Criminal Law Flashcards
What is the main function of criminal law?
To prohibit and punish certain behaviours that harm or threaten public safety and welfare
Ultima ratio
The principle that punishment should be the last resort, since it limits individuals’ freedom
SWORD AND SHIELD function
Criminal law limits and controls governmental power but also human’s freedom
Principle of Individual Autonomy
Holds that citizens should be free from undue State powers
–> Making their own decisions and control their own fate
Principle of Welfare
Gives weight to certain collective goals and interests that warrant protection by CL
The Harm Principle
The idea that limiting citizen’s freedom through governmental power should only be justified when the consequences of not doing so would mean harm to others
Legal moralism -> Counter part to harm principle
What do we consider harmful?
Reliance on morality is subjective
Utilitarian theory on legal punishment. Main thesis
Punishment can only be justified if the harm that it prevents outweighs the harm it creates through the offender
Major rationales (3)
- Individual Deterrence: Avoid repetitiveness of crimes
- General Deterrence: Avoid general population committing crimes
- Rehabilitation: Necessary treatment to turn them into active members of society
Retributive Theories. Main thesis
Punishment is justifiable just on the basis of the punishment being called for. Offenders deserve punishment.
The Actus Reus - Mens rea Dichotomy
The idea that all crimes can be split into these two concepts. The objective and the subjective element of a crime
Bipartitite Structure of a crime. Definition and complications
Assessing liability only needs mens rea and actus reus. Fails to account for justifications and excuses.
Tripartitite structure of a crime. Stages and complications
Assessing liability in 3 stages:
1. Mens rea and actus reus
2. Wrongdoing
3. Blameworthiness
–> IN ORDER
ACTUS REUS. What two types of actus reus can be mentioned?
- Offense by commission
- Offense by omission
Offense by commission. How is action analyzed/ seen? Does it have complications
Action as superficial toward manifestation = movement of the limbs
Fails to account for offenses not committed by humans (orgs., corporations…)
Offense by ommission. The Absence of action. What entales?
Violation of a DUTY OF CARE
MENS REA. What 3 aspects can we distinct in the analysis?
- Intention
- Negligence
- Recklesness (english law)
INTENTION. What are the 2 elements?
Cognitive part: What is thought
Volitive part: What is wanted
Into what 3 types of intention can be adhere to each element?
- Direct intent (volitive)
- Indirect intent (cognitive)
- Conditional intent
Direct intent. How big is the degree of volition? Definition.
Strong level of volition, where the CONSEQUENCE of an intention is acually desired
Indirect intent. How big is the degree of cognition? Definition
Strong level of cognition. The perpetrator knows his conduct will ALMOST CERTAINLY bring about the result, which he does not actually desire or AIM at.
Conditional intent. Defintion and levels of volition and cognition
An actor does not want to kill a person but merely injure them
–> CONSCIOUS ACCEPTANCE OF A RISK
- Cognition: Is aware of risk
- Volition: Accepting possibility that risk will materialize
NEGLIGENCE. Definiton
Based on the violation of a duty of care.
Two types of negligence
- Conscious negligence
- Unconcious negligence
Conscious negligence
Agent is conscious of a risk, but assumes IT WILL NOT OCCUR
Unconscious negligence
Agent is not conscious of the risk, he wrongfully does not consider the risks of his actions or the absence of his actions
What two aspects can possibily take away the criminal liability of a person?
Justifications and excuses
Give an example for each.
Justification -> Self-defense
Excuse -> Insanity
Justification: Self-defense. What are the requirements to claim that (3)?
- Imminence: Can’t wait until the authorities come
- Proportionality: Self-defense must be in proportion to danger that might be suffered
- Capable and sufficient defense: Must be enough to repel the attack
–> IF HELP IS AN OPTION ONE SHOULD USE IT
Excuse: Insanity. What are the requirements?
Guarantees that those who are not responsible for actions are not punishable.
- Offense attributed to mental disorder: Impaired the defendant’s capacities to be held responsible
- Mentally disordered at the time of the act
