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  1. Why "blame without legal judgment", but "no judgment without blame"? What do these even mean? I never studied philosophy. Can someone kindly explain like I'm 5 the emboldened sentences below?

  2. Please see subject line.

AP Simester, ‘Can negligence be culpable?’, in Jeremy Horder (ed.), Oxford Essays in Jurisprudence: Fourth Series (Oxford: Oxford University Press, 2000), p 94.

Divergence

Core cases are all very well, but others lie at a distance from the paradigm so far considered. Logically, it is possible for the values of a legal system and those of general morality to conflict, even explicitly. In Toledo, &c. Railway Co v Pindar,27 for instance, the plaintiff Pindar was held contributorily negligent for saving some horses rather than a sum of money when both were threatened by fire, on the ground that the former were much less valuable than the latter and that the suffering of the horses was of no legal account. While the decision may reflect considerations specific to tort, it is hard to see how that approach could be defended in contexts where culpability provides the rationale for judgment; especially in criminal law. If the defendant’s behaviour is morally acceptable it cannot be the subject of blame and, therefore, should not be subject to criminal condemnation or punishment.
      To a large extent, the analysis offered here is content independent. It does not seek to identify which acts defendants are required (i.e. under a duty) to avoid. This is because, generally speaking, the moral constraints upon law are exculpatory not inculpatory. Let there be no judgment without blame. But there may be blame without legal judgment. My failure to rescue a stranger may be reprehensible, lawful, and properly so.28 Similarly, in the evaluation of reasonableness, not all considerations will be straightforwardly moral in character. It may be noble to prefer the interests of others yet, for reasons of convenience or self-interest, acceptable not to. Thus, in Marshall v Gotham Co Ltd,29 where measures required to minimise the risk of a mine roof falling were complex, expensive, and partial rather than comprehensive, the House of Lords ruled that the defendants were not negligent in continuing to mine without such precautions. It can be in the interests of a community that individuals be free to act selfishly; in turn, the defendant may benefit from considerations such as the effect on the community if everyone were prevented from behaving as did she.30
      On the other hand, the justified content of law may depend on values over which there is genuine disagreement. This presents no particular difficulties for the analysis of negligence. When we criticise particular rules,31 as many of us do, we implicitly argue that the reasons for which the defendant is required to act should in some way

p 95

be modified. A committed anti-vivisectionist might argue that a reasonable person should want to prevent vivisection sufficiently strongly that he would consider it acceptable to bomb an animal testing laboratory; a devoted spouse, when denying that euthanasia is immoral, impliedly contends that the desire to preserve life should not always be overriding. Others will dissent. The disagreement simply manifests how difficult it can be to concur whether an outcome is morally desirable.

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The passage you've bolded is effectively saying that moral justifications are only used in law to excuse people from acts that might otherwise be criminal; they are never used to accuse people of crimes. For example, let's say we have a case where person X sees a man steal a purse from a woman. X chases the purse-snatcher, and the purse-snatcher runs into a street where a car strikes and kills the purse-snatcher. Person X could reasonably be charged with manslaughter for causing the purse-snatcher's death — the purse-snatcher would not have run into the street to be killed if he were not being chased — but the moral justification of trying to apprehend a criminal might be exculpatory for X. But under no context would X be charged with a crime simply and specifically because he tried to help the woman recover her purse.

It might help to break it down like so:

  • An act that is intended to harm (an immoral act) is criminal, whether or not it actually causes harm
    • a person who receives blame for such an act can receive judgement by the courts
  • An act that is intended to help (a moral act) that in fact helps is unobjectionable and un-actionable
    • no harm is done, no blame accrues, and so the courts have no standing to pass judgement
  • An refusal to help (an amoral act) may be objectionable, but is un-actionable
    • if harm is the result, blame might accrue, but since no action was taken the courts have no standing to pass judgement
  • An act that is intended to help (a moral act) that indirectly causes harm is questionable
    • harm is done, blame accrues, but the court may have valid reason not to pass judgement

That list is asymmetrical because the court needs to consider both the outcome and the intentions of the act. A person cannot be blamed where no harm is directly attributable to his actions, and if he cannot be blamed he cannot be judged. A person can be blamed for the harmful outcomes that can be attributed to his acts, but if his intentions were morally upright, he might not receive judgement even while he retains blame.

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+50

"Exculpatory" comes from the Latin "culpa", meaning blame, guilt or fault. So the idea of "no judgement without blame" in legal practice is that you shouldn't inact a legal censure or punishment upon someone if they aren't morally accountable for having done something wrong in some way, and showing that they didn't do the thing is sufficient to demonstrate innocence under the law.

I think what the author of your quote is pointing out is that this is part of a general philosophy of just legal practice. One manifestation of this is a burden of proof on prosecutors to demonstrate guilt ("innocent until proven guilty"), but it's more than just about the strength of one's evidence.

Morality doesn't necessarily work according to the same rules as the law - we often want to say that someone has done something wrong without saying that this wrong thing should be against the law. People can have differing opinions about what is wrong, and deciding certain things to be illegal can result in long disputes between people and state. Maintaining good social order can sometimes mean that we leave some things as admissible, even if a reasonable proportion of that society determines those actions to be morally unacceptable.

There are even further considerations where someone has done something that is both wrong and against the law, but where judgement must be withheld for reasons of the general functioning of the law. Consider, for example, that someone commits the "perfect crime", for which no legal accountability can ever be determined. They did it, but it's impossible for anyone to demonstrate it.

An exculpatory legal system may determine that the person will not be judged because you can't prove that they did it. That doesn't mean that what they did was right - in fact it is exactly the point that they did break the law - but the law cannot punish them because of the standards it maintains in regards to practically fair accountability for citizens under the law.

This is done as a matter of deliberate choice. In the main, the prospect of failing to punish someone for having been a master criminal is less of a problem for an effective and just legal system than the prospect of punishing someone on the basis of partial, speculative evidence, or of allowing a vocal or influential majority to repress a divergent minority perspective with the weight of law.

The law as an embodiment of force in the peaceful state is vulnerable to abuse and exploitation, and good practice is that it keeps checks and balances on itself to avoid this where possible.

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    You might like to include the fact that conviction for many criminal offences requires the 'mens rea' - the guilty mind - so that a claim that there is no moral fault on the part of the accused is a legal defence. – Bumble Aug 17 '20 at 21:51

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