The Subjectivism/Objectivism Debate

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From the liberal point of view, to hold a person criminally responsible for a crime which has not actually been committed, although evidence indicates that it had been prepared for, implies holding people guilty on the basis of their thoughts alone.1 Indeed, attempts liability entails punishing a person for something which he has not actually done but which he had planned to do at some point in the future. As such, attempts liability is founded upon a deeds principle which appears in direct violation of the harms principle upon which the very concept of punishment is founded.2 The stated brings us directly to the subjectivism/objectivism debate which, in itself, reflects important controversies in the entire concept of criminal liability.From the orthodox academic viewpoint, criminal law presents actual legal doctrines, as in principles and legislature, and is concerned with its critical evaluation as regards whether or not it abides by the principled logic which academia claims to be inherent within the law itself. This enterprise has largely fallen to the subjectivists who have analyzed the aforementioned from a mental elements’ perspective.3 Several legal scholars have claimed that this is nothing other than a politico-philosophical matter whose primary motivation is the correlation between legal principles and liberal conceptualizations of man as a free, moral, and responsible agent.4 In essence, this has effectively split the law of criminal liability and subsequent interpretations.As may be inferred from the above stated, the subjectivism/objectivism debate effectively mirrors the existent tension between the principles of deed and equal culpability. The objectivist camp believes that criminal liability should be limited to what the person did, while the subjectivist camp upholds the expansion of criminal liability towards the embrace of the person’s state of mind. Accordingly, the objectivist camp upholds the principle of deeds and the subjectivist camp that of equal culpability.5 The complex nature of prevailing criminal law lies it that it is neither one nor the other.