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LAWS 2301 (42)
Chapter 1

Chapter 1 notes.pdf

8 Pages
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Department
Law
Course Code
LAWS 2301
Professor
Ronald Saunders

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Chapter 1 -Three perspectives: legal, ethical and contractual Legal Definition -positivist perspective -lawyers & judges define it as ‘any behavior designated by law makers as criminal and is subject to penal sanctions -criminologists define it as ‘behavior prohibited by the criminal code -definition of crime can be broad or narrow: *broad: -means that any form of behavior can be designated a crime -behavior now regarded as criminal was at one time widely accepted -behavior such as drinking coffee or smoking in cafees was once a crime -some behavior can be deemed criminal in one jurisdiction but ignored in another *narrow: -only behavior designated by law makers as criminal, will count as a crime -no matter how criminal an act may seem, not truly deemed as criminal until law makers decide so -the key to the legalistic definition is the activity of law makers: Who are they? -law makers are those authorized by the law to make/create/designate law (Eg. municipal, provincial and federal legislators who make laws in their jurisdictions) -federal legislators create criminal laws, those of which are in the Criminal Code: -S. 163 of Criminal Code “Everyone commits an offense who makes, prints, publishes, distributes, sells or has in his possession for the purpose of publication, distribution or circulation, a crime comic” -not clear why this is a crime since it is rarely enforced; nevertheless, will be considered a crime until removed or amended -power of defining criminal law consists of both physical and psychological components *physical: army, police, judges, guards, police officers - all authorized to exercise coercive state control -legitimation: the process whereby government justifies its coercive apparatus by divine right, historical inevitability or allegedly democratic choice -object is to develop a general sense that political authority is just, good and right -one standard method of legitimation is propoganda and the political manipulation of names and titles -Eg. “Criminal Justice System” and “Corrections Canada” and “Peace officers” -criminal law does not extend to all humans (some jurisdictions exempt youngsters below a certain age from any criminal liability, however exemption from criminal law does not necessarily mean lenient treatment) Ethical Definition -normative perspective -attempt to describe what the law should be -limit what should and what should not be considered a crime -only wrongful acts should be considered crimes -everything that deserves to be declared a crime by some ethical rule is not designated a crime by the legal authorities and all crimes do not deserve to be regarded as unethical -should consists of serious wrongdoings only -Three general methods for measuring wrongness: -traditional -intuitional -consequential Traditional Method: (customs & traditions) -wrongful behavior based on custom, taboos, and traditions rather than explicit laws -determined by consulting tribal elders and reading about earlier customs -custom provides primitive cultures about what is right and wrong -custom and tradition are still important in contemporary cultures Eg. traditional judgment: having more than one marriage partner at the same time is wrongful behaviour -S. 290 and 293 prohibit bigamy and polygamy -Weakness: incapacity to adapt quickly to altered social conditions -Strength: in a trial-and-error process, customs that did not maintain a people’s survival, would tend not to be passed on Intuitional Method: (personal feeling) -based on a personal feeling -deemed right or wrong according to own response -parents must “condition” children to know right from wrong -conditioning: process whereby parents train their children to develop a conscience -without conditioning, humans would not feel that things such as theft and assault are wrong -most of the time, people’s feelings about right and wrong will be in general harmony Consequentialist Method: (consequences of behavior) -ethical verdict depends on the consequences of the behavior in question -an act is wrong if it results in net social harm -used happiness/satisfaction to measure whether a result was harmful -behavior is right if it contributes to the greatest happiness of the greatest number -however, happiness became a problematic criterion, so it was replaced with social welfare goals -bad behavior is “diseconomic”, so therefore, criminal behavior is extremely diseconomic *Example of all three ethical methods, pertaining to theft: -traditionalist: theft is wrong because old customs and texts say so -intuitionalist: wrong because it is a “gut” feeling -consequentialist: most difficult to define theft as wrong because they need to know the results and consequences of theft first Contractual Definition -generated along two strands: 1)social contract 2)democratic choice 1) Social contract -government/law should be the result of determination between equal contractors -crime will consist only of those behaviors designated as crimes by all parties to the contract Eg. Posner’s Economic Theory of Criminal Law -each party voluntarily gives up their labour to receive something in trade -if this voluntary exchange is rejected by one party who simply takes what they want at gunpoint, then the result is crime -one should not personify society or the state as though it has feelings or opinions -one should not presume that criminal law reflects a general public or consensus -Problems with liberal theory: -voters do not exercise much control over elected representatives -election costs limit voter control -voters remain ill-informed about drug laws -voters are “rationally ignorant” Objective of Government Regulation -criminal law is one method of government regulation -in solving a problem there may be other legal methods that are safer, less expensive, more effective and more respectful of human rights than criminal law 1. Protecting the Environment -one of the gravest threats is the modern assault on the earth’s biosphere -all of the environment is experiencing damage -species habitats are damaged, polluted water, and airborne contaminants -rare species are hunted, often illegally (Eg giant pandas are so rare that penalties for killing them will likely escalate) -whales, porpoises and apes are so intelligent that killing them is seen as wrong -Q: What is the difference in killing a severely mentally challenged human being and killing a chimp with a sign language -other issues include excess radiation and noise (impairs health and lowers quality of life and devalues real estate) -even where ordinary crimes and environmental assaults cause equal damage, they differ in other respects: *casual complexity of environmental damage - casual issues in ordinary crimes are relatively easy because victim either witnesses the crime or witnesses the immediate consequences *scale of harm caused by individual wrongs - ordinary crimes like assault and robbery, each offense is acutely damaging, whereas environmental damage caused on a single day is usually harmless, until it becomes aggregated over years and the damage becomes quite considerable **acute dangers (Eg. theft) are much more visible than chronic, aggregated dangers (Eg. pollution). 2. Regulating the Regulators -people must be appointed/hired to administer regulations, but this power can be abused -the main problem: who will regulate the regulators (Eg. government personnel)?
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