Essay Example on Retributive Desert & Strict Liability: Punishing Beyond Culpability?

Most retributivists are said to be so skeptical of strict liability with an understandable reason. Often, the doctrines of strict liability punish actors that lack substantive and genuine culpability. Although often, when actors display some of this culpability, their punishment may exceed. Retributive desert demands dictate that criminal liability is at times defended in cases when strict liability pertains not when the conduct is to be criminalized, but on the actors' crime seriousness. Suppose an individual commits intentional acts, and accidentally this leads to death. The actor may be punished more seriously because death is justifiable. But what is the punishment that may be proportion to this act? Should the actor be punished as an intentional killer or unintentional killer? This research essay offers a framework that may be used to analyse strict liability justification in such cases. The essay will discuss the overview of strict liability in the criminal justice system where this topic will form a basis of the nature of strict liability. The paper will then discuss strict liability based on negligence and unintentional nature. I will also discuss the tort law and how it relates to strict liability. My conclusion will focus on analyzing my thesis statement that seeks to analyse that strict liability crime is not a good basis for justification of retributive punishment.

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Introduction

Criminal activity is a liability in the absence of negligence, intention, recklessness, and belief. A continuous increase in crimes in strict liability has led to the development of criticism among philosophers and analysts of the criminal law. However, strict liability is termed as a form of straightforward case that is entitled to punish the blameless. This law has been criticized through culpability based instead of harm based method of retributivists. Strict liability will be problematic if retributives desert will only depend on the caused harm. However, If the desert is dependent on the causing a harm, then this liability is flaty inconsistent with the theory of retributive. In retributivism that is based on culpability, It is obvious that strict liability may be inconsistent. Strict liabilities are said to be crimes that are of minor violations, and are not in carceration and are punished by fines. (Hall, 2015).The codes of this crime include a state of mind in which a defendant intends to bring a prohibited result, prohibited circumstance, recklessness, or negligence. This research paper will examine whether strict liability in offence grading is justifiable in retributive desert.

Strict Liabilities in the Criminal Law

In cases where an individual is pursuing a legal liability action, the plaintiff should prove that the defendant is a fault, whether through direct fault or negligence, for damages that are incurred by the plaintiff. These liabilities apply to acts such as injuries or damages by defective products, animals, or in hazardous activities. If an individual is a retributivist, then he or she believes that for one to be punished fairly, the defendant should have committed the act culpably. Then without this culpability, there's no type of retributive desert. However, in this desert, then punishment ought to be unjust. Retributive should, however, oppose any strict liability in this form of law. Moreover, if there is an element of strict liability, then maybe this element was culpably produced and is so much in a way that one would presume that the defendant was culpable.

To defend cases of strict liabilities, a defendant should attempt to prove some circumstances that exist, which may alleviate a person of the obligations of strict liabilities. This circumstance includes an assumption of risk and contributory negligence. In the assumption of risk, the plaintiff voluntarily or knowingly chooses to assume a risk in a dangerous activity. This may apply to cases such as in extreme sporting activities such as rock climbing or plaintiff who is employed in risky profession. The injured party, in this case, knew of the risks of beforehand and yet decided to engage in the activity. However, strict liability, in this case, does not apply. On the contrary, in contributory negligence careless plaintiff actions do not prevent damages recovery. Unless plaintiff subjects him or herself knowingly to the risky act. An example is of a person annoyed by the pit pull of his neighbor, which always barks every time he or she enjoys the backyard with his family. The person gets angry with the dog and provokes it, and it bites his hand. If this person sues the neighbor based on strict liability, he will unlikely win this case because his decision to engage in harm was unreasonable.

For an act to be termed as criminal, both act of (actus reus)guilty act that are prohibited by criminal laws and intent of guilty mind (mens rea) prohibited by criminal laws should be present before the offense is completed. The presence of both guilty mind and guilty act is called concurrence, which may be present even if the intention and act do not coincide as intended by the offender. An act may not be defined as a crime if an individual has only a guilty mind and does not commit any act.

Distinctions between negligence and strict liability is a significant feature in tort law. This law contrast negligence and strict liabilities by identifying various justifications in each standard. However, some types of liabilities imposed on negligence are more like a strict liability. For example, under negligence objective standard, liability can be imposed even in cases when the defendant was not in a position of exercising what amounted to reasonable care. However, in some circumstances, reasonable care requires some compliance that is perfect with precautionary requirements.

Strict Liability in Tort Law

Tort laws exert extensive social control powers called common laws. One of the most renowned American law jurist Oliver Holmes developed tort theory that is descriptive, is not normative, and its response to strict liability and negligence choices was misunderstood even to date. This theory aimed at opposing strict liability. Holmes dogmatically insisted on the threshold of universal negligence for tort recovery. However this theory was recognized by many scholars as its main role in establishing negligence hegemony was the aim of subsidizing America's industrialization. (Rosenberg, 1995).

Strict liability in law tort is fundamental in Louisiana Jurisprudence. Louisiana Western District court chief Judge Hunter wrote: " Louisiana civil code is satisfied with liabilities instances which are based on duty breach where there is no intentional misconduct or negligence by the liable party." This liability has been applicable in various cases where the defendant is engaged in blasting activities. (Plant, 1980). The orthodoxy Tort law states that there exist some torts where the defendant acts negligently and those that are strict liability issues. In a civil law, a tort crime is a negligent or intentional act or a civil wrong act. In strict liability, tort law holds an individual or entity responsible for the consequences that are unintended. The law is classified into animal owned, abnormally dangerous activities and product liabilities.

The orthodoxy of the tort law requires negligence behavior by the defendant and torts that are issues of strict liabilities. Negligence where a reasonable individual is not culpable, although this may be viewed as a culpable act product, this means that if negligence is not said to be culpable, then it is a type of strict liability.

Strict Liabilities in Negligence

In cases of an intentional wrong act, one may be able to file both civil or criminal charges. But in cases of unintentional wrong due to negligence or carelessness, then there may be different standards of liability which the wrong doer might be held to. One may consider filing a negligence claim if it is evident that the wrong doer may have done something to prevent the harm but didn't do so. In some cases, the wrongdoer might be held slightly liable for the harm. This means that one may have a claim against wrongdoer despite the intent or malice which was involved. If strict liability doctrine applies to one's case, then one might require showing the cause harm, and defendants are held responsible, although the defendant acted in a good cause or took the possible precautions.

The principle behind strict liability dictates that although there are activities that are so harmful, no individual may be able to make them safe, and they still are necessary. This liability applies to a case that involves harmful activities that include blasting, excavating, or defective products. Generally, the negligence doctrine does not require all risk elimination from an individual's conduct but only on every unreasonable risk that is evaluated by the consequence's seriousness. Moreover, the distinction between strict liability and negligence cannot be maintained this is because there seem to be no arbitrary ways in which one may construction the idea of a reasonable individual who may have adverted to the created proposed conduct risk. There seems to be no arbitrary way that may help in assessing the conduct riskiness. There seems to be no arbitrary way of assessing this riskiness because the risk of harm or ex post created by conduct and neither of the risk may produce the required distinction.

Strict Liabilities Without Intent

There has being a longstanding and broad societal consensus that indicates that there should be no punishment of crime without blameworthiness. However, crimes of strict liabilities have flourished in today's world. Even in cases where the mental state has been considered as crime element. The nature of mental elements doesn't always connote moral blame. America's Supreme court established a due narrow process limits on the legislature ability that seek to eliminate the need to find a guilty mind( mens rea) before imposing to any criminal sanctions. Old Latin dictated that any act that doesn't make an individual guilty unless the mind is guilty. This means that a defendant is not thus said to be guilty for an act unless there is a criminal intent. For a judge to declare a crime was committed then there has to be an intention, or an action has a certain consequence, which is a violation of a law. However, the fact that an individual engages in an activity that violates a law is thus not enough to prove the criminal liability. Rather, a defendant should intend to commit to the activity. (Regoli, Hewitt & Kosloski, 2016).

Laws of strict liability, where there is a liability without culpability, are thus said to be an exception. This law, however, provides for a criminal liability that may not require intent. This means that an individual may be said to be criminally responsible although he or she does not have the intention to harm. There exist different levels of criminal intent, and there are some exceptions that require intent to be present. In an attempt to creation of great legal uniformity among various states, the U.S law institute drafted a 1962 model penal code that helps in identifying criminal culpability responsibility levels that reflects on different levels of intent to acts. This code indicates that an individual must have acted knowingly, purposely, negligently or recklessly as required by the law.

The retributive desert is dependent on actus reus and mens rea element. (Simon, 1997). Strict liability crimes are faced with a problem of lacking culpable intention in executing. These crimes are regarded as morally objectionable crimes. (Husak, 2010). Most crimes in the U.S require a defendant to have mens rea. However, this is not the case with strict liability crimes that include overspeeding...