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60 Cards in this Set

  • Front
  • Back
What is law?
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.”
Law is simply a set of orders backed up by sanctions

Problems with this:
 (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.
Primary Rule
a rule directed to individuals telling them what they may and may not do
A system of only primary rules would have three serious pathologies:
(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.
The solution to a system of only primary rules:
Secondary rules.
Secondary rules:
These are rules about rules.

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

(secondary rules)
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.
Rules of change

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

(secondary rules)
(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.
• 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?
o Thomas Hobbes claimed that law is required to maintain peace and order and to allow us to reap the benefits of social cooperation.
• 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:
(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)
Justification:
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.
Excuse:
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).
Regina v Dudley and Stephens:
 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?)
Basic questions about punishment:
• 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?
Why punish? What purposes?
Two general kinds of theoretical justifications: Consequentialism and Non-Consequentialism.
Consequentialist justifications
seek to justify punishment in terms of some future good that will result—crime control, for example.
Types of crime control
incapacitation
and deterrence
incapacitation
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.
deterrence.
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.
Special deterrence
occurs when punishing Jones makes him afraid to offend again.
General deterrence
occurs when punishing Jones serves as an example to others (hopefully many others) that will make them afraid to commit comparable crimes.
The most widely discussed form of consequential crime control is found in Bentham’s :
utilitarianism
utilitarianism
a theory that defines morally relevant consequences in terms of pleasure or happiness (the good) and pain or unhappiness (the bad).
Plato's form of consequentioalism:
punishment as moral reform or education
retributivism.
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.
Plato/Socrates
Most important value is goodness or excellence of character.
Bentham:
Most important value is pleasure or happiness and the basic moral principle is the greatest pleasure or happiness for the greatest number of people.
Kant:
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.
• 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:
(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)
Justification:
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.
Excuse:
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).
Regina v Dudley and Stephens:
 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?)
Basic questions about punishment:
• 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?
Why punish? What purposes?
Two general kinds of theoretical justifications: Consequentialism and Non-Consequentialism.
Consequentialist justifications
seek to justify punishment in terms of some future good that will result—crime control, for example.
Types of crime control
incapacitation
and deterrence
incapacitation
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.
deterrence.
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.
Special deterrence
occurs when punishing Jones makes him afraid to offend again.
General deterrence
occurs when punishing Jones serves as an example to others (hopefully many others) that will make them afraid to commit comparable crimes.
The most widely discussed form of consequential crime control is found in Bentham’s
utilitarianism
utilitarianism
a theory that defines morally relevant consequences in terms of pleasure or happiness (the good) and pain or unhappiness (the bad).
o One other form of consequentialism is
punishment as moral reform or education (Plato).
retributivism.
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.
Plato/Socrates:
Most important value is goodness or excellence of character.
Bentham:
Most important value is pleasure or happiness and the basic moral principle is the greatest pleasure or happiness for the greatest number of people.
Kant:
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.
Actus Reus
“Criminal liability requires an act.”


\Primary meaning: “Criminal liability requires a voluntary act.”
Martin case,
(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.”
What does it mean to say that one does not have normal control over one’s bodily movements?
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
Mens Reus
This is generally referred to as a system of strict or absolute liability.
4 conditions of mens reus
1. Intention, purpose, conscious object.

2. Knowledge:

3. Recklessness

4. Negligence:
1. Intention, purpose, conscious object.
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.
2. Knowledge:
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.
3. Recklessness
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.
4. Negligence:
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.)
Higherarchy of crimes
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.
The moral of all this
Clearly in most cases a mens rea system is morally and legally preferable to a strict liability system of criminal law.
The two mens rea cases Faulkner and Cunningham illustrate
the development of some mens rea doctrines that are now present in most American and English jurisdictions.