Law 194 Quiz One

Front 1

What is law?

Back 1

oOne theory: Law is simply a set of orders backed up by sanctions

A better (but not perfect) account: H.L.A. Hart (The Concept of Law) claims that “law is a union of primary and secondary rules.”

Front 2

Law is simply a set of orders backed up by sanctions

Problems with this:

Back 2

 (1) Will not allow us to distinguish law from the orders of some thug (“Give me your money or I will blow your brains out”)

2) Not all law involves the threat of force. (contract law)

3) Most people think that the law is a morally good thing, and we tend to speak admiringly of “the rule of law”—something we would not do if it was just a matter of force.

Front 3

Primary Rule

Back 3

a rule directed to individuals telling them what they may and may not do

Front 4

A system of only primary rules would have three serious pathologies:

Back 4

(1) Uncertainty—no way to recognize the difference between a true claim of the form “X is a legal rule” and a false claim that “X is a legal rule.”

(2) No way to make changes in rules to make them respond to new circumstances.

(3) No way to know how to understand vague rules or resolve conflicts between rules.

Front 5

The solution to a system of only primary rules:

Back 5

Secondary rules.

Front 6

Secondary rules:

Back 6

These are rules about rules.

(1) Rules of recognition
(2) Rules of change
(3) Rules of adjudication

Front 7

Rules of recognition

(secondary rules)

Back 7

will overcome uncertainty if there really is a primary rule by giving us a procedure for determining this—e.g., if it has been enacted by the legislature and passes constitutional review, then it is a law. Otherwise not.

Front 8

Rules of change

(secondary rules)

Back 8

perhaps involving the setting up of a legislature—will give us a mechanism for changing or abandoning and then replacing primary rules.

Front 9

Rules of adjudication

(secondary rules)

Back 9

(perhaps involving the setting up of courts) will provide mechanisms for interpreting vague rules and for deciding in cases of conflict which rules take precedence.

Front 10

• If we now have a rough idea of what law is (and what a legal system is) we can now raise a question of value: Is having law on balance a good thing?

Back 10

o Thomas Hobbes claimed that law is required to maintain peace and order and to allow us to reap the benefits of social cooperation.

Front 11

• These are the substantive (not procedural) things that generally (with the exception of 4 in the years following the assassination attempt on President Regan) must be proven beyond a reasonable doubt for a criminal conviction:

Back 11

(1)the criminal act (actus reus) was performed by the defendant

(2)the relevant mental state (mens rea)

(3)the defendant does not have a valid justification (such as self-defense)

(4)the defendant does not have a valid excuse (such as insanity)

Front 12

Justification:

Back 12

Act (intentionally killing another human being) generally wrong but in this special case (self-defense for example) it is the right thing to do, something that society endorses.

Front 13

Excuse:

Back 13

Act was wrong but for certain reasons (mental illness for example) the individual acted without fault or responsibility and thus should not be punished (though may be committed to a mental institution).

Front 14

Regina v Dudley and Stephens:

Back 14

 Should English law recognize a defense of necessity—that is, regard as legally justified the intentional killing of an innocent and unoffending person if that is the only way to preserve the lives of three others. (Of two others? Of just one?)

Front 15

Basic questions about punishment:

Back 15

• Why punish at all (goals or objectives)?
• What to punish (what to make crimes)?
• Who to punish (the guilty but how is that determined)?
• How to punish?
• How much to punish?
• Are there less hurtful and coercive means than punishment that would accomplish the same goals?

Front 16

Why punish? What purposes?

Back 16

Two general kinds of theoretical justifications: Consequentialism and Non-Consequentialism.

Front 17

Consequentialist justifications

Back 17

seek to justify punishment in terms of some future good that will result—crime control, for example.

Front 18

Types of crime control

Back 18

incapacitation
and deterrence

Front 19

incapacitation

Back 19

making it impossible or nearly impossible for a person to commit future crimes.

The death penalty is a perfect incapacitator and life imprisonment can come close.

Front 20

deterrence.

Back 20

the main way punishment is thought to help society

 A deterrence system is a kind of price system on conduct that controls conduct through threats.

Front 21

Special deterrence

Back 21

occurs when punishing Jones makes him afraid to offend again.

Front 22

General deterrence

Back 22

occurs when punishing Jones serves as an example to others (hopefully many others) that will make them afraid to commit comparable crimes.

Front 23

The most widely discussed form of consequential crime control is found in Bentham’s :

Back 23

utilitarianism

Front 24

utilitarianism

Back 24

a theory that defines morally relevant consequences in terms of pleasure or happiness (the good) and pain or unhappiness (the bad).

Front 25

Plato's form of consequentioalism:

Back 25

punishment as moral reform or education

Front 26

retributivism.

Back 26

4. The most widely studied form of non-consequentialism, a theory of punishment that looks to the past and concerns itself with the justice of righting past wrongs rather than with future good

This theory seeks to give the criminal what he deserves as a matter of justice.

Front 27

Plato/Socrates

Back 27

Most important value is goodness or excellence of character.

Front 28

Bentham:

Back 28

Most important value is pleasure or happiness and the basic moral principle is the greatest pleasure or happiness for the greatest number of people.

Front 29

Kant:

Back 29

Most important value is human dignity, the preciousness that we acquire by being free, autonomous, rational beings. It is the foundation of our basic rights—rights that should protect us against being unjustly exploited or harmed by others, even if so doing would promote the greatest happiness for the greatest number.

Front 30

• These are the substantive (not procedural) things that generally (with the exception of 4 in the years following the assassination attempt on President Regan) must be proven beyond a reasonable doubt for a criminal conviction:

Back 30

(1)the criminal act (actus reus) was performed by the defendant

(2)the relevant mental state (mens rea)

(3)the defendant does not have a valid justification (such as self-defense)

(4)the defendant does not have a valid excuse (such as insanity)

Front 31

Justification:

Back 31

Act (intentionally killing another human being) generally wrong but in this special case (self-defense for example) it is the right thing to do, something that society endorses.

Front 32

Excuse:

Back 32

Act was wrong but for certain reasons (mental illness for example) the individual acted without fault or responsibility and thus should not be punished (though may be committed to a mental institution).

Front 33

Regina v Dudley and Stephens:

Back 33

 Should English law recognize a defense of necessity—that is, regard as legally justified the intentional killing of an innocent and unoffending person if that is the only way to preserve the lives of three others. (Of two others? Of just one?)

Front 34

Basic questions about punishment:

Back 34

• Why punish at all (goals or objectives)?
• What to punish (what to make crimes)?
• Who to punish (the guilty but how is that determined)?
• How to punish?
• How much to punish?
• Are there less hurtful and coercive means than punishment that would accomplish the same goals?

Front 35

Why punish? What purposes?

Back 35

Two general kinds of theoretical justifications: Consequentialism and Non-Consequentialism.

Front 36

Consequentialist justifications

Back 36

seek to justify punishment in terms of some future good that will result—crime control, for example.

Front 37

Types of crime control

Back 37

incapacitation
and deterrence

Front 38

incapacitation

Back 38

making it impossible or nearly impossible for a person to commit future crimes.

The death penalty is a perfect incapacitator and life imprisonment can come close.

Front 39

deterrence.

Back 39

the main way punishment is thought to help society

 A deterrence system is a kind of price system on conduct that controls conduct through threats.

Front 40

Special deterrence

Back 40

occurs when punishing Jones makes him afraid to offend again.

Front 41

General deterrence

Back 41

occurs when punishing Jones serves as an example to others (hopefully many others) that will make them afraid to commit comparable crimes.

Front 42

The most widely discussed form of consequential crime control is found in Bentham’s

Back 42

utilitarianism

Front 43

utilitarianism

Back 43

a theory that defines morally relevant consequences in terms of pleasure or happiness (the good) and pain or unhappiness (the bad).

Front 44

o One other form of consequentialism is

Back 44

punishment as moral reform or education (Plato).

Front 45

retributivism.

Back 45

The most widely studied form of non-consequentialism, a theory of punishment that looks to the past and concerns itself with the justice of righting past wrongs rather than with future good,

This theory seeks to give the criminal what he deserves as a matter of justice.

Front 46

Plato/Socrates:

Back 46

Most important value is goodness or excellence of character.

Front 47

Bentham:

Back 47

Most important value is pleasure or happiness and the basic moral principle is the greatest pleasure or happiness for the greatest number of people.

Front 48

Kant:

Back 48

Most important value is human dignity, the preciousness that we acquire by being free, autonomous, rational beings. It is the foundation of our basic rights—rights that should protect us against being unjustly exploited or harmed by others, even if so doing would promote the greatest happiness for the greatest number.

Front 49

Actus Reus

Back 49

“Criminal liability requires an act.”


\Primary meaning: “Criminal liability requires a voluntary act.”

Front 50

Martin case,

Back 50

(an actus reus case)

the court refused to uphold punishment for Martin for violating the statute that made it a crime to appear drunk and disorderly in public.

(Martin was carried outside his home by police and put on the street.)

The court claimed that the plain meaning of the English word “appear” is “voluntarily appear.”

Front 51

What does it mean to say that one does not have normal control over one’s bodily movements?

Back 51

o Typical examples are reflex movements, seizures, convulsions, having one’s body physically moved by another, or sleepwalking.

unless a previous history of such things

Front 52

Mens Reus

Back 52

This is generally referred to as a system of strict or absolute liability.

Front 53

4 conditions of mens reus

Back 53

1. Intention, purpose, conscious object.

2. Knowledge:

3. Recklessness

4. Negligence:

Front 54

1. Intention, purpose, conscious object.

Back 54

a. (For the most severe homicide offenses some states require not just intention but malice aforethought: deliberated premeditation.) Using homicide as for our mens rea examples, this mens rea requires that the actus reus (killing another human) be done with the intention of causing death.

Front 55

2. Knowledge:

Back 55

Actus reus done knowing it will cause death.

If criminal is certain or nearly certain, this will generally be regarded as equivalent in seriousness to intention. Where probablility is involved–knows that it will probably happen, or knows that it might happen–some interesting complexities arise that need not detain us here.

Front 56

3. Recklessness

Back 56

Actus reus peformed by a person who is consciously aware at the time of action that a significant unjustified risk of harm to others is present and acts anyway.

Front 57

4. Negligence:

Back 57

Actus reus performed by a person who is taking an unjustified risk but is not consciously aware of this in circumstances in which he should have been aware.

(This is not a mental state–rather the absence of the mental state of consciousness awareness–and this is one reason why the phrase mens rea is misleading if taken literally.)

Front 58

Higherarchy of crimes

Back 58

o Generally the worst crimes (those thought to deserve the most severe punishments) are thought to be those involving intention or certain knowledge.
o Thought to be less severe are those involving recklessness.
o Least severe are those involving negligence.

Front 59

The moral of all this

Back 59

Clearly in most cases a mens rea system is morally and legally preferable to a strict liability system of criminal law.

Front 60

The two mens rea cases Faulkner and Cunningham illustrate

Back 60

the development of some mens rea doctrines that are now present in most American and English jurisdictions.