The Basis of Criminal Responsibility

Criminal responsibility is defined in section 1 of the criminal code as “liability to punishment as

for an offence”. In other words, it simply means culpability. Culpability in the sense that you have
done an act contrary to law and thus you should be punished for it. The basis for criminal
responsibility are basically the indices, yardstick or barometer upon which an average criminal
offender should be punishable for his criminal conduct.

Over the years, there has been injustice in the sense that the basis of criminal responsibility was
misjudged. People were punished for no justifiable reason. The harsh punishments were given
to the small crimes and vice versa.

There have been contributions from various schools in the search for a philosophical basis for
criminal responsibility. They include:

The classical school

The neoclassical school
The positivist school
1. The Classical School
They were the first and its writers based their discussions on the writings of the classical era,
that is Aristotle, Plato, Cicero etc. rather than the religious texts of St. Augustine and Aquinas
which gave the power to punish wrongdoers to an absolute monarch ruling under divine rights.
They believed that every human being is rational and offences were committed out of free will
and as such people should be punished for wrongdoings.

Cesare Bonesaria Beccaria was one of the prominent classical writers like the social contract
theorists, he considered that people have agreed to sacrifice a portion of their freedom of action
so that they might enjoy the rest in peace and safety. Beccaria was an exponent of certainty of
the law, he opposed retroactive legislation and capital punishment. He was also in support of
duration of punishment rather than intensity. He abhorred torture of criminals and recommended
jury trials. Also importantly, he was an exponent of proportionality of punishment and was
against the death penalty.

2. The Neo-Classical School

The neo-classical school comprises of writers like Jeremy Bentham, J.S Mill, Romely etc. They
were also classicists albeit with some modifications. The only area they tried to criticize was the
thesis that all human beings are rational. They said that some people should be exempted from
criminal responsibility due to certain circumstances and they highlighted 3 categories; Women
Infants and Insane people.

Bentham is the father of the utilitarian principle, that is he believed in the law of felicity calculus
which is a situation whereby you place an imaginary scale before you and you pain and
pleasure on a scale. If pleasure outweighs the pain, people would be encouraged to go into
criminal activities and vice versa (Theory of hedonism).
3. The Positivist School
Their central thesis was the theory of determinism. They were against the postulations of the
classical and neo-classical schools. The positivists are scientific because they believed in
empiricism and thus carried out a lot of research and experiments. They believed that not every
criminal offence is because the people desire to, but because of circumstances beyond their
control. The scholars in this category include Cesare, Rombroso, Conte, Thery, Quetellet,
Garofaro, and Erico Feri, Rombroso came up with a theory that some people were born
criminals along with 16 other anatomical deformities. The scholars also have a lot of other
theories such as the hereditary theory which states that if a twin in a particular place is
committing a crime, the other twin is most likely doing the same. There is also the parental
deprivation theory, family factor etc.

N.B: Today we have the defences of mistake in sect.35 of the criminal code, alcoholism in
sect.29, insanity in sect.28, bonafide claim of rights in sect.23 and immaturity due to young age
in sect.30. All these defences exemplify the significance of the contributions of the scholars of
the classical and positivist schools to the basis of criminal responsibility in Nigeria.

The Nigerian criminal law incorporates the principle of “no liability without fault”, that is no one
should be held criminally responsible for his act or omission unless he is to a certain extent, at
fault. The underlying philosophy of this position is that it is better that ten guilty men should
escape than one innocent man should suffer. The leading English case often cited in Nigerian
courts is the case of Woolmington v. DPP and another example can be seen in the case of R v.
Amadu Adamu. In that case, the deceased had gone out, armed, to hunt the accused whom he
suspected of theft. There was no doubt that the accused, who was a thief had killed him, but
was not clear from the evidence how the clash between them had occurred. The killing might
well have been in self-defence, therefore the accused’s conviction was quashed by the court of
appeal.

The Nigerian courts have also given recognition to the offences where they have pleaded
successfully. Some courts absolve the defender absolutely while others substitute with lesser
conviction especially in homicide cases. Criminal law presupposes a blame and harm
relationship. Harm is any violation of an interest of a person or collective interest e.g humanity,
community, state etc. Blame involves a moral assessment of a person’s conduct although
criminal law is not necessarily contagious. Criminal law entails causation, that is the nexus
between conduct and harm. This led learned writers to embark on a voyage of discovery about
the basis of criminal responsibility.