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119 U. Pa. L. Rev. 401 (1970-1971)
Theory of Criminal Negligence: A Comparative Analysis

handle is hein.journals/pnlr119 and id is 415 raw text is: University of Pennsylvania Law Review FOUNDED 1852 Formerly American Law Register VOL. 119 JANUARY 1971 No. 3 THE THEORY OF CRIMINAL NEGLIGENCE: A COMPARATIVE ANALYSIS * GEoRG, P. FLETcHER t I. INTRODUCTION Negligence is a problematic ground for criminal liability. Every major Western legal system punishes negligent as well as intentional violations of protected interests;' but theorists both here and abroad feel uneasy about the practice.' Negligent motoring and negligent manufacturing significantly threaten the public interest; yet Western judges seem more comfortable punishing counterfeiters and prostitutes than imposing sanctions against those who inadvertently take unreason- * I am indebted to my colleague Herbert Morris for his criticism and encourage- ment; his thoughts on the subject of punishing negligence are so persuasive that it is remarkable we disagree. t Acting Professor of Law, University of California at Los Angeles. B.A. 1960, University of California at Berkeley; J.D. 1964, M. Comp. L. 1965, University of Chicago. Member, California Bar. I This Article focuses on the laws of West Germany, the Soviet Union, England, and the United States. Reference will also be made to Swiss, Austrian, and French law. For a general survey of the negligence law of these jurisdictions, see Lang- Hinrichsen, Die Schuld-ut Irrtumslehre, 2 MATERIALIEN ZUR STRAFRECEITSREFORM 407-13 (1954). The analysis is directed only to inadvertent negligence, excluding reckless offenses, a generally recognized distinction. See MoDEL PENAL CODE §§ 2.02 (2) (c), (d) (Proposed Official Draft 1962) ; R.S.F.S.R. 1960 UGOL. KOD. (Criminal Code) § 9; A. Sc3OENn-E & H. ScHR EDER, STRAFGESETZBUCH 519-20 (15th ed. 1970). 2 The response of critics is varied. Some have recommended outright abolition of negligence offenses. E.g., Hall, Negligent Behavior Should Be Excluded from Penal Liability, 63 COLUM. L. REv. 632 (1963). Others have favored reducing negli- gence to a quasi-offense, e.g., A. BAJMGARTEzT, AUFBAU DER VERERCHENSLE11RE 113 (1916), or an administrative offense within the jurisdiction of the police, e.g., Germann, Rechtssicherheit, 49 SCEWEIZUISCHE ZEITSCHRIFr FUER STRAFRECHT 257, 322-23 (1935). Others have despaired at the prospect of changing the law. E.g., A. KAUF- aXAlN, DAS ScnulnPanZrP 164 (1961). Although Soviet writers have not opposed the punishability of negligence, opposition did exist in prerevolutionary Russia. See V. MPMASlVlI, UGOLOV(NAJA OTVETSTVENNOST' ZA NEOSTOROZHNOST' (Criminal Re- sponsibility for Negligence) 50 (1957). (401)

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