chapter 4 the nature and aims of the criminal law

Chapter 4

The Nature and Aims of the Criminal Law

Criminal Law

Violation of social norms that subjects the offender to punishment

Torts and Contract Law

Tort-those who injure others through violations of the norms-norms without a contractual basis-are liable to compensate the victims.

Contract-self imposed obligation to another

Distinction Between Tort Law and Contract Law

The duties imposed under tort law are imposed by society while the duties imposed by contract law are self imposed.

Tort law seeks to compensate the victim for harm suffered as a result of someone else’s conduct while contract law seeks to give the non-breaching party what he would have had if the contract had not been breached.

Distinction Between Tort Law and Contract Law

Criminal Law Utilitarian Approach

Jeremy Bentham introduced the principle of utility

Greatest happiness principle

Net balance of Pleasure over Pain

We choose that course of action which brings us the greatest pleasure or happiness

Requirements for a Crime

Mens Rea-guilty mind-the criminal knows or should have known certain things are criminal and the criminal chose or failed to chose certain things.

Actus Reus-guilty act

Punishment Punishment must be an evil of some

sort

Punishment must be imposed for the failure to measure up to some binding standard

Punishment must be imposed by a personal agency who is authoritative

Legal punishment is an exercise of legal authority: it occurs when one who is authorized to do so imposes hard treatment that condemns the criminal from violating an authoritative legal standard.

Punishment

Utilitarian Approach

If punishment can cause pain to the wrongdoer and didn’t do anything else, it was not justified.

However the utilitarian approach determined several factors that justify criminal punishment.

Punishment

Punishment has a point because (and insofar as) it promotes good consequences for society to punish

General deterrence-deter other members of society

Special deterrence-deter the wrongdoer himself from future crimes

Incapacitation-Punish to limit the opportunity to commit future crimes

Rehabilitation-Change the moral character of the criminal

Utilitarian Approach

Utilitarian Approach Bentham classified some certain sorts of

actions as being "unmeet for punishment” Groundless-no action in need of deterrence Inefficacious-punishment ineffective Unprofitable-the costs to human happiness

of implementing the rule would not be worth the good that can be gotten from it

Needless-good effects could be brought about by other means

Utilitarian Approach

“Forward-looking”-The rationale for criminalizing and for setting certain punishments is that future happiness can be attained by having effective rules in place.

Utilitarian Approach and Innocence

Innocent people won’t be framed for crimes because this won’t promote the best overall consequences

Utilitarian views imply that crimes that are not well deterred by punishment are not to be punished

Retributivist Approach

Justice is served when those who are guilty of crimes are punished for their crimes.

The guilty deserve to be punished because their actions have harmed or attempted to harm someone.

Every moral wrong the forbidding of which falls within the aims of law is a fit object of punishment

Retributivists need not claim that punishment is a mandatory response to every such morally blameworthy act

Retributivist Approach

The purpose of society’s criminal justice system is to give the guilty what they deserve.

Does this theory equal revenge?

Retributivist Approach

“Backward-looking”-The aim of punishment is to respond to the wrongful act itself

Retributivist Approach

Lex Talionis-”Eye for an Eye”

The severity of the punishment can be measured by the level of harm that it does to the punished, and the gravity of the criminal offense can be measured by the level of harm that the offense does to its victim.

Untenable What about crimes that do no harm? Harm vs. unfair advantage Equal levels of harm with different

levels of blameworthiness-intentional homicide vs. involuntary manslaughter

Lex Talionis-”Eye for an Eye”

Justification and Excuse

No actus reus-No voluntary act No mens rea-Mistake of fact Affirmative Defenses Justification and Excuse

Justification-what was done was the right act or at least not a wrong act

Excuse-Even if it was a wrong act, the perpetrator is not to blame for performing it

Justification and Excuse

Necessity

Self defense (can only use like force)

Justification and Excuse

Insanity

M’Naughten rule-”defect of reason” or “disease of the mind”

American Law Institute-Not responsible if “at the time of such conduct as a result of mental disease or defect he lacks substantial capacity to appreciate the wrongdoing of his conduct or to conform his conduct to the requirements of the law.”

Justification and Excuse

Immaturity

Duress

Justification and Excuse