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Guilty Acts, Guilty Minds$
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Stephen P. Garvey

Print publication date: 2020

Print ISBN-13: 9780190924324

Published to Oxford Scholarship Online: July 2020

DOI: 10.1093/oso/9780190924324.001.0001

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PRINTED FROM OXFORD SCHOLARSHIP ONLINE (oxford.universitypressscholarship.com). (c) Copyright Oxford University Press, 2021. All Rights Reserved. An individual user may print out a PDF of a single chapter of a monograph in OSO for personal use. date: 18 January 2022



(p.72) 2 Rights
Guilty Acts, Guilty Minds

Stephen P. Garvey

Oxford University Press

This chapter uses two well-known Supreme Court cases—Powell v. Texas and Morissette v. United States—to frame the subsequent discussion. It offers the reasonable doubt test as a way for each citizen to decide for himself if a proposed limit on democratic authority is a legitimate limit. It introduces formulations of the actus reus and mens rea meant to pass that test, such that they can serve as immunity rights limiting the authority of a democratic states to ascribe guilt to those accused of crimes. It distinguishes actus reus and mens rea as they are conventionally understood (as tools lawyers use to analyze and dissect the elements of criminal statute) from how they will be understood here (as immunity rights). It explains how actus reus and mens rea so understood mean one thing when applied to defendants who realized they were committing a crime and another thing when they didn’t realize they were committing a crime. It then details how mens rea is ultimately grounded in an ill or indifferent will—a lack of sufficient concern for the law and its ends—and proposes a test (the Jekyll test) for sorting ill and indifferent wills from law-abiding ones.

Keywords:   actus reus, mens rea, democracy, criminal law, immunity rights

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