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Appraising Strict Liability$
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Andrew Simester

Print publication date: 2005

Print ISBN-13: 9780199278510

Published to Oxford Scholarship Online: January 2010

DOI: 10.1093/acprof:oso/9780199278510.001.0001

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Strict Liability, Justice, and Proportionality

Strict Liability, Justice, and Proportionality

(p.81) 4 Strict Liability, Justice, and Proportionality
Appraising Strict Liability

Douglas Husak

Oxford University Press

This chapter begins by describing an outrageous case of strict liability in the criminal law. The case illustrates the importance of a distinction between two conceptions of what strict liability is. This distinction is crucial in helping to identify what, if anything, is unjust about strict liability. Section 1 introduces New Jersey v. Rodriguez. Section 2 contrasts substantive with formal conceptions of strict liability. This distinction is applied in Section 3 in an effort to understand better the injustice of strict liability. Section 4 speculates about the extent of this injustice by trying to identify whether and to what extent various statutory reforms would count as an improvement upon it. The chapter concludes that the single difficulty shared by most cases of strict liability is that they infringe principles of proportionality in punishment. Occasionally, however, strict liability may give rise to no injustice at all. Moreover, attempts to rectify the problem may actually be counterproductive, increasing the net injustice of the substantive criminal law.

Keywords:   strict liability, criminal law, New Jersey v. Rodriguez, injustice, proportionality in punishment

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