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Subject Area: Political Theory

Is the Tort/Crime Distinction Valid? - Leonard P. Liggio, Literature of Liberty, Autumn 1981, vol. 4, No. 3 [1981]

Edition used:

Literature of Liberty: A Review of Contemporary Liberal Thought was published first by the Cato Institute (1978-1979) and later by the Institute for Humane Studies (1980-1982) under the editorial direction of Leonard P. Liggio.

Part of: Literature of Liberty: A Review of Contemporary Liberal Thought, 20 vols. 19781-982

About Liberty Fund:

Liberty Fund, Inc. is a private, educational foundation established to encourage the study of the ideal of a society of free and responsible individuals.


Is the Tort/Crime Distinction Valid?

Robert W. Drane and David J. Neal

  • University of California at Berkeley

“On Moral Justifications for the Tort/Crime Distinction.” California Law Review 68(March 1980):398–421.

The reasons for the common distinction between torts and crimes have received surprisingly little attention in the legal or philosophical literature. The problem specifically is the following: certain actions, called “crimes” are usually held to be subject to more severe penalties than the compensation to the victim required in order to rectify actions called “torts”. Why does this dichotomy between torts and crimes exist? That is to say, why ever go beyond compensation?

Any acceptable answer to the problem posed above must meet three requirements. First, we must set forth an adequate moral theory which can deal with this question. Second, we must explicitly state the interests which benefit from imposing prohibition rather that mere compensation. Third, we must state the means, consistent with the moral theory postulated in the first step, to secure the interests identified in the second step. In addition to these formal constraints, an acceptable theory must also meet substantive requirements. Specifically, the theory advanced must satisfy our moral intuitions.

Four theories giving reasons for the crime-tort distinction fail to meet these requirements fully; but one of them, Robert Nozick's, does meet the formal requirements and perhaps can be modified to meet the substantive ones as well. The other three theories fail the formal requirements completely.

The first of these theories rests the crime-tort distinction on distinction between public and private interests. What a public interest is has never been adequately specified, nor has a reason been given why all violation of public interests ought to be prohibited. Similarly, attempts to rest the distinction on how much harm the crime or tort causes fails because harm has never been defined adequately. More generally, all utilitarian approaches to the problem, e.g. the economic efficiency standpoint, suffer from problems of definitional inadequacy.

Nozick's theory rests upon the fact that some actions, such as those which impose a risk of bodily harm, impose as a concomitant a general fear which cannot be adequately remedied by compensation. While Nozick's approach can be shown to satisfy the formal requirements presented above, the assumption of a right to be free from fear seems inconsistent with the libertarian moral theory Nozick advocates.

Nozick's argument can be reconstructed to provide a more acceptable theory. In this version, the individual, rather than the state, would be the one to decide when compensation was inadequate as a response to an act invasive of rights. The desire to be free from fear can certainly play a role in an acceptable moral theory, as can the satisfaction of other emotions, such as anger. All of this satisfaction of emotions, however, must take place within the framework of the individual's Lockean rights.