Moral Luck, Free Will, and Mens Rea in Jurisprudence

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Questions and Answers

What is the primary principle of retributive theory?

Criminals should lose what they gained, and everyone should see this happen (correct)

Punishment should be cruel to fit the crime

The goal of punishment is to protect society

Punishment is a means to an end, such as rehabilitation

Who is credited with the foundational theory of retributivism?

Immanuel Kant

John Stuart Mill

Aristotle (correct)

Herbert Morris

What is the main distinction between humans and animals according to Aristotle?

Emotional intelligence

Capacity for reason (correct)

Social behavior

Physical strength

What is the primary goal of virtuous behavior according to Aristotle?

To avoid triggering revenge or violent repercussions Signup and view all the answers

What type of justice deals with the distribution of goods according to Aristotle?

Distributive Justice Signup and view all the answers

What is the purpose of punishment in retribution theory?

To correct a wrong and restore distributive balance Signup and view all the answers

What is the main issue with Rene Rivkin's trading example?

The unfair advantage gained over law-abiding individuals Signup and view all the answers

What is the primary difference between Aristotle's view and that of Immanuel Kant and John Stuart Mill?

Aristotle's view was based on teleology, while Kant and Mill's view was based on ethical judgments Signup and view all the answers

What is the primary assumption of the doctrine of mens rea in Anglo-American Jurisprudence?

That individuals have free will and can choose their actions Signup and view all the answers

What is the primary purpose of requiring mens rea in criminal punishment?

To reduce moral luck in punishment Signup and view all the answers

What is the problem with moral luck, according to Nagel and Williams?

That individuals have no control over their lives Signup and view all the answers

What is the primary difference between the NSW Crimes Act and traffic legislation regarding driving under the influence?

The severity of the punishment for causing harm Signup and view all the answers

What is the ultimate goal of punishment, according to the normative theories?

To find the best way of stopping offences in the future Signup and view all the answers

What is the primary focus of the descriptive theory of punishment?

What the purpose of punishment is in reality Signup and view all the answers

What is the primary advantage of the mixed theory of punishment?

It takes into account multiple purposes of punishment Signup and view all the answers

What is the primary reason why strict liability offences are an exception to the requirement of mens rea?

They do not require intention or recklessness Signup and view all the answers

Study Notes

The Problem of Moral Luck and Free Will

In most Anglo-American jurisprudence cases, both mens rea and actus reus are required for punishment.
The doctrine of mens rea assumes free will, implying that engaging in intentional conduct is a choice, and that the individual could have chosen otherwise.

Reducing Moral Luck in Punishment

The requirement of mens rea reduces moral luck in punishment by only punishing individuals for crimes they have freely chosen to commit.
However, moral luck still arises in punishment, as the outcome of an offender's actions affects their punishment.

Theories of Punishment's Purpose

Normative theories focus on what ought to be the purpose of punishment.
Descriptive theory, particularly the mixed theory, is most accurate in practice, as seen in Australia.

Retributive Theory

This theory has gained renewed popularity in criminological philosophy over the past 30 years.
The principle of retributive theory is that criminals should lose what they gained, and everyone should see this happen.
Aristotle is credited with the foundational theory of retributivism, emphasizing the importance of teleology or purpose.
Aristotle's concept of retributivism is based on his view of human nature, where humans have a capacity for reason and virtuous behavior.

Retribution Theory and Justice

Aristotle divided justice into distributive justice and corrective justice.
In retribution theory, punishment is a form of corrective justice, aiming to restore the distributive balance of advantages between the criminal and law-abiding individuals.
The concept of retribution is illustrated in the example of Rene Rivkin, who was punished for insider trading, not because of the quantum gained, but because the offense was about gaining an unmerited advantage over law-abiding individuals.

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Description

This quiz explores the concept of moral luck and its relation to free will in the context of jurisprudence, specifically the requirement of mens rea in Anglo-American law. It delves into the role of intention in criminal punishment and exceptions to this rule.