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Criminal Libel - A Critical Analysis Of Criminal Libel

law tort deviance passion

Tort and criminal law: a difference of function. Although a defamatory statement may constitute both a tort and a crime, there are fundamental differences of purpose in the two systems of allocating responsibility. Whether the damage is to the individual's life, limbs, property, or reputation, the law of torts attempts to reduce the cost of injury through placement of liability. It employs deterrence and compensation to promote human dignity by using money damages to discourage the violation of an individual's integrity and to reduce the impact of those injuries that do occur. Tort law's concern with reducing the frequency, extent, and impact of injury results in a reluctance to set standards that, once attained, would cease to apply pressure for improvement. The tort of defamation vindicates a plaintiff's reputation, rebukes and economically penalizes the offenders and thus affects their behavior, and provides compensation for economic and personal loss caused by the defamatory statements.

Crime, on the other hand, is that deviance which society finds intolerable. Using the criminal process to respond to such behavior channels and reduces the emotive response—the passion—that the deviance engenders in those personally confronted by it. Without a system of criminal law, riot, vigilantism, and vendetta would be the only recourse for controlling deviance. As long as the criminal process retains a sufficient ritual representation of passion, these excesses may be deterred. To aid and restrict this release of passion, criminal law makes violation a moral issue by unifying legal and moral guilt, through use of articulated and knowable standards. Although criminal law serves other purposes as well, the potential for controlling passion often accounts for the choice of criminal, rather than civil, remedies in a given situation. Criminal law, thus, should be reserved for behavior that exceptionally disturbs the community's sense of security.

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