On the standard conception, the primary fault underlying a negligence claim is the actors failure to take a reasonable precaution against the risk of harm. To be sure, tort law demands compensation for negligently-caused harm and normally does not provide a remedy for negligence unless the negligence results in harm. Still, it is the negligent act that determines the actors fault. In other words, the state of affairs in which the negligent act does not occur is clearly preferable to that in which the actor negligently causes harm but pays The determination that an actor is negligent is made from an ex ant perspective, considering the foreseeable risks from the actor's conduct and the foreseeable benefits(in the form of risk-reduction) from the actors taking a precaution. Negligence depends on foresight, not hindsight; on the reasonably apparent state of the world at the time of the action at issue, not on the actual state of the world at that time. Moreover, although negligence necessarily involves risk-creation, negligence might or might not cause harm The standard conception treats negligence as an evaluative criterion, and as a conclusive judgment of fault. If an actor is negligent, then he should have acted differently. By creating an "unreasonable"risk of harm, or failing to take a reasonable" precaution against harm, he is necessarily unjustified in acting he did. And if harm follows, he will be liable in damages. By contrast knowingly"or "intentionally" creating a risk of harm, even a very high risk of harm, need not be an unjustified act. (Intentionally or knowingly harming a person can be justified by self-defense, for example. Put differently, lack of See Simons, The Hand Formula, supra note 1=, at 905. Accordingly, negligence liability (even in tort law) is best understood as a property rule, not a liability rule, insofar as the tortfeasor is not deemed entitled to cause harm so long as he pays. See Guido Calabresi A Douglas Melamed, Property Rules, Liability Rules, and Inalienability: One View of the Cathedral, 85 Harv. L. Rev. 1089(1972). Similarly, tort liability for negligence is better viewed as a sanction, not a price. Robert Cooter, Prices and Sanctions, 84 Colum L.Rev.1523,1538(1984) A qualification: actors are sometimes liable for negligent omissions even when they have not created the risk of harm ider parents' du children,s health and safety. )In such cases, the actor has a duty to use reasonable care to reduce the risk of harm Page 5 of 57 Simons, Dimensions of Negligence 8/7/02
On the standard conception, the primary fault underlying a negligence claim is the actor’s failure to take a reasonable precaution against the risk of harm. To be sure, tort law demands compensation for negligently-caused harm, and normally does not provide a remedy for negligence unless the negligence results in harm. Still, it is the negligent act that determines the actor’s fault. In other words, the state of affairs in which the negligent act does not occur is clearly preferable to that in which the actor negligently causes harm but pays compensation.3 The determination that an actor is negligent is made from an ex ante perspective, considering the foreseeable risks from the actor’s conduct and the foreseeable benefits (in the form of risk-reduction) from the actor’s taking a precaution. Negligence depends on foresight, not hindsight; on the reasonably apparent state of the world at the time of the action at issue, not on the actual state of the world at that time. Moreover, although negligence necessarily involves risk-creation,4 negligence might or might not cause harm. The standard conception treats negligence as an evaluative criterion, and as a conclusive judgment of fault. If an actor is negligent, then he should have acted differently. By creating an “unreasonable” risk of harm, or failing to take a “reasonable” precaution against harm, he is necessarily unjustified in acting as he did. And if harm follows, he will be liable in damages. By contrast, “knowingly” or “intentionally” creating a risk of harm, even a very high risk of harm, need not be an unjustified act. (Intentionally or knowingly harming a person can be justified by self-defense, for example.) Put differently, lack of 3 See Simons, The Hand Formula, supra note 1=, at 905. Accordingly, negligence liability (even in tort law) is best understood as a property rule, not a liability rule, insofar as the tortfeasor is not deemed entitled to cause harm so long as he pays. See Guido Calabresi & A. Douglas Melamed, Property Rules, Liability Rules, and Inalienability: One View of the Cathedral, 85 Harv. L. Rev. 1089 (1972). Similarly, tort liability for negligence is better viewed as a sanction, not a price. Robert Cooter, Prices and Sanctions, 84 Colum. L. Rev. 1523, 1538 (1984). 4 A qualification: actors are sometimes liable for negligent omissions even when they have not created the risk of harm. (Consider parents’ duties with respect to their children’s health and safety.) In such cases, the actor has a duty to use reasonable care to reduce the risk of harm. Page 5 of 57 Simons, Dimensions of Negligence 8/7/02
justification is built into the very concept of negligence; but it is not part of the concept of knowingly or intentionally harming another In principle, one could break down the analysis of unjustifiable risk creation into two issues(1)the significance of the risk created; and(2)the justifiability of creating that risk(which we might also characterize as the burden of taking a precaution against that risk). The law could then explicitly develop a range of standards: creating a trivial risk of a trivial harm requires only a slight justification; creating a more significant risk of a trivial harm requires a more weighty justification; creating a significant risk of a more significant harm requires an even more weighty justification; and so forth. But the tort conception of negligence instead ordinarily employs a single standard, with a sliding scale: the justification for imposing a risk must ordinarily be weightier as the probability and severity of the harm risked increases. Only when the significance of the risk reaches a relatively high level, and the actor is aware of a relatively high level of risk or intends to cause harm, does the"sliding-scale negligence test give way to the qualitatively different standards for reckless and intentional torts Ill. The modern criminal law conception of negligence: unreasonable inadvertence and unreasonable mistake Although the standard tort conception understands negligence as unreasonably unsafe conduct, modern criminal law emphasizes a different cognitive conception of negligence--namely, the actors unreasonable inadvertence or unreasonable mistake. Criminal law employs other conceptions of negligence as well, but it will prove useful to characterize this cognitive conception as the"modern criminal law conception before introducing further complexity See Simons, Negligence, supra note 1=, at 56-57; Dan Dobbs, The Law of Torts sS26 See Draft Restatement (Third) of Torts, supra note 2=, s$1, 2 I describe this as the "modern"criminal law conception because the influential Model nal criminal law doctrine, by contrast, does not employ or emphasize any single conception of negligence. Instead, it contains a variety of doctrines that could be broadly classified as involving negligence-including Simons, Dimensions of Negligence 8/7/02
justification is built into the very concept of negligence; but it is not part of the concept of knowingly or intentionally harming another. In principle, one could break down the analysis of unjustifiable riskcreation into two issues—(1) the significance of the risk created; and (2) the justifiability of creating that risk (which we might also characterize as the burden of taking a precaution against that risk). The law could then explicitly develop a range of standards: creating a trivial risk of a trivial harm requires only a slight justification; creating a more significant risk of a trivial harm requires a more weighty justification; creating a significant risk of a more significant harm requires an even more weighty justification; and so forth. But the tort conception of negligence instead ordinarily employs a single standard, with a sliding scale: the justification for imposing a risk must ordinarily be weightier as the probability and severity of the harm risked increases.5 Only when the significance of the risk reaches a relatively high level, and the actor is aware of a relatively high level of risk or intends to cause harm, does the “sliding-scale” negligence test give way to the qualitatively different standards for reckless and intentional torts.6 III. The modern criminal law conception of negligence: unreasonable inadvertence and unreasonable mistake Although the standard tort conception understands negligence as unreasonably unsafe conduct, modern criminal law emphasizes a different, cognitive conception of negligence—namely, the actor’s unreasonable inadvertence or unreasonable mistake. Criminal law employs other conceptions of negligence as well, but it will prove useful to characterize this cognitive conception as “the” modern criminal law conception before introducing further complexity. 7 5 See Simons, Negligence, supra note 1=, at 56-57; Dan Dobbs, The Law of Torts §§26, 27 (2000). 6 See Draft Restatement (Third) of Torts, supra note 2=, §§1, 2. 7 I describe this as the “modern” criminal law conception because the influential Model Penal Code emphasizes this conception. Traditional criminal law doctrine, by contrast, does not employ or emphasize any single conception of negligence. Instead, it contains a variety of doctrines that could be broadly classified as involving negligence—including Page 6 of 57 Simons, Dimensions of Negligence 8/7/02
Cognitive negligence, or negligence in relation to beliefs, has two basic forms. An actor might be unreasonably ignorant or inadvertent in failing to form any belief about a relevant matter, when he should have formed a belief (Consider George above. )Or the actor might form a definite belief, but that belief might be unreasonably mistaken. (Consider Frank, above. )I will use the term cognitive negligence for both negligent inadvertence(when the actor unreasonably fails to advert to a risk or to an existing fact) and negligent mistake (when the actor forms the unreasonable and incorrect belief that the risk or fact does not exist). In either case, the actor is negligent for not forming a belief that he reasonably should have formed. 9 The highly influential Model Penal Code emphasizes a cognitive conception of negligence. Under the Code, negligence is the least"culpable" category of four " culpability terms. In order of increasing "culpability, with higher punishment potentially warranted for each increment, the categories are negligence, recklessness, knowledge, and purpose. In essence, a negligent general intent, mistake of fact, the mens rea for manslaughter, and requirements of self-defense 8 Or consider Claude: suppose he switched lanes on a highway without considering the possibility that someone was in his blind spot, and thus without realizing that his action posed a substantial risk of harm Inadvertence" and"mistake" are two basic categories of cognitive deficiency, i.e. of the actor failing to form a belief that he should have formed. But other categories also exist, such as agnosticism. See Simons, Rethinking Mental States, 72 B U. L. Rev. 463, 540 (1992) The Israeli Criminal Code appears to be similar in this respect Negligence means unawareness of the nature of the act, of the existence of the circumstances or of the possibility of consequences of the act being brought about, such nature, circumstances and consequences being ingredients of the offence, when a reasonable person could, in the circumstances of the case, have been aware of it Israeli Penal Code $21(a)(1995)(unauthorized English translation), reported at 30 Israel L. Rev. 1, 14(1996). However, a proviso to this section acknowledges a"conduct negligence requirement as Provided that he possibility of the consequences being brought is not a reasonable risk Page 7 of 57 Simons, Dimensions of Negligence 8/7/02
Cognitive negligence, or negligence in relation to beliefs, has two basic forms. An actor might be unreasonably ignorant or inadvertent in failing to form any belief about a relevant matter, when he should have formed a belief. (Consider George above.8 ) Or the actor might form a definite belief, but that belief might be unreasonably mistaken. (Consider Frank, above.) I will use the term “cognitive negligence” for both negligent inadvertence (when the actor unreasonably fails to advert to a risk or to an existing fact) and negligent mistake (when the actor forms the unreasonable and incorrect belief that the risk or fact does not exist). In either case, the actor is negligent for not forming a belief that he reasonably should have formed.9 The highly influential Model Penal Code emphasizes a cognitive conception of negligence.10 Under the Code, negligence is the least “culpable” category of four “culpability” terms. In order of increasing “culpability,” with higher punishment potentially warranted for each increment, the categories are negligence, recklessness, knowledge, and purpose. In essence, a negligent general intent, mistake of fact, the mens rea for manslaughter, and objective requirements of self-defense. 8 Or consider Claude: suppose he switched lanes on a highway without considering the possibility that someone was in his blind spot, and thus without realizing that his action posed a substantial risk of harm. 9 ”Inadvertence” and “mistake” are two basic categories of cognitive deficiency, i.e., of the actor failing to form a belief that he should have formed. But other categories also exist, such as agnosticism. See Simons, Rethinking Mental States, 72 B.U. L. Rev. 463, 540 (1992). 10 The Israeli Criminal Code appears to be similar in this respect: Negligence means unawareness of the nature of the act, of the existence of the circumstances or of the possibility of consequences of the act being brought about, such nature, circumstances and consequences being ingredients of the offence, when a reasonable person could, in the circumstances of the case, have been aware of it … Israeli Penal Code §21(a) (1995) (unauthorized English translation), reported at 30 Israel L. Rev. 1, 14 (1996). However, a proviso to this section acknowledges a “conduct negligence” requirement as well: Provided that – … (b) the possibility of the consequences being brought is not a reasonable risk. Page 7 of 57 Simons, Dimensions of Negligence 8/7/02
actor is one who should be aware of an unjustifiable risk; the reckless actor is aware of an unjustifiable risk but nevertheless takes it; the knowing actor is aware that a harmful result is practically certain to occur, or that an incriminating circumstance very probably exists; and the purposeful actor has the conscious object of achieving the result. 2 Why does the Code largely employ a cognitive conception of negligence? For two basic reasons first the code drafters wanted to ensure that some form of "conscious"wrongdoing would normally be required for criminal liability Doctrinally, they accomplished this by providing that "recklessness, rather than negligence, is the presumptive minimum culpability term for every material element of every crime. 3 Accordingly, recklessness is defined (in part)as awareness that a harm may ensue or that an incriminating circumstance might obtain At the same time, negligence is understood negatively, as a form of culpability in which the actor lacks such awareness. (Indeed, the only difference between negligence and recklessness under the Code is this difference in awareness.) Second, the drafters wanted negligence to fit within a structured 1 Model Penal Code $2.02(2)(d)(ALl 1985)(hereinafter"MPC"). Importantly, however, the mPC defines criminal negligence as a gross deviation from reasonable conduct; thus criminal negligence is a species of what tort law would call "gross"negligence, not ordinary negligence. Also, MPC negligence presupposes that the actor should have been aware of a"substantial risk of harm. I put aside for purposes of this article, the nteresting question whether this substantiality requirement (common to the MPC definitions of both negligence and recklessness) should be understand as an independent requirement, or instead as just an aspect of unjustifiability. See Larry Alexander, Insufficient Concern: A Unified Conception of Criminal Culpability, 88 CaL. L Rev.931,933935(2000) MPC, $2.02(2). Note two qualifications. First, the meaning of these culpability terms differs somewhat when they pertain to a circumstance element of an offense, rather thai a result element. Second, the MPc strongly disfavors strict criminal liability, or liability in the absence of any form of culpability. MPC $2.05 §202(3) Specifically, MPC "recklessness"requires that the actor be aware of a substantial risk of a relevant harm occurring or circumstance existing. MPC, $2.02 (2)(c) It need not have been so. Criminal recklessness could be distinguished from criminal negligence not according to consciousness of risk, but according to the actor,s greater Simons, Dimensions of Negligence 8/7/02
actor is one who should be aware of an unjustifiable risk11; the reckless actor is aware of an unjustifiable risk but nevertheless takes it; the knowing actor is aware that a harmful result is practically certain to occur, or that an incriminating circumstance very probably exists; and the purposeful actor has the conscious object of achieving the result.12 Why does the Code largely employ a cognitive conception of negligence? For two basic reasons. First, the Code drafters wanted to ensure that some form of “conscious” wrongdoing would normally be required for criminal liability. Doctrinally, they accomplished this by providing that “recklessness,” rather than “negligence,” is the presumptive minimum culpability term for every material element of every crime. 13 Accordingly, recklessness is defined (in part) as awareness that a harm may ensue or that an incriminating circumstance might obtain.14 At the same time, negligence is understood negatively, as a form of culpability in which the actor lacks such awareness. (Indeed, the only difference between negligence and recklessness under the Code is this difference in awareness.15) Second, the drafters wanted negligence to fit within a structured 11 Model Penal Code §2.02(2)(d) (ALI 1985) (hereinafter “MPC”). Importantly, however, the MPC defines criminal negligence as a gross deviation from reasonable conduct; thus, criminal negligence is a species of what tort law would call “gross” negligence, not ordinary negligence. Also, MPC negligence presupposes that the actor should have been aware of a “substantial” risk of harm. I put aside, for purposes of this article, the interesting question whether this substantiality requirement (common to the MPC definitions of both negligence and recklessness) should be understand as an independent requirement, or instead as just an aspect of unjustifiability. See Larry Alexander, Insufficient Concern: A Unified Conception of Criminal Culpability, 88 Cal. L. Rev. 931, 933-935 (2000). 12 MPC, §2.02(2). Note two qualifications. First, the meaning of these culpability terms differs somewhat when they pertain to a circumstance element of an offense, rather than a result element. Second, the MPC strongly disfavors strict criminal liability, or liability in the absence of any form of culpability. MPC §2.05. 13 MPC, §2.02(3). 14 Specifically, MPC “recklessness” requires that the actor be aware of a substantial risk of a relevant harm occurring or circumstance existing. MPC, §2.02(2)(c). 15 It need not have been so. Criminal recklessness could be distinguished from criminal negligence not according to consciousness of risk, but according to the actor’s greater Page 8 of 57 Simons, Dimensions of Negligence 8/7/02
hierarchy of mental states or culpability terms, under which higher forms of culpability within the hierarchy correspond to more serious crimes. (As we will later see, however, the cognitive conception only imperfectly achieves either of these objectives. One straightforward example of the role of the cognitive conception in the Code hierarchy is the law of homicide. Purposely or knowingly causing a death is murder, the most serious form of homicide; recklessly causing a death is manslaughter; and negligently causing a death is negligent homicide, the least serious form of homicide. 6 Thus, if an actor causes death and is grossly negligent in lacking awareness of a substantial and unjustifiable risk of death, he has committed negligent homie the Code hierarchy, a legislature could differentiate three different degrees of rape according to the actor's culpability with respect to the critical circumstance element, the victim's nonconsent. A defendant who had sexual intercourse with the victim knowing that she did not consent might, for example, be guilty of first degree rape: a defendant who was reckless as to her nonconsent might be guilty of second degree rape; and a defendant who was negligent as to her nonconsent might be guilty of a third degree. Thus, an actors beliefs can be ordered in a hierarchy both when the indifference to risk or her more seriously culpable reasons for creating an unjustifiable risk. (One example of the latter approach is the usual doctrinal presumption, even in the MPC, that an intoxicated actor is legally "reckless"even if he is in fact unaware of the relevant risk is an example of such a distinction ) Similarly, it is plausible to treat an actor as "reckless" if she is actually aware of a very slight risk and should have inferred that the risk was substantial; but the Code apparently would treat such an actor as only negligent, since she lacks actual awareness of a substantial risk. Insofar as non-Code criminal law doctrine distinguishes recklessness from negligence, it sometimes uses a criterion other than awareness of a substantial risk. See Joshua Dressler, Understanding Criminal Law S10.04[D][3](3d. ed, LEXIS 2001)(formerly recklessness was on a continuum, together with criminal negligence and civil negligence, based on degree of risk); id, $10.07[B] 3 (MPC influenced transformation of recklessness-negligence distinction from degree of risk to awareness); Wayne R. LaFave, Criminal Law $3.7 n. 6(3rd ed, West 2000) (recklessness has been distinguished from negligence variously by degree of risk awareness of risk, or both) 6MPC§9210.2,2103,210.4 Simons, Dimensions of Negligence 8/7/02
hierarchy of mental states or culpability terms, under which “higher” forms of culpability within the hierarchy correspond to more serious crimes. (As we will later see, however, the cognitive conception only imperfectly achieves either of these objectives.) One straightforward example of the role of the cognitive conception in the Code hierarchy is the law of homicide. Purposely or knowingly causing a death is murder, the most serious form of homicide; recklessly causing a death is manslaughter; and negligently causing a death is negligent homicide, the least serious form of homicide.16 Thus, if an actor causes death and is grossly negligent in lacking awareness of a substantial and unjustifiable risk of death, he has committed negligent homicide. Similarly, consistent with the Code hierarchy, a legislature could differentiate three different degrees of rape according to the actor’s culpability with respect to the critical circumstance element, the victim’s nonconsent. A defendant who had sexual intercourse with the victim knowing that she did not consent might, for example, be guilty of first degree rape; a defendant who was reckless as to her nonconsent might be guilty of second degree rape; and a defendant who was negligent as to her nonconsent might be guilty of a third degree. Thus, an actor’s beliefs can be ordered in a hierarchy both when the indifference to risk or her more seriously culpable reasons for creating an unjustifiable risk. (One example of the latter approach is the usual doctrinal presumption, even in the MPC, that an intoxicated actor is legally “reckless” even if he is in fact unaware of the relevant risk is an example of such a distinction.) Similarly, it is plausible to treat an actor as “reckless” if she is actually aware of a very slight risk and should have inferred that the risk was substantial; but the Code apparently would treat such an actor as only negligent, since she lacks actual awareness of a substantial risk. Insofar as non-Code criminal law doctrine distinguishes recklessness from negligence, it sometimes uses a criterion other than awareness of a substantial risk. See Joshua Dressler, Understanding Criminal Law §10.04[D][3] (3d. ed., LEXIS 2001) (formerly recklessness was on a continuum, together with criminal negligence and civil negligence, based on degree of risk); id., §10.07[B][3] (MPC influenced transformation of recklessness-negligence distinction from degree of risk to awareness); Wayne R. LaFave, Criminal Law §3.7 n. 6 (3rd ed., West 2000) (recklessness has been distinguished from negligence variously by degree of risk, awareness of risk, or both). 16 MPC §§210.2, 210.3, 210.4. Page 9 of 57 Simons, Dimensions of Negligence 8/7/02