The Criminal-Civil Distinction and Dangerous Blameless Offenders

Abstract:     
Our legal system distinguishes criminal law from other, civil law and criminal commitment from civil commitment. We speak of a crime rather than a violation or a breach, and punishment rather than sanction or liability. Why is criminal law kept distinct? One can conceive of a system in which no such criminal-civil distinction exists. What is now dealt with as criminal law could be treated as just another aspect of civil law. Some academics have proposed just such a system, although I know of no society in which such a system currently operates. Why are societies persistent in maintaining a distinct criminal system?

Criminal law is not unique in the conduct it punishes; some conduct violates criminal and civil law. Nor is criminal law unique in the deprivations that it imposes; civil commitment, tort law, and a variety of other civil measures can deprive a person of his or her liberty, put restrictions on what a person can do, and compel the payment of money. If criminal law is not unique in either the conduct it prohibits or the deprivations it dispenses, why is it kept distinct? Its existence must have an explanation apart from its prohibitions, deprivations, or procedures.

Number of Pages in PDF File: 25

Keywords: criminal, civil, punishment, distinction

JEL Classification: K14

Accepted Paper Series