This summer I took criminal law, here are excerpts from my notes
Criminal law: body rules that the government prohibits forms of conduct because it harms or threatens public safety/welfare imposes punishment. Criminal law deals with public wrongs, not private wrongs: the concern is the community as whole. The individual is called to answer for their wrongful behavior. The person who is wronged seeks legal redress. Not an arbitrary or oppressive enterprise.
Violation of criminal law triggers the imposition of public censure and severe punishment. (constitutes encroachment on individuals freedom and autonomy, should be a last resort/ultima ratio). Instrument of social control and of governmental power. Protects society and criminals from an intrusive state: both the sword and shield in democratic societies.
Limits freedoms by circumscribing their boundaries. It prohibits unlawful appropriation but circumscribes scope of usage as no others should be harmed. Influences and regulates behavior in ways that see fit (limiting/protecting freedoms).
Tool to maintain public order, control deviant social behavior. Canalize and circumscribe the application of coercive measures/punishment to determine legal and moral channels.
Boundaries of criminal law and socially, historically, and politically determined. Minimalist Principle: criminal law should only be used as a last resort (try civil-tort/contract or administrative-informal law before)
Principle of Individual Autonomy: citizens should be free from undue State power sin making their own choices
Principle of Welfare Certain: collective goals/interests are warranted to be protected under criminal law. Citizens never exercise their autonomy if the government fails to create conditions that enable the exercise of autonomy.
Both Individual Autonomy and Welfare Certain are mutually interdependent. Both protect what is beneficial to the collective.
Harm Principle: power can be rightfully exercised over any member of a civilized community against their will, to prevent harm to others.
Legal Moralism: need to determine which morals are to guide to criminalize the debate. Moral values are subject to constant change and a problematic guide to legalism.
Utilitarian Theories: laws maximize the happiness of society. Only justified if the harm prevented outweighs the harm it creates. Consequentialist in nature: the government should only inflict as much punishment as is needed to prevent future crimes.
Deterrence: individual deterrence punishes an offender to prevent the same person from reoffering. General deterrence uses the threat as an example of punishment. Crimes committed under the influence of wrongdoers, cannot weigh the exchange.
Retributive Theories: offenders are punished because they deserve punishment. A back view: the crime itself rationalizes the punishment. The punishment fits the crime. It’s a question of the responsibility of the crime and not the beneficial consequences.
Actus Reus or objective element of a crime. Mens Rea is the mental subjective element of the crime: whether intention or negligence according to the offense definition can be established. Need to fulfill moth requirements simultaneously.
There is a distinction between the objective and tangible side of a person’s conduct which is susceptible to the objective assessment/intangible subjective side of a person’s conduct or mind.
There is a distinction between objective/external and subjective/internal aspects of crime. Blame could be shifted to self defense or insanity if it removes the crime from the faulty party. Raises doubts on personal blame.
1. Fulfillment of offense definition (actus reus and mens rea)
2. Wrongdoing
3. Blameworthiness
Presence of wrongdoing and blameworthiness is generally assumed. Exceptional circumstances are negated.
Actus Reus. Notion of the doctrine of conduct. Ensures that the law treats citizens as responsible subjects not objects of government coercion.
Meaning is not fixed, it’s socially defined. Movement of a hand is interpreted as a greeting and in another as a threat. Social theory of actions.
Liability can also occur out of failure to act. These give rise to criminal liability to different degrees.
Mens Rea is the subjective element. The standard varies but the more serious the crime, the stricter the intent required. Its reasonable that someone who attempts murder is more culpable than someone who causes the death of another by carelessness.
Intention: knowing and wanting. Direct intent (dolus directus) is a strong volitional element, consequence of an intention is desired. The focus is on the will of the agent to bring certain results. Indirect intent (dolus indirectus) is where the intention is in itself value neutral (has nothing to do with motive). Only exception in cases where the offense definition is drafted where the intent relates to a specific motive that confirms the intent itself is neutral.
Conditional Intent (dolus eventualis): adequate protection of legal interests against dangerous risk-taking demands an additional subjective element in between negligence and (in)direct intention.
- A cognitive element of awareness of a risk
- A volitional element of accepting the possibility that this
risk would materialize
Recklessness: conscious taking of unjustified risk. Not require the volitional element of acceptance. Needs proof that the defendant was aware of the risk. What they were aware of.
Negligence: carelessness and lack of due care/reasonable care. Unconscious negligence: agent wrongfully does not consider the consequences of conduct. Should have been aware of risk-not conscious of risk. Conscious negligence: agent is aware of risk, assumes the result will not occur. Agent is conscious of the risk but trusts the good outcome.
Recklessness may cover both cases of conditional intent and conscious negligence.
Self Defense
- He who commits an act which is required as necessary defense, does not act unlawfully.
- Necessary defense is the defense which is required in order to fend off an imminent unlawful assault from oneself or another.
Imminent and Unlawful Attack. Imminnece: defendant does not wait for official authorities to protect their interest. Only performed when danger is already close (no preemptive strike) and only as long as the attack continues. If it continues beyond the attack it is retaliation. Must pertain to a legitimate interest (bodily harm, property harm). Only used when other alternatives are exhausted like trying to retreat or getting help.
Proportionality: relationship between the offense committed and the amount of harm likely to be suffered by the defendant if he had not intervened with force. Attack is justified as long as it is reasonable.
Insanity: defective development or medical disorder of his mental capacities is not criminally liable. Those who are not responsible for their actions are not punished. Admitted or treated in a Mental Hospital. Plea of insanity deprives freedom for an indefinite time.
- Defendant was suffering from a relevant mental disorder at the time when he committed the offense
- Mental disorder impaired the defendant’s capacities to be held responsible. May be reasons against attributing the offense to mental disorder like prior fault.
Diminished Capacity: partial impairments are reasons for mitigating punishment.
