Strict and Constructive Liability

Abstract

This chapter reflects on strict and constructive liability. Strict liability is widely thought by scholars to be unjustified in the criminal law. There is, moreover, a broad consensus about why strict liability is wrong: it violates the culpability principle. It leads to conviction of persons who are, morally speaking, innocent. Convicting and punishing those who do not deserve it perpetrates a serious wrong. Thus, strict liability is a misuse of the criminal law—an institution which, because of its moral significance and grave implications for the lives of convicted defendants, should be reserved only for the regulation of serious wrongs done by culpable wrongdoers. The chapter endorses this argument and explores it in more detail. It considers the ‘instrumental’ arguments for and against using strict liability in criminal law. It also distinguishes between stigmatic crimes and quasi-criminal regulations, concluding that persons have a right not to be convicted when blameless. Finally, the chapter argues that there are some crimes containing formally strict liability elements that nonetheless do not violate the culpability principle. These crimes impose not strict but constructive liability.