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| where one person is held liable for a wrong or harm caused by another ... usually when an employer is charged for an employees negligence |
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| felons are legally liable for any deaths caused by anyone during crime |
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| positive (conventional) morality |
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| morality actually accepted and shared by a given social group |
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| critical (objective) morality |
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| morality which transcends the current standards adopted by a society |
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| Descriptive theories of Morality |
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| : how things actually are (Newtonian gravity, evolution) |
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| Normative theories of Morality: |
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| how things should be (Utilitarianism, Kantianism) |
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| Consequentialist theories: |
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| the rightness or wrongness of an action depends solely on the goodness or badness of its consequences |
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| an act is right if and only if it best promotes the actor’s own interests |
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| an act is right if and only if it produces at least as much total happiness as would any alternative act open to the actor |
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| an act is right if and only if it conforms to one of that set of rules, general adherence to which would produce at least as much total happiness as would adherence to any alternative set of rules |
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| some actions are intrinsically right or wrong regardless of their consequences |
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| an act is right if and only if it is obedient to God’s commands/will |
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| treat others always as ends-in-themselves, never just as means to your own ends |
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| There should be no assignment of criminal liability except in accordance with fixed, clear, promulgated, preestablished law. Ensures fairness |
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| There should be no assignment of criminal liability without (a) an overt voluntary act contrary to law (actus reus), (b) a guilty mental state (mens rea), and (c) an appropriate connection of (a) and (b) (i.e., of actus reus and mens rea). |
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| PRINCIPLE OF LEGAL IGNORANCE |
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Definition
Ignorance of the law is no excuse.
Arguments for:
- Impossible to determine knowledge of law
- If it is immorally wrong, then it is criminally wrong also
Arguments against
- Juries reason and infer all the time…no different
- What about actions that aren’t immoral but still illegal (speeding)
Ignorance of fact can be an excuse (I didn’t know it was a man in a deer suit) |
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an overt, voluntary act contrary to law
(2) Can’t just be a bad thought; has to be an illegal act; a muscular movement under conscious control; a mere voluntary act is not enough; needs guilty mental intent |
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| punished for states of being, rather than certain acts of crime |
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| (“Three-time-loser” or “Three strikes” laws) |
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| There is little moral difference between attempts and completed crimes, so both should be punished equally |
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(i) knowledge of circumstances plus foresight of consequences
(ii) absence of excusing conditions |
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| Specific vs. General intent |
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Specific: Intent to perform an illegal act with the knowledge or purpose that particular results will or may ensue. Example: Assaulted with intent to kill.
General: General criminal intent refers to the intent to perform the act – if the culprit intended to perform an illegal act w/out a desire for further consequences or a precise result. Example: Intent to assault, not kill. |
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| Doctrine of Transferred Intent |
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| The intent to commit a particular felony is transferred to act of killing to find culpability. Example: Man stabs lady; lady is pregnant (he did not know), fetus dies; Intent to kill is transferred to fetus. |
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| Doctrine of Constructive Intent |
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| Involves cases where the accused should have known their behavior created a high or unreasonable risk of injury. Also called criminal negligence, and replaces any specific intent contained in statute, thereby constructing or converting an innocent act to a crime. |
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| An intent to kill or harm if necessary. Example: A bank robbery, the robber says “I’m only going to use the gun if you resist” |
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| “conscious disregard of a substantial and unjustifiable risk” harm is not intentional, but clearly foreseeable |
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failure to take reasonable care (culpable carelessness)
-Man of ordinary prudence, average intelligence and character – specialist would be held more liable (eye doctor) |
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| Arguments for retaining Negligence Liability: fairness argument (Andrews); fault argument |
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Definition
Fairness argument (Andrews) – the cost for a chain of events must fall on one person’s negligent acts – the cost should fall on the person who committed the negligent act in the first place
Fault Argument – it is unfair to hold one person liable for a chain of tragic events based on one negligent act |
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Definition
Show that there was moral rectitude in one’s actions even if it violated the prima facie obligation
Self-Defense; Defense of Others; Defense of Property; Consent; Necessity (“General Justification”) |
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Even if one violates an overall-obligation, then there might be mitigating circumstances
Mistake; Ignorance; Accident; Duress; Provocation; Insanity; Entrapment; Immaturity |
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Term
| Misfeasance vs. nonfeasance |
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Definition
| Misfeasance is the incorrect, improper or wrongful performance of a lawful act, while nonfeasance is the nonperformance of an act that ought to be performed |
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Term
| perfect vs. imperfect duties |
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Definition
| perfect duties are implied by rights people have. It is our duty not to violated these rights, such as violating the right to life by killing someone. Imperfect duties are those of benevolence/generosity; They are not mandatory to perform but are acts that constitute the behavior of what we would consider a Good Samaritan |
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| positive vs. negative duties |
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| Positive duties are those to perform certain services/provide goods for others. Negative duties are those duties not to do something (such as not kill someone). |
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| A duty is something we should do, while superogations are efforts that go beyond the call of duty. |
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| Options for the Form of Good Samaritan laws: |
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Definition
(1) General criminal liability for failure to perform non-perilous rescues
(2) Restricted criminal liability
(3) Civil liability for failure to rescue
(4) Compensation (and/or reward) for rescuers
(5) Legal immunity for rescuers from civil or criminal liability for harm done in course of rescues |
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Term
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Definition
There is no legal duty of rescue without either:
(1) a statute requiring rescue, or
(2) a special relationship to the one requiring rescue of one of the following kinds:
(a) a status relationship to another (e.g., parent, spouse),
(b) a contractual duty of care, or
(c) a “seclusion” relationship (i.e., one has secluded the one needing aid so as to prevent others from giving aid). |
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| Is there a Moral Duty of Rescue? |
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Definition
1. Utilitarian position (Harris)
Rescue or help others up to the point where it stops producing happiness.
2. Libertarian position (Mack)
Requiring rescue will affect moral rights to liberty. There is no moral duty to help anyone.
3. Liberal position (Woozley)
Liberal tries to find a middle way between these two extremes:
0 Easy rescues should be required, but not hard ones.
0 Libertarian response: you can’t accept the principle of limiting liberty without it turning into utilitarianism… it’s a slippery slope. |
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| The "but for" account of causation: |
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Definition
the cause of an event is that "but for which" the event would not have occurred.
It’s a causation if without that act, the event wouldn’t have happened. |
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| . Hart and Honore on Omissions: |
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Definition
An omission is a cause only when it is abnormal in the circumstances.
Ex.: gardeners failure to water flowers (abnormal, usually does water them)
Ex: failure to turn off headlights, battery dies.
Therefore, omission can be a cause. |
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| Harris on "Negative Causation”: |
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Definition
Person X's failure to do act A caused consequence B where:
(1) X could have done A,
(2) A would have prevented B,
and (3) either: (a) A is expected or required of X, or
(b) B involves harm to human beings |
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| Harris' reconstructed basic argument of rescue |
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Definition
(1) We have a duty to prevent human harm (where we can).
(2) We expect people to prevent human harm (where they can). Therefore:
(3) Our failure to prevent human harm (where we can) causes that harm.
(4) We have a duty not to cause harm.
(5) Therefore, we have a duty to prevent human harm (where we can).
(6) Therefore, since failure to prevent human harm is a kind of violence toward others (and the law must prohibit violence), the law ought to compel us to prevent human harm (where we can).
Assumes the truth of the conclusion as one of its premises |
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| Positive Duty strategy in defending GS laws |
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Definition
| (Woozley) there are reasonably strong positive duties to help people face-to-face; causation is no matter; moral duty to help |
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| Causation strategy in defending GS laws |
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Definition
| Harris) moral background is of no matter; duty not to cause harm |
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| responsibility strategy in defending GS laws |
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Definition
Omissions to act count as causes when moral duty to intervene; similar to Harris
Mack feels that a positive duty cannot affect the metaphysics of causation. Therefore, the law should care about duty and not Newtonian law. If (4) is violated then one should be allowed to migrate duty to causation.
In all, negligence is predicated on the fact that duty – causation |
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Term
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Definition
The only legitimate purpose of a system of criminal justice is to punish immorality (wrongdoing).
(1) Moral guilt is necessary for punishment to be just
(2) Moral guilt is sufficient to justify punishment, regardless of the consequences
(3) The amount and kind of punishment which is justified is determined solely by what fits the gravity and nature of the moral wrong.
- Punishment “balances” the crime by restoring harmony to the universe that the crime had disturbed. |
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Definition
The only legitimate purpose of a system of criminal justice is to promote the general welfare (i.e., happiness).
(1) A gain in total happiness is necessary for punishment to be justified.
(2) A gain in total happiness is sufficient to justify punishment.
(3) The amount and kind of punishment which is justified is determined solely by what best promotes total happiness.
- Punishment causes unhappiness to the criminal so to be just it must create a greater good.
- Could only pretend to punish criminals but instead send them to an island – would make families and criminals happy.
- Allows punishments that seem sever (killing family) or limit those who are punished (those who are unpopular) |
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| Hybrid theory/ choosing system of punishment: |
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| people punished are able to choose their fate beforehand because they know what will happen to them since punishment is applied equally to all who commit the same crime under the same circumstances. |
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| Gilpin - getting rid of CP |
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Definition
1: No deterrent value
2: Juries won't convict
3: Possible conviction of innocent
4: Unequal treatment
5: Shows disregard for life
6: Religious arguments |
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Definition
A punishment is “cruel and unusual” if:
1. It degrades human dignity (as in (a) torture or (b) grossly disproportionate punishment)
or 2. It is inflicted arbitrarily
or 3. It is rejected as wrong or unjust by society
or 4. It is unnecessary or ineffective. |
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Term
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Definition
the sole reason for which society may interfere with the conduct of an individual is the prevention of harm to others.
Rules out:
(1) Paternalistic laws -- where society uses the law to prohibit your harming yourself
and (2) Moralistic laws -- where society prohibits (otherwise harmless) acts which it sees as immoral (incest, consensual sodomy) |
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Term
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Definition
(1) Violations of Basic Interests (life, liberty, health, property)
(2) Offenses to Sensibility (annoyance, discomfort, inconvenience)
- seems harm is dependent on attitude of observer
- there are pockets of accepted areas, not blanket contempt |
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Definition
(3) Impairments of Public Welfare (endanger of public healthy, economy, or national security)
(4) Violations of Government Interests (bribes or election fraud) |
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| Devlin’s Central Argument |
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Definition
(1) Each society has a public moral structure.
(2) A strong public moral structure is essential to a society's continued existence.
(3) Society has the right to require of us what is necessary for its continued existence.
(4) Society may use the criminal law to secure what it has a right to require of us.
(5) Even private, consensual immorality endangers the public moral structure.
(6) Therefore, society has the right to use the criminal law to prohibit even private, consensual immorality. |
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Term
| Why does he think what you do in private world threaten society? |
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Definition
| - Hart provides an answer for Devlin: the concept of “seamless web” – to damage or undermine public morality at any point damages the whole structure |
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Definition
(1) Private Harm Principle -- it is legitimate to prohibit acts which harm other individuals (e.g., murder, rape, assault).
(2) Public Harm Principle -- it is legitimate to prohibit acts which harm society as a whole (e.g., treason, counterfeiting).
(3) Offense Principle -- it is legitimate to prohibit acts which offend others (e.g., public nudity, homosexuality, prostitution).
(4) Paternalism Principle -- it is legitimate to prohibit acts which harm the actor (e.g., suicide, substance abuse).
(5) Welfare Principle -- it is legitimate to prohibit certain failures to benefit others (e.g., bad Samaritanism).
Does all immorality cause harm? |
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Definition
Is the offense (pornography) enough for legal interference?
1) Are the attitudes self-justifying? Is it defensible that we feel awkward when we see a naked body?
2) How do we distinguish the acts that everyone thought ought to be legally prohibited and the activities that no one thought should be legally prohibited? We want the law to be consistent; we want law to restrict public nudity, because we are disgusted by it, but what about ugliness?
3) Whose offense does the law have to take account?
4) What are we going to do about things we do in public and private offense conduct?
- prohibits bad literature with sexual themes
- what is obscene will vary from region to region and will change over time |
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| Feinberg’s Corollaries to the Offense Principle |
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Definition
Accept offense principle supplement to harm principle, we also have to accept these too:
(1) standard of universality –offense ought to be universal
(2) standard of reasonable avoidability – so people can reasonably avoid the act |
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| Attitude-dependent offensiveness vs. natural offensiveness |
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Definition
You might be offended by public fornication bc you believe that sex is a private matter – attitude dependant offensiveness.
Everyone finds the smell of open sewage naturally offenseive. |
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| . Conscientious offensiveness vs. non-conscientious offensiveness |
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| Conduct that is intentionally used to upset people or change dogmatic opinions. |
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| Miller v. California (1973) |
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Definition
(1) Would the average person, applying local contemporary community standards, find that the work, taken as a whole, appeals to prurient interests?
(2) Does the work depict or describe, in a patently offensive way, sexual conduct (as defined by state law)?
(3) Does the work, taken as a whole, lack serious literary, artistic, political, or scientific value?
If the answer is "yes" to each of (1)-(3), the work is obscene, it is not protected by the First Amendment, and its production and distribution can be legally prohibited.
Problems: other types of values that a work can posses |
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Term
Three approaches to Degradation:
Definitional:
Descriptive:
Metaphysical: |
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Definition
Definitional: porn is sexually explicit
Descriptive: designed to induce sexual arousal
Metaphysical: weak argument if alone, people do not care about the deeper messages of porn |
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| revised Principle of Guilt: |
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| actus reus, actor at fault, plus connection between the source of the fault and the actus reus (where being “at fault” could involve either (a) mens rea, (b) carelessness, or (c) knowingly causing harm) |
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| obligations that should generally be kept, but can be overridden by some justification (killing is wrong) |
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| the general obligation after weighing competing principles |
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