In David Brink’s article on The Nature and Significance of Culpability, he attempts to split the notion of culpability into three subsets and describe the differences between them. Culpability has many features and especially considering the practical use of them in law, it is clear to see how important they are to the criminal justice system as a whole.
Culpability — much like culpable people — is multifaceted. There can be an internal disposition for culpability, internal/external susceptibilities, or even a mix of both. These three facets of culpability are described by Brink to be narrow culpability which is “the ingredient of wrongdoing itself,” or, the mental attitudes behind a wrongdo-er; broad culpability which has to do with the variables which make the wrongdoing culpable; inclusive culpability is a mix of narrow and broad culpability which is usually what most people think of when they think of guiltiness (Brink 348).
Before Brink dives into his main topic of culpability, he begins with an assessment of the role of retributivism in relation to culpability. Brink says that “predominant retributivism is a mixed theory of punishment in which a backward-looking emphasis on desert predominates over forward-looking rationales for punishment, such as deterrence, rehabilitation, and the expression of community norms” (Brink 351). Criminalization, according to Brink, must focus primarily on the act(s) of wrongdoing and punishment rather than prevention. In order to know the correct punishment relative to the culpable act for the culpable person, there must be a system in place to categorize various kinds of wrongdoing.
Justifications and excuses, which deny wrongdoing and culpability, are significant factors which may, and often do, affect what Brink calls “predominant retributivism” (Brink 353). Since predominant retributivism demands culpable wrongdoing, those who have good excuses or justifications which deny their responsibility over their actions can be released or can have their punishment lessoned. This is where Brink makes the connection between predominant retributivism and broad culpability. Brink argues that in order to be culpable in a broad sense, one must have a fair opportunity to avoid wrongdoing by both situational control and by normative competence (by being sane or healthy mentally) (Brink 354–358).
Narrow culpability on the other hand has to do with the mental capacities which precede the act of wrongdoing such as purpose/intent, knowledge, recklessness, or negligence (Brink 359).
The difference between narrow culpability and broad culpability is best seen as “the difference between responsibility as attributability and as accountability” (Brink 373). Agents of narrow culpability are responsible to the attributes which reflect the subjective mental capacities which constitute their wrongdoing. Conversely, agents of broad culpability are responsible and blameworthy so long as they can be identified as being accountable to it. Attributability has to do with the internal workings of a potentially culpable person while accountability has more to do with the external circumstances of the act of wrongdoing.
The last type of culpability is inclusive culpability which is a mixture between both narrow and broad conceptions of culpability. Instead of being opposed to one another, all three types of culpability complement our understanding of guilt and responsibility. Our understanding of culpability extends to our understanding of punishment and the means by which criminalization can reach its ends.
Brink, D.O. The Nature and Significance of Culpability. Criminal Law, Philosophy 13, 347–373 (2019). https://doi.org/10.1007/s11572-018-9476-7.