Chapter 4

1. Chapter 4 The Nature and Aims of the Criminal Law

2. Criminal Law • Violation of social norms that subjects the offender to punishment

3. 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

4. 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.

5. Distinction Between Tort Law and Contract Law • 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.

6. 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

7. 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

8. 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

9. Punishment • 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.

10. 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.

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

12. Utilitarian Approach • 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

13. 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

14. 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.

15. 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

16. 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.

17. Retributivist Approach • 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

18. Retributivist Approach • The purpose of society’s criminal justice system is to give the guilty what they deserve. • Does this theory equal revenge?

19. Retributivist Approach • “Backward-looking”-The aim of punishment is to respond to the wrongful act itself

20. 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.

21. Lex Talionis-”Eye for an Eye” • 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

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

23. 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

24. Justification and Excuse • Necessity • Self defense (can only use like force)

25. 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.”

26. Justification and Excuse • Immaturity • Duress