Criminal and Civil Responsibility

Review from last week:

  Liberalism is a political theory concerned with answering the question "what sort of government should we have?"

  The liberal answer to this question is (roughly) that government action is justified to the extent that it respects the moral equality of persons, in particular by placing special, perhaps prime, emphasis on the need to protect the liberty of persons from absolute or arbitrary exercise of authority.
 

Questions or comments from last week?

Issue for this week:

  For what sorts of conduct may a liberal state rightly make individuals criminally or civilly liable?

How do we distinguish criminal and civil responsibility?

Preliminaries:

Criminal Law:
 

 It is difficult to explain in general what constitutes a crime, but we can, for a start, say that criminal action always causes or threatens a "public harm," that is, some effects considered to be  harmful to the community as a whole. (Brandt, "The Principles of the Criminal Law," p,282)

 ...is that law which for the purpose of preventing harm to society, (a) declares what conduct is criminal, and (b) prescribes punishment to be imposed for such conduct. It includes the definition of specific offenses and general principles of liability. (Black's Law Dictionary, 5th ed.)

 The criminal law is not society's primary tool for the reduction of harms generally. At the most, it shares this useful function with public health agencies, safety inspectors, equipment maintenance and repair departments, regulatory commissions, and like agencies. But the criminal law is the primary instrumentality for preventing people from intentionally or recklessly harming one another. Acts of harming then are the direct objects of the criminal law, not simply states of harm as such. (Feinberg, The Moral Limits of the Criminal Law. Vol. I: Harm to Others, p.31)

Components of the Criminal Law:

(1) Prevents harms to society,
(2) by making unlawful certain intentional or reckless harmful acts,
(3) for which government prescribes and imposes punishment.

 A private or civil wrong or injury, other than breach of contract, for which the court will provide a remedy in the form of an action for damages...Three elements of every tort action are: Existence of a legal duty from defendant to plaintiff, breach of duty, and damage as a proximate result. ("Tort," Black's Law Dictionary 5th ed.)

Civil Liability

(1) Prevents harm to individuals
(2) by repairing damages through forced compensation for
(3) private or civil wrongs that violate legal duties
(4) owed by a defendant to a plaintiff.

Generally, the difference in purpose between criminal and civil liability:

 (1) Prevention of harm to society (criminal)/to private individuals (civil)
 (2) by means of penal sanction/punishment (criminal)/compensation (civil).

Some Issues:

1. Prevention of harm to others (society/individuals) is a distinctively liberal ideal. How does a liberal justify it?

2.  What are the limits of harm prevention? (For example, what will counts as a "harm"? When are such harms sufficient to justify coercive intervention?)

3. On what basis are criminal and civil wrongs distinguished within the idea of harm prevention?
 

JR: Prevention of harm to others is an intuitively attractive ideal, to the point where it is possible to say that any plausible moral system must incorporate the principle in some form. But working out many of the details of the principle and its application is elusive. The apparent simplicity of the idea hides an array of complex conceptual and practical problems.

Let's look at J.S. Mill's classic formulation of the harm principle from  On Liberty to see what we might learn about the principle and problems formulating and applying it.

Mill,  On Liberty:
 

 The object of this Essay is to assert one very simple principle, as entitled to govern absolutely the dealings of society with the individual in the way of compulsion and control, whether the means used be physical force in the form of legal penalties, or the moral coercion of public opinion. That principle is, that the sole end for which mankind are warranted, individually or collectively, in interfering with the liberty of action of any of their number, is self-protection. That the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others. His own good, either physical or moral, is not a sufficient warrant. He cannot rightfully be compelled to do or forbear because it will better for him to do so, because it will make him happier, because, in the opinion of others, to do so would be wise, or even right. These are good reasons for remonstrating with him, or reasoning with him, or persuading him, or entreating him, but not for compelling him, or visiting him with any evil in case he do otherwise. To justify that, the conduct from which it is desired to deter him, must be calculated to produce evil to some one else. The only part of the conduct of any one, for which he is amenable to society, is that which concerns others. In the part which merely concerns himself, his independence is, of right, absolute. Over himself, over his own body and mind, the individual is sovereign.

 ...This, then, is the appropriate region of human liberty. It comprises, first, the inward domain of consciousness; demanding liberty of conscience, in the most comprehensive sense; liberty of thought and feeling; absolute freedom of opinion and sentiment on all subjects, practical or speculative, scientific, moral, or theological...Secondly, the principle requires liberty of tastes and pursuits; of framing the plan of our life to suit our own character; of doing as we like, subject to such consequences as may follow: without impediment from our fellow creatures, so long as what we do does not harm them, even though they should think our conduct foolish, perverse, or wrong. Thirdly, from this liberty of each individual follows the liberty, within the same limits, of combination among individuals; freedom to unite for any purpose not involving harm to others...
  No society in which these freedoms are not, on the whole, respected, is free, whatever may be its form of government; and none is completely free in which they do not exist absolute and unqualified. The only liberty which deserves the name is that of pursuing our own good in our own way, so long as we do not attempt to deprive others of theirs, or impede their efforts to obtain it.

 Mill is a utilitarian, but the harm principle (liberty principle) is not a straightforward utilitarian principle. Mill argues, not uncontroversially, for its consistency with utilitarianism. This is a fortunate fact for Mill's argument.

It is also controversial whether the harm principle has these implications for respecting liberty, especially absolute freedom of conscience and association . (Cf. Mill's and Dworkin's defences of freedom of expression.)

We'll return to these and other issues later in the course.

How do we formulate the  harm principle (aka liberty principle or  principle of liberty)?

" ...the sole end for which mankind are warranted, individually or collectively, in interfering with the liberty of action of any of their number, is self-protection. That the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others."

Two interpretations (from Lyons "Liberty and Harm to Others"):

 i) state may interfere with liberty to prevent conduct that causes or threatens harm to others (harmful conduct prevention principle).

 ii) state may interfere with liberty to prevent harm to others (general harm prevention).
 

What is the difference between these interpretations?

How do these differences reflect a difference in liberal attitudes?

Which interpretation does Mill defend?

Mill on harm prevention and positive duties:
 

 There are many positive acts for the benefit of others, which he may rightfully be compelled to perform; such as to give evidence in a court of justice; to bear his fear share in the common defence, or in any other joint work necessary to the interest of the society of which he enjoys the protection; and to perform certain acts of individual beneficence, such as saving a fellow-creature's life, or interposing to protect the defenceless against ill-usage, things which whenever it is obviously a man's duty to do so, he may rightly fully be made responsible to society for not doing.

This apparently supports the harm prevention interpretation. Lyons says these add "good Samaritan"  and "cooperation" duties, but the passage goes on to make things rather more complicated:

 A person may cause evil to others not only by his actions but by his inaction, and in either case he is justly accountable to them for the injury. The latter case, it is true, requires a more cautious exercise of compulsion than the former. To make anyone answerable for doing evil is the rule; to make him answerable for not preventing evil is, comparatively speaking, the exception. Yet there are cases clear enough and grave enough to justify that exception.
 

[To justify coercion], the conduct from which it is desired to deter him must be calculated to produce evil to someone else.

And compare:
 

 ...the sole end for which mankind are warranted, individually or collectively, in interfering with the liberty of action of any of their number, is self-protection. That the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others.

(1) does prevention of harm to others permit only restriction of conduct that is itself harmful to others (or threatens harm to others).

Or,

(2) can prevention of harm to others include positive duties to aid others to prevent harm to them?

(Questions more specifically for us:)

(3) How do legislators/the courts see this issue? See case readings for today.

(4) Is the distinction of any special use in distinguishing criminal and civil liability?

 – It would appear that criminal liability tends to prefer the harmful conduct prevention principle. (See Feinberg.) Is this always justified? (Cf. Feinberg on good Samaritan laws.)

 – Should civil liability be understood as permitting the application of the broader principle? See the "good neighbour" requirement in Donoghue. See also vicarious liability in Bazley.

 – What threats/benefits to liberty follow?

Other interpretive problems:

What counts as "harm"?

What does Mill's discussion already imply?

Feinberg's definition of harm:

 1. A acts (perhaps in a sense of "act" broad enough to include acts of omission...)
 2. in a manner which is defective or faulty in respect to the risks it creates to B, that is, with the intention of producing consequences for B that follow, or similarly adverse ones, or with negligence or recklessness in respect to those consequences; and
 3. A's acting in that manner is morally indefensible, that is, neither excusable nor justifiable; and
 4. A's action is a cause of a setback to B's interests, which is also
 5. a violation of B's rights.

 In short, A wrongs B (defined by conditions 1,2,3 and 5) and harms his interests (condition 4). (Harm to Others, p.106-7)

JR's summary:

Criminal law especially (but not exclusively) concerned with "wrongful" setbacks to "welfare interests."

Welfare interests  = interests in conditions that are generalized and necessary means to pursuit of life goals (Cf. Feinberg p. 37). (Often these are especially difficult to compensate. NB: the ability to pursue life goals is typically a function of the weakest link among the chain of welfare interests.)

This perhaps explains the special opprobrium that is attached to criminal wrong-doing, and, therefore, the appropriateness of penal sanctions.

Contrast civil liability which need not involve setbacks to welfare interests, although involves wrongful harms. (Is there a relevant difference here with criminal liability?) Implies a need for an institution for securing compensation.

Some other issues:

  How substantial must the harm be? (Cf. Feinberg, Harm to Others ch. 5-6)

  Role of intention (mens rea) in harming.

 –  This is a crucial component in Feinberg's definition  (roughly, knowingly wrongful acts, or such acts that the agent could have reasonably foreseen as wrongful, i.e., reckless or negligent acts, that set back interests).

 – Limits scope of harm principle. Cf. Harm prevention generally.

 – How do the courts treat the role of intention in criminal and civil law? (See cases again.)

Contrast Brandt on intention (mens rea):

 (1) It must have been possible for the accused to have behaved, as a result of different decisions or volitions, in a way that was lawful...

 (2) The agent must have been aware to some degree that the events which the law proscribes would flow from his bodily behaviour – or at any rate that they might, that his behaviour was risking such consequences.

 (3) the agent must have been aware that it is wrong to produce such consequences, or that it is unlawful, or at least that society generally regards the production of such consequences as wrong.

 In general, all these three conditions are required.

 There are two major exceptions: the so-called "public welfare" or "strict liability" offences, where intent in the sense of (2) is not required at all; and the rule which imputes intent to commit offences which in fact were accidental, to persons engaged in committing some other wrong intentionally. These exceptions are regarded by many as simply illogical elements in the law, which are without justification.

(Brandt, "The Principles of Criminal Law," Readings in Philospohy of Law, Arthurs and Shaw, 3rd ed., p.284)
  Is The Harm Principle the sole principle?

 – What determines a wrongful harm?
 – Offense Principle?
 – Legal Moralism?
 – Positive duties to aid?
 – Volenti Principle (volenti non fit  injuria)?
 – Others?