Foreword: The Criminal-Civil Distinction and Dangerous Blameless Offenders

Abstract

Our legal system distinguishes criminal law from civil law, and criminal commitment from civil commitment. We speak of a crime, rather than a or a breach, and punishment, rather than sanction or liability. Why is criminal law kept distinct? One can conceive of a system in which no such criminal-civil distinction exists. An actor who commits a violation of the legal rules of conduct (not a crime) would have jurisdiction taken over him (not convicted), during which time he would be corrected or sanctioned (but not punished). Under this system, what is now dealt with as criminal law would be treated as just another aspect of civil law. In fact, because it is not unusual for different aspects of civil law to have different procedures, perhaps even current criminal procedures could be followed. Some academics have proposed just such a system,1 although I know of no society in which such a system currently operates. Why are societies persistent in maintaining a distinct system labelled as criminal? Criminal law is not unique in the conduct it punishes; some conduct violates criminal and civil law.2 Nor is criminal law unique in the deprivations that it imposes; civil commitment, tort law, and a variety of other civil measures can deprive a person of his or her