Criminal/Tort Distinction

This article explores different dimensions of the concept of negligence in the law. The first sections focus on the fundamental distinction between conduct negligence, a conception that dominates tort law; and cognitive negligence, a conception that is much more important in criminal law. The last major section identifies five significant institutional functions served by a legal negligence standard: expressing a legal norm in the form of a standard rather than a rule; personifying fault; empowering the trier of fact to give (...) content to the standard; creating a secondary legal norm parasitic on a primary legal norm; and distinguishing grades of fault. These functions reveal the distinctive significance of negligence, but also disclose numerous problems that the use of such a legal standard can pose. Careful analysis of these different dimensions of negligence clarifies certain misconceptions and has important implications. For example, the question whether "negligence" is an appropriate minimum standard of liability is unanswerable until we identify the type of negligence at issue and its role in norm-definition. Similarly, comparing negligenceto supposedly "more serious" forms of fault, such as recklessness, knowledge, and purpose, is treacherous and sometimes amounts to comparing apples and oranges. A better understanding of the different conceptions of negligence and of the distinctive institutional functions of a legal negligence standard can facilitate the development of more coherent, and more justifiable, fault criteria in criminal law, torts, and other legal domains. (shrink)

Responsibility is often thought of as primarily a legal concept. Even when it is moral responsibility that is at issue, it is assumed that it is above all in moralities based on law-centered patterns and models that responsibility takes center stage, so that responsibility is a legal concept at its core, and is applicable to the realm of private morality only by extension and analogy.

This article introduces the main conceptual and normative questions about willful ignorance. The first section asks what willful ignorance is, while the second section asks why—and how much—it merits moral or legal condemnation. My approach is to critically examine the criminal law's view of willful ignorance. Doing so not only reveals the range of positions one might take about the phenomenon but also sheds light on foundational questions about the nature of culpability and the relation between law and morality.

I take it that the chief purpose of Professor Seipp's Paper' is to establish two propositions about the history of the tort/crime distinction: that the distinction goes back very far in English law, and that the distinction is based on whether the principal consequence of conviction was compensation of the victim or punishment of the offender. To me, however, the Paper is interesting for two other reasons: the similarities, in function more than form, between English law enforcement in the Middle (...) Ages and in the eighteenth century, and the implications of both for the tort/ crime distinction. (shrink)

Contemporary tort theory is dominated by a debate between legal economists and corrective-justice theorists. Legal economists suppose that tortfeasors and tortious wrongs are false targets for cheapest cost-avoiders and avoidable future losses. Corrective-justice theorists argue powerfully that the economic account of tort as search for cheapest cost-avoiders with respect to future accidents does not capture the most fundamental fact about tort adjudication, namely, that the reason we hold defendants liable in tort is that they have wronged their victims and should (...) therefore repair the harm they have done. Deterring cheapest cost-avoiders from committing future harms no more justifies imposing liability in tort than deterring future crime justifies hanging the innocent. This is a powerful critique of the economic theory of tort, but it overshoots the mark. As an account of tort law, corrective justice puts the cart before the horse Tort is a law of wrongs, not just a law of redress for wrongs. Repairing harm wrongly done is the next best way of complying with an obligation not to do harm wrongly in the first place. Rights and remedies form a unity in which rights have priority. Corrective justice is thus an essential but subordinate aspect of tort. This paper develops this line of criticism of corrective-justice theory and offers an alternative account of tort that places primary norms of harm avoidance and respect for rights at its center. On this conception, tort isa law of wrongs, but its distinctiveness lies in the content and character of the wrongs with which it is concerned. At its core, tort is concerned with protecting essential conditions of individual agency. (shrink)

Gordon's emphasizes that the process of prosecution is crucial to the idea of crime. One who commits a public wrong is properly called to public account for it, and the criminal trial constitutes such a public calling to account. The state is the proper prosecutor of crimes: since a crime is ‘our’ wrong, rather than only the victim's wrong, it is appropriate that we should prosecute it, collectively. The case is not simply V the victim, or P the plaintiff, against (...) D the defendant. It is brought, as the Americans properly have it, by ‘the People’, or by ‘the Commonwealth’, against the defendant. This is a useful way in which to think about crimes and criminalisation. This chapter tries to develop this conception of public wrongs a little further, which also involves complicating it more than a little. It works from a version of liberal communitarianism that rejects the metaphysical version of the individualist's ‘unencumbered self’; but the account sketched here should be compatible with all but the most radically individualist kinds of liberal theory. (shrink)

Achilles is vindictive; he wants to get even with Agamemnon. Being so disposed, he sounds rather like many current crime victims who angrily complain that the American system of criminal justice will not allow them the satisfactions they rightfully seek. These victims often feel that their particular injuries are ignored while the system addresses itself to some abstract injury to the state or to the rule of law itself – a focus that appears to result in wrongdoers being treated with (...) much greater solicitation and respect than their victims receive. If the actual victims are noticed at all, they will likely be told that there is another branch of law – tort law – that has the job of dealing with private injuries and grievances and that, if they pursue this route at their own expense, they might ultimately get some financial compensation for the wrongs done to them. However, just as Achilles felt that mere compensation was inadequate to the kind of injury done to him by Agamemnon, many of these victims will often claim that the injuries they have suffered do not admit of financial compensation. How, they might ask, can a dollar value be set on the humiliation and degradation they have experienced? They might also note that those who injure them tend, unlike Agamemnon, to be judgment-proof – so lacking in resources as to be unable to make any meaningful contribution to any compensation package that the victim may win. (shrink)

The traditional restrictive attitude towards claim for compensation about non-pecuniary harms in both cause law and legislation become weaker even if the theoretically and practically reason behind the old exception-construction remain. This reason can best be explained by the thesis about incommensurability when it comes to compensate for some losses that money cannot compensate. To explain why the exception-construction is problemized in recent days I think two circumstances has played an important role the materialisation of human rights as a consequence (...) of the incorporation of the European Convention on Human Rights in Sweden since 1995 and the right to crime victim compensation and the establishing of victimology in the legal and academic field. In practice there is of course a co-operation between these two factors and there is also some kind of hybrids like the legal interest of for example discrimination. This tendency is in my opinion therefore a practical and concrete example of law and justice in the risk society where almost every person is a potential victim of crimes and discrimination or other violations. In the risk society, given Ulrich Beck’s definition, it is characteristic that these phenomenons in our society rub out the boarders between law and politics in the manifestation of reflexive subpolitics about flexibility. The possibility to obtain redress with this compensation function as a mean to support the judicial systems official goal that is to satisfied the citizens needs and at the same time secure the confidence and the legitimacy for the judicial system through the factors legal security and the legal rights of the individual. At the same time these compensations bring on inherent risks because of its unclear function and the incommensurability between injury and compensation that risks fall upon both the victims and the lawyer’s profession. So when human rights now is both a goal and a mean for democracy and violations of the citizens bring about a right to compensation this illustrate a paradox. The judicial system cannot handle this type of injury that has it is ground in public law without challenge traditional principles and the legal professionalism. This tendency is also interesting in a comparative perspective given the premise that the jurisprudence movement known as Scandinavian Legal Realism has had an influence on the Swedish judicial culture. This follows from two circumstances: Given the Scandinavian Legal Realism it is impossible to set up a legal claim from a violation of justice or somebody’s rights and even if it would be possible, it is impossible to imagine the basis of calculation of these compensation because there is no way for informal norms from the society to influence the formal legal norms and the application of the law given the Scandinavian Legal Realism. The last circumstance is relevant because the compensation of non-pecuniary harms consist of incommensurability and the only way to calculate these compensation, so it make it serves as rectification or redress for the victim, is in reflection and influence of the informal norms or the “common sense of justice”. My topic presupposes that the legal field is influenced by the theory in jurisprudence and can we therefore talk about an idealistic tendency or “critical legal realist” movement that maybe illustrates in these compensations. In a more concrete perspective these compensations bring to the fore methodological question in social science of how we can get empirically knowledge about norms in our society. (shrink)

In recent years an increasing quantity of UK legislation has introduced blended or ‘hybridised’ procedures that blur the previously clear demarcation between civil and criminal legal processes, typically on the grounds of normatively-motivated political expediency. This paper provides a critical perspective on instances of procedural hybridisation in order to illustrate that, first, the reliance upon civil law measures to remedy criminal law infractions can raise human rights issues and, second, that such instrumental criminal justice strategies deliberately circumvent the enhanced procedural (...) protections of the criminal law. By conceptualising the rule of law as a structural coupling between the political and legal systems, and due process rights as necessary and self-imposed limitations upon systemic operations, this paper employs a systems-theoretical approach to critique this balancing act between expediency and principle, and queries the circumstances under which legislation contravening the rule of law can be said to lack legitimacy. (shrink)

This paper is about how best to understand the notion of ‘public wrongs’ in the longstanding idea that crimes are public wrongs. By contrasting criminal law with the civil laws of torts and contracts, it argues that ‘public wrongs’ should not be understood merely as wrongs that properly concern the public, but more specifically as those which the state, as the public, ought to punish. It then briefly considers the implications that this has on criminalization.

This is Re'em Segev's contribution to the symposium on Douglas Husak's book "Overcriminalization.".

In tort and contract law, we calculate the harm a defendant caused a plaintiff by examining the plaintiff’s condition after an injury relative to his baseline condition. When we consider the severity of prison sentences, however, we usually ignore offenders’ baseline conditions. We deem inmates as receiving equal punishments when they are incarcerated for the same period of time under the same conditions, even though incarceration does not change their situations equally (unless they started out in identical circumstances). It is (...) the amount by which we change offenders’ circumstances that determines the severity of their sentences. We calculate the severity of some punishments, like fines, comparatively. Fines specify an amount by which to change an offender’s wealth relative to his baseline. We never use fines to equalize the net worth of offenders, but we do use prison to equalize the liberties of prison inmates. When we recognize the comparative nature of punishment, we see that, by putting two equally blameworthy offenders in prison for equal durations, the offender with the better baseline condition is likely punished more severely than the offender with the worse baseline condition. We must attend to the differences in their baselines or else we will fail to justify some of the harsh treatment that we knowingly impose. If we insist on giving both of these offenders equal prison terms, we cannot justify doing so on the grounds of proportional punishment. (shrink)

Tort law depends on three key concepts: causation, responsibility, and fault. However, I argue that the three key concepts are neither necessary, nor sufficient, for tort.