Liability is in the first place either civil or criminal, and in the second place either remedial or penal. The nature of these distinctions has been already sufficiently considered in a previous chapter on the Administration of Justice. We there saw that civil liability is liability to civil proceedings, and that a civil proceeding is one whose direct purpose is the enforcement of a right vested in the plaintiff. Criminal liability, on the other hand, is liability to criminal proceedings, and a proceeding of this nature is one whose direct purpose is the punishment of a wrong committed by the defendant.[[323]]
We also saw that the law often punishes a wrong by creating and enforcing against the wrongdoer a new obligation; for example, that of paying a pecuniary penalty or damages. In such a case the direct purpose of the proceeding is the enforcement of the sanctioning right thus created, though its ulterior purpose is the punishment of the wrong in which this right has its source. Hence the necessity of the further distinction between penal and remedial liability. The former is that in which the purpose of the law, direct or ulterior, is or includes the punishment of a wrongdoer; the latter is that in which the law has no such purpose at all, its sole intent being the enforcement of the plaintiff’s right, and the idea of punishment being wholly irrelevant. The liability of a borrower to repay the money borrowed by him is remedial; that of the publisher of a libel to be imprisoned, or to pay damages to the person injured by him, is penal. All criminal liability is penal; civil liability, on the other hand, is sometimes penal and sometimes remedial.[[324]]
§ 126. The Theory of Remedial Liability.
The theory of remedial liability presents little difficulty. It may be laid down as a general principle, that, whenever the law creates a duty, it should enforce the specific fulfilment of it. The sole condition of the existence of remedial liability is the existence of a legal duty binding upon the defendant and unfulfilled by him. What a man ought to do by a rule of law, he ought to be made to do by the force of law. In law ought is normally equivalent to must, and obligation and remedial liability are in general coexistent. To this general principle, however, there are the following exceptions:—
1. In the first place, there are duties of imperfect obligation—duties the breach of which gives no cause of action, and creates no liability at all, either civil or criminal, penal or remedial. A debt barred by the statute of limitations, or due by the Crown, is a legal debt, but the payment of it cannot be compelled by any legal proceedings.[[325]]
2. Secondly, there are many duties which from their nature cannot be specifically enforced after having once been broken. When a libel has already been published, or an assault has already been committed, it is too late to compel the wrongdoer to perform his duty of refraining from such acts. Wrongs of this description may be termed transitory; once committed, they belong to the irrevocable past. Others, however, are continuing; for example, the non-payment of a debt, the commission of a nuisance, or the detention of another’s property. In such cases the duty violated is in its nature capable of specific enforcement, notwithstanding the violation of it.
3. In the third place, even when the specific enforcement of a duty is possible, it may be, or be deemed to be, more expedient to deal with it solely through the criminal law, or through the creation and enforcement of a substituted sanctioning duty of pecuniary compensation. It is only in special cases, for example, that the law will compel the specific performance of a contract, instead of the payment of damages for the breach of it.
§ 127. The Theory of Penal Liability.
We now proceed to the main subject of our inquiry, namely, the general principles of penal liability. We have to consider the legal theory of punishment, in its application both to the criminal law and to those portions of the civil law in which the idea of punishment is relevant and operative. We have already, in a former chapter, dealt with the purposes of punishment, and we there saw that its end is fourfold, being deterrent, disabling, retributive, and reformative. The first of these purposes, however, is primary and essential, the others being merely secondary. In our present investigation, therefore, we shall confine our attention to punishment as deterrent. The inquiry will fall into three divisions, relating (1) to the conditions, (2) to the incidence, and (3) to the measure of penal liability.
The general conditions of penal liability are indicated with sufficient accuracy in the legal maxim, Actus non facit reum, nisi mens sit rea—The act alone does not amount to guilt; it must be accompanied by a guilty mind. That is to say, there are two conditions to be fulfilled before penal responsibility can rightly be imposed, and we may conveniently distinguish these as the material and the formal conditions of liability. The material condition is the doing of some act by the person to be held liable. A man is to be accounted responsible only for what he himself does, not for what other persons do, or for events independent of human activity altogether. The formal condition, on the other hand, is the mens rea or guilty mind with which the act is done. It is not enough that a man has done some act which on account of its mischievous results the law prohibits; before the law can justly punish the act, an inquiry must be made into the mental attitude of the doer. For although the act may have been materially or objectively wrongful, the mind and will of the doer may have been innocent.