Jules L. Coleman
- Published in print:
- 2002
- Published Online:
- January 2010
- ISBN:
- 9780199253616
- eISBN:
- 9780191719776
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199253616.003.0004
- Subject:
- Law, Law of Obligations, Philosophy of Law
This chapter addresses concerns regarding the extent to which the argument for market justifies an economic approach to law. It begins by working through Calabresi's insight that tort law occupies a ...
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This chapter addresses concerns regarding the extent to which the argument for market justifies an economic approach to law. It begins by working through Calabresi's insight that tort law occupies a middle ground between contract and crimes. It then turns the argument around to determine if what was said about contracts and torts suggests a particular account of the criminal law, which in fact, it does.Less
This chapter addresses concerns regarding the extent to which the argument for market justifies an economic approach to law. It begins by working through Calabresi's insight that tort law occupies a middle ground between contract and crimes. It then turns the argument around to determine if what was said about contracts and torts suggests a particular account of the criminal law, which in fact, it does.
E. Allan Farnsworth
- Published in print:
- 2004
- Published Online:
- March 2012
- ISBN:
- 9780199276110
- eISBN:
- 9780191699887
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199276110.001.0001
- Subject:
- Law, Law of Obligations
This book examines the legal issues that arise when we seek to avoid the untoward consequences of an action by claiming that our perception was flawed. We all make mistakes: we might overpay a debt, ...
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This book examines the legal issues that arise when we seek to avoid the untoward consequences of an action by claiming that our perception was flawed. We all make mistakes: we might overpay a debt, make an unfavourable contract, or be sued or accused of a crime as a result of our mistake. Claims to alleviation on the grounds of mistake are likely to arise wherever the law prescribes a state of mind (some kind of intent) as a prerequisite for the application of a legal rule. This book asks when the fact that a person made a mistake should entitle them to alleviation. This may involve the intention to enter into a contract or a payment, in which case a person could seek its reversal, or it might involve the intent to commit a tort or crime, in which case they could seek forgiveness for the offence. The book defines ‘alleviating’ mistakes as those which entitle a person to relief from untoward consequences of their mistake. There is no general ‘law of mistake’ and, despite their similarities, few discussions of mistake in one setting pause to consider mistakes in other contexts. The goals of fields as disparate as contracts and criminal law are very different: how do these differences affect the treatment of mistakes? The book sets out a new taxonomy of mistakes. Its analysis reveals that over the past century, there has been a remarkable increase in the receptivity of courts and scholars to claims for both reversal and forgiveness—a waxing of alleviating mistakes.Less
This book examines the legal issues that arise when we seek to avoid the untoward consequences of an action by claiming that our perception was flawed. We all make mistakes: we might overpay a debt, make an unfavourable contract, or be sued or accused of a crime as a result of our mistake. Claims to alleviation on the grounds of mistake are likely to arise wherever the law prescribes a state of mind (some kind of intent) as a prerequisite for the application of a legal rule. This book asks when the fact that a person made a mistake should entitle them to alleviation. This may involve the intention to enter into a contract or a payment, in which case a person could seek its reversal, or it might involve the intent to commit a tort or crime, in which case they could seek forgiveness for the offence. The book defines ‘alleviating’ mistakes as those which entitle a person to relief from untoward consequences of their mistake. There is no general ‘law of mistake’ and, despite their similarities, few discussions of mistake in one setting pause to consider mistakes in other contexts. The goals of fields as disparate as contracts and criminal law are very different: how do these differences affect the treatment of mistakes? The book sets out a new taxonomy of mistakes. Its analysis reveals that over the past century, there has been a remarkable increase in the receptivity of courts and scholars to claims for both reversal and forgiveness—a waxing of alleviating mistakes.
E. Allan Farnsworth
- Published in print:
- 2004
- Published Online:
- March 2012
- ISBN:
- 9780199276110
- eISBN:
- 9780191699887
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199276110.003.0010
- Subject:
- Law, Law of Obligations
Because of ‘Ignorantia juris non excusat’ — one of the maxims that are fondly associated with law and compared with mistakes of fact — mistakes of law are often perceived to be without relevance. ...
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Because of ‘Ignorantia juris non excusat’ — one of the maxims that are fondly associated with law and compared with mistakes of fact — mistakes of law are often perceived to be without relevance. While the said maxim is considered by one of the 19th century's prominent critics on criminal law to be a rule that is ‘arbitrary though necessary’, common people are believed to share this view, especially in the context of criminal law. After studying commonsense attitudes attributed to mistakes of law and fact, psychologists have found that the mistakes of law are subject to more harsh judgment because, supposedly, every person should be well-informed about what the law states. This chapter examines how criminal law concerns various conceptions of morality and how all people should be familiar with such conceptions.Less
Because of ‘Ignorantia juris non excusat’ — one of the maxims that are fondly associated with law and compared with mistakes of fact — mistakes of law are often perceived to be without relevance. While the said maxim is considered by one of the 19th century's prominent critics on criminal law to be a rule that is ‘arbitrary though necessary’, common people are believed to share this view, especially in the context of criminal law. After studying commonsense attitudes attributed to mistakes of law and fact, psychologists have found that the mistakes of law are subject to more harsh judgment because, supposedly, every person should be well-informed about what the law states. This chapter examines how criminal law concerns various conceptions of morality and how all people should be familiar with such conceptions.
Reinhard Zimmermann
- Published in print:
- 1996
- Published Online:
- March 2012
- ISBN:
- 9780198764267
- eISBN:
- 9780191695247
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780198764267.003.0027
- Subject:
- Law, Law of Obligations
This chapter deals with delict in general, the act by which one person causes some damage or tort to another. When a person injures another by an act of reckless driving, he is accountable both to ...
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This chapter deals with delict in general, the act by which one person causes some damage or tort to another. When a person injures another by an act of reckless driving, he is accountable both to the victim of the wrong and to the community at large. To the victim, he has to render compensation for the resulting damage. Meanwhile, the State, as a representative of the community, will institute proceedings with the aim of punishing the offender. It is the law of delict which protects the interests of the injured individual and which determines whether and under which circumstances redress may be claimed. Criminal law, on the other hand, subjects the wrongdoer to a sanction in order to prevent a repetition of the wrongful act.Less
This chapter deals with delict in general, the act by which one person causes some damage or tort to another. When a person injures another by an act of reckless driving, he is accountable both to the victim of the wrong and to the community at large. To the victim, he has to render compensation for the resulting damage. Meanwhile, the State, as a representative of the community, will institute proceedings with the aim of punishing the offender. It is the law of delict which protects the interests of the injured individual and which determines whether and under which circumstances redress may be claimed. Criminal law, on the other hand, subjects the wrongdoer to a sanction in order to prevent a repetition of the wrongful act.
E. Allan Farnsworth
- Published in print:
- 2004
- Published Online:
- March 2012
- ISBN:
- 9780199276110
- eISBN:
- 9780191699887
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199276110.003.0009
- Subject:
- Law, Law of Obligations
While the question that asks what mistakes can entitle a person to alleviation persists, there is a need to ask also why a mistake should be relevant in the first place. We realize that in real life, ...
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While the question that asks what mistakes can entitle a person to alleviation persists, there is a need to ask also why a mistake should be relevant in the first place. We realize that in real life, there really are some mistakes that do not entitle a mistaken individual to attain forgiveness. In cases of criminal law, mistakes cannot be used as a defense for instances of ‘public welfare offenses’ while in cases of tort law, not being aware of committing a particular mistake does not count. Generally, people become uncomfortable with the fact that the system of strict liability associated with criminal law does not allow mistaken individuals to gain forgiveness. As such, we also become uncomfortable upon realizing that there are some cases wherein reversal cannot be achieved.Less
While the question that asks what mistakes can entitle a person to alleviation persists, there is a need to ask also why a mistake should be relevant in the first place. We realize that in real life, there really are some mistakes that do not entitle a mistaken individual to attain forgiveness. In cases of criminal law, mistakes cannot be used as a defense for instances of ‘public welfare offenses’ while in cases of tort law, not being aware of committing a particular mistake does not count. Generally, people become uncomfortable with the fact that the system of strict liability associated with criminal law does not allow mistaken individuals to gain forgiveness. As such, we also become uncomfortable upon realizing that there are some cases wherein reversal cannot be achieved.
E. Allan Farnsworth
- Published in print:
- 2004
- Published Online:
- March 2012
- ISBN:
- 9780199276110
- eISBN:
- 9780191699887
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199276110.003.0008
- Subject:
- Law, Law of Obligations
While Glanville Williams asserts how causation in mistake cases may be considered an aspect of criminal law that may be relatively difficult to understand, law readily deals with situations that ...
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While Glanville Williams asserts how causation in mistake cases may be considered an aspect of criminal law that may be relatively difficult to understand, law readily deals with situations that involve the issue of causation whether it be in the case of intentional cases like torts and crimes or in consensual transactions that cover dispositions by transfer and various agreements. Although the link between a faulty decision and a flawed perception may seem to be unrelated to mistake-involved controversies, such peculiarities are not to be viewed as something that is brought about by the skepticism that accompanies alleviating mistakes. In examining accountability, there is a need to look into the link between someone's decision and succeeding action and to the link between the said action and its resulting consequence or outcome.Less
While Glanville Williams asserts how causation in mistake cases may be considered an aspect of criminal law that may be relatively difficult to understand, law readily deals with situations that involve the issue of causation whether it be in the case of intentional cases like torts and crimes or in consensual transactions that cover dispositions by transfer and various agreements. Although the link between a faulty decision and a flawed perception may seem to be unrelated to mistake-involved controversies, such peculiarities are not to be viewed as something that is brought about by the skepticism that accompanies alleviating mistakes. In examining accountability, there is a need to look into the link between someone's decision and succeeding action and to the link between the said action and its resulting consequence or outcome.
Anthony J. Sebok
- Published in print:
- 2014
- Published Online:
- May 2014
- ISBN:
- 9780198701385
- eISBN:
- 9780191770654
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780198701385.003.0016
- Subject:
- Law, Philosophy of Law, Law of Obligations
This chapter examines the normative arguments for common law punitive damages. It focuses on one normative argument in particular, that punitive damages can be justified because they deter ...
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This chapter examines the normative arguments for common law punitive damages. It focuses on one normative argument in particular, that punitive damages can be justified because they deter inefficient conduct. The method by which punitive damages are determined is very different from punishment in public law. Two significant differences flow from this fact. First, the technical resources necessary to achieve deterrence are unavailable in common law punitive damages, so it is highly unlikely that punitive damages could achieve their putative goal. Second, unlike deterrence-based punishment in public law that has the same problem (such as capital punishment) the common law of punitive damages eschews any appeal to political legitimacy to justify its choice of punishments. This chapter concludes that the justification of common law punitive damages should begin with a theory that focuses on their legitimacy, and not their efficacy as engines of deterrence.Less
This chapter examines the normative arguments for common law punitive damages. It focuses on one normative argument in particular, that punitive damages can be justified because they deter inefficient conduct. The method by which punitive damages are determined is very different from punishment in public law. Two significant differences flow from this fact. First, the technical resources necessary to achieve deterrence are unavailable in common law punitive damages, so it is highly unlikely that punitive damages could achieve their putative goal. Second, unlike deterrence-based punishment in public law that has the same problem (such as capital punishment) the common law of punitive damages eschews any appeal to political legitimacy to justify its choice of punishments. This chapter concludes that the justification of common law punitive damages should begin with a theory that focuses on their legitimacy, and not their efficacy as engines of deterrence.
E. Allan Farnsworth
- Published in print:
- 2004
- Published Online:
- March 2012
- ISBN:
- 9780199276110
- eISBN:
- 9780191699887
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199276110.003.0001
- Subject:
- Law, Law of Obligations
Mistakes refer to the instances wherein our actions become incorrect since our initial perceptions are not in agreement with what has actually occurred in reality. This book attempts to look into the ...
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Mistakes refer to the instances wherein our actions become incorrect since our initial perceptions are not in agreement with what has actually occurred in reality. This book attempts to look into the legal issues that are brought about by our various attempts at evading the unpleasant consequences such as overpaying debts, acquiring liability for situations of tort, becoming accountable for certain crimes, and other similar outcomes through claiming that our actions are merely rooted on an alleviating mistake. Alleviating mistakes enable one to be lifted from experiencing consequences, but the need arises to differentiate this type of mistake from other types of mistakes. Such claims for alleviation become valid only when law requires a particular state of mind or an intent to comply with a legal rule's application. Because there is no ‘law of mistakes’, this chapter discusses how the book aims to look into the context of both criminal and contract law, and how law deals with such claims of alleviation across several different settings.Less
Mistakes refer to the instances wherein our actions become incorrect since our initial perceptions are not in agreement with what has actually occurred in reality. This book attempts to look into the legal issues that are brought about by our various attempts at evading the unpleasant consequences such as overpaying debts, acquiring liability for situations of tort, becoming accountable for certain crimes, and other similar outcomes through claiming that our actions are merely rooted on an alleviating mistake. Alleviating mistakes enable one to be lifted from experiencing consequences, but the need arises to differentiate this type of mistake from other types of mistakes. Such claims for alleviation become valid only when law requires a particular state of mind or an intent to comply with a legal rule's application. Because there is no ‘law of mistakes’, this chapter discusses how the book aims to look into the context of both criminal and contract law, and how law deals with such claims of alleviation across several different settings.
Peter Birks
- Published in print:
- 2002
- Published Online:
- March 2012
- ISBN:
- 9780198299936
- eISBN:
- 9780191685811
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780198299936.003.0004
- Subject:
- Law, Law of Obligations
Everyone is entitled to protect their property rights. If self-help is not available, one can go to law, and one of the law's tasks is to protect entitlement to and enjoyment of property. The ...
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Everyone is entitled to protect their property rights. If self-help is not available, one can go to law, and one of the law's tasks is to protect entitlement to and enjoyment of property. The criminal law attempts this by defining and penalizing such offences as theft and wanton damage. Other branches of law provide means to rebuff trespass, to recover one's possessions, and to claim compensation by an award of damages. In approaching this complex area, the following matters need to be considered: the type of property involved; the kind of infringement committed; who is protected; against whom; how; and for how long. The law's protection of property interests varies with the nature of the asset involved. It is a characteristic of proprietary interests that they are protected against an indefinite number of persons.Less
Everyone is entitled to protect their property rights. If self-help is not available, one can go to law, and one of the law's tasks is to protect entitlement to and enjoyment of property. The criminal law attempts this by defining and penalizing such offences as theft and wanton damage. Other branches of law provide means to rebuff trespass, to recover one's possessions, and to claim compensation by an award of damages. In approaching this complex area, the following matters need to be considered: the type of property involved; the kind of infringement committed; who is protected; against whom; how; and for how long. The law's protection of property interests varies with the nature of the asset involved. It is a characteristic of proprietary interests that they are protected against an indefinite number of persons.
Peter Alldridge
- Published in print:
- 2017
- Published Online:
- April 2017
- ISBN:
- 9780198755838
- eISBN:
- 9780191816963
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780198755838.003.0001
- Subject:
- Law, Criminal Law and Criminology, Law of Obligations
The chapter sets out the field of study and the approach taken. The recurrent question, to be addressed from a variety of perspectives, is how and to what extent tax evasion is like and unlike other ...
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The chapter sets out the field of study and the approach taken. The recurrent question, to be addressed from a variety of perspectives, is how and to what extent tax evasion is like and unlike other crimes. The enquiry includes consideration not only of substantive criminal law, but also of the investigatory powers and the organization and structures of prosecuting authorities. It also considers the growing internationalization of the criminal law of tax evasion, and the relationship between the criminal law of taxation and proceeds-of-crime law. The chapter will outline the issues and set out the perspectives to be adopted.Less
The chapter sets out the field of study and the approach taken. The recurrent question, to be addressed from a variety of perspectives, is how and to what extent tax evasion is like and unlike other crimes. The enquiry includes consideration not only of substantive criminal law, but also of the investigatory powers and the organization and structures of prosecuting authorities. It also considers the growing internationalization of the criminal law of tax evasion, and the relationship between the criminal law of taxation and proceeds-of-crime law. The chapter will outline the issues and set out the perspectives to be adopted.
