Harm and Justification in Negligence

Abstract

Negligence, the creation of an unjustifiable risk of harm, plays a pivotal role in both criminal and civil law. This article takes up two negligence-related problems unique to its role in the criminal law. The first has to do with its "harm" component, the second with its "unjustifiability" component. The first problem is why the criminal law distinguishes so sharply between negligent wrongdoing that results in harm and negligent wrongdoing that does not, when it does not distinguish equally sharply between intentional wrongdoing that results in harm and intentional wrongdoing that does not. The answer has to do with a peculiar feature in the logic of intention and with the symmetric way we ascribe responsibility for blameworthy and praiseworthy actions. My second problem is why the criminal law judges the blameworthiness of negligent actions on the basis of the harm wrought rather than the gap between the harm wrought and the justification for risking it. The answer has to do with a more general feature of the criminal law, the refusal to recognize "partial defenses" and "partial offenses."