Before and after: Temporal Anomalies in Legal Doctrine

Abstract

Legal doctrine exhibits some striking temporal anomalies, previously not much adverted to. Wrongdoing looked at before it has occurred, and after is has occurred, is apt to look very different. I take up the two key components of wrongdoing seriatim, the harm-portion and the misconduct-portion: the "damage" part and the "liability" part. We tend to look at harm in a harm-agnifying way before it has occurred, and in a harm-inimizing way afterwards. We thus tend to think about negligence and the harm it wreaks in seemingly inconsistent ways. I examine and reject some possible explanations of this. Misconduct too looks different before and after, and the reason seems to be a certain spacing phenomenon: space blameworthy actions closely together and their overall blameworthiness can turn out to be greater or less than the sum of its individual blameworthy parts. The ex ante perspective involves looking at how much the piece contributes to the overall blameworthiness of the defendant's actions. If, therefore, for some reason the sum of the blameworthy acts is greater or less than the overall blameworthiness of the defendant, we get an ex ante/ex post inconsistency. I offer a sketchy and tentative account of the likely bases of this spacing effect.

Keywords: criminal law, jurisprudence, torts, misconduct, blame, liability, punishment

JEL Classification: K10, K13, K14, K42