The Tort/Crime Distinction
This essay provides an overview of the crime/tort
distinction. It first investigates some of the fundamental differences between
criminal law and tort law in doctrine and legal structure. It then explores
some important similarities and differences in normative perspectives between
the two doctrinal fields. This typology should prove analytically useful for
examining some of the specific issues at the borderline of crime and torts—such
as the proper scope of punitive damage liability and the question whether criminal
law as well as tort law should vary legal sanctions simply because of the
fortuitous occurrence of harm.
“In the beginning,” of course, crime and tort were not
sharply distinguished. At early common law, a victim could pursue justice for
the same wrongful act either through a forerunner of criminal law or through a
forerunner of tort law. But over time,
criminal law and tort law have evolved to encompass a number of distinctive and
contrasting features. The following nine features are especially salient.
The state prosecutes violations of criminal law. A victim's
consent is neither necessary nor sufficient for a prosecution to be brought. In
tort law, by contrast, the victim decides whether to bring a tort claim and is
free to choose not to do so.
This structural difference is sometimes given a more
substantive gloss: criminal law prohibits "public" wrongs and tort
law "private" wrongs. But what exactly does that mean?
Part of what
it means is this second point of distinction:
Tort law typically requires harm as a prerequisite to a
remedy. Criminal law does not. Specifically, criminal law punishes not only:
(a) Acts that are harmful to others, but also:
(b) Acts that are harmful only or mainly to the actor being
punished;
(c) Dangerous acts that have not yet caused harm; and
(d) Acts that the community considers immoral, even if the acts
are not "harmful" in the narrower sense of the term.
By contrast, tort law mainly provides a remedy for harmful
acts, not for acts that create risks of future harm, and not for acts that are
considered immoral but not harmful.
Criminal law often imposes much more severe sanctions than
tort law, of course: loss of liberty or even of life. So the procedural
protections in criminal law obviously are much more extensive and (in theory at
least) a much greater barrier to liability.
For example, the criminal defendant, unlike the tort
defendant, must be proven guilty beyond a reasonable doubt, the exclusionary
rule sometimes applies, and the double-jeopardy rule precludes the same
jurisdiction from pursuing multiple convictions for the same conduct.
Criminal law, in theory at least, contains a
proportionality principle, requiring that the punishment "fit" the
crime.
Punishment should be proportional to the culpability of the
actor and the seriousness of the harm or wrong he has committed or threatened.
But tort law does not purport to provide remedies
proportional to the injurer's wrong: normally, compensation is the remedy,
whatever the nature of the tort or wrong. To be sure, the compensatory remedy
is scaled to the severity of the harm caused, and, in that sense, is
proportional. But the tort remedy usually does not vary with the culpability of
the injurer. Suppose, in three separate incidents, injurers A, B, and C cause
precisely the same harm to their respective automobile accident victims; but A
is strictly liable for a manufacturing flaw in the automobile, a flaw that
could not have been prevented by due care; while B is negligent for momentarily
taking his eyes off the road; and C is negligent for dangerously passing
another car on a busy highway. A, B, and C will pay precisely the same damages.
Of course, punitive damages, in the small number of cases
where they are awarded, are an important exception: they do achieve some degree
of proportionality between the level of the injurer's culpability and the
damages he must pay. But even punitive damages are not nearly as sensitive to
differences in degrees of culpability as criminal law sanctions are. Although
the degree of reprehensibility of the injurer's conduct is sometimes reflected
in the size of a punitive damage award, many other factors also affect the size
of that award, including whether the injurer's course of conduct caused
widespread harm to persons other than the plaintiff.
Related to this point about proportionality is the
following distinction:
Criminal law contains a much broader spectrum of fault or
culpability than does tort law. The spectrum is wider along two dimensions: the
state of mind, or mens rea, element and the conduct, or social harm, element.
Thus, the requisite culpable state of mind in criminal law ranges from strict
liability to negligence to recklessness to knowledge to purpose, with
punishment varying according to that mens rea. (The multiple degrees and
categories of homicide are the best example of this range.) And the conduct or
social harm element also ranges enormously. Every American jurisdiction
contains an extraordinary number and range of criminal offenses.
By contrast, most of tort law is governed by a negligence
standard. There are relatively few categories of intentional torts and even
fewer categories of recklessness and strict liability. To be sure, a number of
distinct torts address distinct forms of conduct and social harm other than the
physical harm that negligence law protects. For example, the protection of
emotional harms ranges from emotional distress negligently created by an actor
whose conduct threatened physical harm, to invasions of privacy, to defamation.
Nevertheless, the number of discrete tort causes of action pales in comparison
to the number of distinct crimes.
Criminal law requires a greater minimal level of fault
before liability will be imposed than does tort law. This is a very crude
generalization, with many exceptions. Still, the minimum fault requirement
tends, in criminal law, to be something like gross negligence or even
recklessness, while in tort law, ordinary negligence usually suffices.
Criminal law does contain some doctrines of strict
liability, especially with respect to the grade of the offense (e.g.,
reasonable mistake is no defense if it only goes to the amount of illegal drugs
that the actor possesses or to the value of the goods that he has stolen) and
also with respect to mistake or ignorance of law, where even reasonable mistake
or reasonable ignorance is normally no defense.
But strict liability is less widespread in criminal law
than in tort law. Tort recognizes such strict liability doctrines as liability
for abnormally dangerous activities, for manufacturing defects in products, and
for wild animals. Tort law also pervasively imposes strict liability in the
form of vicarious liability, especially the liability of employers for the
tortious acts of their employees.
More fundamentally, criminal law targets conduct that is
impermissible. Or, as economists might say, the optimal incidence of criminal
conduct is zero. But tort law sometimes creates liability for perfectly
permissible conduct, conduct that we would not want to preclude. As Robert
Cooter put it, criminal law exclusively imposes sanctions, while tort law
sometimes prices an activity.
Criminal law pays much less attention to the victim's
conduct than does tort law. First, in criminal law, victim fault hardly ever
matters. Contributory negligence is not a criminal law defense, but it is
routinely taken into account in tort law. Second, the consent of the victim to
the behavior of the wrongdoer, or to the risks imposed by his behavior, is much
more likely to be a full defense in tort law than in criminal law.
Criminal law includes many so-called victimless crimes,
that is, crimes in which both of the immediate parties to the transaction
consent, such as prostitution, gambling, and drug distribution. And consent is
generally no defense to causing serious bodily injury, as opposed to minor
bodily injury, in criminal law; but in tort law, it will more often serve as a
full defense.
Criminal law is statutory. The doctrine of common-law
crimes is largely defunct. By contrast, tort law remains mainly a set of
common-law, judge-made doctrines (although the statutory overlay is
increasing).
This fundamental difference is related to many others. For
example, criminal law tends to produce more detailed specifications of wrongful
behavior than tort law, which, in important domains (especially negligence),
creates liability standards that are maddeningly vague. At the same time,
criminal law is in some ways more difficult to change in response to changing
conditions. Tort law provides a more flexible framework for challenging new
forms of wrongdoing, such as clergy malpractice or invasions of privacy through
new technology.
Excuses to liability
are recognized in criminal law much more readily than in tort law. Thus, the
insane are generally liable for their torts, but are not criminally responsible
(though again, this theoretical difference is belied by actual legal practice,
since it is extraordinarily difficult for mentally disordered criminal
defendants to succeed with an insanity defense). Moreover, criminal law and
tort law differ in their treatment of children: even relatively young children
are often liable for torts, but they are not criminally responsible
B. SIMILARITIES AND DIFFERENCES IN NORMATIVE PERSPECTIVES
Let us turn to the second set of issues: the similarities
and differences in the normative perspectives underlying criminal law and tort
law. First, we must distinguish between the functions that an area of law
performs and the underlying reasons or principles that explain and justify
those functions.
1. Plaintiff obtains damages.
a) As compensation (or
redress)
b) In excess of compensation
(sometimes)
2. Defendant pays damages.
a) As compensation (or
redress)
b) In excess of compensation
(sometimes)
3. Deterrence of future torts
(by the threat of future tort liability).
4. Loss-spreading
5. Reinforcement of social
norms.
I characterize these five items as functions of tort law in
the sense that they describe what the award of a tort remedy does. These
functions are either constitutive of tort remedies or direct effects of
providing those remedies.
But it is a separate question whether any of these
functions are justifiable, or if they are, why they are. Thus, “compensation”
is often described as one of the purposes of tort liability. But by itself,
this is not much of an argument. Compensation is not itself a good reason for
any particular tort law doctrine. All injured people could benefit from
compensation, whatever the source of their injury. So we really need to ask,
what is it about defendant's behavior that justifies a duty on his part to
compensate the plaintiff? And similarly, it is more accurate to speak of
“extracompensatory” rather than “punitive” damages insofar as this category of
damages might be justified for reasons other than punishing the defendant.
The widespread assertion that compensation is itself one of
the justifiable “goals” of tort law is therefore unhelpful and misleading.
Compare the analogous argument in criminal law. We could say that the purpose
of criminal law is to put convicted criminals behind bars, or that the purpose
is to label those convicted of a crime as criminals. But it is perfectly
obvious that these assertions beg the question: Why (and when) is physical
incapacitation a legitimate function of punishment? Why (and when) is
stigmatizing a convicted criminal justifiable? We need to address these more
fundamental questions if we want to give a normative defense of our legal
practices.
Broadly, we can distinguish consequentialist and no
consequentialist justifications both of moral norms and of legal doctrines. To
give a plausible and attractive explanation of either tort or criminal law, we
need to look beyond consequentialist arguments, including the utilitarian law
and economic approach that is an especially popular academic approach to tort
law. No consequentialist principles must be at least part of the best
explanation and justification. (The following list includes the principles most
often offered by way of justification, but it is hardly exhaustive.)
This principle adopts an ex post perspective.
An illustration is vicarious liability, which is often
justified by the idea that loss- spreading here serves the legitimate goal of
requiring the many individuals who benefit from the activity to share its
predictable accident costs. (Shifting the cost of accidents from negligent employees
to their employer’s results in spreading that cost to consumers of the relevant
product or service.)
Some strict liability rules can also be justified this way:
they require compensation from the party who obtains a nonreciprocal benefit
(as when a boat owner justifiably trespasses but uses the dock owner's property
for his own benefit) or who inflicts a nonreciprocal risk (as is typically the
case when the actor engages in an abnormally dangerous activity or owns a wild
animal).
This law and economics approach exemplifies utilitarian
principles.
This is a mixed theory, which focuses on whether tort
liability will produce good consequences, but not just on consequences for
social welfare in the utilitarian sense.
II.
Criminal law
When we turn to criminal law, again it is important to
distinguish the functions of a criminal sanction from the normative principles
that plausibly justify that legal remedy. And once again, these functions of
criminal law merely describe what the criminal justice system does. It is an
entirely separate question whether any of these functions are justifiable, or
if they are, why they are.
2. The
state inflicts suffering on defendant.
3. Deterrence
of future crimes (by the threat of criminal sanctions).
. 4. The
state incapacitates the defendant (sometimes).
5. Reinforcement
of social norms.
The normative principles that justify criminal law (again,
a suggestive but no exhaustive list) are as follows. They are parallel to the
list of principles justifying tort law, in embracing both no consequentialist
and consequentialist values.
One common formulation is this: the state should punish
defendant according to what he justly deserves.
Here, the focus expands to whether the state should
communicate, through public condemnation, that defendant has committed a
serious wrong.
4. Deterrence,
in order to prevent serious wrongs or rights-violations
What follows from this typology of doctrines and
principles? Does this articulation of the standard features of criminal law and
tort law suggest that we should be reluctant to tinker with our traditional
approaches? Do these standard features have a compelling logic behind them?
Some would answer yes to both questions. Ernest Weinrib
treats tort law as a self-contained, coherent system, one that should not be
altered, even if on balance no-fault or criminal law would be better for
society. In a similar spirit, some think punitive damages are an alien
encroachment on tort law.
I do not think we need to be so conservative and cautious.
On the other hand, we should also resist the temptation to mix and match
doctrines and functions at will. We do need to think seriously about what
doctrines and features of tort law (or of criminal law) are essential to its
underlying purposes. But we also must provide plausible arguments for what
these underlying purposes are or should be. We should not merely assume the
optimality or desirability of the contemporary state of the law.
Law and economics advocates have it a bit easier here: many
of them have a relatively simple view of the purposes of all legal sanctions.
If efficiency or maximization of social welfare is the uniform objective of all
branches of law, then we should be free to tinker with or simply abandon legal
doctrines to achieve that objective. Perhaps criminal law should be employed
whenever tort law would be an ineffective deterrent (for example, when the
defendant is poor and thus difficult to deter otherwise)—even though this
prescription could result in serious criminal law sanctions for relatively
minor forms of antisocial behavior.
Perhaps punitive damages in tort law should
be assessed only to compensate for otherwise inadequate incentives in cases
where the tortious activity is especially difficult to detect26—even though
this formulation is out of sync both with current doctrine and with popular
intuitions about when punitive damages are properly awarded. We could make
criminal law much more like tort law; or tort law much more like criminal law.
On the economic view, everything is contingent. All is up for grabs.
But if corrective and retributive justice are compelling
rationales for the distinctive doctrines and remedial structures of tort law
and criminal law, respectively, then the doctrines and structures of these
different areas of law have a less contingent explanation. And then the
crime/tort distinction has a basis in principle—or more precisely, a principle
more nuanced than maximizing social welfare—and is not just a product of
institutional constraints, administrative costs, and historical accident.
Consider two important issues at the borderline of criminal
law and torts: punitive damages and “moral luck.” Punitive damages might
reflect a retributive rationale, akin to the just deserts principle asserted as
a general justification for criminal law punishment. This is a no
consequentialist rationale. Is it properly invoked in tort as well as criminal
law? Even if we believe that corrective justice principles best justify the
basic doctrines and structure of tort law? Perhaps these principles can,
indeed, be accommodated in a justifiable manner—for example, by adopting a
split recovery scheme under which victims do not receive the entirety of the
punitive damage award. At the very least, we should not rule out the
possibility of such an accommodation.
Now consider the issue of “moral luck”—that is, the claim
that the fortuitous occurrence of harm has a legitimate bearing on legal
liability. In tort law, a driver who rounds a blind curve at an excessive speed
will pay substantial damages if his dangerous driving results in a collision
with an oncoming car and no damages if no car is present. In criminal law, the
driver might be subject to liability in both cases, but will ordinarily face a
much smaller sanction if no harm occurs. Advocates of this differential in punishment
include some retributivists who claim that moral luck is relevant to
retributive blame. But those who make this claim are sometimes accused of
confusing criminal law with tort law in so recognizing moral luck. Whether and
when the fortuity of harm should matter to legal liability is a notoriously
difficult problem.
The answer might depend on whether we can properly view
criminal law, as well as tort law, as addressing the need to repair a
relationship of the defendant to an actual victim. This perspective might or
might not be defensible, but it does not merely reflect a conceptual conflation
of criminal law and tort law functions or principles.
The nascent field of crimtorts speaks to such issues at the
borderline of the doctrinal categories. It is a field of considerable promise
if it avoids these twin dangers: the dangers of an oversimplified
instrumentalism and of an excessive demand for doctrinal purity and insulation.
Bibliography:
THE
CRIME/TORT DISTINCTION: LEGAL DOCTRINE AND NORMATIVE PERSPECTIVES. Kenneth W.
Simons.
David
J. Seipp. The Distinction Between Crime and Tort in the Early Common Law, 76
B.U. L. REV. 59, 59 (1996).
Note,
Victim Restitution in the Criminal Process: A Procedural Analysis, 97 HARV. L.
REV. 931, 934-35 (1984).
William
J. Stuntz, Substance, Process, and the Civil-Criminal Line, 7 J. CONTEMP. LEGAL
ISSUES 1, 19-24 (1996).
John
C.P. Goldberg & Benjamin C. Zipursky, Tort Law and Moral Luck, 92 CORNELL
L. REV. 1123, 1142-43 (2007).
DOUGLAS
HUSAK, OVERCRIMINALIZATION: THE LIMITS OF THE CRIMINAL LAW 9-10 (2008)
Robert
Cooter, Prices and Sanctions, 84 COLUM. L. REV. 1523, 1523 (1984).
WAYNE
R. LAFAVE, CRIMINAL LAW 16 (4th ed. 2003)
Margaret
Jane Radin, Compensation and Commensurability, 43 DUKE L.J. 56, 57-61 (1993).
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