Legal Doc Study Revision Flashcards
Legal theories of crime
positivist, proceduralist, substantive, normative
Positivist Theory
Legal positivism states that a crime is simply any act, which the law calls a crime, and for which there is a penalty of punishment that is stated in legislation.
BLACK/WHITE APPROACH
Proceduralist Theory
Proceduralist theory defines criminal law by distinguishing it from other kinds of law (e.g. civil) on the basis of the procedures that are applied during the pre-trial and trial processes.
Substantive Approach
This takes into account the actual “substance” of the crime, recognising the social aspect of crime, considering wrongful acts as public wrongs or wrongs against the community
Normative Approach
This view depicts criminal acts as a serious breach of the established societal norms.
Reasons to criminalise
stop vigilantism, codify norms, create social cohesion, protect the general public, unify moral standards, prevent harm to victims and guarantee property rights.
Justifications for criminalisation
harm prevention, avoiding vigilantism, moral condemnations, public interest
Harm Prevention
This principle states that certain acts should be criminalised because they cause unjustifiable harm to others.
However, ‘harm’ is a very subjective and difficult to define.
Avoiding vigilantism
This principle states that some criminal acts are so offensive or damaging that they encourage acts of revenge or retaliation, thus criminalising enables the State with the power to appropriately administer punishment.
Moral Condemnation
This states that certain actions that represent a serious attack on the community’s core moral values should be criminalised. (CREATES A LINK BETWEEN LAW AND MORALITY, emphasises social cohesion)
Public Interest
It states that actions can be criminalised if they are “public wrongs” that breach some normative practices (norms of society) which are dealt with through ‘public law’ rather than ‘private law’ (procedures of criminal law)
Justifications of Punishments
deterrence, incapacitation, denunciation/censure, retribution/reform
Deterrence
it is directly linked to the harm prevention principle, it is done in an attempt to discourage potential offenders from criminal activity, by ensuing a punishment that fits the crime (appeals to self-interest)
Specific Deterrence
when an offender receives punishment for their wrongful acts, this then incentives the offender to NOT repeat the offence again
General Deterrence
The punishment is publicly displayed, in order to carry across the message to everyone. (PUNISHING ONE TO DETER ALL)