Bergelson: “Does Fault Matter?”

Bryn Horner
4 min readNov 17, 2020

Vera Bergelson begins by referring to a current case happening since 2010 in which two men, company owners, are facing charges in public welfare due to their egg company providing eggs with salmonella and spreading the illness to thousands of people. This incident creates the basis for Bergelson’s argument on strict liability public welfare crimes. To Bergelson, strict liability crimes in criminal law are morally unjustifiable. While trying to prove her point that public welfare strict liability crimes are unjust, she provides refutes to her claim that she explains and provides rebuttals to. The three claims in support of public welfare strict liability crimes are as followed:

  1. Penalties for public welfare offenses are punishment only by name, and traditional justifications for punishment are not needed.
  2. Even if penalties are punishment, punishing those who produce and/or threaten significant harm to others is not necessarily unjust.
  3. Even if such punishment is not entirely just, it’s consistent with other widely accepted criminal law doctrines.

With these arguments, Bergelson aims to answer the following question: “is it morally permissible to punish people who, through no fault of their own, produced or threatened harm to others?” (375).

To outline public welfare offenses in her first point, Bergelson describes that they are not severely punished, usually with fine, are comparable to traffic offenses, are criminal in court and civil in nature, and that traditional requirements and justifications of criminal law are not applicable to these offenses. In relation to stigmatic crimes, it is unjustified to convict someone who is blameless. In relation to quasi-criminal crimes, strict liability may not be wrong because instrumental reasons overcome the moral and political costs of punishing a blameless person. Bergelson responds to this claim with a rebuttal that outlines that criminal conviction is in fact a liability. To those convicted of crimes, Bergelson quotes the Supreme Court of Canada, ‘‘The argument that no stigma attaches does not withstand analysis, for the accused will have suffered loss of time, legal costs, exposure to the process of the criminal law trial and, however one may downplay it, the opprobrium of conviction’’ (379). People who are charged with offenses are at a loss, they face the disadvantages of someone entered into the criminal justice system as a criminal.

In her second argument for public welfare offenses, Bergelson states that it is not necessarily unjust to punish people who have produced or threatened to harm others. If you committed a wrong, whether it be a mistake or it is justified, one should feel bad for the harm they have caused. If you harm someone on the train, one must apologize, and if one does not, that person is justified in resenting one as well are the passengers on the train for glaring at one for their wrongdoing. Although it may not have been intentional or at fault, they receive punishment. Bergelson begins to enter an idea of utilitarianism. Is it permissable to kill someone to save numerous lives? While someone may be under duress or extenuating circumstances, they may still be liable for committing that crime because of the harm it caused. To respond, Bergelson begins by stating that punishment is a state sanction. The state and individual have different roles in distinguishing if punishment is permissible. Furthermore, in a case of self defense killing the aggressor is necessary, and is justified because the state isn’t there to protect. In the doctrine of double effect, it is permissible to cause a morally grave harm as a side effect of pursuing good end but not as a means of pursuing a good end. Bergelson believes that punishing an innocent person is impermissible.

In the last argument, Bergelson outlines that punishing innocent is part of the law. Wrongful convictions are a side effect of a working criminal justice system. Many people are wrongfully convicted and put in jail. There are many instances when things go wrong in criminal trials. Bergelson distinguishes that there is a “significant difference between reluctantly accepting a two to five percent risk that the defendant may be innocent and knowingly — with the 100 percent certainty — punishing a defendant despite any fault on his part” (387). Furthermore there is a difference between causing and allowing. By seeing injustice and letting it happen, humans allow this. By knowingly convicting blameless defendants, we are causing the injustice.

Although public welfare offenses are in line with other liability crimes, it does not make them just. Bergelson argues this by stating that just because unjust crimes exist does not justify continuing that system. Overall, Bergelson argues that strict liability public welfare offenses are unjust. The blameless do not deserve to be punished, and “fault matters” (392).

Bergelson sets up this argument in an efficient manner. She connects these ideas to real life scenarios and provides compelling evidence to refute these claims in favor of strict liability public welfare crimes. Her argument presents both sides in an unbiased manner and effectively communicates her overall point. Her argument has many strengths and little weaknesses.