Criminal law and Civil law

[hopeful]

Law is usually divided into "civil" and "criminal" branches. The basis of civil suits is clear: one person thinks that another person has done them harm and they go before an independent authjority to resolve it and tom seek compensation.

The basis of criminal prosecution is less clear. What aspect of a case makes it warrant criminal prosecution? What is the distinguishing set of facts? Bodily injury? Physical injury?

A preliminary search on the web shows that the typical justification for criminal prosecution is based on some concept of "greater common good" or "public interest". That is, a violation of rights is prosecuted criminally in situations where there is a public interest in doing so. It is really tough to draw this line.

I'm curious if anyone here, particularly any lawyers have thought about this: what is the *correct* basis of criminal law?

[DavidOdden]

The basis of criminal prosecution is less clear. What aspect of a case makes it warrant criminal prosecution? What is the distinguishing set of facts? Bodily injury? Physical injury?

A preliminary search on the web shows that the typical justification for criminal prosecution is based on some concept of "greater common good" or "public interest". That is, a violation of rights is prosecuted criminally in situations where there is a public interest in doing so. It is really tough to draw this line.

If there is a law against doing X, then the state may prosecute you for doing X. If doesn't matter what X is. It has been more or less forever since a law was passed that protects rights: as you say, laws are imposed "in the public interest". It's actually quite easy to draw the line, since it's entirely arbitrary. All you need is a compliant and clever-enough governing body, which outlaws whatever action you pick, and can write it in such a way that is passes basic constitutional muster (at the national level they are pretty good at that). Whether or not a person is actually prosecuted for their act also depends on the public interest, i.e. the whims of the prosecutor (and hs estimate that he can get a conviction). It's too expensive to prosecute all crimes, and there are so many of them. At the local level, they do tend to more regularly prosecute rights violations, but federal prosecutions are not as enlightened.

[Capitalism Forever]

I would suggest the following definitions:

• A crime is a conscious violation of the rights of another individual, committed out of malice or criminal negligence.
  
• Negligence is criminal if it involves evasion.
  

It follows out of these definitions that a crime is necessarily an immoral act that warrants retaliation.

[hopeful]

...A crime is a conscious violation of the rights of another individual, committed out of malice or criminal negligence.

Its easy to imagine civil cases where the two parties disagree about the interpretation of a contract. In my personal experience, I have knowledge of the facts of three civil cases. In each case there is little doubt that one party clearly intended to cheat the other, and did so not because of a misunderstanding but because they thought they could get away with it. Finally, the cases were resolved, but only with civil restitution.

[Inspector]

The problem with the divide of criminal and civil cases is the fact that in an objective society, there would be no divisor. The current system has these things that it considers "crimes" in which no one's rights have been violated. Think about how one might divide civil and criminal when all "crimes" have to actually violate someone's rights to be considered crimes.

Yeah, that's a toughie.

[Capitalism Forever]

In each case there is little doubt that one party clearly intended to cheat the other

If there is little doubt, then it would not qualify as a crime. However, if there is no doubt then, according to my proposed definition, it would.

[Capitalism Forever]

Think about how one might divide civil and criminal when all "crimes" have to actually violate someone's rights to be considered crimes.

Yeah, that's a toughie.

You didn't read my reply, did ya?

[wishbone]

Bring back debtor prisons for bankrupts.

[hopeful]

Bring back debtor prisons for bankrupts.

I would not toss away the idea of debtor prison so easily. That is not to

say that I support the idea. All I am saying is that you can only argue for

it or against it if you validate it against an underlying principle. Back to

the question about the nature of criminal law.

The case *for* debtor's prison is simple. People often borrow irresponsibly.

They take something with a promise to and then renege. Suppose the court

determines that they did not renege because of a defect in the goods, or a

misunderstanding, but simply because they could not pay. Suppose the court

further determines that a reasonable person could not have had an

expectation that they would be able to pay. That bringsd them very close to

a thief who has taken something without paying. Surelt, it makes them nearly

identical to a fraudster who never had any intention to pay, evcen though he

had the ability to do so.

The case *against* debtor's prison is that peoiple usually fall into debt

because of bad circumstances and without intending to do so -- unlike the

intentions of a theif or a fraudster. So, while they have done something

wrong, and can be sued for their debt, this should be in the province of

civil law rather than criminal law.

I wonder if "intent to harm" ought to be an important part of what makes

something criminal.

[wishbone]

The problem with the divide of criminal and civil cases is the fact that in an objective society, there would be no divisor.

If there is no difference, does that mean that there would be no jails? A murderer would have to be prosecuted in a civil case, as could be done in a "wrongful death"?

I cannot answer how I would split civil and criminal. Not convinced that the distinction is necessarily non-objective.

Think about how one might divide civil and criminal when all "crimes" have to actually violate someone's rights to be considered crimes.

Yeah, that's a toughie.

It is a toughie. Yet I would not dismiss the idea. For something to be wrong under law, someone's rights must be violated. There may then be a further differentia for "criminal wrongs".

The current system has these things that it considers "crimes" in which no one's rights have been violated.

True, but that's a different debate. Most on this forum would agree that "victimless" crimes are not crimes in the first place, not civil, not criminal.

[Inspector]

I haven't fully dismissed the idea nor have I fully concluded that the existence of the divide is due to non-objectivity.

Perhaps if someone could post a definition of how they are divided legally today?

[Betsy]

I haven't fully dismissed the idea nor have I fully concluded that the existence of the divide is due to non-objectivity.

Perhaps if someone could post a definition of how they are divided legally today?

It's very simple and very objective. The difference is between violating someone else's rights accidentally (a civil wrong) and violating rights deliberately and on purpose (a criminal offense).

A civil action is brought by a plaintiff who believes he has been wronged and, if he wins, the defendant must make things right for the plaintiff and compensate him for his damages. The standard of proof is the "preponderance of the evidence."

A criminal action is brought by the government and the plaintiff is "the people" on the premise that anyone who deliberately violates rights is a threat to ALL the citizens and must be PUNISHED. Since punishment involves depriving a convicted criminal of his life, liberty, and/or property, the standard of proof is much higher than in a civil action -- it is the unanimous verdict of 12 jurors "beyond a reasonable doubt and to a moral certainty."

In some cases, there can be a criminal prosecution AND a civil action resulting from the same event (as in the O.J. case) and sometimes "punitive damages" can be assessed to discourage certain deliberate actions (like extreme carelessness) which, while not criminal themselves, lead almost inevitably to violating someone's rights.

[argive99]

It's very simple and very objective.  The difference is between violating someone else's rights accidentally (a civil wrong) and violating rights deliberately and on purpose (a criminal offense).

This is essentially correct but it could be more precise. I would describe the essential difference between civil and criminal law in terms of their fundamental purpose. Civil law at root is aimed at dispute resolution and *compensation*, with one of the chief themes being "to make the parties whole", ie to restore the parties (really the plaintiff) to the position before the violation (fraud, tortous behavior, etc) or as close to it as possible.

But the essence of criminal law is *punishment* in proportion to the harm done to the victim or (stated in other terms) to the values lost by the victim. This is why I feel capital punishment is justified for intentional murder (as opposed to involuntary manslaughter), because the value lost by the victim is irreplacable (his life), therefore the punishment should be equally as extreme.

I hasten to add that while what I just described as the essence of both branches of law are the implied base of our current legal system due to our better common law heritage, they are not the explicit philosophical base of modern jurisprudence. The moderns (and for the most part the modern left) have decimated jurisprudence (the philosophy of law) to such an extent that the stated purpose of civil law is "social justice" (witness the suits against "big tobacco" "big gun manufacturers" and soon to be "big fast food") and the purpose for criminal law is some cross between retribution and rehabilitation. A fully articualted theory of rational retribution for criminal law and rational compensation for civil law has yet to be written (perhaps some Objectivist William Blackstone will emerge to write it).

[wishbone]

It's very simple and very objective. The difference is between violating someone else's rights accidentally (a civil wrong) and violating rights deliberately and on purpose (a criminal offense)....

...

A criminal action is brought by the government and the plaintiff is "the people" on the premise that anyone who deliberately violates rights is a threat to ALL the citizens and must be PUNISHED. 

I have two problems with this. Firstly, one can only prove intent vs. accident as part of a legal finding. So, starting a civil or criminal action has to depend on the a factor that is not yet proven. Would prima facie evidence of intent be sufficient?

Suppose a CEOs contract with his firm state that he will not trade shares of the firm based on "inside information". Say, he breaches that contract. Should he be prosecuted criminally? Or should the company bring a civil suit?

[Betsy]

I have two problems with this. Firstly, one can only prove intent vs. accident as part of a legal finding. So, starting a civil or criminal action has to depend on the a factor that is not yet proven. Would prima facie evidence of intent be sufficient?

As far as I know, that might be sufficient to bring an indictment, and the government needs an indictment before it can bring a criminal charge.

Suppose a CEOs contract with his firm state that he will not trade shares of the firm based on "inside information". Say, he breaches that contract. Should he be prosecuted criminally? Or should the company bring a civil suit?

If the company was damaged, it should bring a civil suit, regardless. If, in addition, there is solid evidence that the CEO never intended to fulfill the contract and took money and other values from the company while PLANNING not to fulfill his part of the bargain, then there might be grounds for a criminal fraud complaint.

[RationalBiker]

As far as I know, that might be sufficient to bring an indictment, and the government needs an indictment before it can bring a criminal charge.

Just to clarify, An indictment may be obtained, or an officer / investigator may go to a magistrate and seek a warrant. Either of those paths are needed to bring a person before the court, but the processes are different. If the case is a misdemeanor, an indictment is not needed, nor is it appropriate. If the case is a felony, an indictment will eventually have to be gotten to the case to a higher court (usually known as a circuit court). So indictments are only needed on felony matters. It may be that the context your post was assuming a more serious (or felony crime) matter and I just missed it.

When you obtain a warrant to arrest someone, upon arrest a trial date is set in a lower court, frequently called a general district court. If it's a misdemeanor it will be decided and end there unless appealed by the defendant. If it's a felony, the lower court will conduct a probable cause hearing, and if appropriate, certify the charge(s) to a grand jury for indictment.

Seeking a "direct indictment" is when the government goes straight to the grand jury before arresting the suspect, and if obtained, bypasses the lower general district court altogether. Now, even if a person is arrested on a felony warrant, and the judge in the lower court decides not to certify the charge to the grand jury, the government can still go before a grand jury and seek an indictment. This is not double jeopardy since the lower court cannot actually be the "trier of facts" for purposes of determining a verdict in a felony matter.

[argive99]

I have two problems with this. Firstly, one can only prove intent vs. accident as part of a legal finding. So, starting a civil or criminal action has to depend on the a factor that is not yet proven. Would prima facie evidence of intent be sufficient?

Suppose a CEOs contract with his firm state that he will not trade shares of the firm based on "inside information". Say, he breaches that contract. Should he be prosecuted criminally? Or should the company bring a civil suit?

I think your problem is that you are not looking at the distinction between the two classifications of law in terms of their respective purpose. A criminal law action is intended to *punish* the perpetrator for violating someone's rights. This could be in the form of fines or imprisonment or death (capital punishment). A civil action is intended to *remedy* some injustice, whether it be intentional or accidental. The two can intersect.

In your example (which incidentally is how 19th century capitalism dealt with insider trading), a civil action would be initiated to remedy the harm done. In this case to return the money defrauded from investors. Money that belongs in the company's retained earnings rather than in the CEO's bank account. Now whether or not this would involve a criminal action would depend on several factors not the least of which is how much money was involved. Basically, theft is a crime which warrants some degree of punishment (whether through fines or jail time). But this would depend on the severity of the theft. If the theft is in the form of armed robbery, a rational legal system would judge the perpetrator a physical threat to society and would incarcerate him. For petty corporate theft, the sentence might not require imprisonment (at least for the first violation). This really is an issue of rational sentencing laws.

An easier example is the one Betsy gave of OJ Simpson. He murdered two people (unfortunately he wasn't convicted of it), so the criminal trial involved determining his guilt or innocence (or technically innability to prove guilt beyond a reasonable doubt) and then punishing him accordingly. The civil trial dealt with the financial compensation the families of the Brown's and Goldman's should receive for the loss of their loved ones (lost wages, pain and suffering, etc) as well as punitive damages for a intentionally criminal act.

So one branch of law deals with punishment and the other with remedy.

Intent is not a crucial factor in the two different classifications of law. There are elements of intent that need to be proved in some criminal actions (ie murder) but not in others (ie criminal negligence). There are elements of intent in some civil actions (common law fraud) but not in others (negligence). Its not a fundamental.

[wishbone]

I think your problem is that you are not looking at the distinction between the two classifications of law in terms of their respective purpose.  ...

...  one branch of law deals with punishment and the other with remedy.

Intent is not a crucial factor in the two different classifications of law. ... Its not a fundamental.

"Punishment / Restitution" could be the purpose , but that still does not give us a standard or principle by which we can decide what types of rights-violations are worthy of punishment.

I understand Betsy to be saying that intent is the crucial determinant here. This is not in opposition to the idea of "Punishment / Restitution". "Intent" becomes the key determinant. If there was an intentional violation of rights, then it is worthy of punishment, else justice demands simple restitution.

Argive99 points to two other aspects: the size of the violation and whether it is a first violation. So, if it is a small first time violation justice may not require punishment. If it is a repeatet violation or a firt time serious violation (all intentional) then we wantn to punish, thus we use criminal law.

[argive99]

"Punishment / Restitution" could be the purpose , but that still does not give us a standard or principle by which we can decide what types of rights-violations are worthy of punishment.

I understand Betsy to be saying that intent is the crucial determinant here. This is not in opposition to the idea of "Punishment / Restitution". "Intent" becomes the key determinant. If there was an intentional violation of rights, then it is worthy of punishment, else justice demands simple restitution.

Argive99 points to two other aspects: the size of the violation and whether it is a first violation. So, if it is a small first time violation justice may not require punishment. If it is a repeatet violation or a firt time serious violation (all intentional) then we wantn to punish, thus we use criminal law.

I think I see what you are getting at. You are looking for the conceptual foundation for what makes something criminal. I'll try to explain. At common law there were four elements that all crimes had to meet. They had Latin names and were as follows:

1) Actus Reus (guilty act) - an act or omission (which was defined as the failure to act in certain circumstances)

2) Mens Rea (guilty mind) - this is what is known as culpability states. There where four states: Intent (obvious), Reckless (when you should have known that a standard of care was required by a rational assessment of context and yet you acted in *gross* disregard that evinced a reckless disregard for human life and well being), Criminal Negligence (there was a contextual standard of care required and you did not live up to it, yet your actions did not evince a reckless disregard for human life), (ordinary) Negligence (failure to live up to a standard of care to an extent that did not threaten life or property). Note that what was offered here was a spectrum of culpability ranging from deliberate action to reckless indifference to oblivious carelessness.

3) Caustation - the guilty act had to cause...

4) Harm - ... a legitimate, verifiable physical harm to an individual or his property

This was the amazing beauty and common sense logic of the British common law that we inherited. You can see how victimless crimes (drugs, prostitution, gambling) do not fit the common law defintition of a crime as they do not satisfy the elements (no physical harm to an individual victim). Also notice how this is entirely consistent with Objectivism.

So for murder (generally speaking and avoiding degrees), you would need to show the act and that it was intended and that this act actually caused the death of the victim. Prove that and you've proved murder. The same follows for the other crimes; rape, robbery, assault, battery, fraud, etc. Some crimes don't need the mens rea of intent but only recklessness or criminal negligence.

So say, for example, that you were driving your car on the sidewalk (with no extenuating circumstances like you're a cop chasing a villian in a really cheesy action film) and you accidently hit someone and kill them. Well, you would be tried for Manslaughter because you acted in reckless disregard for human life. Or say you were on a date and you brought the girl back to your room locked the door and wouldn't allow her to leave when she asked. She then becomes very quiet and doesn't say anything except she has a look of fear on her face. You proceed to have sex with her despite hearing her wimper very slightly. You will be tried for rape even though you will argue that you didn't intend to rape her and she never actually said "no." (an actual case) You acted with reckless indiferrence to her safety in a situation where you should have reasonably known better.

So its not neccessarily "intent" that is the hallmark of a criminal case but a mental state sufficient to indicate dangerous behaviour combined with an action that physically harms a person or their property. And the criminal law should act as an agent of moral retribution for the victim. As a result of the perpetrator's actions, he must be tried according to rational procedural laws and if and when found guilty, he must be punished to an extent appropriate to the value(s) he robbed from his victim, or stated otherwise, the harm he caused his victim. This punishment will of course exist on a spectrum ranging to light fines for petty non-violent crimes to execution for capital murder. That is the essence of criminal law. It revolves around a dangerous minded harm committed against an individual (which can include a corporation) or their property. Civil law would address the compensation owed for that harm.

But as for a more detailed discussion of civil law, that is a post for another day.

[wishbone]

Argive99, thanks for the informative post.

... At common law there were four elements that all crimes had to meet. They had Latin names and were as follows:

1) Actus Reus (guilty act) - an act or omission

2) Mens Rea (guilty mind) - this is what is known as culpability states. There were four states: Intent ... Reckless ... Criminal Negligence ... Negligence

... a spectrum of culpability ranging from deliberate action to reckless indifference to oblivious carelessness.

3) Caustation - the guilty act had to cause...

4) Harm - ... a legitimate, verifiable physical harm to an individual or his property

Since #1, #3 and #4 would be present in civil case too...like a simple misunderstanding on a contract that causes harm to one party, I figure that , using the above characteristics, "Mens Rea" is the key distinguishing factor that makes a violation "worthy" of punishment rather than simple resitution.

But as for a more detailed discussion of civil law, that is a post for another day.

I look forward to it.

[Yes]

Law is usually divided into "civil" and "criminal" branches. The basis of civil suits is clear: one person thinks that another person has done them harm and they go before an independent authjority to resolve it and tom seek compensation.

The basis of criminal prosecution is less clear. What aspect of a case makes it warrant criminal prosecution? What is the distinguishing set of facts? Bodily injury? Physical injury?

In civil court, many of the cases are there to help settle disputes between two or more parties. Such disputes can happen for a number of reasons, and have little if anything to do with violating a law.

In criminal court, the main issue here is prosecuting a suspect who is accused of violating a specific law.

That is the difference.

[grasmicc]

"In criminal court, the main issue here is prosecuting a suspect who is accused of violating a specific law."

Civil cases are often based upon the violation of one or more particular statutory laws as well (e.g., UCC, etc.).

There are many differences between civil and criminal law in the U.S. Too many to list here. Nonetheless, I will mention a few.

(1) Criminal law actions always consist of the state bringing a case on behalf of the people, whereas civil actions take this form only sometimes.

(2) Criminal law makes available certain remedies (e.g., imprisonment) that are not available in civil law.

(3) As a result of the increased stakes made available by 2, there are more protections for the defendant in a criminal law case.

(4) Certain traditional rules of legality apply to criminal law cases but do not apply to civil law cases (e.g., no ex post facto law making).

The "purposes" of civil and criminal law often overlap. Civil law is often intended to punish and/or discourage certain behavior, just as criminal law is. Likewise, criminal law often favors compensation or restitution to victims and/or society in general. Looking at "purpose" is not a good way to distinguish the two.

The simple answer is: Something becomes a matter of criminal law when the relevant jurisdiction passes a law declaring the relevant actions or omissions to be criminal. No more, no less.

A few people have stated, essentially, that for something to be illegal someone's rights have to be violated. This isn't true.

Something becomes illegal because some jurisdiction has passed a law against it. No more, no less. In the U.S., the general police power permits governments to pass laws that are intended to protect the public Health, Safety, Welfare, and/or Morals.

Needless to say, it is tough to think of anything that can't be forced into one of these categories.

[issackd]

(Mod's note: Merged with previous similar thread. - softwareNerd)

The goal of criminal law is to maintain the Queen's/public peace. Unlike TV where an assaulted individual can choose not to bring proceedings against someone criminally, in real life (at least in Canada) this is impossible. If A shoots and wounds B, then B can choose not to sue A in tort law, but A will still be tried in criminal law regardless of B's wishes.

Is this right? Should this be allowed to happen? After all, if B doesn't wish to sue A for the damage A caused, why should "society" care? Shouldn't it be up to the parties involved whether or not to bring an issue to court? I find the Canadian system to be useless and outdated. It should be up to the individuals in a society to maintain the Queen's peace, not some do-goodnik prosecutor's. The criminal code (in Canada a federal statute - not sure how it works in the US - if every state has its own criminal code) can be transformed into a private-related statute much like the Medical Consent Act.

I dislike criminal law for many reasons - it is impotent to stop real crime, it is bereft of moral clarity and purpose, it attracts quite a lot more sleazy individuals than other legal professions, and it wastes my money (through the taxes required for me to pay for some murderer's trial in Prince Edward Island).

The list above in not conclusive... hehe..

Any thoughts?

PS. What does the dollar sign on this forum mean? I'm not a paying member... am I in trouble?

Issack

Edited April 28, 2006 by softwareNerd

[EC]

Prosecuting criminal's regardless of the victim's agreement is proper because it uphold's the principle of Justice universally and in an unbiased manner.

The dollar sign is the symbol of the root of all good and is adopted by most Objectivists in the say way way a cross is used by most Christians. How much Objectivism have you studied so far?

Edited December 28, 2005 by EC

[DavidOdden]

The goal of criminal law is to maintain the Queen's/public peace.

Ach! I smell an is/ought coming on!

Unlike TV where an assaulted individual can choose not to bring proceedings against someone criminally, in real life (at least in Canada) this is impossible. If A shoots and wounds B, then B can choose not to sue A in tort law, but A will still be tried in criminal law regardless of B's wishes.

Yeah. Unfortunately, I think this is true in all Roman-influences societies. Generally, we have had the right to not cooperate with the prosecution, as victims, and ordinarily that would be the end of that. However, recently we moved closer to the brave new world where in Baltimore, victims were prosecuted for failing to testify against hoodlums.

Is this right? Should this be allowed to happen? After all, if B doesn't wish to sue A for the damage A caused, why should "society" care? Shouldn't it be up to the parties involved whether or not to bring an issue to court?

Ah, well, that's another kettle of cod. As it happens, I know of three quite relevant cases. In the case of Bill and Sally, Bill got plastered one night and whacked Sally on the beezer. Frankly I think they should have jailed him for a decade or so, but I don't really understand their personal dynamics, and I don't think he is actually likely to whacked her again or to whack anybody else. She seems to think so too. I would have given him a pass, if I were in a prosecutorial position, based on Sally's say-so. Then there is Bob and Timmy. Bob murdered Timmy: I'm not sure if Timmy would have sued, but since he's dead, we can't test that possibility. We do want to avoid the absurdity that escaping prosecution is automatic just in case you eliminate the victim. And finally, there is Mariah and Brittany, the latter of whom beat the crud out of the latter in a terrorist attack, and intimidated her victim to the point that poor Mariah was no longer able to stand up for her rights.

While I find the "protecting the public order" slogan to be rather creepy, there is an underlyingly valid point. If someone violates the rights of another, that is evidence that they have a broken moral system, and it is not reasonable to assume that they will respect the rights of others as a matter of course. In other words, sometimes a person's actions have to be evaluated not just in terms of what they have done, but what the facts indicate that they will do. Prognostication is very tricky, but sometimes the evidence can be clear that in one case, evil Brittany almost certainly will attack others but weak-willed Bill certainly will not attack anyone else, even Sally.

In short, the function of government is not just to protect a bunch of specific individuals from violation of rights which have actually befallen them, but to protect all citizens against rights violations, including rights violations that have not yet occurred. Prosecution should be predominantly about the wrong against the victim, but should also take into consideration the question of whether the criminal has threatened others.

The criminal code (in Canada a federal statute - not sure how it works in the US - if every state has its own criminal code) can be transformed into a private-related statute much like the Medical Consent Act.

I dunno what the latter is about (links?) but we have state and federal crimes. Most crimes are state crimes, though they have federal analogs (e.g. murder is a state crime but murdering a federal agent on the job is a federal crime). Theoretically, federal power is restricted and is supposed to control only cases where jurisdiction is not strictly within a single state. But that is a pretty remote ideal, and all we need is a few dozen more judges wielding the expression "compelling interest" like a berserker wielding an ax, and we can be done with this legal nonsense about state vs. federal crimes.

What does the dollar sign on this forum mean? I'm not a paying member... am I in trouble?

It's about your number of posts, and it's not a sign of an unpaid bill. If you're concerned, you can send me money (I take both US and Canadian dollars).