The Mental Element Requirement

Abstract

The modern structure of the mental element requirement has been widely accepted by most modern legal systems. This structure applies the fundamental principle of culpability in criminal law (nullum crimen sine culpa). The principle of culpability has two main aspects: positive and negative. The positive aspect (what needs to be in the offender’s mind in order to impose criminal liability) relates to the mental element, whereas the negative aspect (what should not be in the offender’s mind in order to impose criminal liability) relates to the general defenses. For example, imposition of criminal liability for manslaughter requires recklessness as mental element, but it also requires that the offender not be insane. Recklessness is part of the positive aspect of culpability, and the general defense of insanity is part of the negative aspect.