Response to Hart and Wasserstrom

According to Hart in his piece “Negligence, Mens Rea and Criminal Responsibility,” Dr. Turner believes that “possession of knowledge of consequences is a sufficient and necessary condition of the capacity of self control.”  The corollary to this statement is that a person who has not considered the consequences of his actions cannot be held responsible for them under any circumstances.  I was intrigued to read this argument, as it reminded me of Plato’s characterization of crime in Gorgias.

According to the Greek philosopher, knowledge is the basis for all moral actions.  If a person believed a certain action was wrong, he would never do it.  Therefore, crime is a failure of education, and criminals must be re-instructed, through physical punishment or otherwise, so they will not ignorantly stray from the path of righteousness again.  So, you could say that like Turner, Plato does not consider negligence a serious crime: it is something to be corrected but not harshly punished.  I believe, however, that Plato is saying something different: that all crimes are the result of negligence.  Given the philosopher’s previously stated views on punishment, we can put him in the same camp as Hart and Wasserstrom, who believe punishing negligence forces citizens to be more careful and thus deters accidents.

Regardless, I believe Plato’s argument sorely lacks nuance, and Hart provides ample ammunition against it.  He argues that Turner’s corollaries are false because there is no such thing as a totally self-controlled or a totally uncontrolled state of mind for a normal person.  Knowledge is not the key to unlock these traits.  Plato’s arguments are therefore false.  Instead, the law works inside the gray areas.  It does not presume to know what is inside the criminal’s mind; rather, it investigates the evidence at hand to make judgments about negligence.

Wasserstrom notes that strict liability sometimes has the unintended consequence of driving people out of beneficial activities for fear of unexpected legal repercussions.  When I read this segment, I thought of the American tax code.  I understand that doing one’s own taxes is not an obviously beneficial activity, but it’s rather embarrassing that the law is so complex, and riddled with so many pitfalls, that citizens must pay other people to fulfill this annual duty.  Speaking of the downside of strict liability, my great grandfather spent years fighting the IRS over unsubstantiated technical charges.

After reading these selections, I was compelled to research the libertarian position on strict liability, and I heard two arguments about it.  The first, defined as “anarcho-libertarian,” postulated that the state should only punish people for damage, not for merely endangering others.  Therefore, it is a violation of one’s rights when citizens are punished for activities like drunk driving absent of any real damage.

The second, more mainstream opinion was that strict liability is the result of the people’s economic calculations.  They have decided that the general good of assuring a risk-free environment outweighs the sum of the good and bad results of allowing individual risks.  This side also argued that if drunk driving were legal, ordinary citizens would be harmed even before any extra accidents occurred because knowing that drunks could drive uninhibited on the streets, they would have to drive much more defensively each day.  The mental stress induced is bad for society, just as physical harm is.  Thus, strict liability is a defense of one’s rights.

Explore posts in the same categories: Law, Philosophy, Politics, Schoolwork

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