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5 - Strict and corporate liability

Published online by Cambridge University Press:  05 October 2014

Alan Norrie
Affiliation:
University of Warwick
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Summary

In general, the authorities on strict liability are so conflicting that it is impossible to abstract any coherent principle on when this form of liability arises and when it does not. A particular proposition affirming strict liability can almost always be matched by its contradictory affirming fault liability. The result is that in the absence of express words in the statute judges can generally attach any fault element to it that they please, or refuse to attach any fault element; and they can always find some apparent authority or argument for what they propose to do.

(Williams, 1983, 934)

[T]his great redistribution of illegalities was even to be expressed through a specialisation of the legal circuits: for illegalities of property – for theft – there were the ordinary courts and punishments: for the illegalities of rights … special legal institutions applied with transactions, accommodations, reduced fines, etc.

(Foucault, 1979, 87)

There is one and only one social responsibility of business – to use its resources and engage in activities designed to increase its profits so long as it stays within the rules of the game … [and] engages in open and free competition, without deception or fraud … Few trends could so thoroughly undermine the very foundations of our free society as the acceptance by corporate officials of a social responsibility other than that to make as much money for their stockholders as possible.

(Milton Friedman, in Hills, 1987, 199)

Introduction

At the core of the general part lies the claim that there should be neither crime nor punishment without fault, and this book began its exploration of the legal categories with chapters on intention and recklessness. In this chapter, however, we examine an area of fault attribution which challenges this starting point. Here, we focus primarily on the question of fault attribution for organisations, where a form of liability arose in the late nineteenth century that was strict, that is, no mens rea was required to find various kinds of organisation (businesses, factories) responsible for an offence. Liability here pertained to particular new kinds of offence called ‘regulatory’ or ‘administrative’, and these were cast in terms that did not require a mental element. A factory owner did not need to know his machinery was unsafe, or a supplier of foodstuffs that these were adulterated. Liability was strict with regard to such matters.

Type
Chapter
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Crime, Reason and History
A Critical Introduction to Criminal Law
, pp. 102 - 134
Publisher: Cambridge University Press
Print publication year: 2014

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