*Continued from last lecture
The decisions that make up the common law are shaped by a particular legal culture.
Legal culture that was developed over the 1600s in England.
Steeped in liberal principles that define the relationship between the citizen and
the state through the principles of due process.
The way the system thinks about legal system
1. Society is a collection of individuals
Have a right to make decisions about their own lives
Can change their lives if they want – do not have to adhere to the original roles of
Individuals who are rational
2. Rational Individuals weigh the costs and benefits of their actions and only act
when the benefits outweigh the costs
Deterrence is a principle of sentencing
Increase the costs, put people in jail longer, will convince people not to do it cause
we are all rational
3. Individuals in society agree to obey the law to protect themselves from
transgressors because it’s rational to do so
If I break into someone’s house, they can turn around and take it back
If someone is going to take something from me, the law needs to protect me
Giving up a little bit of freedom in order to protect
o Will end up with more freedom in the long run
4. The role of the law and the CJS is to maximize individual freedom.
Purpose is to protect liberty
5. But when the CJS punishes a transgressor, it takes away the transgressor’s liberty
Fine them, or put them in jail (taking away their liberty)
Creates a problem bc the purpose is to maximize liberty
6. Because individual liberty is so important, the CJS should only punish individuals
who make a rational decision to act (“blameworthiness”)
The Common Law is all about restraining the state
o Only thing that can drag someone anywhere and keep them there