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Guilt (law)

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Guilt (law)

Orestes Pursued by the Furies, by John Singer Sargent. 1921. The erinyes represent the guilt for murdering his mother.

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.”)

Moral and legal definitions

"Guilt" is the obligation of a person who has violated a moral standard to bear the sanctions imposed by that moral standard. In legal terms, guilt means having been found to have violated a criminal law,[1] though law also raises 'the issue of defences, pleas, the mitigation of offences, and the defeasibility of claims'.[4]

Les Parrott draws a three-fold distinction between ' objective or legal guilt, which occurs when society's laws have been broken...Social guilt...[over] an unwritten law of social expectation', and finally the way ' Personal guilt occurs when someone compromises one's own standards'.[5]


Guilt can sometimes be remedied by: transformative justice); making amends (see reparation (legal) or acts of reparation), or ' 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.

See also


  1. ^ a b [1]
  2. ^ See generally 67 F.3d 993, 997 (1st Cir. 1995)United States v. Rivera-Gomez,.
  3. ^ UNITED STATES v. LYONS, 739 F.2d 994, 995 (5th Cir. 1984) (Rubin, J. dissenting) (internal citations omitted).
  4. ^ Erving Goffman, Relations in Public (Penguin 1972) p. 139
  5. ^ Les Parrott, Shoulda Coulda Woulda (2003) p. 87
  6. ^ Parrott, p. 152-3
  7. ^ see cognitive therapy under Cognitive therapy
  8. ^ E. R. Smith/D. M. Mackie, Social Psychology (2007) p. 527-8
  9. ^ Fenichel, p. 502

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