; see United States v. Harriss, 347 U.S. 61 a, 617 (1954); R. v. Nova Scotia Pharmaceutical Society, [1992] 2 S.C.R. 606. For a famous violation of the fair notice principle, see Shaw v. D.P.P., [1962] A.C. 220 (H.L.).

91. ALI, Model Penal Code (1962), sec. 2.04(3)(b); R. v. MacDougall, 60 C.C.C. (2d) 137 (Nova Scotia C.A. 1981).

92. The four principles of justice indigenous to the welfare paradigm (the priority of autonomy over happiness and of the good over formal liberty, the noncontradiction proviso, and the requirement of the least restrictive means) are embodied (albeit confusedly) in the test devised by the Supreme Court of Canada to determine whether statutory infringements of constitutionally entrenched rights are "reasonable limits" in a "free and democratic society"; see R. v. Oakes, [1986]

1. S.C.R. 103. Limitations of rights are justified, first of all, only if the goal served by the impugned statute is "pressing and substantial.' This test intuitively grasps the distinction between goals relative to contingent desire, which cannot override fundamental rights, and goals relevant to the common good of autonomy, which can. However, the common good can limit rights only to the extent necessary to achieve the goal; hence the proportionality test in Oakes demands that the means be rationally related to the end and that they limit rights as little as possible. The third aspect of the Oakes proportionality test—that the deleterious effects of the statute must not outweigh the expected benefits—appears to be part of a utilitarian model, but it can also be understood as screening out self-contradictory attempts to promote the effective autonomy of all by denying it to some.

93. The figures who best personify these opposing tendencies are Jerome Hall and H. L. A. Hart.

94. See Jerome Hall, General Principles of Criminal Law, ad ed. (Indianapolis: Bobbs-Merrill, 1947), 351-359.

95. See Holmes, Common Law, 37; Ted Honderich, "Culpability and Mystery," in Antony Duff and Nigel Simmonds, eds., Philosophy and the Criminal Law (Wiesbaden: Steiner, 1984), 71.

96. Hart, Punishment and Responsibility, 136-157; Don Stuart, Canadian Criminal Law: A Treatise, 2d ed. (Toronto: Carswell, 1987), 194-195; R. v. Tutton and Tutton, above n. 16, per Lamer, C.J. Under a negligence regime one is punishable for "murder" if one causes death by an act whose fatal consequences one ought to have foreseen; see D.P.P. v. Smith, [1961] A.C. 290 (H.L.). One is liable for manslaughter if one negligently breaches a legal duty of care and death results; see R. v. Lawrence, [1982] A.C. 510 (H.L.). One is guilty of sexual assault if one has nonconsensual intercourse with a person in the unreasonable (though honest) belief that she consented; see Criminal Code of Canada, R.S.C. 1985, Chap. C-46, sec. 273.2. One is punishable for any offense committed as a result of negligently becoming intoxicated; see D.P.P. v. Majewski, 62 Cr. App. R. 262 (1976).

97. Bratty v. A-G Northern Ireland, [1963] A.C. 386 (H.L.); Rabey v. The Queen, [1980] 2 S.C.R. 513.

98. See ALI, Model Penal Code (1962), sec. 5.01, which defines a "substantial step" as one "strongly corroborative of the actor's criminal purpose"; cf. R. v. Shivpuri, [1986] 2 All E.R. 334 (H.L.); R. v. Sorrell and Bondett, 41 C.C.C. (2d) 9 (Ont. C.A. 1978); Deutsch v. The Queen, [1986] 2 S.C.R. 2.

99. Above n. 28.

100. People v. Kessler, 315 N.E.2d 29 (Ill. 1974); R.S.C, 1985, Chap. C-46, sec. 21(2).

101. Bratty v. A-G Northern Ireland, above n. 97, per Lord Denning.

102. The Homicide Act, 1957 (U.K.), c. 11, sec. 2; see also State v. McVey, 376 N.W.2d 585 (Iowa 1985); R. v. Wright, 48 C.C.C. (2d) 334 (Alta. S.C. 1979).

103. D.P.P. v. Majewski, above n. 96.

104. George Fletcher has also argued that the criminal law is a unity of different paradigms; see Rethinking Criminal Law (Boston: Little, Brown, 1978), 388-390. However, for Fletcher, the three patterns of criminality (manifest criminality, subjective criminality, and harmful consequences) have no immanent connection; they are alternative and equally plausible theories of criminality that could singly order the whole of the criminal law. Hence the unifying general part does not embrace the patterns as parts of a whole; it merely states general propositions or defines concepts that happen to cut across all three. Despite the general part, the criminal law remains "polycentric." In the view presented here, by contrast, the penal law is a differentiated whole; one pulse beats in all divisions.

105. The distinction we have drawn between criminal law (vindicating private rights) and public welfare offenses (promoting happiness and the common good) does not correspond to the old distinction between mala in se and mala prohibita. All true crimes are mala in se, but not all mala in se are true crimes. For example, offenses against public morals (e.g., sodomy) were traditionally viewed as mala in se (or "crimes against nature"), but for us these are not crimes unless involving coercion or deception (nor are they for the Model Penal Code ; see sec. 213.2). Moreover, laws promoting the general happiness outlaw mala prohibita, but those promoting the common good might with good reason be viewed as outlawing mala in se.

106. R.S.C. 1985, Chap. C-46, sec. 215. The offense is punishable by up to two years in jail—too severe, according to our argument, for a negligence offense.

107. This is presumably why the codification of true crimes is thought to be optional, whereas the legislative promulgation of public welfare offenses is considered a requirement of due process.

That wrongfulness in the context of true crimes implies illegality (so that rational agents cannot be ignorant of such law) applies even where a criminal wrong is perversely permitted or authorized by positive law. Thus a ship's captain who maliciously shot the captain of a nonenemy vessel on the high seas, unaware that the high seas exemption from English penal laws had been repealed in his absence, was properly convicted; see R. v. Bailey, 168 E.R. 651 (1800). And so, on this principle, were Nazi war criminals.

108. See Molis v. The Queen, [1980] 2 S.C.R. 356.

109. R. v. Esop, 173 E.R. 203 (1836).

110. State v. O'Neil, 126 N.W. 454 (Iowa 1910).

111. See Hegel, Philosophy of Right, par. 215: "If laws are to have binding force, it follows that, in view of the right of self-consciousness . . . they must be made universally known."

112. Hall, General Principles, 351-364.

113. See R. ex. rel. Irwin v. Dalley, 118 C.C.C. 116 (Ont. C.A. 1957); to the contrary is Long v. State, above n. 41.