Civil Versus Criminal Law and Friedman’s Abolishment of Criminal Law Lecture

Abstract

This essay evaluates the differences in criminal and civil law in the U.S., especially as it relates to David Friedman’s lecture on the abolishment of criminal law in favor of a privatized law enforcement service/business. The critique of Friedman’s lecture also involves a discussion of the two essential components of crime: actus reus and mens rea, or the guilty act and the guilty mind and how they relate to criminal and civil law. In addition, the paper discusses the parties behind criminal and civil cases (who owns the claim), the differences in the burden of proof, and the confounding ability for an acquittal under criminal law to be followed by liability under civil law. Finally, the essay considers the social stigma that is inevitably associated with felonies or being found guilty by criminal law. The essay concludes that Friedman is unable to provide a reasonable and sensitive alternative to the current, divided system of civil and criminal law. 

Introduction

David Friedman’s lecture on the ending of criminal law, he strongly advocates for a privatized system in which an individual would contract with an enforcement business in order to obtain justice from a person who has committed a tort, or wrongful act, towards them. Using an economic cost and benefit analysis, Friedman attests that criminal law fails to provide “efficient punishment” to offenders and leaves victims with no compensation. In a system with two schools of law, Friedman suggests that as a crime increases in severity, the victim’s ownership of the case rapidly becomes the property of the State, which will no longer benefit the victim. However, they may be received, Friedman’s viewpoints underscore a central idea in U.S. jurisprudence, namely the division between civil and criminal law. While Friedman makes an impassioned case for privatization of law enforcement, he disregards the necessitation of the law system(s) valuing human emotion and social solidarity and fails to provide an improved law framework.

The first great difference between civil and criminal law, according to Friedman, is who “owns” the claim. In a civil case, the parties involved are the plaintiff, who has the claim, and the defendant, who stands accused of causing damage to the plaintiff. Civil court is concerned with monetary compensation for damages (among other things) and is specifically delegated to solve personal wrongness that has occurred between two parties (Schmalleger, 2011, p. 118). In this way, civil court is a personal, self-actualizing system. Civil law stands in contrast to criminal law, as the owner of the claim is the victim and not the State. In criminal law, not only is the State the owner of the claim, but fines, prison time, or even death are punishments for a guilty verdict. Friedman insists that when the claim for a crime is overtaken by the State, the victim who suffered the loss gains nothing, but this belief ignores the relationship of the law to society as a whole. As Neubauer and Meinhold (2013, p. 9) point out, courts do not exist in a vacuum but are political entities, and have a particular, dual responsibility to both the individual and the public. Friedman did not have a solution to how a society should demonstrate local as well as society-wide laws and (inevitably) values, if the law was not divided into two groups. Without a legal framework that addresses both micro and macro levels of society, social solidarity, at the very least, will suffer.

Another difference between civil and criminal law is the way in which evidence is evaluated to establish civil wrongdoing or a criminal act, i.e. the burden of proof. In a civil case, the burden of proof is satisfied by a preponderance of the evidence, while in criminal law, the standard of “beyond a reasonable doubt” is employed (Neubauer & Fradella, 2011, p. 46). The controversial burden on criminal law therefore is substantially heavier. Thanks to the different standards of proof necessary to win a claim, it is possible for an acquitted person (found not guilty under criminal law) to be found liable under civil law, as with the O.J. Simpson murder case (Neubauer & Fradella, 2011, p. 36). Friedman claims that the reason for the increased burden on criminal law is due to the use of “inefficient punishments”, such as prison sentences and the death penalty, which forces the inclusion of moral sanctions. However, Friedman seems overly concerned with monetary compensation to the point of ignoring the fact that “…laws also serve to regulate human interaction, [and] enforce moral beliefs…” (Schmalleger, 2011, p. 143). This insists that all law must also be enforced with sensitivity towards human emotion and other, less tangible aspects of life. For example, prison time for a rapist can provide a sense of safety to the victim where monetary compensation would not.

Differences between civil and criminal law do not stop with the burden of proof, but also differ in the standard by which a person is found guilty. In a criminal law proceeding, a prosecutor must prove a concurrence of both actus reus and mens rea: that the offender did an illegal act and was in a state of mind that was knowing, purposeful, negligent, or reckless (Schmalleger, 2011, p. 123-124). According to Schmalleger (2011, p. 118), “Civil law is more concerned with assessing liability than it is with intent” and generally does not have to establish whether a litigant intentionally inflicted damage in an accident. Friedman apparently believes that all wrongdoings and crimes are essentially a series of cost/benefit decisions, as indicated by his idea of the “contract on the front door” (indicating an enforcement business has been contracted by a household), as a crime deterrent. If that were the case, all offenders would report that the reason they decided to commit a crime was due to necessity, which is unrealistic. Even if it were true, it would be utterly dismissive of what should amount to a social concern. 

Finally, as Friedman brings out in the lecture, civil cases in court do not leave people with a stigma in the way criminal cases can and often do. While it is unclear if Friedman is concerned about recidivism or believes that stigma should be unnecessary in a system of passionless law, criminal cases do indeed create stigmas (Neubauer & Meinhold, 2013, p. 106). This is may be a consequence of the large-scale nature of criminal law, which involves an offense not just to the victim but also to society as a whole. 

In the end, Friedman’s arguments about civil law and privatization of enforcement fails to provide an improved framework of law while not sacrificing or ignoring the inherent messiness of human interactions. He also gives little heed to the fact that the bulk of court cases in the U.S. are in fact, civil cases. While the divided system of law can at times be precarious, it is based on the intent to retain and value the very human nature from which it is based. To turn to an utterly dispassionate system of law that reduces all of the crimes in life into a monetary sum, would be to deny the fact that law governs human beings. 

References

Neubauer, D. W., & Fradella, H. F. (2011). America's courts and the criminal justice system (10th ed.). Belmont, CA: Wadsworth.

Neubauer, D. W., & Meinhold, S. S. (2013). Judicial process: law, courts, and politics in the United States (6th ed.). Boston, MA: Wadsworth.

Schmalleger, F. (2011). Criminal justice today: an introductory text for the 21st century (11th ed.). Upper Saddle River, NJ: Pearson Prentice Hall.