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Chapter 1

LAWS 2301 Chapter Notes - Chapter 1: White-Collar Crime, Embezzlement, Loan Shark


Department
Law
Course Code
LAWS 2301
Professor
Ronald Saunders
Chapter
1

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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”

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-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
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*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
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