Negligence is a problematic ground for criminal liability. Every major Western legal system punishes negligent as well as intentional violations of protected interests; but theorists both here and abroad feel uneasy about the practice Negligent motoring and negligent manufacturing significantly threaten the public interest; yet Western judges seem more comfortable punishing counterfeiters and prostitutes than imposing sanctions against those who inadvertently take unreasonable risks. Negligence appears indeed to be an inferior, almost aberrant ground for criminal liability. Every interest protected by the criminal law is protected against intentional violations; but only a few-life, bodily integrity, and sometimes property-are secured against negligent risks. Although any offense may be committed intentionally, the prevailing Western rule of statutory interpretation is that negligence is punishable only if the criminal code so prescribes. Many common law courts hedge further against punishing negligence by requiring something more than ordinary negligence to support a criminal conviction.4 All of these restrictions reflect the assumption that intentional conduct occupies the core of the criminal law while negligent risk-taking is a theory relegated to the fringes of criminal responsibility.
Criminal Law | Criminal Procedure | Law
George P. Fletcher,
The Theory of Criminal Negligence: A Comparative Analysis,
U. Pa. L. Rev.
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