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TWO TYPES OF LEGAL WRONGDOING

Published online by Cambridge University Press:  11 April 2017

M.E. Newhouse*
Affiliation:
University of Surrey School of Law, marienewhouse@post.harvard.edu

Abstract

There are two distinct types of legal wrongdoing: civil and criminal. This article demonstrates in three ways that Immanuel Kant's Universal Principle of Right, properly interpreted, offers a plausible and resilient account of this important distinction. First, Kant's principle correctly identifies attempted crimes as crimes themselves even when they do not violate the rights of any individual. Second, it justifies our treatment of reckless endangerment as a crime by distinguishing it from ordinary negligence, traditionally thought to be only civilly wrong. Third, it explains and justifies differences between the features of traditional criminal punishments and the features of civil remedies. Moreover, the Universal Principle of Right yields a Kantian standard for criminal wrongdoing that is compelling enough to inform future philosophical inquiries into the nature and limits of the state's criminal lawmaking authority.

Type
Research Article
Copyright
Copyright © Cambridge University Press 2017 

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References

1. “This distinction between what is merely formally wrong and what is also materially wrong has many applications in the doctrine of right.” Immanuel Kant, The Metaphysics of Morals (Mary Gregor trans., Cambridge University Press 1996), at 86. As is customary, I give page references to the Prussian Academy pagination (Ak. 6:308), for all of Kant's works in addition to the cited translation.

2. “A transgression of public law that makes someone who commits it unfit to be a citizen is called a crime (crimen) simply but is also called a public crime (crimen publicum); so the first (private crime) is brought before a civil court, the latter before a criminal court.” Id. at 105 (Ak. 6:331).

3. Id. at 24 (Ak. 6:230).

4. Gregor's translation may exaggerate the principle's appearance of articulating two standards because it features a compound sentence form not found in the original German text. See Figure 1. German grammatical conventions “permit much more unity” between the word that is translated to “action” and the phrase that is translated to “on its maxim the freedom of choice of each” than Gregor's translation suggests. Interview with Marcus Wilczek, Assistant Professor of Germanic Languages and Literatures, Harvard University (Feb. 14, 2012). Indeed, this word and phrase appear right next to each other in the original German, and the words that translate to “coexist with everyone's freedom in accordance with a universal law” only appear once, near the end of the sentence. See Figure 1.

5. Ripstein, Arthur, Means and Ends , 6 Jurisprudence 1, 8 (2015)CrossRefGoogle Scholar.

6. Allen W. Wood, Kantian Ethics (2008), at 243.

7. Ripstein writes, “What I do is individuated by my maxim.” Arthur Ripstein, Force and Freedom: Kant's Legal and Political Philosophy (2009), at 381.

8. Kant, supra note 1, at 24 (Ak. 6:230); Immanuel Kant, Die Metaphysik der Sitten (1798).

9. Kant, supra note 1, at 24 (Ak. 6:230) (italics added).

10. Negation is the only kind of incompatibility that can exist between two concepts. See Kant, Immanuel, Critique of Pure Reason, in The Cambridge Edition of the Works of Immanuel Kant: Critique of Pure Reason Vol. II (Guyer, Paul & Wood, Allen W. trans., Cambridge University Press 1998), at 369 Google Scholar n.a. (A265/B321).

11. See Ripstein, supra note 8, at 57–60.

12. Ripstein, supra note 8, at 47.

13. See Arthur Ripstein, As if It Had Never Happened, 48 Wm. & Mary L. Rev. 1957, 1991 (2007).

14. Kant, supra note 1, at 105 (Ak. 6:331).

15. Id.

16. Onora O'Neil has shown that maxims must include act descriptions. See Onora O'Neil, Acting on a Principle: An Essay on Kantian Ethics (1975), at 12–31.

17. Kant, supra note 1, at 16 (Ak. 6:224) (Latin parenthetical omitted).

18. Id.

19. Kant, Immanuel, On a Supposed Right to Lie Because of Philanthropic Concerns, in Grounding for the Metaphysics of Morals with On a Supposed Right to Lie Because of Philanthropic Concerns (Ellington, James W., ed., Hackett Publishing Co. 3rd ed. 1993), at 67 (Ak. 429)Google Scholar.

20. Kant, supra note 1, at 16 (Ak. 6:224) (Latin parenthetical omitted).

21. Id. at 86 (Ak. 6:307–308) (emphasis added).

22. Id. at 97 (Ak. 6:320) (footnote).

23. Id.

24. See id. at 40–42 (Ak. 6:246–252).

25. Id. at 97 (Ak. 6:320) (footnote).

26. Id. at 93 (Ak. 6:316).

27. Ripstein, supra note 8, at 314.

28. Kant, supra note 19, at 65 (Ak. 426–427).

29. Ripstein writes, “If I attempt to wrong you but fail, I may commit a crime, but (unless your apprehension of a battery makes my act an assault) I do not commit a private wrong against you.” Ripstein, supra note 8, at 374 n.43.

30. See supra Section III.

31. Kant, supra note 19, at 65 (Ak. 426–427).

32. Restatement (Third) of Torts §§2–3 (2010).

33. Reckless endangerment is a crime in many jurisdictions. See Model Penal Code §211.2 (1985).

34. See, e.g., Palsgraf v. Long Island R.R. Co., 248 N.Y. 339, 344 (N.Y. 1928) (“The risk reasonably to be perceived defines the duty to be obeyed.”).

35. “A person acts negligently if the person does not exercise reasonable care under all the circumstances.” Restatement (Third) of Torts §3 (2010).

36. “A person acts recklessly in engaging in conduct if: (a) the person knows of the risk of harm created by the conduct or knows facts that make the risk obvious to another in the person's situation. . .” Id. at §2 (2010). See also O'Neil, supra note 16, at 12–31.

37. “An actor who intentionally or recklessly causes harm is subject to liability for a broader range of harms than the harms for which that actor would be liable if only acting negligently.” Restatement (Third) of Torts at §33 (2010).

38. Kant writes, “A transgression of public law that makes someone who commits it unfit to be a citizen is called a crime (crimen) simply but is also called a public crime (crimen publicum); so the first (private crime) is brought before a civil court, the latter before a criminal court.” Kant, supra note 1, at 105 (Ak. 6:331).

39. Kant, supra note 10, at 369 (A265/B321).

40. Id.

41. See generally Arthur Ripstein, Private Wrongs (2016).

42. Ripstein refers to Kant's analysis of the concept of opposition to make a claim about the difference between external freedom and morality. Ripstein, supra note 8, at 376. In the course of this discussion, Ripstein appears to suppose that all wrongs are rectified by means of real opposition—a supposition at odds with my claim here that because formal wrongs are wrong in virtue of the fact that they give rise to conceptual incompatibilities, they can only be rectified by means of negation.

43. Kant, supra note 1, at 105 (Ak. 6:332).

44. Kant, supra note 1, at 130 (Ak. 6:363).

45. See Figure 2.

46. Ripstein, supra note 8, at 35–36.

47. Kant, supra note 1, at 24–25 (Ak. 6:231).

48. Leslie A. Mulholland, Kant's System of Rights (1990), at 168–169. Accord Allen W. Wood, Kant (2005), at 144.

49. Kant, supra note 1, at 24–25 (Ak. 6:231).

50. Kant, supra note 10, at 388 (A301/B357).

51. Kant considers practical laws to be a subset of principles: “A principle that makes certain actions duties is a practical law.” Kant, supra note 1, at 17 (Ak. 6:225).

52. Mary J. Gregor, The Laws of Freedom: A Study of Kant's Method of Applying the Categorical Imperative (1963), at 41. Gregor's meaning would have been clearer if she had put the word “only” in between “have” and “certain” in the first sentence. Her subsequent sentence makes it clear that she means that the set of possible lawful maxims is restricted by the juridical law, and not that the juridical law can require us to adopt a specific maxim.

53. Kant, supra note 1, at 24 (Ak 6:230).

54. Id. (Ak 6:231).

55. Id. (Ak. 6:230) (emphasis added).

56. Logicians have identified two distinct meanings of “or,” known as the “inclusive or” and the “exclusive or,” but neither one can rescue this sentence as a claim about the overall rightness of actions. If this sentence employs the “inclusive or,” it states that any action is right if it meets either one of the two standards. See Alan Hausman et al., Logic and Philosophy: A Modern Introduction (12th ed. 2013), at 30–32. A “right action,” on this interpretation, also may—but does not need to—meet both standards. The “exclusive or” interpretation also fails to yield the required meaning. Indeed, it is a less plausible choice than the “inclusive or,” because the “exclusive or” presupposes that any action that meets one of the two disjunctive standards for rightness must fail the other. Id.

57. Some scholars have concluded that the publisher printed several of Kant's arguments in the wrong order. See Kant, supra note 1, at xxxii–iv (translator's note on the text). Moreover, Kant reportedly refused to help his publishers edit this work for a subsequent edition because he felt too consumed by other projects. Id.