CRIME AND TORT - OLD WINE IN OLD BOTTLES (FROM ASSESSING THE CRIMINAL - RESTITUTION, RETRIBUTION, AND THE LEGAL PROCESS, 1977 BY RANDY E BARNETT AND JOHN HAGEL 3D - SEE NCJ-46958)

• NCJ Number: 46968
• Author(s): R A EPSTEIN
• Date Published: 1977
• Length: 27 pages
• Corporate Author: Ballinger Publishing Co
• Publication Format: Document
• Language: English
• Country: United States of America

Annotation

SIMILARITIES AND DIFFERENCES IN TORT AND CRIMINAL LAW ARE EXAMINED, AND THEIR APPLICATION TO QUESTIONS OF INDIVIDUAL RESPONSIBILITY INVOLVED IN BOTH SYSTEMS ARE DISCUSSED.

Abstract

TORT AND CRIMINAL LAW CANNOT BE CONSIDERED AS COMPLEMENTARY BUT SEPARATE PARTS OF A COMPREHENSIVE WHOLE. BOTH THE LAW OF CRIME AND TORT ARE DIRECTED TOWARD THE CONTROL OF ANTISOCIAL BEHAVIOR, AND BOTH ARE ULTIMATELY BASED UPON SOME TYPE OF DETERRENCE THEORY. THE TRADITIONAL VIEW OF THE DISTINCTION STATES THAT THE CRIME IS TREATED AS AN OFFENSE AGAINST THE STATE AND PUBLIC AT LARGE, WHILE THE TORT IS TREATED AS AN OFFENSE AGAINST THE PARTICULAR INDIVIDUAL WHO SEEKS COMPENSATION THROUGH THE LEGAL SYSTEM. THE OBJECT OF TORT LAW IS THE AWARD OF COMPENSATION TO DESERVING INJURED PARTIES, WHILE THE OBJECT OF CRIMINAL LAW IS THE PUNISHMENT OF THE CRIMINAL. THESE STATEMENTS OF THE DISTINCTIONS ONLY CONSIDER THE CONSEQUENCES ONCE CERTAIN CONDUCT IS DESCRIBED AS CRIMINAL AND/OR TORTIOUS. WHAT MUST BE DETERMINED, HOWEVER, IS THE REASON FOR THE DISTINCTION BEING MADE AT ALL. IN CONTRAST TO THE TRADITIONAL VIEW THAT CRIMINAL AND TORT LAW PROTECT DIFFERENT INTERESTS, THE AUTHOR ARGUES THAT BOTH VINDICATE THE SAME SET OF INDIVIDUAL INTERESTS. THESE INCLUDE THE INTEREST WHICH THE INDIVIDUAL HAS IN HIS OR HER OWN PERSON, IN FREEDOM OF LOCOMOTION, IN PROPERTY POSSESSED OR OWNED, AS WELL AS RELATIONAL INTERESTS (THOSE CONCERNING COMMERCIAL AND FAMILIAR RELATIONSHIPS). THESE INTERESTS ARE ALL PROTECTED BY BOTH CRIMINAL AND TORT LAWS, IN DIFFERENT FORMS. THE ONLY APPARENT AREA OF DIFFERENCE ARISES WITH DEATH CASES AND RELATIONAL INTERESTS, AS THERE IS NO CRIMINAL EQUIVALENT TO THE SURVIVOR'S WRONGFUL DEATH ACTIONS IN TORT. THE CENTRAL CONCEPTS OF STRICT LIABILITY, NEGLIGENCE, AND INTENTIONAL HARM ARE DISCUSSED IN RELATION TO TORT AND TO CRIMINAL LAW. THE APPLICATION OF THE BASIC DIFFERENCES BETWEEN THE TWO SYSTEMS TO PARTICULAR RULES IS EXAMINED. AN IMPORTANT POINT IS THAT THE INTENTION TO HARM IS IMMATERIAL IN TORT LAW, WHERE THE ACTUAL HARM ITSELF IS IMMATERIAL TO CRIMINAL LAW. COMMON ACTS, SUCH AS STREET MUGGINGS, MAY BE ACTIONABLE AS TORTS AND PUNISHABLE AS CRIMES, YET THE GROUNDS FOR PUNISHMENT AND THE GROUNDS FOR LIABILITY ARE NEVER THE SAME. AN ATTEMPT TO COMMIT A CRIME COULD ONLY BE CONSIDERED UNDER CRIMINAL LAW. WHAT IS BEING JUDGED IS HUMAN CONDUCT, REGARDLESS OF EXTERNAL CONTINGENCIES WHICH MAY HAVE PREVENTED THE COMPLETION OF THE CRIMINAL ACT. THE TREATMENT OF VARIOUS CASE SITUATIONS IN TORT AND CRIMINAL LAW ARE DISCUSSED WITH REGARD TO THE DIFFERENCES BETWEEN THE TWO. A FINAL DISCUSSION CONSIDERS THE ISSUE OF RESTITUTION TO THE VICTIM OF A HARMFUL ACTION IN EACH TYPE OF LAW. (VDA)