Hart and Punishment for Negligence

Abstract

In Punishment and Responsibility, in the essay ‘Negligence, Mens Rea and Criminal Responsibility’, H. L. A. Hart defends criminalizing and punishing some acts of negligently causing or risking harm. Here is how he opens this essay:

‘I didn’t mean to do it: I just didn’t think.’ ‘But you should have thought.’ Such an exchange, perhaps over the fragments of a broken vase destroyed by some careless action, is not uncommon; and most people would think that, in ordinary circumstances, such a rejection of ‘I didn’t think’ as an excuse is quite justified. No doubt many of us have our moments of skepticism about both the justice and the efficacy of the whole business of blaming and punishment; but, if we are going in for the business at all, it does not appear unduly harsh, or a sign of archaic or unenlightened conceptions of responsibility, to include gross, unthinking carelessness among the things for which we blame and punish. This does not seem like the ‘strict liability’ which has acquired such odium among Anglo-American lawyers. There seems a world of difference between punishing people for the harm they unintentionally but carelessly cause, and punishing them for the harm which no exercise of reasonable care on their part could have avoided.¹