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Autonomy of Corrective Law: A Projection of the Doctrine of Constructive Negligence

Published online by Cambridge University Press:  12 February 2016

Shalev Ginossar
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      Il y a des criminels que le magistrat punit, il y en a d'autres qu'il corrige … Ainsi il ne faut pas confondre les grandes violations des lois avec la violation de la simple police: ce sont choses d'ordre différent. (Montesquieu, Esprit des Lois, liv. xxvi, chap. 24)
      Here is this important body of law … where … there is going on a judicial task that is one of interest and also one of considerable difficulty … That is what gives scope for students of law. Do not ignore it or brush it on one side or dismiss it as impossible of study.
      (Sir Patrick Devlin, “Statutory Offences” (1958) 4
      Soc. Pub. Teachers of Law 215)

The present article responds to Sir Devlin's appeal in favour of that body of law which, in the spirit of Montesquieu, deserves the distinctive name of “corrective law”. Its province mainly coincides with what is commonly called “public welfare” or “regulatory” offences, of which violations of traffic rules provide the most typical example.

Their common feature is that they are penalized independently of the state of mind of the perpetrator, being based on the principle of absolute or, at least, strict liability. To this principle the most authorized teachers of criminal law have expressed their hostility; and their reasons therefor are undeniably impressive. Nevertheless, far from dying out, the field of strict liability offences increases constantly and, by sheer weight of number and variety, they greatly exceed those of “ordinary” crime.

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Articles
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Israel Law Review , Volume 9 , Issue 1 , January 1974 , pp. 24 - 62
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Copyright © Cambridge University Press and The Faculty of Law, The Hebrew University of Jerusalem 1974

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References

1 This choice of name is discussed infra, n. 105.

2 For an ample bibliographical list on the subject, see Howard, C., Strict Responsibility (London, 1963) 209–212Google Scholar, and in particular at p. 2, n. 6; adde—apart from that excellent work itself—Fitzgerald, , “Crime, Sin and Negligence” (1963) 79 L.Q.R. 351Google Scholar; Brett, P., An Inquiry into Criminal Guilt (London, 1963) 103–23Google Scholar; Cooper, H.H.A., “Towards a Rational Doctrine of Criminal Responsibility” (1968) 59 J. Crim. L., C & P.S. 338.Google Scholar

3 The “petty offenses which constitute the exceptions surpass numerically by far the prosecutions for crimes that are still subject to common law mens rea” (Mueller, , “Mens rea and the Law Without It” (1955) 58 West Va.L.R. 38, n. 21).Google Scholar

4 This is the accepted view of legal historians such as Pollock, and Maitland, , History of English Law, vol. II, p. 470Google Scholaret seq., Holdsworth, , History of English Law, vol. II, p. 50Google Scholaret seq. But it has been doubted by Winfield, , “The Myth of Absolute Liability” (1926) 42 L.Q.R. 47Google Scholar; Hall, J., General Principles of Criminal Law (2nd ed., 1960) 77–83.Google Scholar On the other hand, the commonly accepted view that regulatory offences are comparatively new has been denied by Starrs, James E. (“The Regulatory Offence in Historical Perspective” in Essays in Criminal Law edited by Mueller, (N.Y. U. 1961) 235).Google Scholar

5 This dictum is cited from Williamson v. Morris [1899] 1 Q.B.7. “The contention that an injury can amount to a crime only when inflicted by intention is no provincial or transient notion. It is as universal and persistent in mature systems of law as belief in freedom of the human will and a consequent ability and duty of the normal individual to choose between good and evil.” (Morissette v. U.S. 72 S.Ct. 240, 243; 342 U.S. 246, 250). See further Kenny, Outline of Criminal Law (19th ed. by Turner) 13.

6 We shall not dwell on the reluctance to accept offences of negligence (as distinguished from recklessness) within the ambit of criminal law. Be it sufficient to note for the purpose of this article, that the Criminal Code Ordinance, 1936, based on English law (see Abrams, , “Interpreting the C.C.O., 1936—the Untapped Well” (1972) 7 Is.L.R. 25CrossRefGoogle Scholar) contains “express provisions … relating to negligent acts or omissions” (sec. 11(1)), which include: causing death by want of precaution or by recklessness (sec. 218, and cf. secs. 231 seq. on the duty of care); and a variety of offences of criminal recklessness and negligence (Chap. XXVI, secs. 243–7, in particular sec. 243 specifying certain acts done “in a manner so rash or negligent as to endanger human life or to be likely to cause harm to any person”).

7 The strict character of certain prohibitions in ordinary crime poses entirely different problems, which can be overlooked for the present discussion. See infra § 7.

8 On the damaging effect of this improper extension of criminal law, see J. Hall's comment: “The fact that in so many of these crimes a reasonable mistake of fact is not a defense has aided their enforcement but has greatly diminished, if not entirely removed, the feeling that it is ‘wrong’ to violate a statute merely because it provides for penal sanctions. People believe that criminal liability should be avoided, as one would a reef, in self-protection. Such an indiscriminate use of the criminal law weakens its hold as the arbiter of respectable conduct.” (“The Substantive Law of Crimes, 1887–1936” (1937) 50 Harv.L.R. 616, 623). Cf. Garraud, , Droit criminel, t. VI, § 2804Google Scholar: “La pénalité … ne répond plus à une idée morale; elle n'est plus la satisfaction donnée à la conscience publique, troublée ou indignée: c'est un risque à subir en vue d'assurer l'exécution de certaines prescriptions de police.”

9 C. Howard, op. cit. at p. 8.

10 P. Brett, op. cit. at p. 115.

11 Hall, J., General Principles at p. 351.Google Scholar

12 3 S.J. 266; (1959) 14 P.D. 1882. The judgment of the District Court of Jerusalem is reported in (1959) 18 P.M. 348.

13 (1964) (I) 19 P.D. 668 (on appeal); (1965) (I) 20 P.D. 57 (on further hearing). Cf. Provincial Motor Cab Co. v. Dunning [1909] K.B. 599 (motor car running without rear light).

14 Howard, C., Strict Responsibility, p. 2.Google Scholar Similarly, W.T.S. Stallybrass has expressed doubts “whether the demands of expediency may not have gone too far in making criminals out of well-intentioned citizens (“Eclipse of Mens Rea” (1936) 52 L.Q.R. 67 ); and J.L1.J. Edwards, while admitting that the practice of imposing criminal liability independently of any moral guilt may sometimes be necessary, fears that, if allowed to continue unabated, the “criminal law will come to be regarded with contempt” and that this may weaken respect for the law (Mens Rea in Statutory Offences (London, 1955) 247). But Friedman, W. believes that “we have to accept an occasional injustice to the individual” as this “is part of the price we have to pay” (Law in a Changing Society (London, 1959) 202)Google Scholar; cf. also supra n. 8.

15 (1965) (I) P.D. 74–75, per Agranat P., Mani J. dissentiente. Cf. Howard, op. cit., 189–207; Bein, , “The Defences Available to the Defendant in Strict Liability Offences” (1966) 22 HaPraklit 464.Google Scholar

16 See Willams, Glanville, Criminal Law: The General Part (2nd ed.) § 71.Google ScholarCf. the distinction between “a crime and an offence—or between what one might call a felony and a misdemeanour, if one could modernize those terms so that the latter was given its natural meaning”, i.e. that crime means “something that is sinful or immoral, and an offence at worst a piece of misbehaviour” (Devlin, , The Enforcement of Morals (Oxford Univ. Press, 1965) 33).Google Scholar

17 Code pénal français, art. 1er. This purely quantitative criterion is linked to the three degrees of jurisdiction composing the hierarchy of French courts, which was adopted in many countries (Silving, H., Constituent Elements of Crime (Charles C. Thomas, 1967) 201)Google Scholar among the Ottoman empire (see Ginossar, , “Components and Trends of Israel Law” (1966) 2 Is. L.R. 380–1, 383Google Scholar, 394). On the merits of this system, see Léauté, Vouin et, Droit pénal et criminologie (Paris, 1956) 154 s.Google Scholar

18 Like in England, criminal statutes in Israel generally lay down the maximum sentence that may be imposed (Sebba, , “Minimum Sentences” (1971) 6 Is.L.R. 227).Google Scholar

19 Sec. 5 of the Criminal Code Ordinance, 1936, as amended in 1966 (20 L.S.I. 56). Under the original enactment, the maximum penalties were, respectively, a week's imprisonment, and a fine of five pounds. In view of the devaluation of the currency the amount of the fines laid down by Mandatory legislation was in 1954 multiplied by 15 (sec. 30 (b) of the Penal Law Revision (Modes of Punishment) Law (Consolidated Version), 1970, 24 L.S.I. 112).

20 (1875) L.R.2 C.C.R. 154.

21 (1889) 23 Q.B.D. 168.

22 Cf. Howard, op. cit. at p. 2, n. 5.

23 Brett, P., An Inquiry into Criminal Guilt, 113.Google Scholar “Where sexual offences were in issue…, the apparently strong arguments in favour of strict liability were doubtless reinforced by the unvoiced assumption of the Victorians that every person who ventures upon a sexual relationship does so at his peril…”. For some mysterious reason, certain deviations from morality are visited in this respect with less severity than others. Thus incest, for which Oedipus was so tormented in spite of his good faith, would in the same circumstances be absolved by modern law (Sexual Offences Act, 1956, secs. 10 and 11 requiring mens rea); and adultery which has disappeared from our criminal law was, in Biblical times, a crime of absolute liability (cf. Gen. xxii, 21). “The greater part of the law relating to sexual offences is the creation of statutes and it is difficult to ascertain any logical relationship between it and the moral ideas” (Devlin, , The Enforcement of Morals, p. 1).Google Scholar

24 Or even on a person who has done nothing and was totally unaware of anything having been done: cf. infra, n. 44.

25 Gausewitz, , “Reclassification of Certain Offenses as Civil instead of Criminal” (1937) 12 Wis.L.R. 365.Google Scholar

26 Perkins, , “The Civil Offense” 100 (1952) U. of Pa. L.R. 832.CrossRefGoogle Scholar

27 Sec. 1.04 (4) and Comment at pp. 8–9. Cf. Silving, H., Constituent Elements of Crime, 198 s.Google Scholar Similar proposals have already been adopted in—1) Germany: “The law of petty offenses, comprising petty misdemeanors and violations, is no longer covered by the criminal code, from a sincere belief that the stigma of criminality ought to be reserved for the true criminal, not the occasionally disobedient but generally law-abiding citizen. This corresponds to enlightened American thinking on the topic”. (Mueller, Gerhard O. W., “The German Draft Criminal Code 1960—An Evaluation in Terms of American Criminal Law” (1961) Curr. Prob, of Crim. Law 25).Google Scholar The principle was already contained in the Penal Code of Prussia of 1794, but had been abandoned by the German Code of 1871. See Jeschek, , Lehrbuch des Strafrechts—Allg. Teil, 36–8)Google Scholar; 2) Sweden: see Strahl, I., The Penal Codes of Sweden (Stockholm, 1965)Google Scholar Introduction; Screvens, , “Le nouveau code pénal suédois” (1966) Rev. dr. pén. et crimin. 620Google Scholar; 3) Ethiopia: Graven, J., Le Code pénal de l'Empire d'Ethiopie, Centre français de droit comp. 1959, 24.Google Scholar It was discussed, but not yet adopted in—1) Switzerland: Graven, , “La classification des infractions du Code pénal et ses effets” (1958) Rev. pén. suisseGoogle Scholar; 2) France: see (1899) Rev pén. 1091 and (1901) 983; Heitzmann, , La notion de contravention (th. Nancy, 1938) 40.Google Scholar For reasons of economy, instead of reducing the scope of contravention it was widened in 1958 so as to include a number of petty misdemeanours effectively punishable with prison. This trend has been deplored as distorting contravention into “une notion monstrueuse et proteiforme” (Chabas, F., “La notion de contravention” (1969) Rev. sc. crim. et dr. pén. comp. 312).Google Scholar 3) United Arab Republic: see Salam, Mohamed Abdel, “Les Aspects sociaux du nouveau projet de code pénal de la République Arabe Unie” (1967) Rev. sc. crim. et dr. pén. comp. 105.Google Scholar

A case in point is that decided towards the close of the Mandatory regime by the District Court of Jerusalem. The accused (named Benjamin Mizrahi) being charged with having “imitated” a bank note, contrary to sec. 350 (1) of the Criminal Code, pleaded that no guilty intent had been alleged or proved. His defence was rejected in view of the “very great difference in the penalties prescribed in secs. 349 and 350” of the Code. Under the former provision, incriminating the forging of a bank note with intent to defraud, the maximum penalty was imprisonment for life; while the offence described in sec. 350 entailed no more than a fine of six pounds in respect of every document made. “[T]he irresistible inference accounting for the distinction between the penalties must … necessarily be that under the former section mens rea is a necessary element of the offence, whereas under the latter section there is an absolute liability irrespective of any question of guilty knowledge” (47 S.D.C. 295, at § 5, quoted by Witkon J. at p. 271). Under the 1966 amendment the maximum penalties were altered to seven years prison for the crime of forgery and three months prison for the offence of imitation, weakening the sharp contrast between the two provisions.

28 Loc. cit.: the term “crime” is taken here in the wider sense as including misdemeanour and even petty misdemeanour.

29 Traffic Ordinance (New Version), 1961, secs. 62 and 68 (1 L.S.I. (N.V.) 237–40). The maximum penalty for the sale of adulterated food is still harsher: seven years prison and IL 10,000 fine (see D. Bein, case note in (1972) 7 Is.L.R. 150 and n. 4).

30 In the absence of statistical data concerning “non-serious” offences, we can only rely on such samples as may have been collected at random in the case-note cited in the preceding note (Tnuva v. State of Israel (1970) 68 P.M. 336), being a conviction of several offences of selling adulterated milk and yoghourt, for which Tnuva was sentenced to fines ranging from IL 850 to 2,500. The author of the note was visibly shocked by such unusual severity (Ibid. at pp. 150, 151 (text and n. 5) and 156). The same note (p. 154 n. 12) ascribes to the President of the Supreme Court the statement that “in fact nowadays, heavy penalties, including imprisonment, are imposed for offences of strict liability” (our emphasis), but in the original Hebrew text the passage referred to (A.G. v. Gadisi (1965) 20 (I) P.D. 68–69) seems far less sweeping and merely points out that many offences of that type entail (in Hebrew: gorerot) such penalties, in the sense that the latter are legally authorized. On the ambiguity of the phrase “use of sanctions”, meaning either their authorization by the legislature or their actual application, see the pertinent remarks of Ball and Friedman, “The Use of Criminal Sanctions in the Enforcement of Economic Legislation: A Sociological View” (1964/65) 17 Stan. L.R. 199: “The criminal sanctions remain as threats—they are “used” in the sense of being authorized, but no longer “used” in the sense of wholesale application to offences”, op. cit 214). A major thesis of Herbert Packer's, L. work on The Limits of the Criminal Sanction (Stanford Univ. Press, 1968)Google Scholar is “that the criminal sanction should not be applied to trivial infractions such as minor traffic offences” (p. 130): “If the most that we are prepared to exact … is the payment of money into the public treasury, we should not impose upon ourselves the manifold burden of invoking the criminal sanction” (op. cit., 273). As early as 1952 Perkins had denounced the considerable confusion caused by the fact that the statutes authorized a penitentiary sentence (“The Civil Offence” (1952) 100 U. of Pa. L.R. 849). This is another instance of the harm done by maintaining on the statute book an enactment whose implementation was never seriously intended (cf. Yaron, R., “Laws Disregarded” (1971) 6 Is.L.R. 188).Google Scholar

31 Hobbs v. Winchester Corp. [1910] 2 K.B. 471, 481, 485.

32 Tolson (1889) 23 Q.B.D. at 177. Prof. Hall doubts whether this “wise counsel” is being adhered to (General Principles at p. 343 n. 56; cf. Glanville Williams, op. cit. § 76, p. 267 n. 2). The same solicitude was expressed by Witkon, J. in Mizrachi at p. 278 (see passage quoted above at § 4).Google Scholar

33 As was done in the Criminal Code Ordinance, 1936, in secs. 349 and 350: cf. supra n. 27, in fine.

34 Sec. 28 of the Penal Law Revision (Modes of Punishment) Law [Consolidated Version], 1970, reads:

Imprisonment without a fine 28. Where imprisonment is prescribed by any Law and a fine is without a fine is not prescribed by any Law and a fine is not prescribed, the court may—

(1) where imprisonment for a term not exceeding seven days is prescribed—impose imprisonment for a term not exceeding seven days or a fine not exceeding 100 pounds or both such penalties;

(2) where imprisonment for a term not exceeding one year is prescribed—impose imprisonment as prescribed or a fine not exceeding 2,000 pounds or both such penalties;

(3) in every other case—impose imprisonment as prescribed or a fine not exceeding 5,000 pounds or both such penalties;

Provided that where a law prescribes mandatory imprisonment or a minimum term of imprisonment, imprisonment shall not be replaced by a fine.

35 In England, crimes of violence are punished by a fine—and a low one, at that—in about one third of the cases; and for sexual offences, the proportion is even higher (over 40%). See Samuels, A., “The Fine: The Principles” [1970] Crim. L.R. 203.Google Scholar

36 Blackstone, , Commentaries vol. 1, pp. 54, 55, 58.Google Scholar A French contemporary of Blackstone similarly distinguished between crimes against society in general, such as are committed against religion or the State, either to their exclusive detriment or, in addition, to the detriment of any individual, on one hand, and, on the other, “police offences” (délits contre la Police), being contraventions to regulations pour la Police du Royaume (Muyart de Vouglans, M., Les Lois Criminelles de France dans leur Ordre Naturel (Paris, 1781) vol. I, p. xiv)Google Scholar; and the autonomy of this branch of the law is also recognized by Garraud, , Droit Criminel vol. VI, § 2783Google Scholar: “Le droit de police se borne à punir la violation de certaines lois ou de certains règlements établis dans l'intérêt du bien-être public ou de la bonne administration du pays … L'existence ou le fonctionnement de l'ordre social ne dépend pas de ces règles: une société pourrait exister et fonctionner sans elles; mais une société est bien ou mal policée, elle est bien ou mal administrée, suivant que ces règles seront ou non édictées et respectées” (ibid. 2764; cf. also Bekaert, H., “La Réforme de la Procédure Pénale (Hommage à Léon Cornil)” (1962/1963) 43Google ScholarRev. dr. pén. et crim. 727). The distinction can be traced to Roman Law which distinguished between crimes quaedam natura turpia sunt, and those quaedam civiliter et quasi more civitatis (Dig. 50, 16, 42). Cf. Montesquieu's dictum quoted at the head of the present article, on the need to distinguish between “flagrant violations of the laws” and “a simple breach of the police”: these things are of a different order. The Spirit of Laws transl. by Nugent, M. (revised ed. The Colonial Press, N.Y. 1900) vol. 2 p. 79.Google Scholar

37 This has been ascribed to the influence of the Austinian theory which refuses to draw any distinction between the commandment “Thou shalt not kill” and the commandment “Thou shalt not drive on the right [or left] of the road”, both being equally binding upon the citizen (See Devlin, , The Enforcement of Morals, 30–1).Google Scholar In the same vein, Kelsen, H. wrote “There are no mala in se, there are only mala prohibita, for a behaviour is a malum only if it is prohibitum” (General Theory of Law and State (1961) 52).Google Scholar This criticism is deplored by Devlin, who holds that “The lack of an overt distinction has damaged the Law” (loc. cit.). See also Turner, , “The Mental Element in Crimes at Common Law” in Modern Approach to Criminal Law, Collected Essays (London, 1945), 220–3Google Scholar; Kelly, , Outline of Criminal Law (19th ed. by Turner, ) § 17, p. 28–9Google Scholar; Hall, , General Principles 337–42Google Scholar; but in an earlier article Prof. Hall had admitted that “[t]he modern public welfare offences are not strongly supported by the mores. Their occurrence does not arouse the resentment … that characterizes the affective attitudes directed at the perpetrators of traditional crimes” (“Interrelation of Criminal Law and Torts” (1943) Colum. L.R. 993); and the same passage appears with slight alterations in his treatise on General Principles (at p. 331). On the other hand, he concedes that “our basic criminal law, the common law felonies, is almost universal law” (Hall, J., “Science and Morality of Criminal Law” (1968) 9 Ariz. L.R. 360).Google Scholar After discussing the problem in depth. P. J. Fitzgerald reaches the conclusion that mala prohibita do differ from real crimes (“Real Crimes and Quasi-Crimes” (1965) 10 Nat. L. Forum 52, and cf. infra n. 102).

38 Criminal law is generally known because, as Glanville Williams well observes (§134), so far as mala in se are concerned, it reflects current morality, so that an “ordinary person who breaks a moral principle consciously takes the risk that his conduct may be a breach of the criminal law”; whereas rules relating to mala prohibita are often only known because of convictions reported in the press. Another brilliant opponent of absolute liability, G.O.W. Mueller, has noted that “[t]housands of regulatory offences have been created, which no mortal can possibly all know by heart, nor be aware of at all times … You and I and every citizen know that it is criminal to steal and to murder. But who knows that if he permits Canadian thistles to grow to maturity in his backyard he commits an offense against the government?” (“Mens Rea and the Law Without It” (1955) 58 West Va. L.R. 35, 37). On the distinction made by French criminal law between crimes par nature and crimes par détermination de la loi, see et Léauté, Vouin, Droit pénal et criminologie (Paris, 1956) 149.Google Scholar

39 After pointing out that “society is interested also in the due fulfilment of contracts”, M. Hart, Henry Jr., (“The Aims of the Criminal Law” (1958) 23 L. & Contemp. Prob. 403)Google Scholar defines crime as “conduct which, if duly shown to have taken place, will incur a formal and solemn pronouncement of the moral condemnation of the community (op. cit., 405); and, when considering our problem, he admits that the legislature treats as a crime conduct which is neither “rightful nor wrongful in itself. It employs the threat of criminal condemnation and punishment as an especially forceful way of saying that it really wants to be obeyed, or else simply from lack of enough imagination to think of a more appropriate sanction” (op. cit. 417; and cf. Silving, H., Constituent Elements of Crime 198).Google Scholar

It is interesting to note that the appositeness of this dichotomy is recognized by religious norms themselves. Thus, while the Christian is enjoined to “render unto Caesar the things that are Caesar's” (Mk. xii, 14–17; Mt. xxii, 17–21; Lk. xx, 22–25), Jewish law—for different reasons—also demands obedience to civil authority (Encyclopedia Judaica, vol. 6, 51; v° Dina de-malkhuta dina).

40 Cf. infra, § 16, at nn. 70, 75 and 76.

41 Ball and Friedman (op. cit. supra n. 30 at p. 217) recognize this in respect of middle-class persons; but we do not assume that other people are less sensitive, since a criminal conviction is, in itself, “a record of social disgrace and imports a condemnation for moral guilt” (Brett, op. cit. 36).

42 This term seems closer to the original text than the (authorized) translation ‘penal’: cf. infra § 15.

43 See, as to attempt, Hall, , General Principles, 598Google Scholar; as to conspiracy, Perkins, op. cit. at p. 836; cf. Feller, Z., “The Forms of Plurality of Offences and their Punishment” (1969) XXI Scripta Hierosolymitana 73, n. 56Google Scholar; as to complicity, Chabas, F., “La notion de contravention” (1969) Rev, sc. crim. et Droit pén. comparé 25Google Scholar, n. 4: “Faute d'élément moral, il ne peut y avoir … de complicité”.

44 Thus, in A.G. v. Edelstein et al. (1957) 11 P.D. 474, a partnership and the individual partners were jointly convicted for the sale of adulterated bread effected without their knowledge by a servant of the firm. See Perkins, op. cit. 835; and cf. Glanville Williams (op. cit. § 81) who distinguishes between strict and vicarious responsibility, but admits that the same statute may create both and expresses the hope “that such a tyrannous combination will be found to be rare”.

45 Fine is the only mode of punishment applicable to a corporation (Glanville Williams, op. cit. c. 22, p. 675, and also p. 682, sub. 1). In the case of some economic crimes, juries have found it convenient to convict the corporation rather than the human conspirators (Ball and Friedman, supra n. 30 at p. 218, n. 71) and there is no way of knowing whether the latter would be acquitted “in the absence of a convenient corporate scapegoat” (Packer, , The Limits of the Criminal Sanction 361).Google Scholar On the link between strict liability, on one hand, and vicarous and corporate liability, on the other, see also Brett, op. cit. 122 (who would banish them all).

46 This method has already been adopted in respect of the following enactments:

Traffic Ordinance (New Version), secs. 29–33 1 L.S.I. (N.V.) 230

Municipalities Ordinance secs. 265–7A 1 L.S.I. (N.V.) 290

Local Councils Ordinance secs. 26A–D 25 L.S.I. 27

Civil Defence Law, 1951, sec. 24A 18 L.S.I. 133

Bathing Places (Regulations) Law, sec. 13 18 L.S.I. 172

Air Law, 1927, secs. 28A–D S.H. 665, 148

National Parks and Natural Reserves Law, 1963, sec. 44 17 L.S.I. 190

Oil in Navigable Waters Ord., secs. 3A–E 20 L.S.I. 34

47 Criminal Procedure Law (Amendment) (Finable Offences) Bill, 1973 (not yet published). Its declared object is to avoid the need of a judicial hearing for so-called “technical” offences: all the provisions enumerated in the preceding note (save the last-named) would be merged.

48 In Anglo-American countries these cases are not tried by a jury (Perkins, op. cit. 851; Note in (1922) 35 Harv. L. R. 463, sub(3)).

49 These include the Advertisements Ordinance, the Public Health Ordinance, the Road Transport Ordinance, the Town Planning Ordinance and a number of minor offences under the Criminal Code Ordinance. A Municipal Court is empowered to impose a fine not exceeding five pounds (multiplied by 15—see supra n. 19) or 15 days imprisonment, or both penalties, for every offence; and since 1966 the maximum fine has been increased to IL750. Under the original text, as enacted in 1921, fines for contravention of a municipal regulation or bye-law were paid to municipal funds.

50 Technically traffic judges are members of the Magistrates' Court, and appeals from their decisions are brought before the District Court; but while other magistrates exercise both civil and (much wider) criminal jurisdiction, the competence of a traffic judge is restricted to a specific type of offence.

51 This deviation from general rules of evidence is not mentioned in the classic text-books, but it is attested by Perkins, op. cit., 836; Packer, , The Limits of the Criminal Sanction, 771Google Scholar; Note in (1922) 35 Harv. L.R. 464. See City of Chicago v. Carney 34 Ill. App. 2d 303, 180 NE 2d 729 (1963) (sale of liquors to minors); City of Chicago v. Joyce 38 Ill. 2d 368, 232 NE 2d 289 (1967) (violation of municipal ordinance)—although some decisions follow the usual standard of proof beyond reasonable doubt (e.g. State v. Goodman and Ohio App. 2d 166, 221 NE 2d 202 (1966) (whether the defendant was drag racing rather than overtaking or passing another vehicle). We know of no Israeli precedent on this point;but note that in this type of offence the rule of beneficiary interpretation of statutes has been disregarded (see (1972) 7 Is. L.R. 574–5).

52 Criminal Procedure Law, 1965, sec. 7.

53 Ibid., sec. 213.

54 Ibid., sec. 67. Cf. Livneh, Note in (1973) 8 Is. L.R. 280.

55 Ibid., secs. 202–3.

56 Ibid. sec. 214, which in fact is rarely applied save for the trial of violations. Cf. Livneh, op. cit. at p. 282, n. 4.

57 Under sec. 3 (3) of the Criminal Procedure (Arrest and Search) Ordinance [New Version], 1969, a police officer may arrest without a warrant any person “who has committed in his presence, or has recently committed, an offence punishable with death or imprisonment exceeding six months”; but it seems that this general clause has been superseded, in respect of traffic offences, by the special provision of the Traffic Ordinance, sec. 28 of which authorizes the arrest without warrant of the driver of a vehicle “who commits an offence … within his [=the police officer's] view if he fails to give his name and address or if the vehicle does not bear the prescribed identification mark” (cf. sec. 3 (6) of the Arrest and Search Ordinance). In addition to Livneh's remarks (supra n. 54 at p. 275), it is preposterous to detain a person suspected of an offence which in fact carries no liability to imprisonment. For the same reason contravention cannot reasonably form the basis of a procedure in revision (sec. 9 of the Courts Law, 1957, 11 L.S.I. 159) or extradition.

58 Bein, , “Sentencing Problems in Strict Liability Offences: Adulterated Food” (1972) 7 Is. L.R. 159Google Scholar: “the investigation held before the defendant is brought to trial is … generally very brief”.

59 Cf. supra n. 30.

60 Gausewitz, , “Reclassification of Certain Offenses as Civil instead of Criminal” (1937) 12 Wisc. L.R. 365Google Scholar; Perkins, , “The Civil Offense” (1952) 100 U. of Pa. L.R. 832.CrossRefGoogle Scholar The expression was used by Bentham, J., Principles of Legislation, Collected Works, (Univ. of London, 1940) vol. 1 p. 214Google Scholar, § 14, where intentionality and consciousness are asserted to be “making the difference between civil and criminal offences”.

61 Thus the Model Penal Code defines violation as an offence which does not constitute a crime (cf. supra n. 27). In 1921, in his suggestions for the classification of crimes for statistical purposes, Sir Evelyn Ruggles-Brise included a separate class of “non-indictable offences of a non-criminal nature” (The English Prison System, p. 228, cited by Radzinowicz, L., “Criminal Statistics: A Critical Analysis” in The Modern Approach to Criminal Law, at p. 184 n. 2)Google Scholar; and this type of offence was also described under the name of “Public Torts”, as opposed to real crimes ((1922) 35 Harv. L.R. 462). The Central Bureau of Statistics of Israel likewise distinguishes between “true offences” and other, non-specified offences not recorded in the Charge Register (see Criminal Statistics for 1970 (Jerusalem, 1973) Introduction p. xii and Table A). While the offences recorded in the charge register during 1970 reach a grand total of 141,957, the number of charges for traffic offences investigated by the police during the same period was 452,833 (ibid., Table 1).

62 See the attempt already made by J. Bentham, op. cit., c. xvii, p. 209, and Harlan, J.'s dissenting opinion in Schick v. U.S. 195 U.S. 65 (1904) 74–6.Google Scholar

63 Hall, , General Principles 310Google Scholar: “punishment is a privation (evil, pain, disvalue)”; Hobbes, Leviathan. c. 28. p. 161; “A punishment is an evill inflicted by publique authority” (quoted by Hall, loc. cit., n. 44); Packer, , The Limits of the Criminal Sanction 21Google Scholar: punishment “must involve pain or other consequences normally considered unpleasant”; Kenny, , Outline of Criminal Law (15th ed.) 11Google Scholar: an “evil … inflicted … not for the sake of redress but for the sake of example” ibid. p. 13: “criminal sanctions inflict a loss of suffering that never enriches an individual”. See also Silving, H., Constituent Elements of Crime, 10.Google Scholar

64 Sec. 15 of the Law of Contract (Remedies for Breach), 1970, refers to this type of clause as “liquidated damages” and, in accordance with English law, recognizes such a clause as valid provided it is not grossly disproportionate to actual or probable injury (cf. Corbin on Contracts (1964) § 1053): inasmuch as proof of the amount of injury or even proof of any injury is dispensed with, the liquidated damages clause operates as a penalty. Cf. Hall's, J. biting remark in General Principles, 320, n. 72.Google Scholar

65 Usually called “punitive” or “exemplary” damages, they have recently been re-congnized by the Supreme Court of Israel (Friedman v. Segal (1973) II 27 P.D. 225. Cf. J. Hall, op. cit. at n. 71.

66 The practice of awarding punitive costs is as a rule proscribed in Israel, but it has been tolerated on several occasions (Ginossar, S., “Nuisance between Litigants” (1970) 2 Mishpatim 242Google Scholar, § 24).

67 The earliest fines were compositions agreed upon between the judge and the prisoner, to avoid imprisonment (Pollock and Maitland, II, 517; Kelly, , Outline of Criminal Law, (19th ed. by Turner) §8, p. 9).Google Scholar “Criminologists generally approve of the use of fines as a sanction for violation of laws punishing deliberate, calculated, anti-social ‘profit-making’, because the fine divests the violator of his profits” (Ball, Harry V. and Friedman, Lawrence M., “The Use of Criminal Sanction in the Enforcement of Economic Legislation” (1964/1965) 17 Stan. L.R. 200)Google Scholar. The compensatory function of fine has found a renewed expression in sec. 29 of the Penal Law Revision (Modes of Punishment) [Consolidated Version] Law, 1970 (24 L.S.I. 112), empowering the Court to increase the amount of the fine beyond the fixed maximum up to three times the amount or value of the damage caused or benefit obtained by the offence, while having regard to the effect such sentence may have on the convict's ability to compensate the injured party.

68 Cf. infra n. 118.

69 A. Samuels, op. cit., 206; Bein, op. cit., 155; Jeschek describes the small fine as a reminder, a special duty-warning (“Denkzettel, besondere Pflichtenmahnung”, see Lehrbuch des Strafrechts, Allg. Teil (2nd ed.) 37).

70 Fines are “a comparatively minor means of punishment mainly used in courts of summary jurisdiction, where the conduct of the defendant involves little moral blame” (Wortley, B. A., “The English Law of Punishment” in The Modern Approach at p. 52).Google Scholar It involves “less stigma than most other criminal sanctions” (A. Samuels, op. cit. 201). Cf. Hall, General Principles, 318 n. 68. See also Packer, Herbert L., The Limits of the Criminal Sanction, 361Google Scholar: fine is hardly a punishment, “apart from the stigma of conviction itself”—and “How real that stigma is may be doubted”. In Germany a distinction is drawn between monetary punishment (Geldstrafe) and monetary repentance (Geldbusse), the latter being inflicted as a penalty for regulatory violations (Ordnungswidrigkeit) (Kadish, , “Some Observations on the Use of Criminal Sanctions in Enforcing Economic Regulations” (1963) 30 U. Chi. L.R. 448).Google Scholar In Bassem Farah v. A.G. (1955) 9 P.D. 1042, 1046 it was held by Witkon J. that “as a rule, punishment or every other sanction in the nature of punishment or containing the slightest element thereof, is, in the absence of mens rea in one or other of its accepted forms, utterly alien to our criminal law; and the legislator should not be presumed to have intended such punishment unless he explicitly so declared”.

71 Excessive fines are prohibited by the Bill of Rights and, in its wake, by the Constitution of the United States (Amendment VIII).

72 Thus Maor Mizrahi would have been liable, on the second offence, to a tariff fine of IL. 25, while the first (and graver) offence was not included in the tariff. As for Gadisi (cf. supra., n. 13), his violations would have given rise to fines ranging between IL. 10 and 15. It will be remembered that both transgressors were otherwise liable for every offence to a fine of IL. 3,000 and two years prison (supra § 8)!

73 Thus Williams, The Criminal Law: The General Part, § 76, p. 268; Howard, C., Strict Responsibility, pp. 21, 33–5.Google Scholar

74 Thus under the French Penal Code, this deprivation is extensive on conviction for crime, partial in the case of misdemeanour and non-existent in contravention (et Léauté, Vouin, Droit pénal et criminologie (Paris, 1956) 585–9).Google Scholar

75 For an enumeration of the most important disqualifications, see Livneh, , Note on the “Criminal Records Bill, 1970” (1972) 7 Is. L.R. 419–21Google Scholar, and cf. ibid. 418, § 2.

76 See American Jurisprudence (2nd ed.), v° Criminal Law § 24 and the authorities cited; Brett, , An Inquiry into Criminal Guilt, p. 9Google Scholar (passage on “infamous punishment”); Note on “Civil Disabilities of Felons” (1967) 53 Va. L.R. 403.

77 This was expressly decided by Cohn, H.J., in Othman v. Abugosh (1960) 14 P.D. 1027, 1028)Google Scholar and in Ben Aharon v. Chairman Local Council Pardessiya (1967) (I) 21 P.D. 561, 563). Accordingly, while making provision for every conviction of a lawyer to be notified to the Chamber of Advocates, sec. 77 of the Chamber of Advocates Law, 1961, (15 L.S.I. 208) allows the Minister of Justice to dispense, by order, with such notification in respect of certain classes of offences; and indeed the Order made in 1967 (K.T. 2141, p. 325) enumerates the following convictions: contraventions; “finable offences”; almost all traffic offences and offences against local bye-laws (save acts done without permit or licence, where required),— in short, offences of strict liability. In her case-note ((1968) 1 Mishpatim 176) R. Gavison argues that even such an offence can be committed with guilty intent, i.e., in circumstances that do involve moral turpitude; but this remark only corroborates the need to incriminate specifically the intentional commission of regulatory offence (cf. supra n. 32 and infra n. 82).

78 Exceptionally, however, serious traffic offences not free of moral guilt (such as reckless driving, hit-and-run, etc.) might lead to both disqualifications. Cf. infra nn. 81, 103, 109.

79 Sec. 2 of the Criminal Records Bill, 1970, determines, in a rather complicated manner, what convictions are to be omitted from the register as irrelevant for the purpose of disclosing criminal or anti-social propensities (see Livneh's comments in (1972) 7 Is. L.R. 411 at 421, and criticism at 424–5; and cf. infra n. 119; and on an immigrant's “criminal past” as affecting his right to “return” to Israel, see Klein, C., “The Lansky Case” (1973) 8 Is. L.R. 286, 289).Google Scholar

80 Insofar as could be ascertained, pardon is never granted nor even solicited in respect of regulatory offences. Cf. infra n. 132.

81 They largely coincide with those in respect of which the need for notification has been maintained by Order of the Minister of Justice made by virtue of sec. 77 of the Chamber of Advocates Law, 1961 (see supra n. 77), and include hit-and-run and driving a vehicle while in a state of intoxication: it will be noted that hit-and-run has been made punishable with peremptory imprisonment (Sebba, , “Minimum Sentences” (1971) 6 Is L.R. 229–32 and 237–9)Google Scholar. For the same reason it would be wrong to impose absolute liability in respect of such conduct (Mueller, , “Mens Rea and the Law Without It” (1955) 58 West Va. L.R. 54Google Scholar: but this remark is no longer pertinent when applied to offences that require moral guilt, cf. supra n. 78). In its memorandum on motoring offences, the Law Society was insistent that these offences should be divided into those of “real seriousness, which carry, or ought to carry, social and moral stigma, and those minor infringements or infractions which do not, and should not…” (Samuels, A., “Strict Liability: A Serious Problem” (1969) 66 Law Soc. Gaz. 289, 292).Google Scholar And the following are the classes of motoring offences which have been considered as “serious” for the purpose of criminological research, viz.—causing death by dangerous driving, and manslaughter; driving recklessly or dangerously; driving under the influence of drink or drugs; driving while disqualified; failing to insure against third-party risks; failing to stop after, or to report, an accident. (Willett, T. C., Criminal on the Road—A Study of Serious Motoring Offences and Those who Commit Them (London, Tavistock, 1964) 11.Google Scholar

82 A distinction should still be made between constructive and actual intent. Thus, whatever may have been the negligence committed by food adulterers, they are not treated as “large-scale murderers” by poisoning (Hall, , General Principles 331, text and n. 23)Google Scholar; and a seller of methylated spirits as ethylated has been fined a mere IL. 30 although a consumer was permanently blinded by consuming the liquid (A.G. v. Kochovi (1955) 13 P.M. 181). Cf. the Benjamin Mizrahi case (supra n. 27 in fine) contrasting forgery and imitation of banknotes.

83 Hall, , General Principles, 347Google Scholar n. 61, 352, 359; Fitzgerald, , “Crime, Sin and Negligence” (1963) 79 L.Q.R. 369Google Scholar; Perkins, , “The Civil Offense” (1952) 100 U. of Pa. L.R. 847Google Scholar; Feller, Z. in XXI Scripta Hierosolymitana 122–3.Google ScholarCf. infra n. 119. Provision for increased penalties is made in many statutes in the event of repeated breach. Thus, for the sale of adulterated food, see Bein, op. cit. 150 n. 4; and for traffic offences, sec. 63 of the Traffic Ordinance [New Version], 1961, (English text: Vol. 1, 238) which prescribes a minimum sentence of three years imprisonment, with or without a fine of no less than IL. 5,000, in the case of subsequent conviction for some specified serious offences, unless grounds are stated for imposing a more lenient penalty; but courts are clearly hostile to the idea of minimum sentences (Sebba, “Minimum Sentences” at p. 227).

84 Stephen, , A History of the Criminal Law of England (London, 1883) vol. 3, p. 266.Google Scholar

85 “Public Torts”, (1922) 35 Harv. L.R. 462; Freund, , Legislative Regulations (1932) 34Google Scholar: “It is everywhere understood that regulative statutes, although supported by penalties, stand outside of the criminal law of the codes”; Sayre, , “Public Welfare Offences” (1933) 22 Colum. L.R. 5Google Scholar; Gausewitz, , “Reclassification” (1937) 12 Wis. L.R. 365Google Scholar; Perkins, , “The Civil Offense” (1952) 100 U. of Pa. L.R. 832CrossRefGoogle Scholar; Model Penal Code (1955); cf. Fitzgerald, , “Crime, Sin and Negligence” (1963) 79 L.Q.R. 368Google Scholar “remove the entire matter from the criminal courts”; Friedman, W., Law in a Changing Society, 202Google Scholar, dwelling on the “new area of law … to which the principles and procedures of traditional criminal law are only applicable to a very limited extent”; and cf. Silving, H., Constituent Elements of Crime, 199.Google Scholar For a similar view, see also A Légal, , “La Responsabilité sans faute” in La Chambre Criminelle et sa Jurisprudence, Recueil d'Etudes en hommage à la mémoire de Maurice Patin (Paris, Cujas, 1966) (non vidi)Google Scholar; and P. Cornil “La Décriminalisa-tion” (a paper presented in May, 1973 at the Bellagio Collaquium published by the Centro Nazionale di Prevenzione e Difeso Soziale) 12.

86 Brett, , An Inquiry into Criminal Guilt, 115–6.Google Scholar Conversely, it has been stressed that “[a] line must be drawn that does not depend simply upon the fortuitous use of the label ‘criminal’” (Packer, , The Limits of the Criminal Sanction 131)Google Scholar, and that “the forms and labels of the criminal process should be reserved for these cases in which the intention is to seek a criminal ‘conviction’” (op. cit. 274), i.e., “only if there seems to be a substantial justification (with which, of course, the judge may ultimately disagree) for imposing a sentence of imprisonment” (ibid. p. 275).

87 Hall, , General Principles, 344.Google Scholar

88 Ibid., 359.

89 Ibid., 344.

90 Howard, C., Strict Responsibility, 71–2.Google Scholar

91 Ibid., 73 (our emphasis).

92 Sharras v. De Rutzen [1895] 1 Q.B. at p. 922, per Wright J.: “cases in which, although the proceeding is criminal in form, it is really only a summary mode of enforcing a civil right”.

93 Supra n. 84; and cf. Hall, , “Prolegomena to a Science of Criminal Law” (1941) 89 U. of Pa. L.R. 569Google Scholar, on the non-penal functions of criminal law.

94 Cf. Hart, Henry M. Jr., “The Aims of the Criminal Law” (1958) 23 L. & Contemp. Prob. 403Google Scholar, where non-criminal is treated as tantamount to civil law; and see the articles of Gausewitz and Perkins cited supra n. 85 and dictum quoted n. 92.

95 But in Israel a court may, on conviction, order the accused to pay some compensation to the victim independently of the latter's claim for full redress: the law of torts is not strictly applied to such summary compensation orders (Penal Law Revision (Modes of Punishment) [Consolidated Version], 1970, secs. 40 and 51).

96 “In the civil tort, except for recovery of exemplary damages, the defendant's knowledge, intent, motive, mistake, and good faith are generally irrelevant” (Morissette v. U.S. 72 S.Ct. 253; 342 U.S. 270). Cf. Hall, , “Interrelation of Criminal Law and Torts” (1943) 43 Colum.L.R. 984.Google Scholar

97 The regulations are “not meant to protect any specific class of persons, but the public in general, i.e., any driver of a vehicle, any passing pedestrian; and [their] intrinsic nature is no more than that of a police regulation, of a statutory provision on the general duty of care” (per Silberg, J. in Pritzker v. Friedman (1953) 7 P.D. 674Google Scholar, 688, quoting Phillips v. Britannia Hygienic Laundry (1923) 1 K.B. 539, 547: the opinion was repeatedly approved, see e.g., Khaled Shehada v. Othman Ibrahim (1966) (I) 20 P.D. 163, 167 (on appeal) and (IV) 20 P.D. 620 (on further hearing), quoting Monk v. Warbey (1935) 1 K.B. 75). A more liberal solution was adopted for the purpose of employer's liability (Amsalam v. Katz (1968) (I) 22 P.D. 313, reviewed by Englard, in (1969) 4 Is.L.R. 273Google Scholar: fencing machinery). See also Williams, Glanville, “The Effect of Penal Legislation in the Law of Torts” (1960) 23 Mod.L.R. 233Google Scholar, where the impact of traffic regulations was not considered in particular; but in a later article he points to the oddity of neglecting the concept of negligence in a criminal case, especially in a driving offence, while applying it so conscientiously in a civil claim (“Absolute Liability in Traffic Offences” [1967] Crim.L.R. 142); and his remarks under the heading Rules of Prudence and Rules of Law (ibid. p. 145) bring him surprisingly close to the Maor Mizrahi doctrine. Another opponent of absolute liability has even recommended “changing the liability from a criminal to a civil one”, in the assumption that a civil remedy will often operate more effectively (Mueller, , “Mens Rea and the Law Without It” (1958) 55 West Va.L.R. 64)Google Scholar; but this suggestion does not seem to have met with any response.

98 See a summary of the “Report of the Committee for Simplifying and Improving Procedure in Claims in Torts” (1973) 8 Is.L.R. 103, 104; and Englard, , Automobile Accident Compensation System (Jerusalem, 1972—in Hebrew)Google Scholar (reviewed in (1973) 8 Is. L.R. 138). A Bill has since been presented to the Knesset (1973) Hatza'ot Hok no. 1079.

99 “We are, in fact, here dealing with what is essentially a branch of administrative rather than penal law” (Friedman, W., Law in a Changing Society (London, 1959) 200)Google Scholar. Thence the suggestion to classify it as arising from a “public wrong” (Hall, , “Interrelation of Criminal Law and Torts” (1943) 43 Colum.L.R. 990)Google Scholar or “public tort” ((1922) 35 Harv.L.R. 462) or even an “administrative crime” (Schwenk, , “The Administrative Crime, its Creation and Punishment by Administrative Agencies” (1943) 42 Mich.L.R. 5).Google Scholar Blackstone called crimes generally “public wrongs” (see title of Book IV of his Commentaries, and the critical remarks of Kenny, , Outlines of Criminal Law (15th ed.) 3–4).Google Scholar

100 This remark applies a fortiori to the expression “administrative crime” introduced as early as 1902 by the Swiss scholar James Goldschmidt and developed by Schwenk (see preceding note). It differs from ordinary crime in that it consists in some disobedience to an administrative duty (Schwenk, op. cit. 85). Cf. Silving, Constituent Elements of Crime 198. Under New York legislation, traffic offences have been “declassified” (Berg, Raymond K. and Richard Samuels, L., “Improving the Administration of Justice in the Traffic Court” (1970) 19 De Paul L.R. 509).Google Scholar

101 They include neither fiscal nor economic offences, which suppose a guilty mind and justify the application of penitentiary sanctions: the fact that these are so rarely imposed is attributable to a laxity of civic spirit, which condemns dishonesty less severely when the victim is some fictional body such as the State or a large corporation; and when jail sentences come to be pronounced, they create quite a sensation. See for example, on the occasion of U.S. v. McDonough Co. (1959 Trade Cas. 75882 (S.D. Ohio) ) and even more the Electrical Equipment Antitrust Cases U.S. v. Westinghouse Electric Corp. (1960 Trade Cas. 76753 (E.D.Pa.)), the numerous comments, some of them quoted by Ball and Friedman in (1964/65) 17 Stan.L.R. 197). For a classified enumeration of regulatory violations, see Sayre, , “Public Welfare Offenses” (1933) 33 Colum.L.R. 73.CrossRefGoogle Scholar For the purpose of our discussion, breaches of traffic rules have been selected as being the most widespread of all violations: no wonder that the basic principles on that branch of the law have been laid down on the occasion of traffic cases like Maor Mizrahi and Gadisi.

102 Perkins berates Blackstone for holding the civil offence in low esteem: in his opinion, the “theory that the individual is free to flout the law of the land—even such a law—is quite inacceptable” (“The Civil Offense” (1952) 100 U. of Pa.L.R. 847; and cf. the phrase “trivial infractions, such as minor traffic offenses” in Packer, , The Limits of the Criminal Sanction 130).Google Scholar Fitzgerald's objection to Devlin's “enlightened approach” in distinguishing real crimes and quasi-crimes is that mala prohibita (cf. supra n. 37), though not real crimes in the strict sense, “merit more serious treatment than purely technical offences” (“Real Crimes and Quasi-Crimes” (1965) 10 Nat.L.Forum 53); and even those who most strongly deny the principle of strictliability insist on the need to “put real teeth in the law” (Hall, , General Principles 345–60).Google Scholar

103 Sec. 231 of the Criminal Code Ordinance, 1936, places on persons empowered to carry out dangerous acts (such as the administration of surgical or medical treatment) the duty to possess reasonable skill; and the only legal method of discharging this duty is often by obtaining a valid licence. In any event, we witness a clear hardening of legal rules in this respect: the burden of proof frequently shifts to the defendant (Cross on Evidence (3rd ed.) 81; Nokes, , Introduction to Evidence (4th ed.) 476Google Scholar; 9 Wigmore on Evidence § 2486; Harnon, , Law of Evidence (in Hebrew) 204–5Google Scholar: the Supreme Court of Israel adheres to the rule imposing the burden of proof upon the prosecution, unless the working of the statute justifies its being shifted to the defence, but this condition is frequently fulfilled); and the requirements for the excuse of bona fide mistake of fact are also stiffened. Thus, in the well-known Australian case of Proudman v. Dayman ((1941) 67 C.L.R.536), where the defendant was charged with having permitted an unlicensed driver to drive her car, her plea of ignorance was rejected on the ground that she had never addressed her mind to the question whether the driver had a valid licence (see the comments of Brett, op. cit. 116–21, and of Howard, op. cit. 60 and 133–40).

104 Morissette v. U.S. 72 S. Ct. 246; 342 U.S. 256: “Many violations … result in no direct or immediate injury to person or property but merely create danger or probability of it which the law seeks to minimize”. Silving, , Constituent Elements of Crime 29:Google Scholar “Having conceived of ‘dangerousness’ in contrast to ‘guilt’, and ‘measures’ in contrast to ‘punishment’, we arrive at a distinctive system of criminal law teleology—the ‘protective system’ and the ‘restrictive system’” and cf. ibid. 199 on the need to disencumber criminal codes. No wonder that traffic offences were frequently referred to at the Xth Congress of the Association Internationale de Droit Pénal held at Rome in 1968, during the discussion of danger-creating offences (Délits de Mise en Danger) (See (1969) Rev. Int. Dr. Pén. 67 (Belgium), 122 (Finland) and 198 (Israel)).

105 This name, apparently invented by Prof.Hall, Jerome (General Principles 347)Google Scholar, seems more suitable than “Police Law” (cf. Sir Stephen's “Police Offences”, supra n. 84, and Garraud's Droit de Police, supra n. 36), for—independently of the derogatory undertones attached nowadays to the word “police”—its original meaning (civil administration, public order) is often obscured by the main function of the police force, the investigation of crime. Significantly, judges of the Traffic Court themselves have declared their function to be that of “Correcting the Violator” (Berg, and Samuels, , “Improving the Administration of Justice in the Traffic Court” (1970) 19 De Paul L.R. 516–7)Google Scholar; and see the passage of Montesquieu's Esprit des Lois quoted at the head of this article.

106 On this “lack of enough imagination”, see the passage from the article of Henry M. Hart Jr. quoted supra n. 39.

107 See supra n. 85.

108 See supra n. 103 in fine.

109 Dangerous driving, if performed “deliberately and with a full comprehension of what [the driver is] doing” would more appropriately be termed murder (SirDevlin, Patrick, “Statutory Offences”, (1958) 4 Soc. Publ. Teachers of Law 210).Google ScholarCf. supra n. 82.

110 Williams, Glanville, Criminal Law: The General Part (1st ed. § 76, p. 273)Google Scholar: “The whole problem is … an artificial one; it arises from using the criminal process for a purpose for which it is not suited”; Sayre, “Public Welfare Offences” (1943) 43 Colum. L.R. 55, 69: “unfortunately the criminal law … was seized upon as a convenient instrument for enforcing a substantial part of this petty regulation”; Kadish, , “Some Observations on the Use of Criminal Sanctions in Enforcing Economic Regulations” (1963) 30 U.Chi. L.R. 444Google Scholar: “This has been called the criminalization of morally neutral conduct”; and cf. Hart, H.L.H., “The Use and Abuse of the Criminal Law” (1965) 8Google Scholar The Lawyer (Trinity and Michaelmas number) 47. Ball and Friedman observe that using criminal law as an administrative technique makes it possible to socialize the costs of enforcement, which are too great for individuals to bear; but this object can be achieved by other means, and it is far outweighed by the evil effects inherent in borrowing: the same writers rightly complain of the “misuser” of tax law to put gangsters in jail, of trespass laws against Negro sit-in demonstrators, and the like. (“The Use of Criminal Sanctions in the Enforcement of Economic Legislation: A Sociological View” (1964/65) 17 Stan. L.R. 214, 222).

111 The rigidity with which legal positivists insist on including violations within the realm of criminal law not only obscures their own thinking, but also creates an unnecessary barrier between criminal law and other aspects of the study of crime. Thus the sociologist, the psychologist, the statistician and—their common exponent—the criminologist have no option but to ignore the legalistic notion of crime (see e.g., Willett, T.C., Criminal on the Road, p. 10Google Scholar; and cf. supra n. 61).

112 These include—(a) the restrictive interpretation of statutory words (Stallybrass, , “Eclipse of Mens Rea” (1936) 52 L.Q.R. 66Google Scholar; Clark, R. S., “The Defence of Im possibility and Offences of Strict Liability” (1968–1969) 11 Crim. L.Q. 174Google Scholar; Brett, op. cit. 117 s.; Howard, op. cit. c. 3; Glanville Williams, § 89, p. 260); (b) the denial of power to create strict liability offences by subordinate legislation (Schwenk, “The Administrative Crime” (1943) 42 Mich. L.R. 51); (c) the availability of defences in favour of the person charged (Howard, op. cit. chap, ix; Bein, “Defences in Crimes of Absolute Liability” (1965–66) 22 Hapraklit 464).

113 See supra n. 15.

114 Hall, General Principles 352; “Inefficiency is deemed a fault” (Hall, “Interrelation of Criminal Law and Torts” (1943) 43 Colum. L.R. 984). Doing one's best will not do, and the standard of care is equivalent to that of a warranty or, to use French notions, of an obligation de résultat as contrasted with an obligation de moyens (Marty et Raynaud, Droit civil vol. I, p. 8). Cf. supra n. 96; and see (1969) 4 Is.L.R. 279.

115 Brett, An Inquiry into Guilt 98. Here are a few other opinions on the same point—Hall, J. (“Science and Morality of Criminal Law” (1968) 9 Ariz. L.R. 365Google Scholar): “The inadvertently negligent harmdoer … should be controlled and the community should be protected by way of civil damages, stricter licensing, more frequent revocation of licenses, and education”; but he does not believe that assessing a small fine makes a person more sensitive or careful or a more skilfull operator of a machine—although he adds, this appreciation is far from unanimous among legal scholars. Prof. H. Wechsler (Tentative Draft Model Penal Code, No. 4 126–7 and No. 9, 52–3) holds that punishment for conduct which inadvertently creates improper risks “supplies men with additional motive to take care before acting, to use their faculties and to draw upon their experience in gauging the potentialities of contemplated conduct”. SirDevlin, P. (“Statutory Offences” (1958) 4 Soc. Pub. Teachers of Law 211)Google Scholar contrasts personal negligence with “carelessness in the broadest sense of the term—‘you must see that it does not happen’”. As experienced judges of the Traffic Court, Berg, and Samuels, (“Improving the Administration of Justice in the Traffic Court” (1970) 19 De Paul L.R. 517)Google Scholar stress that the aim of imposing penalties is “to correct and to educate, and to impress defendants with the need for observance of the traffic laws”. See also Friedman, W., Law in a Changing Society, 200Google Scholar; A. Ehrenzweig, Negligence Without Fault; Montesquieu (Esprit des Lois, Book xxvi, cap. 24) already noted that, while criminals are cut off from society, violators of police regulations are simply obliged to live according to the rules of society.

116 They range at present, for a traffic offence, from IL. 5 to 100 (Traffic (Finable Offences) Order, 1966 K.T. 1840). Under the Criminal Procedure Law (Amendment) (Finable Offences) Bill, 1973 (see supra n. 47), the unified maximum, for all types of finable offences, would be raised, for a first offence, to IL. 500, and for a repeated or subsequent offence, to IL. 1000. Cf. supra n. 72.

117 Attention has often been drawn to the inadequacy of fine as a punishment, since it “falls … short of the direct, immediate treatment of the person and personality of the criminals” (Hall, General Principles 318, text and n. 68). The least the law can and should do is, to require the lawbreaker to effect the payment in person (cf. sec. 128 of the Criminal Code Ordinance, 1936, making it an offence to invite persons to subscribe for the payment of a fine). On the usefulness of requiring lawbreakers to appear personally, cf. the article of Berg and Samuels quoted supra, at p. 517.

118 “[A] nominal tax on illegal enterprise” (Hall, , General Principles 345Google Scholar, n. 59); “The inadequate fine may be taken as a licence to commit an offence for a fee” (Samuels, “The Fine: the Principles” [1970] Crim. L.R. 202) or to “violate-for-a-price” (Berg and Samuels, op. cit. 510, adding that the traffic court should not appear to be “in business as a revenue-producing-agency”). The same problem exists in other countries. Thus, in France, “[O]n assiste … à une fiscalisation de la notion de contravention … L'amende devient un prix, une taxe en rémunération d'un service rendu. Elle devient presque la contre-partie pécuniaire d'une facilité laissée aux particuliers de violer une prescription de police” (Chabas, F., “La notion de contravention” (1969) 24 Rev. sc. crim. et dr. pén comp., 306Google Scholar). Cf. Clére, M. Le, “Illustration et Défense de la Contravention” (1970) 25 Rev. sc. crim. et dr. pén comp., 601Google Scholar: “un élément de frais généraux.” Administrative authorities them-selves entertain this confusion by using fines in such ways that they gradually degenerate from a penalty into a form of taxation, along the following line:

(a) closest to the penal fine is the fiscal fine assessed by court but compoundable by the Treasury (Income Tax [Consolidated Version] Ordinance, sec. 221; Land Betterment Tax Law, 1963, sec. 101; Custom Duties [New Version] Ordinance, sec. 231; Purchase Tax Law, 1952, sec. 25);

(b) then comes the fine fixed by statute for failure to pay a fee on time (e.g. the radio licence fee, sec. 29 of the Broadcasting Authority Law, 1965);

(c) a third step is the fixing of a fee at an increased rate if paid later than the prescribed rate—the term “fine” is no longer used (e.g. Stamp Duty on Documents Law, 1961, sec. 14);

(d) the idea of a penalty disappears altogether when a fee is payable at a discount if paid at an early date (e.g. Property Tax Law, 1961, sec. 20(b)).

119 Sec. 201A (b) of the proposed amendment to the Criminal Procedure Law makes provision for a double rate of fines (see supra n. 83). This is probably insufficient, for frequent repetition of a certain type of violation discloses, if not brazen recklessness or contempt of regulation (cf. supra n. 116), at least “a degree of professional incompetence calling for refusal or withdrawal of the licence” (Livneh, “Criminal Records Bill, 1970”, in (1972) 7 Is. L.R. 424–5).

120 Owing to the constant depreciation of the currency, the fine of 25 copper coins (asses) imposed for bodily injury to another person by the ancient Roman Law of the Twelve Tables had become wholly inadequate at the time of the Empire. To illustrate this the following story is related by Aulus Gellius (Attic Nights xx, 1, 13, as translated by John C. Rolfe, Loeb Classical Library, vol. iii, p. 411)—“One Lucius Veratious was an exceedingly wicked man and of cruel bestiality. He used to amuse himself by striking free men in the face with his open hand. A slave followed him with a purse full of asses; as often as he had buffeted anyone, he ordered twenty-five asses to be counted out at once, according to the provisions of the Twelve Tables.” In our times depreciation of currency gradually causes fines to “become so small that they are cheerfully paid … [and] are then felt to be mere taxes because the sense is lost that the rule is meant to be taken seriously as a standard of behaviour” (Hart, loc. cit., n. 8).

121 Expression used ironically by Bein, (1972) 7 Is. L.R. 163. But J. Andenaes (“The Future of Criminal Law” [1971] Crim.L.R. 615), referring (at p. 619) to the “great bulk of offences which fall outside the picture of traditional crime, but which in modern society have gained an ever-increasing importance”, accepts as obvious the idea “that a system of individual treatment of offenders in this field is neither possible nor called for” and that it may be necessary to remove it from the sphere of criminal law proper. See also Packer, , The Limits of the Criminal Sanction 273Google Scholar; Sayre, , “Public Welfare Offences” (1943) 43 Colum. L.R. 70Google Scholar: “The penalty is so slight that the courts can afford to disregard the individual in protecting the social interest”. For Prof. Mueller,” [t]he choice does not lie between speedy justice and slow justice, but between speedy injustice and justice of whatever celerity we can achieve by whatever reform may be necessary. Justice ought to be speedy, but absolute criminal liability is not apt to achieve it” and we should refrain from sacrificing to the “Moloch state” (“Mens Rea and the Law Without It” (1958) 55 West Va. L.R. 59, 60). This criticism seems exaggerated, for the question is not one of justice, but of protection.

122 Diamond, A. S., Primitive Law Past and Present (London, 1971) 57.Google Scholar

123 Hall, , General Principles, 359.Google Scholar

124 Traffic Ordinance [New Version], sec. 29, destined to be merged into the Criminal Procedure Law, 1965, as the future sec. 201B (see Criminal Procedure (Finable Offences) Bill, 1973).

125 Traffic (Finable Offences) Order, 1966, r. 2.

126 A closer evaluation of the breaches committed by Maor Mizrahi will illustrate this point. His first offence, that of carrying on a vehicle a load not properly secured, would have been “finable” by IL. 25; his other offence, carrying a load protruding beyond the sides of the vehicle, is altogether not “finable” (cf. supra n. 72). The reason for this discrimination is clearly that the danger created by the latter violation is immediate, while that created by the former is not.

127 It is in effect a minimum sentence (cf. supra n. 83 in fine). On the system offines being imposed in the first instance by administrative process, subject to a trial if contested by the defendant, see Friedman, W., Law in a Changing Society 198.Google Scholar

128 Hall, J., General Principles 351.Google Scholar

129 Insanity cannot constitute a defence, for “to allow a lunatic to break speed laws and violate traffic regulations at will would only promote manslaughter” (Sayre, , “Public Welfare Offences” (1943) 43 Colum. L.R. 78).Google ScholarIntoxication, which may serve as an excuse in classical criminal law (Criminal Code Ordinance, sec. 14), is one of the most serious crimes for the driver of a vehicle (cf. supra n. 81). It is generally agreed that parliamentary immunity should never have been made to apply in respect of traffic offences and its abolition is strongly recommended (“Report on Parliamentary Immunity” (1972) 4 Mishpatim 308, 19–23 and 354 sub. (3)); and it is thought regrettable the same cannot for major reasons apply to diplomatic and consular immunity (Dinstein, , “Diplomatic Immunity from Jurisdiction Ratione Materiae” (1966) 15 I. & Comp. L.Q. 76–89, at p. 82CrossRefGoogle Scholar; Dinstein, , Consular Immunity from Judicial Process (Instit. for Legisl. Research and Comp. Law (no. 12), Jerusalem, 1966, 67–70, 77).Google Scholar

130 Hall, J., General Principles 359Google Scholar; W. Friedman, op. cit. at p. 201: “There is … great force in Hall's argument that specialised courts, investigatory boards and administrative tribunals should handle public welfare offences rather than junior courts”; Williams, Glanville, Criminal Law: The General Part (2nd ed.) § 90 p. 264Google Scholar; Packer, , The Limits of the Criminal Sanction 274Google Scholar: “The trial should not be held in a criminal court”. Objections have understandably been voiced, on the ground of due process, by judges holding office in the Traffic Court (Berg, and Samuels, , “Improving the Administration of Justice in the Traffic Court” (1970) 19 De Paul L.R. 510).Google Scholar

131 The police is authorized by statute to tow away any offending vehicle (Traffic Ordinance, sec. 70A); and it may empty the tyres and valves of a bicycle to prevent contravening user (ibid. sec. 34 and Traffic Rules, r. 134). Direct compulsion (such as the closing of an unlicensed enterprise) or substituted performance, rather than punishment, must be the primary objective (Schwenk, , “The Administrative Crime” (1943) 42 Mich. L.R. 86)Google Scholar; “crime” in this respect “is not a means of punishment to vindicate past conduct, but an indirect compulsion to enforce future conduct and has therefore nothing to do with the ordinary concept of crime” (ibid.).

132 Such orders, not being in the nature of a punishment, are not remissible by pardon (cf. supra n. 80); not does amnesty legislation, as a rule, extend to them. If it is correct to hold that criminal law differs from civil law in that, subject to the power of pardon, a constitutional duty of enforcement lies upon the Crown (Pollock, Seton, “The Distinguishing Mark of Crime” (1959) 22 Mod. L.R. 496)Google Scholar, there is nothing to prevent the administrative authority from using its discretion in the implementation of a demolition order; but this may easily lead to abusive practices, about which there have been many complaints. On the power of an administrative officer to pardon “administrative crimes” or to remit a penalty, see Schwenk, loc. cit., 81.

133 Williams, Glanville, Criminal Law—The General Part (2nd. ed.) § 76, p. 273.Google Scholar

134 Bein, , “Sentencing Problems in Strict Liability Offences” (1972) 7 Is. L.R. 154Google Scholar, 163–4 text and n. 32. Prof. Mueller congratulates the West Virginia legislature for having declined to follow the lead of other states and for having replaced absolute criminal liability by measures of control and repair of the vehicle (“Mens Rea and the Law Without It” (1955) 58 West Va. L.R. 62–3; cf. ibid. 68: “West Virginia has emerged from the abyss of absolute criminal liability”). While insisting on the need to warn violators of the traffic rules, he fails to appreciate the admonitory value of the fine.

135 See supra text at n. 115.

136 “The only morally tenable goal … is education” (Hall, , “Interrelation of Criminal Law and Torts” (1943) 43 Colum. L.R. 981).Google Scholar

137 In Israel a Points System has been introduced for traffic offences, by virtue of the power vested in the police to summon a driver having committed too many violations to appear at Headquarters, credit being given for a clean record during a certain period of time and for voluntary attendance at courses. Prizes are also awarded to careful drivers; and the activity of the National Council for the Prevention of Road Accidents deserves being mentioned. On similar methods of encouraging careful driving, such as requiring violators to attend Driver Improvement School courses and old drivers to attend refresher courses, see Berg, and Samuels, , “Improving the Administration of Justice in the Traffic Court” (1970) 19 De Paul L.R. 517.Google Scholar And see “Traffic: Demerit Points System” (1968) 5 V.U.W.L.R. 50.