WEEK 1
Part 1: Legality Principle
Two key functions:
1) To provide clarity on which acts will result in which punishment
2) To influence public behavior
Four key aspects:
1) Prohibition of retroactive effect (lex previa)
2) Prohibition of vague laws (lex certa)
3) Prohibition of reasoning by analogy (lex stricta)
4) Prohibition of customary laws (lex scripta)
- NB.- only applicable in civil law systems
Part 2: Theories of Punishment
Two prevailing views on punishment:
1) Retributivism
- “punishment is deserved”
- Deontological ethics apply; morality is judged on the nature of the punishment
- Backwards-looking; eye-for-an-eye outlook on punishment
- Punishment is good
- Positive v. Negative:
- Positive: The guilty must be punished to the extent of their deserts
- Negative: The guilty may be punished to the extent of their deserts; essentially a
mixed retributive and utilitarian system
Retributivism & Proportionality
- Retributivism follows the notion that punishment should be proportional to the severity of
the crime
- Deserved punishment = responsibility x harm done
2) Utilitarianism
- “punishment is useful”
- Consequentialist ethics apply; morality is judged on the overall consequence of the
punishment
- Forward-looking; aims to prevent future crime by means of punishment
- Punishment is evil
- Utilitarianism aims to achieve maximum happiness in society by preventing crime
Utilitarian Means of Crime Prevention
1) Individual deterrence
2) General deterrence
3) Moral influence
, 4) Rehabilitation
5) Incapacitation
Utilitarianism & Proportionality
- No moral objections to disproportionate punishment from a utilitarian view
- However, in practice, punishment is usually proportional as imposing punishment that is
more severe than necessary to prevent the crime will create more unhappiness, and
therefore, contrary to the aim of utilitarianism
WEEK 2
Part 1: Classification of Offenses
First Distinction: Intentional vs Negligent Offenses
- Intentional offenses carry higher culpability, and therefore, more severe punishment
Second Distinction: Result-Qualified vs not Result-Qualified Offenses
- Result Qualified: When the amount of punishment is qualified on the basis of the result
of the offense
Third Distinction: Result vs Conduct Offenses
- Causation needs to be proven for result offenses
Fourth Distinction: Concrete vs Abstract Endangerment
- Concrete Endangerment requires a real danger to be posed to a vital interest
- Abstract Endangerment only requires the possibility of danger to exist
Fifth Distinction: Commission vs Omission Offenses
- Proper omission: violating a command (duty to act)
- Improper omission: commission by omission
Part 2: Structure of Offenses
Step 1: Legal Elements of the Offense
- Objective Elements
- Act, Result and/or Causation
- Subjective Element
- Intention/Negligence
Step 2: Unlawfulness
- Are there any grounds of legal justification?
Step 3: Culpability
- Are there any legal excuses?
Part 1: Legality Principle
Two key functions:
1) To provide clarity on which acts will result in which punishment
2) To influence public behavior
Four key aspects:
1) Prohibition of retroactive effect (lex previa)
2) Prohibition of vague laws (lex certa)
3) Prohibition of reasoning by analogy (lex stricta)
4) Prohibition of customary laws (lex scripta)
- NB.- only applicable in civil law systems
Part 2: Theories of Punishment
Two prevailing views on punishment:
1) Retributivism
- “punishment is deserved”
- Deontological ethics apply; morality is judged on the nature of the punishment
- Backwards-looking; eye-for-an-eye outlook on punishment
- Punishment is good
- Positive v. Negative:
- Positive: The guilty must be punished to the extent of their deserts
- Negative: The guilty may be punished to the extent of their deserts; essentially a
mixed retributive and utilitarian system
Retributivism & Proportionality
- Retributivism follows the notion that punishment should be proportional to the severity of
the crime
- Deserved punishment = responsibility x harm done
2) Utilitarianism
- “punishment is useful”
- Consequentialist ethics apply; morality is judged on the overall consequence of the
punishment
- Forward-looking; aims to prevent future crime by means of punishment
- Punishment is evil
- Utilitarianism aims to achieve maximum happiness in society by preventing crime
Utilitarian Means of Crime Prevention
1) Individual deterrence
2) General deterrence
3) Moral influence
, 4) Rehabilitation
5) Incapacitation
Utilitarianism & Proportionality
- No moral objections to disproportionate punishment from a utilitarian view
- However, in practice, punishment is usually proportional as imposing punishment that is
more severe than necessary to prevent the crime will create more unhappiness, and
therefore, contrary to the aim of utilitarianism
WEEK 2
Part 1: Classification of Offenses
First Distinction: Intentional vs Negligent Offenses
- Intentional offenses carry higher culpability, and therefore, more severe punishment
Second Distinction: Result-Qualified vs not Result-Qualified Offenses
- Result Qualified: When the amount of punishment is qualified on the basis of the result
of the offense
Third Distinction: Result vs Conduct Offenses
- Causation needs to be proven for result offenses
Fourth Distinction: Concrete vs Abstract Endangerment
- Concrete Endangerment requires a real danger to be posed to a vital interest
- Abstract Endangerment only requires the possibility of danger to exist
Fifth Distinction: Commission vs Omission Offenses
- Proper omission: violating a command (duty to act)
- Improper omission: commission by omission
Part 2: Structure of Offenses
Step 1: Legal Elements of the Offense
- Objective Elements
- Act, Result and/or Causation
- Subjective Element
- Intention/Negligence
Step 2: Unlawfulness
- Are there any grounds of legal justification?
Step 3: Culpability
- Are there any legal excuses?
