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Is a crime committed because the criminal is a rational being, able to make the decision to offend as an act of free will?

As the notion of free will and rationality depend upon an array of criminological, sociological and philosophical perspectives this essay was to be contrasted through various seminal works that had inspired various perspectives and critiques with regards to the notion of criminal law. In an attempt to draw out these perspectives it was decided to first look at the birth of rationality. In the age of the enlightenment and with the birth of rationality came the absolute principle of judgement. This notion of judgement quickly moved to become the central notion in the philosophical and legal realm. With the role of judgement being at the heart of law and legality, this new philosophical emphasis on judgement and it's validity in every sense applied to the idealistic principles of rationality. With the divine rule of kings long since dismissed seminal rational philosopher Immanuel Kant began his Critique of Judgement, which defined these basic principles, from which all judgements from a rational perspective had to apply. Writing on the notion of rational judgement Kant separated what could be considered a law with solid grounding and what could be considered a matter of taste, surmising that,

'If we wish to discern whether anything is beautiful or not, we do not refer the representation of it to the object by means of understanding with a view to cognition, but by means of the imagination (acting perhaps in conjunction with understanding) we refer the representation to the subject and it's feeling of pleasure or displeasure. The judgement of taste, therefore, is not a cognitive judgement, and so not logical, but is aesthetic - which means that it is one whose determining ground cannot be' (Kant, 1978, p.41).

'In many offences the defendant may be convicted although it has not been proven by the prosecution that his conduct was intentional, knowing, reckless or negligent with reference to a requisite element of the offence charged. In such cases, a person is liable to punishment in the absence of any fault on his part in respect of the element(s) in question and is said to be under strict liability' (Card et al, 2004, 5.1)

From this we can clearly see that the issue of committing a crime as a rational being decided out of free will is presumed by the law as the criminal's intentions are overlooked in terms of liability. From the moment of conception, the citizen is presumed a rational being, part of a social contract that makes him liable to maintain to that contract on punishment of that law. We can see here that this is the premise of Kantian rational principles and the starting point for what Hart considers the basis for the concept of law. Essentially, in the eyes of the law, the individual is liable to a social contract and is considered criminally responsible for their actions with regards to others within that society. However, as we have seen throughout, there is great concern regarding the mitigating circumstances that position the subject of the law as not having free will to choose. And we have also seen that the principles of rationality and social contracts are ideological and not innate. So in summary it cannot be truly stated that a crime is committed because the criminal is a rational being, able to make the decision to offend as an act of free will.    

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