2.2 Theory of criminal Law

Question 1

Theory of criminal liability, harm as basis for criminalising conduct:

What is the reason that harm is the only justifiable basis for imposing criminal liability?

Answer 1

The work of John Stuart Mill’s ‘On Liberty’

(book)

Question 2

Theory of criminal liability, harm as basis for criminalising conduct:

What did the theorist H.L.A. Hart suggest would also be would also be a reason to impose criminal liability

Answer 2

Stopping someone attemting to harm themselves

(Paternalism)

Question 3

Theory of criminal liability, harm as basis for criminalising conduct:

Define and give example of Paternalism

Answer 3

‘justifies state coercion to protect self inflicted harm’

law which requires you to wear seatbelts

Question 4

Theory of criminal liability, harm as basis for criminalising conduct:

What idea did Joel Fringberg develop and explore in ‘The Moral Limits of the Criminal Law’

Answer 4

‘Offence principle’

Behaviour that is offensive but not harmful could also be criminalised

Question 5

Theory of criminal liability, harm as basis for criminalising conduct:

Define ‘Legal moralism’

Answer 5

Criminalising content on the basis of it’s lack of morality.

Question 6

Theory of criminal liability, harm as basis for criminalising conduct:

Give example of a theorist that explores ‘Legal moralism’

Answer 6

Patrick Devlin: argued society’s shared morals hold it together, so criminalising immoral behaviour is necesary to preserve society.

Question 7

Theory of criminal liability, Autonomy, fault and individual responsibility:

What does autonomy mean in legal term

Answer 7

being responsible, independant and able to speak for oneself free from influences

Question 8

Theory of criminal liability, Autonomy, fault and individual responsibility:

What adults are considered to be autonomous

Answer 8

Those not suffering debilitating illness or under oppressive and restricting conditions

Question 9

Theory of criminal liability, Autonomy, fault and individual responsibility:

True or false, if you are considered to be autonomous, you are responsible for your own actions and their consequenses?

Answer 9

True, if you are autonomous, you’re seen as responsible for your actions and their consequences.

Question 10

Principles in formulating rules of criminal law:

what are the 4 principles that should be adhered to when new criminal laws are introduced?

Answer 10

1. Fair labelling
2. Correspondence
3. Maximum certainty
   4.No retrospective liability

Question 11

Principles in formulating rules of criminal law:

Define ‘Fair labelling’

Answer 11

crimes should be defined to reflect their wrongfullness and severity

Question 12

Principles in formulating rules of criminal law:

What are the 2 ways in which fair labelling is important?

Answer 12

Description and Differentiation

Question 13

Principles in formulating rules of criminal law:

Fair labelling: what is description

Answer 13

crime must describe all necessary elements

Question 14

Principles in formulating rules of criminal law:

Fair labelling: what is differetiation

Answer 14

crime must be different to other crimes in terms of fault and social condemnation

(example, murder vs manslaughter)

Question 15

Principles in formulating rules of criminal law:

Define ‘correspondence’

Answer 15

the result which the defendant intends or forsees should match the result which actually occurs.

Question 16

Principles in formulating rules of criminal law:

Under the correspondence principle, where would a D be found guilty

Answer 16

If they meant to do the crime, or atleast knowingly ran the risk of it

Question 17

Principles in formulating rules of criminal law:

What are some examples of actual law, that the Law Commission states, do not match the ‘correspondence principles’

Answer 17

ABH, s.47

and

GBH s.20

of the ‘Offences Against the Person Act 1861’

Question 18

Principles in formulating rules of criminal law:

Define ‘Maximum certainty’

Answer 18

provides citizens with the ability to organise their behaviour in such way that doesn’t break the law

protects them from abritrary use of state power

Question 19

Principles in formulating rules of criminal law:

Define ‘No Retrospective liability’

Answer 19

Law does not apply back in time, precedent does apply in individual case it concerns but not in general terms

Question 20

Principles in formulating rules of criminal law:

Example of a retrospective criminal law

Answer 20

Criminal Justice Act 2003 allows people acquited of murder to be retrialed if there is ‘new, compelling, reliable substantial evidence’