Philosophy

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utilitarianism

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the view that the rational choice in morality is whichever choice will maximize human happiness or well being.

purpose to avoid social harm not facilitate choice or morality

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positive morality

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the moral beliefs ACTUALLY held by a particular group of people

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critical morality

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the moral beliefs a particular group of people would hold after a process of rational evaluation and criticism

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moral theory

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a proposed standard for rational moral evaluation

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rule utilitarianism

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rules that typically maximize human happiness should be followed, rather than making individual utilitarian decisions for each moral choice

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kantianism

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the rational choice in ethics is that which respects the rights of autonomous persons, regardless of the impact to general happiness or well being

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sentience

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capacity to feel pleasure and pain - utilitarianism

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ensoulment

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basis of kantianishm - humans have an immortal soul that no other living thing has - humans are valuable because their soul is valuable and they have the capacity for rational choice

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aesthetic standards

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evaluate things based on how they effect our senses - change often for no reason - physical beauty changes

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rules of etiquette

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rules for courtesy, good and bad manners - more relevant to everyday life

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legal rules

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authoritative texts to be consulted

procedures for deliberate change

formal coercive sanctions - imprisonment / death

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moral rules

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most serious ones are also criminal/legal

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mala in se

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acts that are wrong in themselves (conventional morality)

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mala prohibita

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acts that are wrong because they are prohibitede by law - moral wrong is unnecessary

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consequentialist theory

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rightfullness/wrongfullness depends on good/badness of consequences

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Ethical Egoism

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an act is right if and only if it best promotes the actor’s own interests

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deontological theory

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some acts are right or wrong regardless of their consequences

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divine command theory

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act is right if and only if it is obedient to God's commands/will

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irrational

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failure to have morality

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Act Utilitarianism

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the act is right if it produces the maximum total happiness of any act available to the actor in this situation

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Rule Utilitarianism

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the act is right if it belongs to a set of rules, general adherence to which would produce at least as much total happiness as any other set.

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temporal concurrence

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intend to and then commit the act at that time (doing the crime)

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concurrence

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existence of both actus reaus and mens rea in a crime

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actus reus

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Identifies the requirement that there must be a voluntary act or an omission to act before criminal liability may attatch

The criminal action must be clearly formed and have proceeded well towards the accomplishment of the act

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mens rea

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Knowledge of circumstances plus the foresight of consequences

While there may not be a guilty mind, one must recognize that some unintentional voluntary acts can be reckless, negligent, and apply to strict-liability

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negligence

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Failure to take reasonable care - something more the careless person could have/should have done - blameworthy

absence of mens rea

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recklessness

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"conscious disregard of a substantial and unjustifiable risk”

unintentional action in which a person perceives that there is some risk that his action will result in certain harm, ignores the risk, and fails to exercise reasonable care in avoiding the harm, which ensues.

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role responsibility

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duties associated with a certain role in a legal, social, or moral institution (parents caring for their children)

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causal responsibility

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usage of responsibility to identify causal connection (identifying that a storm or a flood caused certain, specific damage)

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liability responsibility

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moral and legal issues which identify certain conduct as violating moral or legal standard (not helping out somebody in distress)

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capacity responsibility

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Includes those usages which identify the presence of normal capacities of choice and deliberation by virtue of which persons are found responsible, and the absence of which identifies the non-responsible (children and the insane)

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compulsion

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someone takes your body and physically moves it

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status crime

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3 strikes laws - after 3 strikes law punishes one not only for what they did but who they are (their record)

focuses on punishment rather than deterring measures

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Robinson vs. California

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law making drug addiction illegal was found unconstitutional

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Powell vs. Texas

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made public drunkenness illegal

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vicarious liability

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one person is held liable for the harms caused by others

employee/employer

responsible for ownership

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strict liability

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liability without fault (knowingly caused harm)

conflict with principle of guilt

denies excuses of accident/mistake / reasonable action within circumstances

**liability that does not depend on actual negligence or intent to harm, but that is based on the breach of an absolute duty to make something safe

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felony murder

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a criminal is charged with first degree murder for any death that occurs during the course of performing the felony - even if runs away from the scene of the crime

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US vs. dotterweich

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pharmaceutical drugs - mislabeled - wrong chemical analysis of drugs - found guilry based on strict product liability - overturned rule in court of appeals - SC charged D - vicarious liabilty

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legal justification

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did best you could do in the situation - what you did was necessary

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legal excuse

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mistake, ignorance, accident, duress

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mistake

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believing something that is false

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ignorance

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act done unintentionally (simply not knowing)

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accident

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mistake and accident allow someone acted unintentionally and Reasonably

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culpable mistake

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rent-a-cop misttok suspicious person at bank taking out pen and shot him

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insanity

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insane acts can be intentinoal or unintentional - mens rea exists!

1) A lack of capacity to appreciate the nature, quality or wrongness of the act, or
2) A lack of capacity to conform his conduct to the law.

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program of social hygiene

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treat offenders in way most likely to cure them of what caused them to act in that way - criminals are "sick"

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Wooton

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Insane shouldnt be treated different from anyone else - criminals are "sick"

the more trouble one is in the worse the problem that needs to be fixed

law should aim to deter crimes

should get rid of excusing factors because too many people get away with crimes

should focus on social dangerousness - guiltness doesnt matter - mens rea irrelevant

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wooton criticism

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does'nt give people opportunity for mistakes - people are socially ignorant and should be punished for such - should avoid conduct that could "accidentally" result in harm

worry about judge's ability to recognize socially dangerous criminals

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wasserton

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actually deter people from "claiming" to be insane and make people that are prone to accidents avoid certain acts that are bound by strict liability

strict liability should only be imposed in certain areas

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criminal culpability

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shouldnt impose liability on one that didn't have the opportunity to avoid said crime

distinguish from negligence

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partial insanity defense

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diminish liabilty of criminals found to be partially insane - impaired in some way

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provocation

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arousal of criminal by some other party to a fever pitch of emotion, results in a temporary loss of control and crime

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duress

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subject to unlawful threat of force by another, and where that threat produces a reasonable fear of death or bodily injury and results in a criminal act (gun pointed at you telling you to rob store

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Hart comparison

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excusing conditions of criminal law and invalidating conditions in civil law

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Moral Guilt Theory (Retributivism)

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we shouldnt hold people legally liable for actions that arent morally wrong - requires mens rea

no moral guilt if act is unintentional

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Economy of Threats

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traditional legal excuses = harm without social benefit of deterring future crime

should recognize traditional moral excuses - maximize happiness at lowest cost - punish only as much as necessary

can only pose threat if people know consequences (threat) of proposed crime

can't threaten insane

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rationale for legal excuses

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punishing people for accidents doesn’t make sense because the actions were not committed purposefully meaning they aren’t fulfilling their purpose of deterrence

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Good Samaritan Laws

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Laws that institute the duty to rescue by prohibiting nonfeasance

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nonfeasance

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allowing harm to be done

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misfeasance

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doing harm to others (prohibited by law)

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restricted criminal liability

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law restricted for those expected to prevent harm

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options for good samaritan laws

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1. General criminal liability (strictest option)
2. Restricted criminal liability—liability is reserved for those who are required or expected to prevent harm.
3. Civil liability
4. Not-prohibited against—compensation and reward is given to those who do rescue
5. Legal immunity for rescuers from civil or criminal liability for harm done in the course of rescue.

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conditions for tough liability

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less than strict liability

maintain deterrent value - wont allow excuse for reasonable error

more reasonable care required of those in higher positions

small penalty because minimal fault (unintended)

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positive duties

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require that we actually act for the benefit of others
-imperfect…harder to do
-duties of rescue are likely to be dismissed as merely imperfect duties

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negative duties

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duties to refrain from certain conduct
-these are perfect…why?
-because they are easy to do without making effort.
-ex. Not murdering someone

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perfect duties

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duty that must be performed on all occasions, and concerns the rights of others

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imperfect duties

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not so stringently performed. For example, not giving to charity when you have a lot of money at all times. There are so many poor people, you couldn’t give to all

more leniency

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duty

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things morally required and failing to do so is morally wrong / doing is is not preaiseworthy / minimal required efforts

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superogetory

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moreally good but above and beyong matters of duty / saints and heroes / earn high moral praise

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Harris

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utility - go on to maximize hapiness and help others until misery of self and others outweighs the happiness we are creating for the people we're helping

even heroic rescues required by utilitarian

no distinction with act

Rules - less important are duties

higher - superogations

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Mack

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libertarian - only contractual positive duties to strangers

general positive duties would conflict with natural rights / basic moral rights

wrong someone - remedial duty

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Woozely

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some duties required - looks at cost

once allow law to require people to help others u step on slippery slope

only duty not to directly harm others

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objections of good samaritan laws

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punishment can be arbitrary - can't catch everyone

diminish moral virtue - people helped regardless of reason

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"but for" account of causation

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what we take to be cause is omission

so many conditions could be present - don't mean they're the cause

does'nt distinguish between cause and condition

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Hart & Honore on Omission

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omission is a cause only when it is abnormal in the circumstances - then can hold for liability

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Harris negative causation

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x's failure to do something caused consequence B

x could have done A
A would have prevented B
AND
A is expected/required of X
B involves harm to humans

Duty to be good samaritans at all times!

Fail to prevent human harm causes harm - law should compel to prevent harm

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Harris implicit account of expectation

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A is expected if X usually does A or is morally required to do A

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retributivism

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give people what they objectively desereve - just punishment fitting the crime

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criticism of retibutivism

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acting like criminal - murder for murder

no benefit from punishment - no deterrence - punishing for the sake of punishment

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utilitarian view on punishment

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only justified if providing maximum happiness

gain in total happiness is enough to justify punishment

The amount and kind of punishment which is justified is determined solely by what best promotes total happiness

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comparitive justice

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treated the same as others who have committed similar offenses

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non-comparative justice

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get exactly what is prescribed by law for violation

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Mill's harm principle

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the sole reason for which society may interfere with the conduct of an individual is the prevention of harm to others.

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paternalistic laws

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where society uses the law to prohibit your harming yourself

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moralistic laws

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where society prohibits (otherwise harmless) acts which it sees as immoral

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private harms

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(1) Violations of Basic Interests- ex. interests in life, liberty, security, property, etc .
(2) Offenses to Sensibility- acts that cause annoyance, discomfort, embarrassment. Ex. making loud noises or public nudity laws.

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public harms

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(3) Impairments of Public Welfare- harms that weaken the society as a whole. Ex. economy and such like, treason or counterfeiting money, etc.
(4) Violations of Government Interests- society is being attacked by a harm that is specifically done to a govt. like bribing an official or tax fraud, etc.

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elastic principles

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we should allow law to respect individual rights but also interfere when necessary

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Attitude dependent offensiveness

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Turn on the parties having certain attitudes or beliefs e.g., sex is a private matter, therefore offended by public acts.

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natural offensiveness

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certain odors, noises, sights, ets  reactions we cannot control

Natural offenses seem like better candidates for prohibitions, no chance of changing attitudes,

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Conscientious offensiveness

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meant to shock people to doing something different

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Non-Conscientious offensiveness

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when a person offends others not necessarily on purpose

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standard of reasonableness

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in terms of offense we need a "clear case"

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"clear Case"

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lurid and obscene posters in Times Square

**want the law to prohibit conduct only when it is not reasonable

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Feinburg offense principle

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offensive acts that can be reasonably avoided should not be prosecuted. Also, offenses or actions that offend only those with special sensitivity should not be interfered with by law

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principle of legality

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no crime or punishment except in accordance with fixed, reasonably specific, and fairly ascertainable preestablished law

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mercantile theory

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a choosing system in which excuses are applied when an individual does not choose to breech the law. In this way, the principle of fairness is upheld. Individuals can find out the costs they have to pay if they act in certain ways. This guides individuals’ choices by presenting them with reasons for exercising choice in the direction of obedience, but leaving them to choose.