Responses to “The Common Law” and “Legal Responsibility and Excuses”
Holmes’s argument that vengeance is the traditional basis of the legal system is an intriguing one; I am inclined to agree with him. The Code of Hammurabi certainly corroborates this claim, as do many of the minor Mosaic laws. The Ten Commandments do not follow this pattern, but they are abstract moral laws more than technical ones.
It is very interesting that this kind of thinking survived into the Christian era because Jesus explicitly rejected it:
You have heard that it was said, ‘An eye for an eye, and a tooth for a tooth.’ But I tell you, do not resist an evil person. If someone strikes you on the right cheek, turn to him the other also. And if someone wants to sue you and take your tunic, let him have your cloak as well. If someone forces you to go one mile, go with him two miles. Give to the one who asks you, and do not turn away from the one who wants to borrow from you. (Matthew 5:38-42, NIV)
St. Paul adds, “Do not take revenge, my friends, but leave room for God’s wrath, for it is written: ‘It is mine to avenge; I will repay,’ says the Lord” (Romans 12:19). Yet unconditional forgiveness was not subsequently codified into law. Practical considerations won out in the Christian kingdoms.
Holmes notes that revenge has become less important in recent years because we live in a more complex society in which “an eye for an eye” isn’t nuanced enough. Vengeance is still a powerful force in one particular branch of the law, however: capital punishment. It seems that behind every man on death row is a murder victim’s family which wants to see the criminal suffer the same fate. Certain cases of embezzlement also allow for revenge: a person convicted of some such charges must pay treble damages plus legal fees to the plaintiff.
In his essay, Hart probes the distinction between legal and moral wrongdoing. He does not accept the argument that only those who have committed moral wrongs should receive legal punishment. Our legislatures have certainly followed Hart’s lead. According to the letter of the law, driving 41 miles per hour in a 40-mph zone is illegal, but I would certainly not call it immoral. In most situations, it is not even reckless. Many regulations of businesses are the same way. There is a cap on how much of the media a telecommunications company can own, not because it is wrong for a company to own too much, but because this situation could lead to future wrongdoing.
Much of Holmes’s and Hart’s essays touch on the same subject: the legal admissibility of excuses for one’s actions. According to Holmes, the law does not accept excuses: it judges the action rather than the intent. Entrepreneurs are even held responsible for the crimes of the employees they hired. Though strict liability is a harsh standard, it is likely an effective mode of prevention because it requires constant vigilance by all parties.
Hart rejects Holmes’s theory. He says that if put into practice, it would endanger legal devices such as contracts and wills because a party could then freely coerce a weaker party into unfavorable agreements. He makes infantilism and insanity, if proven, acceptable excuses for all cases because we cannot use the same laws on people who act rationally. If the standards for these two excuses are stringent, they should not have an adverse effect on law and order. I agree with Hart, but I imagine that Holmes, if he had considered the same cases that Hart does, would have sided with him as well.