Chapter

Excluding the Presumption of Fault: Strict and Vicarious Responsibility—Nineteenth-century Developments

K. J. M. Smith

in Lawyers, Legislators and Theorists

Published in print October 1998 | ISBN: 9780198257233
Published online March 2012 | e-ISBN: 9780191681738 | DOI: http://dx.doi.org/10.1093/acprof:oso/9780198257233.003.0006

Series: Oxford Monographs on Criminal Law and Justice

Excluding the Presumption of Fault: Strict and Vicarious Responsibility—Nineteenth-century Developments

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In stark contrast with practically every other area of criminal law development during the nineteenth century, strict and vicarious liability were subject to scarcely any extrajudicial commentary or evaluation. And certainly no contemporary theoretical analysis of the general significance of these forms of liability was offered. This chapter argues that against the background of an analysis of negligence-based liability, it is far from obvious why, when departing from the entrenched (for some judges) subjective fault version of the mens rea principle, courts usually vaulted over the intermediate concept of objective fault to adopt a no-fault position. Another development feature of strict and vicarious liability was the distinct likelihood of the cross-fertilization of ideas from the broadly contemporaneous process in tort, where after equivocating over the relevance of fault, courts moved liability onto a largely risk basis: that those engaged in commercial enterprise did so at their own risk – a hazard of commercial endeavour. But the appropriateness of such shared rationales was clearly questionable, with the objectives of tortious and criminal responsibility being distinct: compensation for economic loss set against prevention and punishment.

Keywords: criminal law; strict liability; vicarious liability; fault

Chapter.  7394 words. 

Subjects: Criminal Law

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