Moral Luck and Free Will in Criminal Law

<p>It reduces moral luck in punishment by only punishing people for crimes they have freely chosen to commit</p> Signup and view all the answers

<p>Mixed theory</p> Signup and view all the answers

<p>Strict liability offences</p> Signup and view all the answers

<p>To reduce the incidence of dangerous driving</p> Signup and view all the answers

<p>It fails to account for the element of luck in the outcome</p> Signup and view all the answers

<p>Criminals should lose what they gained and everyone should see this happen.</p> Signup and view all the answers

<p>To reason and live virtuously.</p> Signup and view all the answers

<p>To restore the balance of advantages between the criminal and law-abiding citizens.</p> Signup and view all the answers

<p>Forfeiture Rule.</p> Signup and view all the answers

<p>Sef Gonzales case.</p> Signup and view all the answers

<p>Forfeiture Act 1995 (NSW).</p> Signup and view all the answers

<p>Because he gained an unmerited advantage over law-abiding individuals.</p> Signup and view all the answers

<p>Aristotle.</p> Signup and view all the answers

<p>Distributive Justice.</p> Signup and view all the answers

<p>To restore the balance of advantages between the criminal and law-abiding citizens.</p> Signup and view all the answers

<p>It may lead to cultural and historical biases in judgment.</p> Signup and view all the answers

<p>No leniency or discount should be given.</p> Signup and view all the answers

<p>It focuses only on the past and does not consider future benefits.</p> Signup and view all the answers

<p>It assumes the offender always gains a benefit from their conduct.</p> Signup and view all the answers

<p>Teleological retributive theory.</p> Signup and view all the answers

<p>Maximizing the dominion of the individual.</p> Signup and view all the answers

<p>It neglects the impact of victimless crimes on society.</p> Signup and view all the answers

<p>Retributive theory punishes all crimes, while Braithwaite's theory does not punish victimless crimes.</p> Signup and view all the answers

<p>To ensure the criminal doesn't gain from their offence</p> Signup and view all the answers

<p>Because the criminal must suffer as the victim suffered</p> Signup and view all the answers

<p>The criminal breached the social contract and must be punished</p> Signup and view all the answers

<p>Punishment should fit the severity of the crime</p> Signup and view all the answers

<p>To restore balance to the scales of justice</p> Signup and view all the answers

<p>Termination of societal benefits</p> Signup and view all the answers

<p>Getting what is morally deserved is considered morally just</p> Signup and view all the answers

<p>It only punishes those who have gained an unmerited advantage</p> Signup and view all the answers

<p>The practical application of proportionality can be challenging</p> Signup and view all the answers

<p>It restores balance between the law-abiding and the offender</p> Signup and view all the answers

<p>Humans have the capacity for free will and can make choices</p> Signup and view all the answers

<p>It can lead to unequal punishments for the same act</p> Signup and view all the answers

<p>To prevent future offences and acknowledge wrongdoing</p> Signup and view all the answers

<p>It ensures that individuals are punished for their intentions, rather than the outcome of their actions</p> Signup and view all the answers

<p>To restore the balance of benefits and burdens in a society</p> Signup and view all the answers

<p>Immanuel Kant</p> Signup and view all the answers

<p>Mixed Theory</p> Signup and view all the answers

<p>It focuses too much on the punishment rather than the rehabilitation of the offender</p> Signup and view all the answers

<p>It can lead to unequal punishments for the same act</p> Signup and view all the answers

<p>Getting what is morally deserved is considered morally just</p> Signup and view all the answers

<p>Stopping offences in the future and acknowledging wrongdoing</p> Signup and view all the answers

<p>The offender is denied the benefits of living in a society</p> Signup and view all the answers

<p>It can never entirely eliminate an element of luck in punishment</p> Signup and view all the answers

<p>It ensures that only the guilty are punished and not the innocent</p> Signup and view all the answers

<p>To penalize individuals for causing death or serious injury while driving under the influence</p> Signup and view all the answers

<p>Humans have no control over their lives</p> Signup and view all the answers

<p>It assumes that the offender is rational and responsible</p> Signup and view all the answers

<p>To restore the balance of benefits and burdens in a society</p> Signup and view all the answers

<p>It is subjective and can vary from culture to culture</p> Signup and view all the answers

<p>The punishment should be proportional to the severity of the crime</p> Signup and view all the answers

<p>To restore the distributive balance of advantages between the criminal and law-abiding individuals</p> Signup and view all the answers

<p>No one can benefit from their own criminal wrongdoing</p> Signup and view all the answers

<p>Dealing with the distribution of goods</p> Signup and view all the answers

<p>It shows that justice must be seen to be done</p> Signup and view all the answers

<p>Aristotle believed humans were guided by reason, while Kant and Mill believed they were guided by instinct</p> Signup and view all the answers

<p>To restore the balance of advantages between the criminal and law-abiding individuals</p> Signup and view all the answers

<p>It shows that punishment is about correcting the unfair advantage gained by the criminal</p> Signup and view all the answers

<p>Doing to the criminal what they have done to another</p> Signup and view all the answers

<p>To restore the balance of advantages between the criminal and law-abiding individuals</p> Signup and view all the answers

<p>It prevents criminals from benefiting from their crimes</p> Signup and view all the answers

<p>It is based on the assumption that the offender always gains benefit from their conduct.</p> Signup and view all the answers

<p>To promote the dominion or sovereignty of the individual.</p> Signup and view all the answers

<p>It does not consider the consequences of punishment.</p> Signup and view all the answers

<p>It is subjective and influenced by historical or cultural biases.</p> Signup and view all the answers

<p>The retributive theory is based on the past, while Braithwaite's theory focuses on the future benefits of punishment.</p> Signup and view all the answers

<p>It fails to consider the impact of victimless crimes on society.</p> Signup and view all the answers

<p>To impose retribution on the offender, regardless of the circumstances.</p> Signup and view all the answers

<p>The offender always gains benefit from their conduct.</p> Signup and view all the answers

<p>It assumes that the offender always gains benefit from their conduct.</p> Signup and view all the answers

<p>To promote the dominion or sovereignty of the individual.</p> Signup and view all the answers

<p>Aristotle = Social Contract theory Immanuel Kant = Retributive theory Herbert Morris = Social Contract theory Braithwaite = Alternative theory</p> Signup and view all the answers

<p>Retributive theory = Punishment should be proportionate to the degree of wrongdoing Normative theories = Find the best way of stopping offences in the future Mixed theory = Acknowledging something wrong has occurred Braithwaite's alternative theory = Rehabilitation of the offender</p> Signup and view all the answers

<p>Mens rea = Intentional conduct is a choice Actus reus = No punishment for act, without intention Moral luck = No control over our lives Just Desert = Punishment should fit the crime</p> Signup and view all the answers

<p>NSW Crimes Act = Punish serious crimes, such as causing death or serious injury driving under the influence Traffic legislation = Regulate traffic and prevent harm Confiscation of the Proceeds of Crime = Prevent criminals from making a profit from their crimes Australian Criminal Code = Standardize criminal laws across Australia</p> Signup and view all the answers

<p>Retributive theory = Focus on punishment rather than rehabilitation Braithwaite's alternative theory = Too lenient on offenders Social Contract theory = Assumes individuals have a choice to obey the law Mixed theory = Lacks a clear purpose</p> Signup and view all the answers

<p>Moral luck = A problem in punishment Mens rea = Reduces moral luck in punishment Actus reus = Has no impact on moral luck Just Desert = Is unaffected by moral luck</p> Signup and view all the answers

<p>Nagel and Williams = Punishing individuals based on the outcome of their actions, rather than their intentions Immanuel Kant = Punishment should be proportionate to the degree of wrongdoing Herbert Morris = Punishment should be based on the social contract Braithwaite = Punishment should focus on rehabilitation</p> Signup and view all the answers

<p>Retributive theory = Punishment as revenge Braithwaite's alternative theory = Rehabilitation of the offender Social Contract theory = Maintaining social order Mixed theory = Finding the best way of stopping offences in the future</p> Signup and view all the answers

<p>Free will = Assumed in the doctrine of mens rea Moral luck = A problem in punishment due to lack of control Just Desert = Punishment should fit the crime Autonomism = An exception to the requirement of mens rea</p> Signup and view all the answers

<p>Retributive theory = Punishment as revenge Braithwaite's alternative theory = Rehabilitation of the offender Social Contract theory = Maintaining social order Mixed theory = Acknowledging something wrong has occurred</p> Signup and view all the answers

<p>Aristotle = Credited with the foundational theory of retributivism Immanuel Kant = Viewed things as a result of ethical judgments John Stuart Mill = Viewed things as a result of ethical judgments Herbert Morris = Renewed popularity in criminological philosophy with article 'Persons and Punishment'</p> Signup and view all the answers

<p>Distributive Justice = Deals with the distribution of goods Corrective Justice = Rectifies or remedies inequalities that arise in dealings between individuals Retributive Justice = Punishment as a form of reciprocity Restorative Justice = Not mentioned in the text</p> Signup and view all the answers

<p>Rene Rivkin = Insider trading example, punished for gaining unmerited advantage Kieran Loveridge = Case highlighting the importance of public confidence in the legal system Sef Gonzales = Example of strict reciprocity, 'an eye for an eye' Cleaver = Forfeiture rule, preventing criminals from gaining financially from their crimes</p> Signup and view all the answers

<p>Lex talionis = Strict reciprocity, 'an eye for an eye' Forfeiture rule = No one can benefit from their own criminal wrongdoing Retributive principle = Punishment as a form of corrective justice Proportionality principle = Not mentioned in the text</p> Signup and view all the answers

<p>Forfeiture Act 1995 (NSW) = Codifies the principle of not benefiting from one's own criminal wrongdoing Confiscation of the Proceeds of Crime Act 1989 (NSW) = Codifies the principle of not benefiting from one's own criminal wrongdoing Crimes Act (NSW) = Not mentioned in the text Retribution Act = Not mentioned in the text</p> Signup and view all the answers

<p>Teleology = Understanding entities in terms of their purpose or design Mens rea = Not mentioned in the text Utilitarianism = Viewed things as a result of ethical judgments Virtue = Enhances survival prospects because virtuous behavior avoids triggering revenge</p> Signup and view all the answers

<p>Aristotle = Viewed humans as having a natural function of reason Immanuel Kant = Not mentioned in the text John Stuart Mill = Not mentioned in the text Herbert Morris = Not mentioned in the text</p> Signup and view all the answers

<p>Rene Rivkin = Example of reciprocity, punished for gaining unmerited advantage Kieran Loveridge = Case highlighting the importance of public confidence in the legal system Sef Gonzales = Example of strict reciprocity, 'an eye for an eye' Cleaver = Not mentioned in the text</p> Signup and view all the answers

<p>Retributive principle = Punishment as a form of corrective justice Corrective justice = Rectifies or remedies inequalities that arise in dealings between individuals Distributive justice = Deals with the distribution of goods Proportionality principle = Not mentioned in the text</p> Signup and view all the answers

<p>Retribution = Punishment as a form of reciprocity Corrective justice = Rectifies or remedies inequalities that arise in dealings between individuals Distributive justice = Deals with the distribution of goods Restorative justice = Not mentioned in the text</p> Signup and view all the answers

<p>Immanuel Kant = The criminal must suffer as the victim suffered to ensure that the scales of equality and justice between the two are re-established. Herbert Morris = Criminal act is an attempt to evade the burden of obedience required by the social contract and punishment restores the balance by depriving the offender of the unmerited advantage. Finnis = Punishment restores the balance by depriving the offender of the liberty he took in action to which he was not entitled. Sadurski = Breach of Social Contract</p> Signup and view all the answers

<p>Just Desert = Getting what is morally deserved is considered morally just. Proportionality = Deprives the criminal of freedom of choice proportional to the degree to which the criminal exercised their freedom in the unlawful act. Social Contract = Punishment restores the balance by depriving the offender of the liberty he took in action to which he was not entitled. Retribution = The concept of dessert is entrenched in the theory.</p> Signup and view all the answers

<p>Retributive Theory = Explains why only the guilty are punished and not the innocent. Social Contract Theory = Punishment restores the balance by depriving the offender of the liberty he took in action to which he was not entitled. Mixed Theory = Restoration of balance between the law abiding and the offender. Normative Theory = Society is also expressing solidarity with the victim by punishing the offender.</p> Signup and view all the answers

<p>Retributive Theory = While the principle of proportionality puts the scales into balance, the practical application can be challenging. Social Contract Theory = Punishment is not based on the material gain i.e. the benefits we get from living in a society. Mixed Theory = The concept of desert is quite an ancient concept. Normative Theory = To not give consequences is quite wrong.</p> Signup and view all the answers

<p>Confiscation of the Proceeds of Crime = Restores the balance of benefits and burdens in a society. Proportionality = Deprives the criminal of freedom of choice proportional to the degree to which the criminal exercised their freedom in the unlawful act. Retribution = The concept of dessert is entrenched in the theory. Just Desert = Getting what is morally deserved is considered morally just.</p> Signup and view all the answers

<p>Retributive Theory = People are entitled to societal benefits such as continuance of life, bodily security, security of possessions and predictability only if they obey rules. Social Contract Theory = Criminal act is an attempt to evade the burden of obedience required by the social contract and punishment restores the balance by depriving the offender of the unmerited advantage. Mixed Theory = Punishment restores the balance by depriving the offender of the liberty he took in action to which he was not entitled. Normative Theory = The criminal must suffer as the victim suffered to ensure that the scales of equality and justice between the two are re-established.</p> Signup and view all the answers

<p>David Hicks = The Crown said he should not be able to get the proceeds from it because it was Confiscation of the Proceeds of Crime. Immanuel Kant = The criminal must suffer as the victim suffered to ensure that the scales of equality and justice between the two are re-established. Herbert Morris = Criminal act is an attempt to evade the burden of obedience required by the social contract and punishment restores the balance by depriving the offender of the unmerited advantage. Finnis = Punishment restores the balance by depriving the offender of the liberty he took in action to which he was not entitled.</p> Signup and view all the answers

<p>Retributive Theory = Putting the scales back into balance. Social Contract Theory = Restoration of balance between the law abiding and the offender. Mixed Theory = Explains why only the guilty are punished and not the innocent. Normative Theory = Society is also expressing solidarity with the victim by punishing the offender.</p> Signup and view all the answers

<p>Retributive Theory = Restoration of balance between the law abiding and the offender. Social Contract Theory = Society is also expressing solidarity with the victim by punishing the offender. Mixed Theory = Explains why only the guilty are punished and not the innocent. Normative Theory = Punishment restores the balance by depriving the offender of the liberty he took in action to which he was not entitled.</p> Signup and view all the answers

<p>Retributive Theory = Punishment restores the balance by depriving the offender of the liberty he took in action to which he was not entitled. Social Contract Theory = Criminal act is an attempt to evade the burden of obedience required by the social contract and punishment restores the balance by depriving the offender of the unmerited advantage. Mixed Theory = Restoration of balance between the law abiding and the offender. Normative Theory = The criminal must suffer as the victim suffered to ensure that the scales of equality and justice between the two are re-established.</p> Signup and view all the answers

<p>Historical or cultural biases = Value judgement may lead to biases in punishment Assumes the offender always gains benefit = No consideration to spontaneous outburst of uncontrolled violence Does not align with rehabilitative aims = Punishment may make them a hardened criminal instead of a better person Fails to consider people for whom the society was not balanced = Rich v poor, qualified v unqualified etc.</p> Signup and view all the answers

<p>Retributive Theory = Past wrong-doing and proportionate punishment Braithwaite's alternative theory = Promotion of dominion or sovereignty of the individual Deterrent Theory = Future benefits and prevention of further crimes Rehabilitative Theory = Improving the offender and reducing recidivism</p> Signup and view all the answers

<p>Braithwaite = Teleological retributive theory and alternative punishment theory Aristotle = Natural function of human beings as a foundation for punishment Immanuel Kant = Categorical imperative and proportionality in punishment Herbert Morris = Social Contract theory and consequence of not obeying the law</p> Signup and view all the answers

<p>Just Desert = Proportionate punishment based on the degree of wrongdoing Moral Luck = Unfairness in punishing based on outcome rather than intention Mens Rea = Guilty mind or intention behind the crime Social Contract = Obligation to obey the law in exchange for protection</p> Signup and view all the answers

<p>No leniency or discount = Strong retribution theorists' approach to punishment Assumes the offender always gains benefit = No consideration to spontaneous outburst of uncontrolled violence Fails to consider people for whom the society was not balanced = Rich v poor, qualified v unqualified etc. Does not give any future benefit = Punishment does not prevent further crimes</p> Signup and view all the answers

<p>Victimless crimes reduce general dominion = A gambling addict or drug addict might become a problem for their workplace and families Fails to consider the protection of society = No punishment for acts that do not harm others Lacks a clear definition of dominion = Unclear what maximization of dominion means in practice Conflicts with the concept of moral luck = Punishment based on outcome rather than intention</p> Signup and view all the answers

<p>Retributive Theory = Offenders deserve punishment based on their wrongdoing Braithwaite's alternative theory = Individuals should be free to act as they choose, unless it harms others Social Contract Theory = Humans are rational and self-interested, and agree to obey the law for protection Deterrent Theory = Punishment can prevent future crimes by setting an example</p> Signup and view all the answers

<p>Fails to consider the consequences of punishment = Constraint should not be imposed independently of its consequences Punishment may make them a hardened criminal = Does not align with rehabilitative aims Based on a value judgement that may be biased = What is proportionate to one judge may not be proportionate for the other Assumes the offender always gains benefit = No consideration to spontaneous outburst of uncontrolled violence</p> Signup and view all the answers

<p>Braithwaite = Teleological retributive theory, and alternative punishment theory that prioritizes individual sovereignty Immanuel Kant = Categorical imperative, and punishment should be proportionate to the degree of wrongdoing Herbert Morris = Social Contract theory, and punishment is a consequence of not obeying the law Aristotle = Natural function of human beings, and punishment should aim to improve the offender</p> Signup and view all the answers

<p>Moral Luck = Punishment based on outcome rather than intention is unfair Just Desert = Punishment should be proportionate to the degree of wrongdoing Dominion = Maximizing individual freedom, unless it harms others Social Contract = Obligation to obey the law in exchange for protection</p> Signup and view all the answers