Chapter 1 - Theories of punishment

Question 1

What is the difference between punishment, taxes, treatment and other form of governmental coercion?

Answer 1

By governmental coercion suffering is not intended. They are primarily orientated towards reparation and prevention.

Treatment: meant to help not to punish

Question 2

How can criminal law be distinguished from administrative law?

Answer 2

• 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 3

What is the difference between crime and a tort?

Answer 3

Tort: horizontal = not a punitive intention (puts the claimant back in the position he was before the incident)

Criminal law: Vertical = there is a relationship between government and citizens (puts the state in charge)

Question 4

Difference crime and tort Blackstone

Answer 4

A crime is a public wrong while a tort is a private wrong. A private wrong affects only the victim. A public wrong effects the public at large

Question 5

Difference crime and tort Duff

Answer 5

A public wrong should not be interpreted as wrong that injures the public but as one that properly concerns the public

Question 6

What is punishment

Answer 6

The intentional infliction of suffering

Question 7

Enlightment

Answer 7

• originated 17th century in England
• peak in 18th century in France
• declining years at the start of the 19th century in Germany
• has changed politics, science, morality, religion and law in Western world
• view of the Enlightenment on man and his relationship with the State forms the basis of many theoretical foundations of our current criminal law
• Philosophers: Beccaria, Montesquieu
• criminal law should not only be surrounded with more procedural safeguards for the (suspected) citizen than it was the case during the Acien Régime, but it should also be more efficient in realizing certain goals of criminal politics, including the repression and prevention of crime
• criminal law as the 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 8

Theories of punishment by Kant (enlightment)

Answer 8

Retributivist: assumed the existence of an undermined moral reality “above” the sensory perceptible reality
–> man to the extent he is part of the undetermined, moral reality, has free will. And as a being with free will he should be held responsible for the crimes of which he’s guilty (therefore he should be punished)

Question 9

Theories of punishment by Bentham (enlightment)

Answer 9

Only accepted the existence of empirical reality that is utterly causally determined, including mankind.
Man strives to happiness/pleasure –> to ensure the greatest happiness for the greatest number punishment is sometimes required

Question 10

Two sides of enlightment by Focault

Answer 10

I. one side which is characterized by freedom, practical reason and man as subject (spirit - retributive)

II. The other side is characterized by discipline, instrumental reason and man as object (body - utlitlarian)

Question 11

Conditions for sanctions to be forms of punishment by Lord Walgrave

Answer 11

a) coercion = imposed by the government
b) suffering = sanction hurt
c) intention = suffering is intentionally inflicted - no side effect
d) relation = connection between crime committed and sanction imposed

Question 12

Why are general and special detterrence called utilitarian goals?

Answer 12

Prevention is the main goal with a look at the future.

General: you punish so in future there is no crime

Special: you punish so the person doesn’t commit a crime in the future again

Question 13

Is punishment a moral evil according to Hobbes?

Answer 13

Punishment is an evil inflicted by public authority on someone that had done or omitted something unlawful which was judged by the same authority. Therefore punishment is a necessary evil which will lead to something better

Question 14

What is the deterrence theory?

Answer 14

Deterrence theory states that people commit crimes because they are motivated by some deep moral sense.
Deterrence requires that a person understands the consequences of his actions and is able to take those consequences into consideration

Question 15

Criticism deterrence theory

Answer 15

I. The deterrence theory only applies to rational people but some crimes are committed by people who can not control their behavior in a rational way e.g crime of passion

II. Do crime rates show deterrence or only failure to deter?

Question 16

What are the main arguments of the German Constitutional Court for refusing to consider physiological violence as coercion?

Answer 16

An interpretation of the term “force” as also encompassing psychological force would constitute a violation of the legality principle, since it has in the general use of language various meanings which could lead to the danger that other behavioral patterns which are in social life would come under threat of punishment

Question 17

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

Answer 17

• 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 18

How did the rise of the modern risk society influence criminal law and justification of punishment?

Answer 18

• Crimes are seen as risks that have to be managed by criminal law
• the realization of those risks have to be prevented as far as possible through deterrence and incapacitation instead of treatment and resocialization
• Revenge, deterrence, incapacitation = primary goals
• Repression = prevention

Question 19

Principle of legality

Answer 19

• 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 20

The rationale on the principle of legality

Answer 20

• without 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 21

Punishment vs individual liberty, autonomy, human dignity

Answer 21

Personal sphere should be limited as little as possible but 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 22

Rule of law

Answer 22

• Rule of law = separation of powers and democracy
• Principle of legality is based on the concept of the rule of law
• The rule of law advocates for the subordination of the state-powers to legal norms
  = a polity should be governed by law as opposed to arbitrary decisions of state authorities

Question 23

What is the main idea behind penal welfarism?

Answer 23

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

Question 24

What are the four aspects of the legality principle?

Answer 24

• Lex scripta
• Lex certa
• Lex stricta
• Lex praevia

Question 25

Lex scripta

Answer 25

- adressed 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

Question 26

Lex certa

Answer 26

adressed 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

Question 27

Lex stricta

Answer 27

- adressed 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 28

Lex pravia

Answer 28

- deals with the concept of time and it prohibits both the legislator and the judge to draft and apply criminal liability in a respectively and retroactive manner - Rule: You can't apply law before it was drafted - Exception: Lex mitior = when the amendment of criminal liability is for the benefit of the accused

Question 29

Objections against retributivist theory

Answer 29

- 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 30

Retributive theory - Who should be punished?

Answer 30

- man = free willed = responsible for his conduct - punishment + guilt = deeply intertwined - crime is central in this theory - only the wrongful blameworthy act should be redressed through punishment - taking into consideration that the offender can act differently in the future in similar situations

Question 31

What are the main ideas behind a retributivist theory of punishment?

Answer 31

- respects the autonomy of a human as a free, responsible subject - punishment is justified to the extent that it rights a public moral wrong - offenders are punished because they deserve punishment = principle of proportionality - punishment restores the moral balance of society - focus is on the past --> crime = starting point - principle of guilt: only the guilty should be punished since humans have a free will and are capable of making national choices between good and evil - Kant, Hegel

Question 32

Retributive theory - How severely should be punished?

Answer 32

- depends on the seriousness of the act and the culpability that can be attributed to the perpetrator for it - should be proportional - positive retributive theory: a crime should be repaid in full to the seriousness of the crime - negative retributive theory: a crime can be repaid in fully but is not necessary

Question 33

Objection against utilitarian theory

Answer 33

- 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?

Question 34

Utilitarian theory - Who should be punished?

Answer 34

- men influenced by different factors --> culpability does not play a role - only guilt in the sense of having committed the crime no whether the offender could have acted differently, but whether he will act differently in the future if he is punished

Question 35

Utilitarian theory - Why should one be punished?

Answer 35

prevention of future crime --> offender should be punished in order to discourage/deter future offences = foreword looking approach - Forms of punishment: Incapacitation = protecting society from the criminal Deterrence = to prevent further crime Rehabilitation = reforming the criminal/social rehabilitation

Question 36

Utilitarian theory - How severely should on be punished?

Answer 36

- Crime/social risk should be controlled by punishment - only as much punishment should be inflicted as is required to prevent future crimes - the risk of the offender to the society = determining factor - Punishment is only justified if: I. It prevents further crimes II. smallest evil III. it does not inflict more damage on the offender

Question 37

Dworkin

Answer 37

- choices and morality = choice is influenced by morality in case of hard cases the judge has to make a choice and create new law

Question 38

Aquinas

Answer 38

- knowledge and morality --> Aquinas trusts people - natural law is the one created by reasoning about human nature - natural law is the best law for human beings - positive law should focus on the common good

Question 39

Hart

Answer 39

- choices and not morality - law is made of rules - primary rules guide behaviors - foundation of law is social practice - a rule is created by power = based on first constitution - law is a matter or social practice - only positive law is valid - morality is not important

Question 40

Hobbes

Answer 40

- knowledge and not morality - enforceability is the most important element - without rules = state of nature --> everyone against everyone therefore people have to fight for peace and give up some of their rights - positive law = the best law for human beings