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May 28, 2010


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I'm certainly no expert, but are you thinking of cases involving tort law but not criminal law?

Coleman lays out the difference in Chapter 4 of the introduction to Phil Law he co-wrote with Murphy - it is available via Google books.

This is not what I was thinking of, Brad, but it makes perfect sense, I suppose, for "legal responsibility" to include both responsibility in the criminal arena ("criminal responsibility") and responsibility in the tort arena (or perhaps "legal reponsibility" refers just to the latter arena).

I was really wondering, however, whether or not responsibility with respect to just the criminal law could still involve a distinction between criminal and legal responsibility. I'll tip my hand a shade: one might think there are what we could construe as "merely regulatory" criminal laws, violations of which don't involve much stigma or outcry. One might not want to attach "criminal responsibility" to such violations, but one could nevertheless be legally responsible for them. I guess I'm wondering whether or not this is a usage occurrent in the literature.

I am not sure about the "usage" question, but depending on one's theory of criminal responsibility, there surely could be a difference. For example, many criminal law theorists believe that wrongfulness (and associated mental states) is required for criminal responsibility, but tort law (and a variety of regulatory regimes) attach legal responsibility to actions which are not wrongful (in the sense specified by criminal law theory). Hence, one might believe that "strict liability" can create legal responsibility but that something more (e.g., some level of intentionality) is required for legal responsibility.

Is this the kind of thing you are trying to ask about?


The distinction you describe in your comment sounds a lot like the distinction between "mala in se" and "mala prohibita" crimes. The former are crimes that are, in some sense, morally wrong in and of themselves, independent of any legal prohibition we may have created (e.g., rape, murder).

By contrast, a malum prohibitum crime is wrong by virtue of the fact that we have come together as a society to prohibit it by statute. So a statute that criminalized "driving on the left side of the road" would describe a malum prohibitum crime because, in the absence of the statute, there is nothing morally wrong with driving on the left side of the road.

The malum in se and malum prohibitum distinctions do appear frequently in criminal law literature, though I don't think there's an orthodox definition that neatly and comprehensively distinguishes the two categories.

Lawrence: As I said to Brad, this may well be the way in which many people think of the distinction (one attaching to wrongs, one attaching to non-wrongful regulations). But I was also wondering if the distinction might be deployed by some people entirely within the realm of criminal wrongdoing (something which Adam is referring to -- more on that below).

I am, however, surprised to hear you bring up strict liability in this context. For one thing, strict liability laws are part of the criminal law, so on the distinction you seem to be suggesting (between criminal wrongs and torts, say), it should fall under the rubric of criminal responsibility (and I assume the second mention of "legal" in your penultimate sentence was meant to be "criminal"?). For another thing, now I'm wondering if legal theorists do typically try to exclude strict liability from criminal responsibility. I know some authors (e.g., Victor Tadros) say that the state should be very cautious about strict liability (for theoretical reasons), but he doesn't go quite so far as to say that strict liability shouldn't fall under the criminal law or be something for which one can't be criminally responsible.

Adam: the in se/prohibita distinction may well do what I'm thinking of. The question, then, is whether or not there are folks who think the concepts of criminal and legal responsibility are divided in this way. One could go one of two ways: either attach "criminal responsibility" to all and only agents whose conduct violates any criminal law (which includes mala prohibita violations), or just attach "criminal responsibility" to all and only agents whose conduct violates merely mala in se laws. If the latter, then I'm assuming one would be legally responsible for violations of mala prohibita laws. So I'm wondering if there are those who use the terms in this way.

I can't speak to philosophical usage, but from a legal perspective, and IMHO, "criminal responsibility" is a subset of "legal responsibility," one applied under stricter standards. "Legal responsibility" thus typically means (1) criminal; (2) tort; (3) civil penalties; or (4) injunctive relief.

I'd say there's "good reason" to separate out "legal responsibility" from "criminal responsibility" given the differing purposes of "criminal" law from the other three issues addressed above and the different standards attached to criminal law. There's a huge universe of activity that makes one "legally responsible" -- typically synonymous which "responsible to pay for the damage" -- and a far smaller universe of activity that makes one "criminally responsible," which is typically synonymous with physical confinement.

To give an example, few would disagree that BP should be "legally responsible" (at least to some extent) for the spill in the Gulf. Far fewer would agree that individual BP officers should be "criminally responsible" for what happened there, or at least would demand far more information and proof than they currently have.

FYI, "strict liability" conceptually appears both in criminal law and in tort law. I'd venture to say the term "strict liability" more often refers to the tort concept in which liability attaches regardless of fault, and less often refers to the underpinning of crimes without a mens rea requirement.

I actually don't think what you want is the in se / prohibita distinction. Things that are only wrong because prohibited can still be very much wrong, and come with a justified stigma, etc.
I think that the distinction you're after is really that between "real" criminal law, outlawing wrong stuff and punishing bad guys, on one side; and what is better seen as merely administrative stuff, even if formally it's a part of what we're inclined to classify as criminal law (like some kinds of regulation bylaws, some traffic laws that don't involve endangering lives, etc.). Right?
This is indeed a distinction I've heard before -- some parts of the criminal law aren't really parts of the criminal law. And then one way you may want to describe it is by saying that people who violate these parts of the criminal law are not really criminals, and are not really criminally responsible.
But notice that the distinction doing the work here is not primarily about responsibility. It's primarily about different kinds of legal norms. In this respect, it is, at the end of the day, close to the tort point you rejected. No?

I don't know if this is useful for your purposes or not, but it occurred to me that there may be a number of cases in which we would say that someone is criminally, but not legally, responsible for something.

The relevant cases would be those in which a guilty person is not convicted for the crime. A murderer, say, who is (wrongly) found not guilty (or whose case is dismissed on some technicality). We might say that the man is criminally responsible (he intentionally killed somebody), but the law does not hold him responsible for this and so he is not legally responsible.

Similarly, we may be able to reverse these kinds of cases to generate instances in which a person is legally responsible but not criminally responsible: anytime an innocent person is convicted of a crime.

Also: Dave, you noted that you were thinking of crimes that don't seem to evoke any outcry or outrage. Are you getting at the thought that calling somebody "criminally responsible" implies condemnation of their behavior while calling somebody "legally responsible" need not? I'm not sure that The Law (or the rulings of courts/judges) would recognize this kind of distinction, but I'd be inclined to say that the colloquial sense of "criminal" works this way. Nobody calls me a criminal for speeding but they surely would if I robbed a bank. Though the law may label me a "criminal" in both cases.

Thanks for the helpful comments, folks (and hi, Corwin!). I was basically asking two questions: (a)is there a common understanding or usage in legal theory that distinguishes between "criminal responsibility" and "legal responsibility"? and (b) independently of the answer to (a), might there be good reason to distinguish between two such concepts and on what grounds? What I've gathered from the responses thus far is that the answer to (a) is "probably not." While there may be a distinction between uses, it's unclear to me that there's a common understanding of the distinction.

With respect to (b), there have been a variety of possible replies, suggesting several different ways to draw the distinction: between the criminal law and torts, between mala in se and mala prohibita, between "real" wrongs and certain administrative/regulatory wrongs, or between those who ought to be convicted and those who were convicted. I don't have a dog in this hunt (and so also shouldn't be taken to have "rejected" any proposed distinction thus far), but I had some hunches about how the distinction might be presented or defended by some and I was curious to see if they'd come out. They have, but others have as well, so I'm not sure what lessons to draw.

A few things. First, David, I'm not sure you're right to say that the issue here is primarily about the legal norms, not responsibility. As Corwin suggests, one might well take one key aspect of criminal responsibility to be about the communication of certain sorts of expressions to criminals, e.g., attitudes like indignation or at least judgments that stigmatize (e.g., predications like "criminal"!). So while determining which norm violations get one the tag of "criminally responsible" may seem to be primarily about norms, that determination might be more fundamentally informed by worries about the fairness of the stigmatization that comes with being criminally responsible. At the very least, issues of responsibility and issues of norm determination could be arrived at hand in hand.

Thanks also to Max for the helpful clarifications, esp. about strict liability.

One final question, if people still care. Corwin raises the possibility that one might be legally responsible but not criminally responsible, and vice versa, and that this distinction could have to do with one's being convicted of some crime. This raises an important question I've been mulling for a little while myself. One possible construal of the nature of criminal responsibility is that to say one is CR is to say one has been appropriately convicted of a crime. This understanding would rule out those who haven't been convicted of anything being criminally responsible for anything (but because of the "appropriately" modifier, it would also mean the innocent man wouldn't be criminally responsible despite having been convicted of such). Does this understanding accord with intuitions? It would mean, for example, that the mobster who dies at home in his sleep, having never been convicted of his many murders, isn't criminally responsible for the murders.

Now of course he'd be morally responsible for them, and inasmuch as he's MR, we might say he "deserves punishment for his crimes." But that may be a response merely to his MR, and not a thought about his being CR. At any rate, I wonder what people's conceptual intuitions would be about this sort of case.

There are a number of distinctions we might draw here.

1) Mala in se/ Mala prohibita - but as noted mala prohibita can be seriously wrongful, it's just that the wrongfulness depends on prohibition.
2) Criminal responsibility/ criminal liability - this is a distinction that Antony Duff drew in Answering for Crime. To be criminally responsible, Duff suggested, is to require a response, but that response might be to offer a justification or excuse which would vitiate criminal liability. I tended to use criminal responsibility to refer to what Antony calls criminal liability, and I think that is the more common usage.
3) Criminal law/ administrative law. Some jurisdictions formally classify things that the US and UK include within criminal law as a separate category of administrative offences. They are not intended to carry the stigma of the criminal law and don't normally carry a prison sentence. Germany is one example. In applying the right to a fair trial in the context of the European Convention of Human Rights, this distinction is sometimes drawn - there are greater fair trial protections for 'real' criminal law.
4) to deal with David's final question, we might distinguish between those who are criminally responsible and those who have been held criminally responsible. That a person is criminally responsible implies that the person is (or in the case of the mobster, was) liable to be convicted and punished for an offence. That means that the state would be permitted to do so (perhaps given that some conditions are fulfilled - for example, a person can be criminally responsible for domestic abuse even if it would be wrong to prosecute that person because doing so would have a very serious detrimental effect on the victim). But a person can be liable to be treated in that way without actually having been treated in that way.

criminal lawyers and philosophers are still working out the best way to conceptualise the territory here, so there is no settled language about some of these issues.

Hope this helps


Very helpful indeed, Victor. Thank you.

One niggling point: I take it that the relevant distinction you're running at the end is between being criminally responsible and being found to be criminally responsible (i.e., being the subject of a verdict). Being held criminally responsible is a further matter of sentencing, yes? Or are findings of responsibility (which are just judgments, after all) referred to as well as "holdings"?

I suppose these may seem to be overly pedantic or trivial questions/issues, but my ultimate goal is to get a fix on the relation, if any, between criminal and moral responsibility, and so I need to get as clear as possible on the terminological/conceptual terrain to do so properly.

Good niggling point.

Criminal law is generally thought to involve both publicly censuring a person and punishing them. Some people think that there is an important relationship between these two functions. When a person is convicted of a criminal offence, that person is publicly ensured. We normally think that when a person is blamed in the moral realm they are at the same time held responsible for what is done. So I would say in the criminal realm that conviction of an offence involves both finding that the person was criminally responsible and at the same time holding that person responsible for what they have done (when the jury say 'guilty' they might be seen as both declaring that the person was responsible for a criminal act and expressing, in the name of the state, that the defendant committed a public wrong). In other words, the person can be held criminally responsible before the sentencing stage.

But I can see that there might be something to the idea that we can find a person criminally responsible without holding that person responsible in principle, even if the distinction is unimportant in practice.



Greetings. I just wanted to point out that one could draw a distinction between criminal and mere legal responsibility in the following way: To be criminally responsible is to be guilty both in terms of the actus reus and mens rea of a criminal offense. Being criminally responsible opens one up to hard treatment, punishment, etc.

Sometimes offenders are found to be criminally responsible for crimes that are mala in se and sometimes for crimes that are mala prohibitum. The important point is that in both cases, society labels the offenders as criminals and treats them accordingly.

Now contrast these cases with cases involving offenders who are found to be innocent by reason of insanity. In the case of the successfull insanity defense--which is exceedingly rare, I might add--the offender is excused when it comes to criminal responsibility. As such, the criminally insane are not subject to hard treatment and punishment. However, insane defendants can nevertheless be subjected to indefinite detention in the form of forced hospitalization.

In this case, while the offender is not criminally responsible, he is nevertheless legally responsible. After all, judges and jurors have the authority to remove the offender from society for his actions even if those actions were not culpable. Moreover, these two cases are to be distinguished from cases involving defendants who are found innocent--i.e., neither legally or criminally responsible.

Now, it is admittedly unclear to me whether this way of carving things up sheds any light on the question you posed, but it seems like another place where morality and legal accountability fall apart and hence another place where a distinction needs to be drawn. Whether this particular distinction is relevant to the one you're stalking remains to be seen. I nevertheless thought it was worth mentioning just in case!

Hi Dave!

As a quick pass I'd be inclined to cut things in the following sort of way.

Legal responsibility refers to the judicial "holding" that one is guilty, liable, etc.

Criminal responsibility refers to something else. There are, I think, two ways one could go here and I'm not sure which I prefer.

On the one hand, we might wish to say that somebody is criminally responsible iff they are morally responsible for an act which they perform that counts as breaking the law (whether the courts make a ruling to this effect or not). The worry here is that the law doesn't always require moral responsibility as a condition of "legal guilt" (mens rea, I think, is supposed to do some work here, but I don't think it goes all the way) and so this view implies that one could be, according to the standards of law, guilty of committing a crime even if one is not criminally responsible. (This is still to be distinguished from being legally responsible.)

On the other hand, we might wish to say that one is criminally responsible iff one performs an act that counts as breaking the law (regardless of one's moral responsibility for that act). My worry here - and I haven't thought it all the way through yet, so there may be an easy answer here - is that I'm not sure how to develop a coherent notion of the "responsibility" involved in criminal responsibility in this case. This route does, however, at least preserve the link between criminal responsibility and legal liability for punishment or sanction (where liability here is determined by the requirements of law), and so makes "criminal responsibility" a purely legal concept.

Victor: This is actually a distinction I'm quite interested in, one that could actually be very important in terms of considerations of fairness. So suppose the jury finds that someone is guilty of murder. What the verdict does is express a public judgment about the defendant, and in so doing it attaches ostensibly stigmatic labels to him: "murderer," or more generally "criminal." Now to this point all that's involved is a judgment, and while some defendants may take this to count as some sort of sanction, others won't (think of the gang member who wears the label with honor). And indeed, it's just not clear to me that the point of the verdict has anything to do with sanctioning the defendant at all; rather, it's merely to come to a "finding" w/r/t the defendant's responsibility: is the action something that's properly attributable to the defendant, and was he in fact culpable for it (i.e., did he do that illegal thing knowingly, and under control, etc.)? Merely rendering a judgment on someone thus doesn't raise considerations of fairness, given that its point isn't to sanction the defendant. Holding the defendant responsible for his deeds, however, does involve a sanction--that's its precise point--and in the criminal case this involves some sort of punishment (which is presumably a serious setback to anyone's interests, even the gang member). So here fairness matters: it would be unfair to punish someone who couldn't meet certain conditions. My own thought is that these conditions make reference to access to a certain subset of practical reasons, but that's neither here nor there for our purposes now. What matters is just that this distinction allows an important wedge between findings of responsibility and holding responsible: the state could be warranted in judging someone to be responsible for something which it would actually be unfair to hold him responsible for. Or anyway, that's the sort of idea I'm pursuing in a few projects these days.

Thomas: Greetings back (I'll see you next Wed. in Portland!). A couple things. First, I thought the verdict in insanity cases was not guilty by reason of insanity (not "innocent"). Second, though, I would think that insanity renders one neither criminally nor legally responsible. Just because the state has the authority to remove you from society, that doesn't mean you're responsible for what you've done. The state has the authority to remove dogs or children from society too, but they're not legally responsible. The state is, in the insanity case (and child/dog case too), institutionalizing the parties, but not punishing them, I think. Punishment does require responsibility of some sort, surely.

Nevertheless, this point does go to my suggestions to Victor above. Given the distinction I'm pressing, one might in fact judge some insane defendant to be guilty (after all, perhaps the action flowed from his ends and values, warped though they may be) but nevertheless not hold him to be responsible, given his inability to track the relevant moral/legal reasons. One would then at most be justified in treating or institutionalizing him.

Corwin: I'm not sure about either of your proposals. The first, as you seem to imply, runs into difficulty with strict liability cases. The second, though, would allow for the possibility of children being criminally responsible, which I'd be loathe to accept.


It seems eccentric, to me at least, to think that blaming a person for their action doesn't involve holding them responsible, but only finding that they are responsible. I think that it's normal to withhold blame from the person who is insane. So if the guilty verdict amounts to a kind of public blaming, I would have thought that this involves holding defendants responsible for what they have done. Although blame is not best seen as a sanction, it can nevertheless be unfair to blame a person.

I suspect that the better distinction between finding and holding is that in finding we need not engage the person in an accountability practice. If I find that you are responsible for something I might decline to hold you responsible for it, in the sense that I don't invite you to answer for your conduct.

I am partial to the view that there are different considerations of fairness which apply to punishment. We might think that blame for an action is appropriate only if a person's culpable attitude is reflected in her action. Punishment might be appropriate, in contrast, only if the person had an adequate opportunity to avoid the sanction. Whilst these things often go together, they may not, and so there may be cases where blame but not punishment is appropriate, and perhaps vice versa.

Victor: I'm not suggesting a distinction between blame and holding responsible; indeed, I take the former to be an instantiation of the latter. Holding someone responsible consists in responding to a judgment of responsibility. But those responses -- whether or not one holds someone responsible/blames him -- are subject to the pressures of other sorts of reasons as well. For instance, in the realm of moral responsibility, I may judge that your adultery was wrong but not hold you responsible for it in virtue of the fact that I cheated on my wife too and so lack standing to blame you. (Angela Smith has a very nice paper on these sorts of issues, called "On Being Responsible and Holding Responsible," Journal of Ethics 2007.)

What I'm suggesting, then, is more along the lines of what you're suggesting in your second paragraph above, a distinction between finding responsible and holding responsible-in-the-accountability-sense. (Whether or not I agree that accountability is answerability is a matter for another day.) What I'm saying is that I agree it's normal (and right) to withhold blame from the person who's insane, but that doesn't mean a finding of responsibility may not be warranted (given that such a judgment is about the ends expressed in that person's actions and not about blame/holding responsible). I thus don't think the guilty verdict in and of itself "amounts to a kind of public blaming." Affixing a moral predicate to someone ("murderer," say) doesn't necessarily involve blaming--and that surely doesn't have to be its primary function--so this allows for what I think is an interesting wedge between finding and holding responsible in the criminal responsibility realm that's worth discussing. (Or at least so I'll try to argue.)

The term "legal responsibility" is most useful when one wants to contrast it against "moral responsibility." Once you are within the realm of "legal responsibility," there are lots of different ways for one to be "legally responsible," and "criminal responsibility" is just one of them. And this is common usage (it may seem uncommon only because it is generally an unstated assumption). So the answer to your question (a) is yes, and this is the answer. Any other way of using the term "legal responsibility" (that is, as something other than an umbrella term to encompass all ways in which one may be responsible from the law's point of view) is to invite confusion in my view.

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