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Punishment and Freedom$
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Alan Brudner

Print publication date: 2009

Print ISBN-13: 9780199207251

Published to Oxford Scholarship Online: September 2009

DOI: 10.1093/acprof:oso/9780199207251.001.0001

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Liability for Public Welfare Offences

Liability for Public Welfare Offences

Chapter:
(p.169) 5 Liability for Public Welfare Offences
Source:
Punishment and Freedom
Author(s):

Alan Brudner

Publisher:
Oxford University Press
DOI:10.1093/acprof:oso/9780199207251.003.0006

The question for discussion in this chapter is: under what substantive constraints can autonomous agents be penalized for a public welfare offence? The chapter offers a nonutilitarian justification for dispensing with a subjective fault requirement for public welfare offences. It then derives from the real autonomy paradigm alternative constraints on penal action, namely, an injunction against strict liability, an injunction against imprisoning for negligent breaches of regulatory statutes, and a prescription for a general defence of nonnegligent ignorance of regulatory law. It concludes that the fair-opportunity-to-comply constraint on punishment that Hart proposed for the penal law as a whole properly applies only to public welfare offences.

Keywords:   public welfare offences, strict liability, autonomy, due diligence, ignorance of law, noncriminal penalties

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