a.

Distinction between Criminal and Civil Law Paradigms

In discussing the particular nature of civil and criminal paradigms,

it is assumed that as with every system of sanctions there must exist
definitions of wrongs, purposes, procedures, and remedies. This
section intends to reveal the general aspects of these dimensions by
examining the different characteristics found in criminal and civil
paradigms. The following analysis focuses on criminal law and the
common law of torts rather than on contract law, although the
problems identified in this section are also found in contract law.1
The early English (as well as American) judges and commentators
adopted a language that was loaded with twofold images of the law
of sanctions. They wrote about ‘criminal law’ and ‘civil law’ in spite
of the fact that many middle-ground actions, such as punitive
damages in tort, always existed.2 Describing the law of the fourteenth
and fifteenth centuries, it has been observed that it was ‘in this period
that the foundations of our present law as to wrongs, criminal and
civil [were] laid.’3 The differences apparently became quite well-
established.4 Out of this historic division between the two main
categories of legal process, emerged the deeply ingrained language
distinguishing criminal penalties from civil remedies. 5 These terms

1
For example, even in contract law, there is growing concern for the employment of
punitive measures as a remedy for bad faith bargaining and willful breach of contracts.
2
The use of bipolar concepts to describe empirical facts that do not fit well into only
two categories has continued over a prolonged period. It is a form of overgeneralization
that speaks to the need for order more than it presents an accurate description of the field
of sanctions.
3
WILLIAM HOLDSWORTH, A HISTORY OF ENGLISH LAW, VOL. III at 276 (reprint 1977).
4
Atcheson v. Everitt, 98 Eng. Rep. 1142, 1147 (27 K.B. 1775). Lord Mansfield said,
‘Now there is no distinction better known, than the distinction between civil and
criminal law; or between criminal prosecutions and civil actions.’
5
Civil and criminal law are both sanctioning processes. In its broadest and most neutral
sense, the term ‘sanction’ implies not the imposition of punishment, but rather the use of
power to determine rights that necessarily constrain behavior. English legal historians
used the term in this way. According to Holmes, for example, Austin regarded the
‘[civil] liability to an action as a sanction.’ OLIVER W. HOLMES, JR., THE COMMON LAW
82 (Boston, Little, Brown & Co. 1881); See also HERBERT L. PACKER, THE LIMITS OF
THE CRIMINAL SANCTION 23, 31 (1968) (describing sanctions as ‘those rules of the legal
order that prescribe the consequences of violating the primary norms that are meant to
govern behavior’). Packer defines four types of sanctions: punishment, treatment,
compensation, and regulation.
Generally the term ‘remedy’ is associated only with civil cases. See DAN B. DOBBS,
HANDBOOK ON THE LAW OF REMEDIES § 1.1 (1973) (implying that punishment is not a
remedy).
reflected the development of a dominant ideology that attempted to
abstract a set of traits from the complex and multifaceted nature of
sanctions to create important normative focal points in
jurisprudence:6 the criminal and civil law paradigms.7 Thus, a
sanction may be viewed within the criminal law paradigm as a
penalty, or within the civil law paradigm as a remedy. However, as
argued below, the substantial areas of overlap exist between civil and
criminal law.
First of all, in distinguishing these paradigms, two features of
prohibited acts are prominent: the required mental element and the
effect produced by the wrongful act. 8 The presence of mens rea
(generally in subjective terms) for the construction of crime is a well
known requirement of the paradigmatic criminal law.9 This
distinctive feature of criminal law is deeply rooted in English legal
sources and such requirement is generally not imposed upon the civil
liability paradigm. While criminal law and civil law are similar in
that both require voluntary acts, civil law depends principally on the
notion of objective liability, either disregarding the mental element in
conduct or requiring only negligence. The civil law imposes a
sanction when there is ‘a failure to live up to an ideal standard of
conduct which may be beyond the knowledge or capacity of the
individual, and in acts which are normal and usual in the community,
and without moral reproach in its eyes.’ 10 It is only after the
6
The leading article on fundamental differences between civil and criminal law is
Jerome Hall, Interrelations of Criminal Law and Torts, 43 COLUMB. L. REV. 753,
(1943). On p. 967, Hall reviews much of the relevant writing on the subject, contrasting
with his own position Bentham and Austin, who found almost no differences between
criminal and civil law, and Holmes, who minimized the differences. Drawing on
Blackstone and Stephen, Hall argues that there have always been fundamental
distinctions between the two forms of law and focuses mainly on the concepts of ‘social
harm’ and ‘morally culpable conduct’ in the criminal law, as opposed to ‘individual
harm’ and objective responsibility in tort. See, e.g., ibid at 974.
7
The term ‘paradigm’ indicates a set of norms, abstracted from specific factors to form a
model.
8
This dimension of the paradigms deals with only two of the many elements that define
the full range of prohibited conduct in the substantive law of wrongs. Definitions of
conduct also vary as to whether an omission and/or an act satisfy their legal
requirements, and as to whether special circumstances must exist that characterize the
wrongdoer or the injured party.
9
Crimes of strict liability and negligence are deviant forms from the normative
perspective of the paradigms. Their deviant characteristics rose out of the dominant role
of the paradigms.
10
WILLIAM L. PROSSER, HANDBOOK OF THE LAW OF TORTS, § 4 at 22 (5th ed. 1984).
Empirically, civil and criminal laws overlap. Civil law includes causes of action for
intentional acts; criminal law includes strict and negligent liability. Therefore, no true
seventeenth century that the use of ‘negligence’ as a standard for the
imposition of liability has acquired importance in the law of torts.11
A second typical difference in the key elements of wrongful
conduct concerns the effect of the act to which a sanction applies. In
a criminal paradigm, wrongful acts are punished because they are
considered to be public wrongs, violating a collective rather than
individual interest.12 Even if there be an absence of a direct injury to
the individual interest, criminal sanction may still apply. On the other
hand, civil sanction applies to a conduct that causes actual damage to
an individual interest; this is generally a prerequisite to civil liability.
Thus, a private person cannot initiate a civil suit unless he can show
a special grievance in terms of locus standi, whereas the state can
place the charge generally; a suit by a private person results in
damages, whereas a suit by the state ends in punishment of the guilty
party.13 These generalizations accurately describe distinctive

empirical difference exists between civil and criminal law with respect to the range of
mental states resulting in liability. However, most criminal cases require proof of
subjective and objective liability, whereas most civil cases require proof only of
objective liability. Therefore, we say that the paradigmatic task of the civil law is to
compensate for damages caused in the normal conduct of everyday life, usually without
regard to actual knowledge or intent. Thus, the distinctive character in the division in the
paradigms lies in the requirement of attention to the subjective state of mind in the
conventional criminal type.
11
JOHN H. BAKER, AN INTRODUCTION TO ENGLISH LEGAL HISTORY 455 (3d ed. 1990).
According to Baker, the negligence approach of the modern law determines liability by
focusing on the quality of the defendant's act rather than on the kind of harm done to the
plaintiff. The rearrangement of so much of the modern law of tort around the concept of
negligence is partly a result of that shift of focus. But there is nothing modern about the
concept of negligence in itself; what has changed is its primacy.
12
See, for example Jules L. Coleman, Crime, Kickers, and Transaction Structures, in J.
ROLAND PENNOCK & JOHN W. CHAPMAN EDS., NOMOS XXVII: CRIMINAL JUSTICE 313,
323 (1985) (observing that ‘key moral notions of criminal responsibility-of guilt and
fault-are simply absent from the economic infrastructure’). But see Guido Calabresi &
A. Douglas Melamed, Property Rules, Liability Rules, and Inalienability: One View
of the Cathedral, 85 HARV. L. REV. 1089, 1124-27 (1972).
13
See Holdsworth, supra note 332, Vol. 2 at 453; See also WILLIAM BLACKSTONE,
COMMENTARIES, VOL. II at 2. According to Blackstone, wrongs are divisible into two
sorts or species: private wrongs, and public wrongs. The former are an infringement or
privation of the private or civil rights belonging to individuals, considered as
individuals; and are thereupon frequently termed civil injuries: the latter are a breach
and violation of public rights and duties, which affect the whole community, considered
as a community; and are distinguished by the harsher appellation of crimes and
misdemeanors.
This distinction between private and public injury was prevalent in early Anglo-
American law and provided the basis for Blackstone's classification of law.
correlations between characteristics of wrongs subject to sanctions
and the sanctioning paradigm in which they are found.14
A third common element that distinguishes civil and criminal law
prototypes is purpose. Purpose defines the reason or motivation for
constructing and using a sanctioning system.15 In modern legal
theory criminal and civil law share the purpose of social control;
however, in the conventional paradigms, which predate the modern
overlapping of civil and criminal law, it was inappropriate to label
civil law as an instrument of social control. Before the language of
social science infused the law of sanctions, only criminal law was
associated with punishment, both as a form of vengeance and as an
instrument for protecting the public. 16 Substantial normative
disagreement has long characterized the debate about the primary
justification for criminal sanction.17 Yet despite the different
emphases and the evolution of different philosophies on this central
issue, most would agree that either as a means or an end, punishment
is a distinctive characteristic of criminal law, even though it is not
exclusive to it.18 The convicted defendant and the community
understand that the state uses criminal law to condemn publicly the
offender, who experiences shame because of the notoriety of his
punishment. These conventional views regarding criminal law are
borne out in the law of torts, where the direction of law is to
compensate the individuals, rather than the public for the losses of
legally recognized interests of the victim.19
14
Jerome Hall, supra note 335. Hall puts the difference this way: ‘[I]n torts, ‘effects’
almost invariably include actual damage to some person, whereas in crimes, damage is
not essential-instead the notion of a ‘social harm,’ supplies the requirement there.’
15
Purpose is sometimes confused with remedy and in many instances may bear the same
name. For instance, incapacitation has often been described as the purpose of a
sanctioning system, although it is more properly classified as a means to an end. It can
be used as a means to achieve deterrence, punishment, or compensation. The problem of
distinguishing means and ends is most palpable in the law of contempt.
16
On the purposes and justifications for punishment, see generally FRANCIS A. ALLEN,
THE BORDERLAND OF CRIMINAL JUSTICE 25-41 (1964) (explaining rehabilitative ideal);
See also Hart, supra note 144 at 1-27 (defending mixed theory combining retributivist
and utilitarian elements).
17
See SANFORD H. KADISH & STEPHEN J. SCHULHOFER, CRIMINAL LAW AND ITS
PROCESSES 113-65 (5th ed. 1989).
18
See HART, supra note 15 at 401, 405. He discusses that criminal sanctions ‘take their
character as punishment from the condemnation which precedes them and serves as the
warrant for their infliction’.
19
See Prosser, supra note 339 at 5-6. See also Blackstone, supra note 342 at 5-6.
Blackstone said: “[A] civil satisfaction in damages, constitutes compensation for a
‘private wrong’; whereas ‘a public mischief’ is punished to secure to the public the
benefit of society, by preventing or punishing every breach and violation of those laws
 The fourth generic comparison lies in the remedies provided.
Throughout the history of sanctioning law, commentators have
argued that the distinctive remedy of criminal law is imprisonment or
the threat thereof. In modern criminal law, the stigma of a criminal
sanction has become a special kind of remedy because of its
burdensome and sometimes destructive consequences for the
individual. Though, other remedies in criminal cases, such as fines
and probation, may actually be imposed more often than
imprisonment, imprisonment and the special stigma associated with
convictions are the core remedies used to achieve the purposes of
criminal sanction. Two paradigmatic remedies exist in civil law, each
closely linked to the purpose of the particular civil law. 20 The first is
the court order mandating a return to a status quo ante, so as to make
the injured party whole, or enjoining the continuation of injury. The
second is the order to pay money as compensation for damage
caused.21
However, despite this distinguishing lay out of criminal and civil
paradigms, almost every attribute associated with one appears in the
other. Imprisonment, associated with the criminal process, also exists
in the civil arena; civil contempt, for example, is punishable by
incarceration. Payment of money, distinctively associated with civil
law, takes the form of fines in the criminal law. These paradigms as
used in contemporary legal framework, misrepresent the field of
actual legal processes because they ignore a large variety of hybrid
sanctions. For example, they fail to identify the central role of
punitive civil sanctions in the broader arena of legal sanctions. 22 In
many instances, the correlation of an attribute with its paradigmatic
context is an empirically valid reflection of the attribute's primacy in
one paradigm rather than the other. In other instances, the
paradigmatic co-option of attributes stems from historical

and operates through the terror of punishment or the sword of the public magistrate.”
20
Within the paradigmatic framework, civil law was meant to provide remedies
specifically designed to repair damage or provide money to enable the victim to obtain
the value of the damage caused.
21
Blackstone, supra note 342 at 116. Blackstone succinctly described remedies of
civil law: “Now, as all wrong may be considered as merely a privation of right [in the
civil law], the one natural remedy for every species of wrong is the being put in
possession of that right, whereof the party injured is deprived. This may either be
effected by a specific delivery or restoration of the subject- matter in dispute to the legal
owner; ... or, where that is not a possible, or at least not an adequate remedy, by making
the sufferer a pecuniary satisfaction in damages ..”
22
See generally Kenneth Mann, Punitive Civil Sanctions: The Middleground
between Criminal and Civil Law, 101 YALE L. J. 1795, 1804 (1992).
conventions that are now eclipsed, and thus the paradigms contradict
the actual development of attributes in sanctioning arrangements.
Consequently and contextually, this is to further the viability of QD
theory as a convergence point of civil and criminal paradigms. It is
fairly correct to assume that there exist no water-tight distinction
between criminal and civil paradigms and both utilize the same
paradigmatic features in either primary or advance form in their
respective spheres. Therefore, the construction of a theory of justice
that hopes to amalgamate these features, merging the advance usages
with the primary ones, should not be treated as a conceptual
contradiction, far less to say, an impossibility.