Hart on Strict Liability and Excusing Conditions

Abstract

At least two philosophically significant features set human actions apart from every other type of event. Actions are unique because you may have to bear responsibility for your deeds and their effects: you may be punished, or forced to compensate others, because of what you have done. Another earmark of action is our practice of characterizing people's behavior by reference to their concurrent mental states-for example, when we report that someone deliberately, or perhaps unintentionally, started a fire. Both these traits of action take on clear relief, and become mutually relevant, in criminal law and some areas of civil law, notably torts. An agent's mental state is one factor we consider in determining how responsible he is. Most criminal and some civil liability requires that he should be aware of what he is doing and intend to be doing it. If he is proven to be in one of the recognized excusing conditions of mind, such as ignorance or insanity, then this requirement of awareness and intention is unsatisfied, and the lawbreaker is usually not held fully accountable. Whether there is such a requirement for every type of criminal offense is the main topic of this discussion. How in detail do and should various states of an offender's mind bear upon judicial decisions, at the stage of conviction and of sentencing? This is one recurrent theme of Professor H. L. A. Hart's collected essays, Punishment and Responsibility (Oxford, 1968; all page references concerning Hart will be to this volume). As a counterpoint, Hart nearly always compares criminal offenses which admit excusing conditions with strict(or absolute) liability offenses, on which he joins most liberal-minded writers in heaping odium. (pp. 20, 34, 136, 152, 176). In general, Hart characterizes strict-liability crimes as (i) offenses regarding which the prosecution does not have to prove mens rea, awareness and intention of violating law, and (ii) offenses for which you cannot escape responsibility, partly or altogether, by proving that you were in a condition that normally excuses. In Hart's words: There are . . . offenses (. .. of 'strict liability') where it is not necessary for conviction to show that the accused either intentionally did what the law forbids or could have avoided doing it by use of proper care: selling liquor to an intoxicated person, possessing an altered passport, selling adulterated milk are examples . . . where it is