Tutorials
Tutorial 1 THE RELEVANCE OF NEUROSCIENCE FOR LAW -
AN INTRODUCTION
J. Keiler, ‘Criminal Law’, p. 131-152.
The nature and function of criminal law
Criminal law can be defined as a body of rules by which the State prohibits certain forms of conduct
because it harms or threatens public safety and welfare, and that imposes punishment for the
commission of such acts.
Two prominent features of criminal law distinguish it from other branches of law. On the one hand,
criminal law deals with so-called public wrongs as opposed to private wrongs (with which civil law is
concerned). Crimes are socially proscribed wrongs which concern the community as a whole. This
fundamental principle also shows itself if one compares criminal law with civil law cases. A criminal
law case is between the whole political community, the State or the people, and the defendant. It
expresses a hierarchical relationship between the State and the individual who is called to answer for
his wrongful and blameworthy behavior. Furthermore, perhaps the most important difference to other
branches of law is that a violation of the rules of criminal law commonly triggers the imposition of
public censure and (severe) punishment. However, the imposition of criminal punishment constitutes a
severe encroachment on an individual’s freedom and autonomy and should therefore not be imposed
lightly and only as a last resort (ultima ratio).
A popular folk conception of criminal law takes a victim-centered view and perceives criminal law as
an instrument of retaliation. By means of criminal law, the perpetrators of (heinous) crimes receive the
punishment they deserve for their criminal deeds. However, such a view is oversimplistic and forgets
that criminal law is also and perhaps more importantly an instrument of both social control and control
of governmental power. It protects not only society against crime but also the human rights of citizens,
including criminals, against a too intrusive State.
Criminal law has two functions which require delicate balancing. On the one hand, it is a tool to
maintain public order and control deviant social behavior; on the other hand, its function is to canalize
and circumscribe the application of coercive measures and punishment in legally determined channels
that respect basic human rights. Thus, criminal law functions on the one hand as a tool of the State
against its citizens to control deviant behavior and on the other hand as a tool of the citizens against
repressive State powers. In other words, criminal law has both a crime control function (sword) as well
as a safeguard function (shield) in our democratic society.
Which Conduct Ought to Be Criminal?: The Criminalization Debate
Criminal law is a mechanism for the preservation of social order. To criminalize a certain kind of
conduct is to declare that it amounts to a public wrong and that therefore it ought to be avoided. To
provide a pragmatic incentive to adhere to its rules, criminal law uses public censure and punishment
as a sanction to rule violations. The consequences of violating criminal norms are so onerous and
severe for citizens that the decision to criminalize conduct should never be taken lightly and should
always require the careful consideration of a variety of competing interests and factors. Failure to do
so may not only lead to overcriminalization but it may also create an oppressive criminal justice
system.
,The boundaries of criminal law are not fixed but are rather socially, historically, and politically
determined. Fundamental in this connection is the minimalist principle, which holds that criminal law
should only be used as a last resort (ultima ratio). Morality, social convention, peer pressure, but also
civil (law of tort or contract) and administrative law are other (informal) techniques of control. In
many instances it seems preferable to leave the enforcement of certain forms of behavior to those
techniques. The State’s most powerful weapon should be used scarcely.
A further important principle within the criminalization debate is that of individual autonomy. The
principle is central to most liberal political theories and essentially holds that citizens should be free
from undue State powers in making their own choices and should be the masters of their own fate.
This arguably limits the creation of offenses based on paternalistic grounds, i.e., offenses where the
State deprives citizens of individual choice, supposedly for their own good.
However, the principle of autonomy is certainly not absolute. Besides issues such as whose autonomy
should function as a yardstick (e.g., the autonomy of men and women, the rich or the poor,
respectively), it is evident that a citizen will never be able to fully exercise his/her autonomy if the
State fails to create the necessary conditions for the exercise of autonomy.
In any case, the central notion and starting point of any criminalization debate is the harm principle.
«…the only purpose for which power can be rightfully exercised over any member of a civilized
community, against his will, is to prevent harm to others.» It seems obvious that if we define harm as
«harm to society», almost any conduct could fit under this definition.
The counterpart to the harm principle can be found in legal moralism. It seems evident that criminal
law has close ties to morality. Crimes such as murder or rape arguably criminalize moral wrongdoing
and are therefore almost universally condemned. One may therefore wonder if the simple fact that a
certain conduct is considered morally wrong is in itself already sufficient to criminalize it. In practice
morality is certainly influential for the criminalization of some forms of behavior. Yet, reliance on
morality is inherently problematic for a variety of reasons. First, we would need to determine which
morals are to guide the criminalization debate. Second, moral values are subject to constant changes
and are therefore problematic to guide the legal debate. In addition contentious issues such as abortion,
prostitution, and euthanasia are the subject of a diverse and shifting debate in modern multicultural
societies, which makes it doubtful that morality will always provide a good compass to explore the
limits of criminal law.
Theories of legal punishment
Since punishment involves pain or deprivation of some fundamental rights (e.g., freedom), its
intentional imposition by the State requires justification: what could justify a State in using criminal
law to inflict burdensome sanctions upon its citizens when they violate certain legal rules? In the
philosophical and political debate, one may distinguish two main types of theories of punishment:
utilitarian and retributive.
Utilitarian theories
According to classical utilitarianism, laws should be used to maximize the happiness of society. This
means that punishment can only be justified if the harm that it prevents outweighs the harm it creates
through punishing the offender. The State should therefore only inflict as much punishment as is
needed to prevent future crimes. Utilitarian theories are «consequentialist» in nature; they are all
forward-looking theories of punishment as criminal sanctions are only justified when they have
beneficial consequences, like deterrence of criminal behavior.
,Major utilitarian rationales for punishment are individual deterrence and general deterrence. Individual
or specific deterrence punishes an offender in order to prevent the same person from re-offending.
General deterrence uses the threat or example of punishment to discourage other people from
committing crimes.
This theory assumes that human beings are rational, autonomous individuals who are always able to
calculate the risk of being caught and convicted for the commission of an offense. Critics consider this
to be an unrealistic view, arguing that most people remain law abiding, not because they fear criminal
sanctions, but as a result of moral inhibitions and socially accepted norms of conduct. Moreover, some
crimes, such as sexual offenses and crimes committed under the influence of drugs, can hardly be
deterred as their perpetrators do not rationally weigh the benefits versus the costs before breaking the
law.
Another utilitarian rationale for punishment is rehabilitation. The object of rehabilitation is to prevent
future crime by giving offenders the necessary treatment and training that enables them to return to
society as law-abiding members of the community. Part of a classical rehabilitation program is usually
that an offender will be released on probation under some conditions.
Retributive theories
The counterpart to utilitarian goals of punishment is retribution. According to retributive theories,
offenders are punished for their crimes because they deserve punishment. Retributionists look
backward at the crime itself as the rationale for punishment. According to retributive theories, there is
an intrinsic moral link between punishment and guilt. Punishment is therefore primarily a question of
responsibility for the crime committed (just desert) and not of beneficial consequences.
One should be punished because a crime has been committed, and the punishment should be
proportional to the seriousness of the offense and the degree of culpability of the offender: «Let the
punishment fit the crime» captures the essence of retribution.
The main criticism against retribution is that the fundamental question why an offender deserves to be
punished in the first place is not that easy to answer. Retribution may reflect a basic intuition of
justice – what goes around comes around – but it may in fact be nothing more than a rationalized
desire for vengeance.
The structure of a crime
The actus reus and mens rea dichotomy
A general principle of law is that the attribution of liability generally requires an analysis of two
aspects. Each crime can be split into an actus reus, the objective element of a crime, and a mens rea,
the mental or subjective element of the crime. The offense of murder is, for instance, often defined as
the intentional killing of another human being. In this case, the actus reus consists of killing another
person, while the mens rea element of this offense requires that the perpetrator did so intentionally.
This important dichotomy in criminal law arguably stems from the distinction between the objective or
tangible side of a person’s conduct, which is susceptible to objective assessment, and the intangible,
subjective side of a person’s conduct, i.e., his state of mind, which is not.
In order to be held criminally liable, the elements generally need to be present simultaneously, as a
person cannot be held liable in a liberal society for conduct which he did not intend and at most
contemplated (thoughts are free). This basic distinction between actus reus and mens rea is however
not a hard and fast one, and it should be kept in mind that the two notions are best viewed as
conceptual tools under the umbrella of which a multitude of different doctrines are pigeonholed. The
actus reus element is generally considered to include the doctrine of conduct, including omissions, as
well as the doctrine of causation. The different gradations of intention, recklessness, and negligence
are frequently discussed under the heading of mens rea.
, The bipartite structure of crime
Common law courts have traditionally followed a bipartite structure, simply distinguishing between
objective (external) and subjective (internal) aspects of crime. Thus, the framework for assessing
liability in this case simply requires that the two basic elements of a criminal offense, i.e., actus reus
and mens rea are fulfilled.
Although the bipartite system offers the convenience of theoretical simplicity, it also has some
inherent shortcomings. For one, it fails to account for the entire range of defenses that are grouped
under the categories of justification and excuses. Notions such as self-defense or insanity show many
complexities that cannot easily be analyzed as part of either actus reus or mens rea.
A related but nevertheless distinct problem is that this approach seems to conflate the concept of mens
rea with (moral) blameworthiness. The defendant killed another human being (actus reus), and he did
so intentionally (mens rea). “However, whether he can also be blamed for this offense is an entirely
different question. It is, for instance, conceivable that the person at the time of the offense suffered
from delusions.”
The tripartite structure of crime
In the tripartite structure of crime, the assessment of criminal liability takes place in three stages. In
stage one it needs to be assessed whether or not the legal elements of the statutory offense definition
(including both actus reus and mens rea) have been fulfilled. In the second stage, the wrongfulness of
the conduct in question is assessed, while the third stage is devoted to assessing the blameworthiness
of the defendant. The issues in the tripartite framework of criminal liability line up in the following
way:
1. Fulfillment of offense definition (actus reus and mens rea)
2. Wrongdoing
3. Blameworthiness
One critical feature of the tripartite system deserves emphasis here. In the bipartite framework of the
common law, the ordering of the elements is not important. One can consider issues bearing on mens
rea either before or after those related to the actus reus. In the tripartite system, on the other hand, the
order is crucial. The offense definition needs to be evaluated first, followed by the requirements of
wrongdoing and blameworthiness. In the tripartite system there can be wrongdoing without
blameworthiness, but there can never be blameworthiness without wrongdoing.
Tutorial 1 THE RELEVANCE OF NEUROSCIENCE FOR LAW -
AN INTRODUCTION
J. Keiler, ‘Criminal Law’, p. 131-152.
The nature and function of criminal law
Criminal law can be defined as a body of rules by which the State prohibits certain forms of conduct
because it harms or threatens public safety and welfare, and that imposes punishment for the
commission of such acts.
Two prominent features of criminal law distinguish it from other branches of law. On the one hand,
criminal law deals with so-called public wrongs as opposed to private wrongs (with which civil law is
concerned). Crimes are socially proscribed wrongs which concern the community as a whole. This
fundamental principle also shows itself if one compares criminal law with civil law cases. A criminal
law case is between the whole political community, the State or the people, and the defendant. It
expresses a hierarchical relationship between the State and the individual who is called to answer for
his wrongful and blameworthy behavior. Furthermore, perhaps the most important difference to other
branches of law is that a violation of the rules of criminal law commonly triggers the imposition of
public censure and (severe) punishment. However, the imposition of criminal punishment constitutes a
severe encroachment on an individual’s freedom and autonomy and should therefore not be imposed
lightly and only as a last resort (ultima ratio).
A popular folk conception of criminal law takes a victim-centered view and perceives criminal law as
an instrument of retaliation. By means of criminal law, the perpetrators of (heinous) crimes receive the
punishment they deserve for their criminal deeds. However, such a view is oversimplistic and forgets
that criminal law is also and perhaps more importantly an instrument of both social control and control
of governmental power. It protects not only society against crime but also the human rights of citizens,
including criminals, against a too intrusive State.
Criminal law has two functions which require delicate balancing. On the one hand, it is a tool to
maintain public order and control deviant social behavior; on the other hand, its function is to canalize
and circumscribe the application of coercive measures and punishment in legally determined channels
that respect basic human rights. Thus, criminal law functions on the one hand as a tool of the State
against its citizens to control deviant behavior and on the other hand as a tool of the citizens against
repressive State powers. In other words, criminal law has both a crime control function (sword) as well
as a safeguard function (shield) in our democratic society.
Which Conduct Ought to Be Criminal?: The Criminalization Debate
Criminal law is a mechanism for the preservation of social order. To criminalize a certain kind of
conduct is to declare that it amounts to a public wrong and that therefore it ought to be avoided. To
provide a pragmatic incentive to adhere to its rules, criminal law uses public censure and punishment
as a sanction to rule violations. The consequences of violating criminal norms are so onerous and
severe for citizens that the decision to criminalize conduct should never be taken lightly and should
always require the careful consideration of a variety of competing interests and factors. Failure to do
so may not only lead to overcriminalization but it may also create an oppressive criminal justice
system.
,The boundaries of criminal law are not fixed but are rather socially, historically, and politically
determined. Fundamental in this connection is the minimalist principle, which holds that criminal law
should only be used as a last resort (ultima ratio). Morality, social convention, peer pressure, but also
civil (law of tort or contract) and administrative law are other (informal) techniques of control. In
many instances it seems preferable to leave the enforcement of certain forms of behavior to those
techniques. The State’s most powerful weapon should be used scarcely.
A further important principle within the criminalization debate is that of individual autonomy. The
principle is central to most liberal political theories and essentially holds that citizens should be free
from undue State powers in making their own choices and should be the masters of their own fate.
This arguably limits the creation of offenses based on paternalistic grounds, i.e., offenses where the
State deprives citizens of individual choice, supposedly for their own good.
However, the principle of autonomy is certainly not absolute. Besides issues such as whose autonomy
should function as a yardstick (e.g., the autonomy of men and women, the rich or the poor,
respectively), it is evident that a citizen will never be able to fully exercise his/her autonomy if the
State fails to create the necessary conditions for the exercise of autonomy.
In any case, the central notion and starting point of any criminalization debate is the harm principle.
«…the only purpose for which power can be rightfully exercised over any member of a civilized
community, against his will, is to prevent harm to others.» It seems obvious that if we define harm as
«harm to society», almost any conduct could fit under this definition.
The counterpart to the harm principle can be found in legal moralism. It seems evident that criminal
law has close ties to morality. Crimes such as murder or rape arguably criminalize moral wrongdoing
and are therefore almost universally condemned. One may therefore wonder if the simple fact that a
certain conduct is considered morally wrong is in itself already sufficient to criminalize it. In practice
morality is certainly influential for the criminalization of some forms of behavior. Yet, reliance on
morality is inherently problematic for a variety of reasons. First, we would need to determine which
morals are to guide the criminalization debate. Second, moral values are subject to constant changes
and are therefore problematic to guide the legal debate. In addition contentious issues such as abortion,
prostitution, and euthanasia are the subject of a diverse and shifting debate in modern multicultural
societies, which makes it doubtful that morality will always provide a good compass to explore the
limits of criminal law.
Theories of legal punishment
Since punishment involves pain or deprivation of some fundamental rights (e.g., freedom), its
intentional imposition by the State requires justification: what could justify a State in using criminal
law to inflict burdensome sanctions upon its citizens when they violate certain legal rules? In the
philosophical and political debate, one may distinguish two main types of theories of punishment:
utilitarian and retributive.
Utilitarian theories
According to classical utilitarianism, laws should be used to maximize the happiness of society. This
means that punishment can only be justified if the harm that it prevents outweighs the harm it creates
through punishing the offender. The State should therefore only inflict as much punishment as is
needed to prevent future crimes. Utilitarian theories are «consequentialist» in nature; they are all
forward-looking theories of punishment as criminal sanctions are only justified when they have
beneficial consequences, like deterrence of criminal behavior.
,Major utilitarian rationales for punishment are individual deterrence and general deterrence. Individual
or specific deterrence punishes an offender in order to prevent the same person from re-offending.
General deterrence uses the threat or example of punishment to discourage other people from
committing crimes.
This theory assumes that human beings are rational, autonomous individuals who are always able to
calculate the risk of being caught and convicted for the commission of an offense. Critics consider this
to be an unrealistic view, arguing that most people remain law abiding, not because they fear criminal
sanctions, but as a result of moral inhibitions and socially accepted norms of conduct. Moreover, some
crimes, such as sexual offenses and crimes committed under the influence of drugs, can hardly be
deterred as their perpetrators do not rationally weigh the benefits versus the costs before breaking the
law.
Another utilitarian rationale for punishment is rehabilitation. The object of rehabilitation is to prevent
future crime by giving offenders the necessary treatment and training that enables them to return to
society as law-abiding members of the community. Part of a classical rehabilitation program is usually
that an offender will be released on probation under some conditions.
Retributive theories
The counterpart to utilitarian goals of punishment is retribution. According to retributive theories,
offenders are punished for their crimes because they deserve punishment. Retributionists look
backward at the crime itself as the rationale for punishment. According to retributive theories, there is
an intrinsic moral link between punishment and guilt. Punishment is therefore primarily a question of
responsibility for the crime committed (just desert) and not of beneficial consequences.
One should be punished because a crime has been committed, and the punishment should be
proportional to the seriousness of the offense and the degree of culpability of the offender: «Let the
punishment fit the crime» captures the essence of retribution.
The main criticism against retribution is that the fundamental question why an offender deserves to be
punished in the first place is not that easy to answer. Retribution may reflect a basic intuition of
justice – what goes around comes around – but it may in fact be nothing more than a rationalized
desire for vengeance.
The structure of a crime
The actus reus and mens rea dichotomy
A general principle of law is that the attribution of liability generally requires an analysis of two
aspects. Each crime can be split into an actus reus, the objective element of a crime, and a mens rea,
the mental or subjective element of the crime. The offense of murder is, for instance, often defined as
the intentional killing of another human being. In this case, the actus reus consists of killing another
person, while the mens rea element of this offense requires that the perpetrator did so intentionally.
This important dichotomy in criminal law arguably stems from the distinction between the objective or
tangible side of a person’s conduct, which is susceptible to objective assessment, and the intangible,
subjective side of a person’s conduct, i.e., his state of mind, which is not.
In order to be held criminally liable, the elements generally need to be present simultaneously, as a
person cannot be held liable in a liberal society for conduct which he did not intend and at most
contemplated (thoughts are free). This basic distinction between actus reus and mens rea is however
not a hard and fast one, and it should be kept in mind that the two notions are best viewed as
conceptual tools under the umbrella of which a multitude of different doctrines are pigeonholed. The
actus reus element is generally considered to include the doctrine of conduct, including omissions, as
well as the doctrine of causation. The different gradations of intention, recklessness, and negligence
are frequently discussed under the heading of mens rea.
, The bipartite structure of crime
Common law courts have traditionally followed a bipartite structure, simply distinguishing between
objective (external) and subjective (internal) aspects of crime. Thus, the framework for assessing
liability in this case simply requires that the two basic elements of a criminal offense, i.e., actus reus
and mens rea are fulfilled.
Although the bipartite system offers the convenience of theoretical simplicity, it also has some
inherent shortcomings. For one, it fails to account for the entire range of defenses that are grouped
under the categories of justification and excuses. Notions such as self-defense or insanity show many
complexities that cannot easily be analyzed as part of either actus reus or mens rea.
A related but nevertheless distinct problem is that this approach seems to conflate the concept of mens
rea with (moral) blameworthiness. The defendant killed another human being (actus reus), and he did
so intentionally (mens rea). “However, whether he can also be blamed for this offense is an entirely
different question. It is, for instance, conceivable that the person at the time of the offense suffered
from delusions.”
The tripartite structure of crime
In the tripartite structure of crime, the assessment of criminal liability takes place in three stages. In
stage one it needs to be assessed whether or not the legal elements of the statutory offense definition
(including both actus reus and mens rea) have been fulfilled. In the second stage, the wrongfulness of
the conduct in question is assessed, while the third stage is devoted to assessing the blameworthiness
of the defendant. The issues in the tripartite framework of criminal liability line up in the following
way:
1. Fulfillment of offense definition (actus reus and mens rea)
2. Wrongdoing
3. Blameworthiness
One critical feature of the tripartite system deserves emphasis here. In the bipartite framework of the
common law, the ordering of the elements is not important. One can consider issues bearing on mens
rea either before or after those related to the actus reus. In the tripartite system, on the other hand, the
order is crucial. The offense definition needs to be evaluated first, followed by the requirements of
wrongdoing and blameworthiness. In the tripartite system there can be wrongdoing without
blameworthiness, but there can never be blameworthiness without wrongdoing.
