Harm and Justification in Negligence
-
Leo Katz
Negligence, the creation of an unjustifiable risk of harm, plays a pivotal role in both criminal and civil law. This article takes up two negligence-related problems unique to its role in the criminal law. The first has to do with its "harm" component, the second with its "unjustifiability" component. The first problem is why the criminal law distinguishes so sharply between negligent wrongdoing that results in harm and negligent wrongdoing that does not, when it does not distinguish equally sharply between intentional wrongdoing that results in harm and intentional wrongdoing that does not. The answer has to do with a peculiar feature in the logic of intention and with the symmetric way we ascribe responsibility for blameworthy and praiseworthy actions. My second problem is why the criminal law judges the blameworthiness of negligent actions on the basis of the harm wrought rather than the gap between the harm wrought and the justification for risking it. The answer has to do with a more general feature of the criminal law, the refusal to recognize "partial defenses" and "partial offenses."
©2011 Walter de Gruyter GmbH & Co. KG, Berlin/Boston
Articles in the same Issue
- Article
- Irreparable Injury and Extraordinary Precaution: The Safety and Feasibility Norms in American Accident Law
- Qualitative Judgments and Social Criticism in Private Law: A Comment on Professor Keating
- The Many Faces of Negligence
- Hand, Posner, and the Myth of the "Hand Formula"
- Egalitarianism as Justification: Why and How Should Egalitarian Considerations Reshape the Standard of Care in Negligence Law?
- The Boundaries of Negligence
- Prohibited Risks and Culpable Disregard or Inattentiveness: Challenge and Confusion in the Formulation of Risk-Creation Offenses
- Harm and Justification in Negligence
- The Fault of Not Knowing: A Comment
Articles in the same Issue
- Article
- Irreparable Injury and Extraordinary Precaution: The Safety and Feasibility Norms in American Accident Law
- Qualitative Judgments and Social Criticism in Private Law: A Comment on Professor Keating
- The Many Faces of Negligence
- Hand, Posner, and the Myth of the "Hand Formula"
- Egalitarianism as Justification: Why and How Should Egalitarian Considerations Reshape the Standard of Care in Negligence Law?
- The Boundaries of Negligence
- Prohibited Risks and Culpable Disregard or Inattentiveness: Challenge and Confusion in the Formulation of Risk-Creation Offenses
- Harm and Justification in Negligence
- The Fault of Not Knowing: A Comment
