Conditional Rights and Comparative Wrongs: More on the Theory and Application of Comparative Criminal Liability

This article continues to develop an argument in favor of comparative criminal liability started in Victims and Perpetrators: An Argument for Comparative Liability in Criminal Law, (http://law.bepress.com/rutgersnewarklwps/fp/art19/) Buff. Crim. L. Rev. 385 (2005). The essence of my argument is that people’s rights are not static but depend on their actions, and victims may reduce their right not to be harmed either voluntarily, by consent, waiver or assumption of risk, or involuntarily, by an attack on some legally recognized rights of the perpetrator. If that happens, perpetrators should be entitled to a defense of complete or partial justification, which would eliminate or diminish their criminal liability. In this second piece, I respond to the commentaries by Dean Hurd and Professors Harel, Husak and Simons. At the same time I further develop the theory of comparative criminal liability by focusing mainly on three groups of issues: conceptual questions involving the underlying theory of rights; application of the principle of conditionality of rights to particular areas of criminal law (e.g., assumption of risk, contributory negligence, attempts and endangerment, and multiple perpetrators); and practical implementation of the defense of comparative criminal liability