Moral Blameworthiness and Criminal Culpability (Case of Extenuating Circumstances doctrine in African Nations)

Abstract

The paper studies the doctrine of extenuating circumstances which originated in African Community of Nations. This doctrine developed as a response to the mandatory death penalty for murder and some other crimes in common law countries. The doctrine implies that the defendant can avoid death penalty if certain circumstances reduce his\her moral blameworthiness as distinct from the legal culpability. The author examines extenuating circumstances in practice of African courts. The paper criticizes the doctrine under consideration which led to its abolishing or modification in various countries. There are such disadvantages of the doctrine as: laying the burden of proof on the defendant; the need of confession in order to avoid death penalty; the inability to take into account circumstances that did not exist at the time of the crime (repentance, health deterioration etc.). This leads to the conclusion that today the complete abolition of the mandatory death penalty is required. The author considers moral blameworthiness in the Russian criminal law science. The conclusion is that this category is fundamental to conceive the social danger of “conventional” crimes (murder, robbery, rape, etc.). However, in the case of relatively new criminal prohibitions, including in the economic sphere, the awareness of the social danger implies understanding of unlawfulness of behavior and the lack of good faith. The lack of good faith and moral blameworthiness are considered as preconditions of criminal culpability. Being fixed in criminal law, they facilitate to identify the degree of guilt within the framework of a particular form of guilt if considering mitigating and aggravating circumstances in the Russian Criminal Code. Mitigating circumstances can be both related to the degree of guilt of the perpetrator and not associated with it. In the former case, they are a reflection of justice, in the former — of mercy. Aggravating circumstances should be associated with the degree of guilt of the perpetrator (or previous criminal record). The justice and the mercy should be adequately reflected in the rules of the criminal law. Returning to the concept of moral blameworthiness and good faith is needed to evaluate the current criminal law rules and formulation of new ones.