Being able to do what the law requires

It would not be fair to hold someone guilty of a crime if he could not do what the law required, for instance because he was too young or mentally unstable to have full control of himself. At the very least the punishment should be reduced when this is the case. Even if a sane adult breaks the criminal law but can show that she was intolerably provoked into doing so (Joe keeps beating his wife and one day when he is drunk and starts beating her she kills him) this in many systems reduces the seriousness of the crime.

Does fairness require that a person should be convicted of a serious crime only if he was at fault? Being at fault means he was to blame for what happened either because he intended it or because he could and should have avoided it: it was negligent of him not to.

Many people would say that fault is essential. If the person charged was not at fault he did not really do wrong and does not deserve to be punished. Some would go further and say that the punishment should be in proportion to the fault — or at any rate not excessive given the degree of fault.

The most serious type of fault is intentionally to do the harm that the law is trying to prevent. For example, a killer can generally be convicted of the most serious form of homicide (murder) only if he intended to kill the victim, or at any rate do him serious injury (e.g. by knifing him). Nearly all countries treat intended killing as worse than other forms of killing.

Why is it worse that the offender intended to do the harm that the law is trying to prevent? Clearly because a person who intends, for example, to kill is deliberately attacking the values that most of us hold and that the law of homicide protects. Defiance of this sort is specially threatening. It is a challenge to the community.

Should negligence be punished?

Does it follow that only those who defy the law in this way should be convicted of crimes? That is a possible view. But all modern systems of criminal law make some provision for punishing those who behave negligently, though they do not intend to do the harm that the law is trying to prevent.

For example negligent killing (of which the English 'manslaugh­ter' is an example) is in one form or another everywhere a crime. But countries vary about what has to be proved to make negligent killing a crime. Some lay down that to be guilty the person charged must have known that what he was doing might kill someone and must have gone ahead despite the risk. He must have acted recklessly. He was warned not to point a gun at his friend without making sure it was unloaded, but he disregarded the warning and the gun went off and killed the friend.

In others countries a person is guilty of negligent killing if he behaved very foolishly (with gross negligence) even if he did not appreciate the risk of killing someone. He thoughtlessly dropped a heavy brick from an upper window, not looking to see if there were pedestrians in the street below. In others, again, ordinary negligence (falling below the ordinary standard of care) is enough. The person charged killed someone through speeding in a built-up area.

Is it fair for the state to punish negligence? The argument that it can rightly punish negligence is that a person, without wanting to defy the law, can behave in a way that shows that he does not care, or not enough, about the welfare of others. That points to a fault of character, though not as serious a fault as intentional defiance of the law and the values it stands for. It may then be fair to pick on a person who behaves like this and, if he does harm, punish him. But if the punishment is to be in proportion to the fault involved, it should not be as severe as it would be if the offender intended harm. Punish­ment should take account, among other things, of the degree of fault.

But on the fault theory there is a difficulty about making negligence a crime, at least if the person charged did not realise the risks he was exposing others to. To be reckless about whether one kills someone (or does harm in other ways) is to be anti-social, to display bad character. But is this true of someone who did not realise how dangerous his behaviour was? That is debatable. But people who do not realise the risks they are taking are even more dangerous than those who do. To reduce the level of danger, the state may be forced to deter and educate people even if they did not realise they were doing wrong.

Even so, on the fault theory the punishment should reflect how far the person charged realised the risks he was creating and how dangerously he behaved. One way of doing this is to have a special crime, such as manslaughter in English law, that is confined to reckless and grossly negligent killing. Another way is to have a crime of negligent killing in which nothing more than ordinary negligence need be proved, but to punish less those whose fault is less.

What has been said about killing applies to other serious crimes. Crimes that consist in breaking regulations on the other hand some­times dispense with the need to prove that the person charged was at fault.

Дата добавления: 2015-07-20