Why Is Criminal Law?
Our legal system has two different sets of rules to do the same thing, deter people from injuring others by making it costly to do so. O. J. Simpson was first acquitted of the crime of killing his wife and then convicted of the tort of killing his wife. The essential difference between tort and crime is that a tort is treated as an offense against the victim, a crime as an offense against the state. The victim of a tort prosecutes or settles the case, agents of the state prosecute or settle a crime. Legally speaking, I can never be the victim of a crime; if I am robbed, assaulted or murdered the victim is not me but the state of California. If my attacker is Mr. Smith the case will be not “Friedman vs Smith” but “People of the state of California vs Smith.”
That difference is accompanied by several others. Conviction of a crime is supposed to require proof beyond a reasonable doubt, of a tort by a preponderance of the evidence. The punishment for a tort is a damage payment to the victim sufficient to compensate him for damage done.1 Punishment for a crime may be much greater than the damage done and, if a fine, goes the state. Conviction of a crime requires intent,2 conviction of a tort does not.
This raises two obvious questions: What features of an offense make it a crime or tort, how do those features explain the differences in the legal rules?
Possible Reasons for Offenses to be Crimes
Consider an offense such as burglary that is only sometimes detected. If it is treated as a tort and the burglar is caught one time out of ten, burglary looks like a profitable profession. Nine times out of ten the burglar keeps what he stole, one time out of ten he has to give it, or its value, back.
One could solve that problem by adding a probability multiplier to tort law — set the damage payment at ten times the amount stolen — but that raises other problems. It means that one victim out of ten gets the compensation owing to all ten. It may make it profitable to create an offense against yourself, frame an innocent party for it and sue him. We could solve both problems by having one compensation go to the victim, nine to the state. But a tort prosecution is controlled by the victim, who could agree with the burglar to drop the prosecution in exchange for a five-fold compensation.3
It might make more sense to treat burglary as a tort, have the state collect the ten-fold punishment, control the prosecution and pay its costs.
Next consider an offense with diffused costs such as littering or air pollution, one that produces a small cost for each of a large number of victims, no one of whom would find it worth suing for his share of the compensation, or an offense such as speeding or dangerous driving, where the cost is a risk to many. One could imagine modifications of tort law to cover such offenses, perhaps along the lines of a class action, but a simpler approach is to classify such offenses as criminal and subject to state prosecution.
Some offenses are more easily prevented than deterred. A tort victim who succeeds in his suit is compensated for his loss, which reduces his incentive to bear costs in order to prevent the offense. It might make sense to treat such an offense as a crime rather than a tort or as neither a crime or a tort. No good examples occur to me; perhaps a reader can offer one.
In order for tort law to provide adequate deterrence, the offender must be able to pay a damage judgement equal to the damage done. Some offenders may be judgement proof. If the offender cannot pay damages there is no incentive to sue him. One could deal with such cases by a hybrid of the two systems, have the state pay the damage payment to the victim and impose a criminal punishment on the convicted offender, but that may raise other problems.
Does This Explain What Offenses Are Crimes?
Robbery and burglary are crimes. More than half of murders are solved but a murderer is unlikely to have enough resources to pay for damage done. Speeding, dangerous driving, littering are prosecuted as crimes, not torts. The explanations offered make at least a rough fit.
Does This Explain The Differences Between Tort and Criminal Law?
The fact that criminal law is enforced by the state provides a possible explanation for the higher standard of proof. The state has more resources for prosecution and more control over the court system — the judge, after all, works for the same organization as the prosecutor, even if a different branch — so it makes sense to make it harder for it to convict the innocent. A second reason might be the difference in the form of punishment in the two systems. A damage payment is a transfer; what one party loses another gains. If tort verdicts are sometimes mistaken, that means that sometimes I pay you money I shouldn’t and sometimes you pay me money you shouldn’t. The same is true for a fine but criminal law exists in part to deter people who are judgement proof, cannot pay an adequate fine. Mistakes in criminal cases mean that sometimes I lose my liberty and you have to pay for the prison, sometimes you lose your liberty and I have to pay for the prison, a net cost rather than a transfer. We should take more care to avoid more costly mistakes.
On The Other Hand: Different Legal Systems
This is only a simple sketch of a complicated question, as suggested by comparing the answers to the same questions in other legal systems. In traditional Islamic law, assault and murder were prosecuted by the victim or his kin, the punishment compensation or retaliation as they preferred. In Eighteenth Century England all crimes, with the exception of ones actually against the government, were privately prosecuted by the victim or his agent, like torts in our legal system — and theirs. The victim did not have a legal right to an out of court settlement but could, sometimes did, do the equivalent informally and illegally, accept a payment in exchange for dropping the prosecution. In saga period Iceland both prosecution of offenses and enforcement of the court verdict were private.
Imperial China, in contrast, had no tort law. If I lent you money and you refused to pay it back all I could do was report you to the District Magistrate as a swindler, a criminal offense.
That was the theory of the law as expressed in law codes and legal writing, not necessarily the practice as observed in court documents. The District Magistrate, a busy man, tells us to come back in a week or two. I point out to you that swindlers are severely punished. You agree to pay the money. We cannot drop the case, since it is criminal not civil, but the Magistrate is a busy man; when we come back to him and humbly request that he drop it he generously agrees. Think of it as the substance of tort law in the form of criminal law.
For much more on those legal systems and others, past and present, see my Legal Systems Very Different from Ours.4 For a more detailed discussion of the tort/crime puzzle centered on the idea of replacing criminal law with a suitably modified form of tort law see Chapter 18 of my Law’s Order. One of my favorite speech titles used to be “Should We Abolish the Criminal Law?”
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Punitive damages are an exception.
There are again exceptions, mostly along the lines of “knew or should have known.”
For comparable issues in 18th century English criminal law, which was privately prosecuted by the victim, see the chapter on that system in my Legal Systems Very Different From Ours.
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Now that many cities' judges and prosecutors have become politically corrupt, the calculation changes. For example, in Portland the police will do nothing to Antifa members if they rob or bully you, but will put you in prison if you try to defend yourself. The only obvious remedy is not to live there, but many US and European cities are like that now.
While I usually think that personal injury tort judgments overstate the damage to the plaintiff, there is one very important exception. The survivors of a murder (or other wrongful death) victim cannot collect for the value to the victim of the victim's life, as deduced from, e.g., the victim's investments in safety.
That leaves potential wrongful-death-tortfeasors with an incorrectly low incentive to avoid harming the prospective victims. As to those from whom nobody derives material gain (including without limitation imputed material gain, such as consortium), the tort law does not protect them at all against wrongful death!
That result is intolerable, especially if you abolish the criminal law.
It seems to me likely that recovery for "intentional infliction of emotional distress" is a legal fiction covering for the fact that there is, as above, no tort recovery even for manslaughter and murder.