I'm Roger pilla vice president for legal affairs at the Cato Institute before
us now is a constitution aimed mainly at securing Liberty through the rule of
law plus the core principles of private property we're ready at last to discuss
the basic law we need once we start interacting committing wrongs and making
contracts as we saw earlier when we violate rights we create new special rights and
obligations so too when we enter into contracts we will discuss freedom of contract in
the next session here we discussed torts and crimes and again we'll cover only
the basic principles tort comes from the old French for wrong or injustice torts
our acts or omissions that injure or harm others by taking what belongs rightly
to them free and clear their lives liberties or property torts take many forms
battery ranging from a simple touch to serious attacks assault or a credible threat
Some Important Basic Concepts
of imminent battery negligence or injuring another by failing to take
reasonable care trespass to property defamation intentional infliction of emotional
distress imposing excessive nuisance or risk production or sales of defective or
dangerous products leading to injury and more much more tort law has two main aims
first to enable injured parties to hold those who injured them liable and thus
obligated to make them whole usually by compensating them for their losses but also by
enjoining or blocking ongoing harmful activity and second tort law aims to deter such
acts by holding wrongdoers thus liable when the parties are unable to settle
their differences privately often through insurance both aims are served by big
bringing civil suits against the wrongdoers in such suits the victim or plaintiff
must prove his injury that it was caused by the defendant and often that it was
due to the defendants negligence the defendant may have defenses for example
that he acted in self-defense or that he took all reasonable care to avoid the
harm or that the victim consented or was otherwise responsible in whole or in
part for his injury but sometimes defendants will be held strictly liable
regardless of the care they took simply because they caused the injury in addition to
strict liability and negligence based torts there are also intentional torts which
were often recognized as common law crimes you don't need a statute to know that
murder rape and robbery are not only torts but crimes as well reason alone tells
you that what distinguishes such acts from ordinary torts is something called
mens rea or a guilty mind the intent to do harm not just doing harm by accident
such acts bring us to criminal law but criminal law involves much more for
starters a person who intentionally injures another cannot simply compensate his
victim for losses like medical bills forgone income and pain and suffering
criminals attack our dignity indeed what would a wealthy rape victim care about mere
financial compensation were still how does mere compensation address or deter the
actions of a wealthy rapist or child molester it's simply the cost of engaging in
his sordid business we come then to the need for compensation and punishment to
remedy such crimes but there's another reason too for punishing criminals by for
example incarcerated them it's because by their actions they have flaunted justice
and created fear in the community thus crimes are not simply private but public
wrongs criminals are subject not simply to civil suits by their victims but to
criminal prosecution by the public an accused criminal defendant still has rights of
course for there's often uncertainty surrounding a criminal prosecution including
whether the defendant is guilty as charged criminal trials with complex procedural
rules striking a balance between the defendants and the public's rights are aimed
at resolving that uncertainty but even before trial we need rules about arrest
and interrogation the gathering of evidence and more striking that balance is
difficult but not impossible regrettably in far too many countries it is struck in
favor of the government and innocent defendants pay the price still other problems
plagued modern criminal justice systems since defendants are often poor they cannot
afford legal counsel and the public's interest in punishing usually trumps the
criminal victims right to compensation there are practical solutions to both problems
but they're often overwhelmed by another problem over criminalization and it has
two sources first unlike under common law much criminal liability today
arises under complex and obscure statutes and regulations which means that many
people have no idea that they're breaking the law yet they're held strictly liable
despite the normal mens rea requirement for criminal liability tax laws business
regulations campaign finance rules and more are the fonts of this problem second
victimless crimes are another source in session 9 will turn to the war on drugs suffice
it to say here that we'd have more time and resources to address real crime if
we didn't criminalize merely disapprove being in summary a free society needs
tort law to help deter acts that injure others and ensure that those injures are
made whole again second intentional torts lead to criminal law and the need for
victim compensation and punishment but third over criminalization 'he's undercut
those worthy goals
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