Criminal Law Theories of punishment

Question 1

Hart: Punishment based on the following 5 cumulative elements

Answer 1

1. it must involve pain or other consequences normally considered unpleasant
2. it must be for an offence against legal rules
3. it must be of an actual or supposed offender for his offence
4. it must be intentionally administered by human beings other than the offender
5. it must be imposed and administered by an authority constituted by a legal system against which the offence is committed

Question 2

Packer: additional cumulative element:

Answer 2

6. goal of punishment is retribution and/or prevention

Question 3

Lode Walgrave: sanctions have to fulfill following conditions to be identified as punishment

Answer 3

1. coercion
2. suffering
3. intention
4. relation

Question 4

Lode Walgrave coercion

Answer 4

the sanction is imposed top-down by the government to the offender and the view or willingness of the offender does not play a role in the decision

Question 5

Lode Walgrave suffering

Answer 5

the imposition of the sanction is accompanied by the offender’s suffering —> sanction hurts

Question 6

Lode Walgrave intention

Answer 6

suffering is not a side effect of the sanction but is intentionally inflicted on the offender by means of the sanction

Question 7

Lode Walgrave relation

Answer 7

there is an inextricable connection between the crime committed and the sanction imposed

Question 8

What is the difference between punishment and other forms of governmental coercion

Answer 8

• By governmental coercion suffering is not intended
• They are primarily orientated towards reparation and prevention.
• Treatment: meant to help not to punish

Question 9

Horizontal legal relationship

Answer 9

e.g. Civil law or administrative law

not a punitive intention -puts the claimant back in the position he was before the incident

victim/plaintiff vs the offender/defendant —> citizen (victim) is in charge

Civil law focuses on compensation and reparation (even though it has also obtained a retributive component)

Question 10

Vertical legal relationship

Answer 10

e.g Criminal law

There is a relationship between government and citizens (puts the state in charge)

Criminal law distinguishes itself from civil law by the sanction which is imposed for the violation of the law —> intentional infliction of suffering is central

Question 11

Distinction public wrong and private wrong Blackstone

Answer 11

Blackstone:

crime = public wrong —> affects the public at large

tort = private wrong —> affects only the victim

Question 12

Critic Blackstone

Answer 12

• too simplistic
• some torts are also crimes
• some torts seem to be wrongs in that they affect not only the victim but also the public at large and therefore these torts seem to be in a way public wrongs

Question 13

Distinction public wrong and private wrong Duff

Answer 13

Public wrongs should not be interpreted as a wrong that injures the public but as the one that properly concerns the public

Question 14

Definition Administrative law

Answer 14

• form of public law
• forms of law enforcement concern a legal relationship between government and citizen
• administrative measures are primarily orientated towards reparation and prevention
• suffering is not intended
• establishment of administrative fines led to a retributive component => administrative criminal law = punishment by means of administrative fines in order to relive the classic criminal law system
• administrative fines are seen by the ECtHR as form of punishment

Question 15

Enlightenment

Answer 15

• originated 17th century in England
• has changed criminal law in Western world
• ultimum remedium
• punishment with moderation
• clearly written criminal law
• criminal law focusing on the act instead of intention
• retrospective reaction to crimes
• led to two different theories of punishment: retributive and utilitarian

Question 16

Why did Enlightenment lead to two different theories of punishment?

Answer 16

• on the one hand, this doctrine elevates mankind to the “lord of creation“
• on the other hand it reduces mankind to a “creature that reacts quasi mechanically to external stimuli“ and thus does not differ substantially from the rest of nature
• man as a responsible and free-willed demigod (spirit) vs man is an utterly causally determined, manipulable and controllable machine (body)

Question 17

Enlightenment Foucault

Answer 17

Enlightenment has two sides (linked, similar to the two faces of the Roman God Janus)

1. one side is characterized by freedom, practical reason and man as subject (spirit)
2. the other side is characterized by discipline, instrumental reason and man as object (body)

Question 18

Enlightenment Bentham

Answer 18

man continuously strives for happiness/pleasure, while trying to avoid suffering/pain
—> utilitarian morality theory: the greatest happiness for the greatest number of people
—> utilitarian theory of punishment: to ensure the greatest happiness for the greatest number, punishment is sometimes required

Question 19

Enlightenment Kant

Answer 19

man and world offers space for freedom of will, culpability and responsibility
—> retributive theory: man, to the extent he is part of the undetermined, moral reality, has free will. And as being with free will, he should be responsible for the crimes of which he is guilty

Question 20

Retributive theory keywords

Answer 20

• freedom
• practical reason
• man as subject

Question 21

Retributive theory Who should be punished?

Answer 21

• man = free willed + responsible for his conduct
• punishment + guilt = deeply intertwined => only the guilty should be punished
• crime is central rather than the offender => crime as starting point
• only the wrongful blameworthy act should be redressed through punishment
• it should be taken into consideration that the offender can act differently in the future in similar situations
• Only when a crime has been freely committed it can be repaid with punishment

Question 22

Retributive theory Why should one be punished?

Answer 22

• because a crime has been committed and the offender deserves it to be punished
• focus is mostly on the past
• punishment is intrinsically good because it is purifying
• punishment restores the status quo ante (original situation)
• punishment restores the balance between benefits and burdens
• punishment satisfies feelings of vengeance
• punishment expresses moral disapproval

Question 23

Retributive theory How severely should one be punished?

Answer 23

• punishment should be imposed regardless of the goals/effect that can be pursued in terms of prevention
• depends on the seriousness of the act and the culpability that can be attributed to the perpetrator for it
• should be proportional to the crime

Question 24

Retributive theory Principles

Answer 24

Principle of guilt: only the guilty should be punished
—> Why? Because human beings have free will and are capable of making rational choices between good and evil

• Principle of proportionality: people deserve punishment in proportion to their guilt and the harm they caused —> „eye for an eye“

Question 25

Retributive theory Criticism

Answer 25

• Not concerned about the efficacy
• How can two wrong ever make a right —> Original situation cannot be restored
• Who determines what is adequate punishment for a crime?
• Vague what retribution is
• Neuroscientific challenges: Do we have a free will?
• Why should justice not ask for compensation/reparation/forgiveness?

Question 26

Positive retributive theory

Answer 26

A crime should be repaid in full to the seriousness of the crime

Question 27

Negative retributive theory

Answer 27

A crime can be repaid in fully but that is not necessary

Question 28

Utilitarian theory Keywords

Answer 28

• discipline
• instrumental reason
• man as object

Question 29

Utilitarian theory

Answer 29

• man can be compared to a machine, and can therefore be influenced by biological, psychological and social factors
• culpability does not play a role
• it is not about the question whether the offender could have acted differently from what he did in the past but whether he will act differently in the future
• connection between offender and act is stricter than in the retributive theory
• only guilt in the sense of having committed the crime plays any role

Question 30

Utilitarian theory Criticism

Answer 30

• If punishment does not work you have no reason to punish anymore
• realization of the goal of prevention can hardly be measured in practice
  if punishment can prevent future crime why not punish innocent people to achieve this goal
• What is a good prison system?
• Deterrence requires that a person understands the consequences of his actions, and is able to take those consequences into consideration
• Deterrence only applies to rational people
• Many crimes are crimes of passion
• Some crimes are committed by people who cannot control or appreciate their behavior in a rational way

Question 31

Utilitarian theory How severely should one be punished

Answer 31

Deterrence: rationale of punishment is entirely to prevent further crimes
general deterrence: preventing other people from committing criminal acts

Question 32

Utilitarian theory How severely should one be punished - Specific deterrence:

Answer 32

Preventing the same person from committing criminal acts

Question 33

Utilitarian theory How severely should one be punished -Rehabilitation

Answer 33

Reforming the criminal

Incapacitation: protecting society from the criminal —> containment of dangerous individuals

Question 34

Lex Stricta

Answer 34

• addressed to the courts
• judicial interpretation should always remain faithful to the wording of the criminal statute which depicts the limits of the scope of criminal liability

“3 different methods of interpretation:

grammatical
historical
teleological

Prohibited: analogical interpretation “

Question 35

Lex Certa

Answer 35

• addressed to the legislator
• requires that criminal liability must be described in a precise manner so that citizens can understand from the wording of the norm what is prohibited and must be assertable to the public

There are different methods to describe criminal liability in a statute:

1. obliges the legislator to define criminal liability in comprehensible language (official language of the legal system)
2. When the origin of criminal liability cannot be found in international instruments it must be translated during implementation
3. the legislator has to make its criminal legislation accessible to the public via publication”

Question 36

Lex Scripta

Answer 36

• addressed to the courts
• criminal liability has to be based only on written statutes which have to be done by the parliament through legislation (lex parliamentaria)
• “The executive and the courts are not allowed to prescribe criminal liability norms:
  a criminal law can be only a written parliamentary statute, whereas case law or unwritten customary rules are excluded from the concept of law

Question 37

Lex Praevia

Answer 37

• addressed to the court and legislator
• deals with the concept of time and prohibits both, the legislator and the judge, to draft and apply criminal liability in a respectively and retroactive manner
• “Rule: you cannot apply law before it was drafted

Exception: When the amendment of criminal liability is for the benefit of the accused —> the prohibition of retroactivity does not apply + courts must apply the more lenient legislation (=lex mitior)”

Question 38

Principle of legality

Answer 38

• deals with the question which behavior is criminalized or not
• requires that an act can be prohibited by criminal law only when -
• there is a provision that punishes this behavior
• there is no crime without a law
• only the law can attach criminal character to behavior

Question 39

What is the influence of the ECthR on the legality principle?

Answer 39

• It brought the principle of legality into the English legal order
• The ECtHR has accepted that both case law and statutes may be the basis for criminal liability
• Allowed the ECtHR to shift the focus of the principle from the sources of criminal liability to the qualitative requirement of foreseeability

Question 40

The rationale on the principle of legality

Answer 40

• without the principle of legality courts could criminalize every behavior
• prosecutor would be able to initiate proceedings against everyone he is not fond of or whatever reasons he finds
• citizens would be subject to the power of state and legal certainty would not exist

Question 41

Punishment vs individual liberty, autonomy, human dignity

Answer 41

• Personal sphere should be limited as little as possible
• sometimes it is necessity that man give up part of their liberty (only the smallest portion) which forms the right of punishing (all extends beyond this, is abuse not justice)

Question 42

Main idea behind penal welfarism?

Answer 42

• Focus on resocialization and re-integration of offenders to prevent criminality
• Thereby should the goal of a welfare state be the prevention of crime through education