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In criminal law, guilt is the state of being responsible for the commission
of an offense.1 Legal guilt is entirely externally defined by the state, or more
generally a ¡°court of law¡±. Being ¡°guilty¡± of a criminal offense means that one
has committed a violation of criminal law, or performed all the elements of the
offense set out by a criminal statute.2 The determination that one has committed
that violation is made by an external body (a ¡°court of law¡±) and is, therefore,
as definitive as the record-keeping of the body. So the most basic definition is
fundamentally circular: a person is guilty of violating a law, if a court says
so.
Philosophically, guilt in criminal law is a reflection of a functioning
society and its ability to condemn individuals¡¯ actions. It rests fundamentally
on a presumption of free will, in which individuals choose actions and are,
therefore, subjected to external judgement of the rightness or wrongness of
those actions.
¡°An adjudication of guilt is more than a factual determination
that the defendant pulled a trigger, took a bicycle, or sold heroin. It is a
moral judgment that the individual is blameworthy. Our collective conscience
does not allow punishment where it cannot impose blame. Our concept of
blameworthiness rests on assumptions that are older than the Republic: man is
naturally endowed with these two great faculties, understanding and liberty of
will. Historically, our substantive criminal law is based on a theory of
punishing the viscious sic will. It postulates a free agent confronted with a
choice between doing right and wrong, and choosing freely to do wrong."3
See
also Cotton, Michael, A FOOLISH CONSISTENCY: KEEPING DETERMINISM OUT OF THE
CRIMINAL LAW, 15 B.U. Pub. Int. L.J. 1 (¡°A substantial body of scholarship has
concerned itself with the importance of free will to the theory of the criminal
law. Even given the importance of the subject, the quantity of attention is
surprising because of the lack of fundamental disagreement among scholars, who
overwhelmingly endorse the criminal law's assumption of free will.¡±)
Guilt
can sometimes be remedied by: punishment (a common action and advised or
required in many legal and moral codes); forgiveness (as in transformative
justice); making amends (see reparation (legal) or acts of reparation), or
'restitution...an important step in finding freedom from real guilt';6 or by
sincere remorse (as with confession in Catholicism or restorative justice).
Guilt can also be remedied through intellectualisation or cognition 7 (the
understanding that the source of the guilty feelings was illogical or
irrelevant). Helping other people can also help relieve guilt feelings: 'thus
guilty people are often helpful people...helping, like receiving an external
reward, seemed to get people feeling better'.8 There are also the so-called 'Don
Juans of achievement...who pay the installments due their superego not by
suffering but by achievements....Since no achievement succeeds in really undoing
the unconscious guilt, these persons are compelled to run from one achievement
to another'.9
Law does not usually accept the agent's self-punishment, but
some ancient codes did: in Athens, the accused could propose their own remedy,
which could, in fact, be a reward, while the accuser proposed another, and the
jury chose something in-between. This forced the accused to effectively bet on
his support in the community, as Socrates did when he proposed "room and board
in the town hall" as his fate. He lost and drank hemlock, a poison, as advised
by his accuser.
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