Deleted
Deleted Member
Posts: 0
|
Post by Deleted on Nov 8, 2014 10:11:31 GMT -5
Why are particular acts considered crimes? The basis on which punishment for offences are determined and applied has been surprisingly neglected.
Beccaria, Grotius, Maine, Mill, Stephen and Spencer put forward a variety of ideas and in more modern times Maletesta, Rawls and Rand all proposed theories of their own. It is however surprising that there has been so little discussion of the basis on which certain acts are considered criminal.
I will begin by listing my own thoughts and then enlarging upon the concepts.
1 A crime must represent an injury of some kind to another person. This category clearly includes murder, rape, assault, mugging and similar offences against the person.
2 Self-defence against such acts is clearly perfectly acceptable behaviour.
3 Not all crimes can be rationally considered equally reprehensible. To regard an act of theft as on all fours with murder is to abandon any pretence of rationality and simply to employ 'frightfulness' in the notional idea of 'deterrence.'
4 It follows logically that since some crimes are more serious than others they require sterner punishment.
5 On what basis should such punishment be administered? Who has the right to determine and enforce it? Should punishment be proportional to the crime committed?
Since any crime requires to be acted upon before it can legitimately be considered a crime, the rational basis for attempting to punish 'conspiracy' is entirely lacking. Unless the 'conspirators' take steps to put their plans into action, no crime has been committed and people are being punished purely for their thoughts.
In the same way the whole notion of 'treason' is at best dubious. The IRA, ETA, TLL and similar groups routinely employed often horrific levels of violence but in their eyes they were not traitors but patriots. In the same way McVeigh, Breivik and the Shining Path believed the same, that they were patriots seeking to take back their country. They were undoubtedly murderers but by no reasonable interpretation of the word could they be called traitors.
Another self-evident truth is that if crime represents an injury to another then without a victim there can be no crime.
No victim, no crime; that simple truth disposes immediately of a range of fictitious offences currently on the law books.
Prostitution for instance is a consensual activity where money is exchanged for sexual services and as long as the participants are of legal age the law has no business interfering with the transaction.
Possession of drugs by those who have attained the age of majority is a voluntary choice and the only possible concern of the law should be in terms of quality control of the product.
Indecent exposure or public nudity is also clearly a victimless crime.
The production, consumption and distribution of pornography involving consenting adults is equally clearly a victimless crime.
So what is a crime? What makes a particular course of action a criminal offence?
1 The law of the land forbids it. That is simply a fact and not a legitimate basis for accepting the existence of the prohibition in law as being rational.
2 An injury must be done to another person.
3 There must be an element of coercion involved either in the sense of violence - actual or implicit - or in the sense of the act being contrary to the wishes of the victim - as for instance in the case of burglary in the absence of the owner.
4 The non-consent of the victim is essential. This means for example that assisted suicide cannot rationally be considered a crime.
On the basis that every criminal act represents an injury done to another person, what offences can legitimately be regarded as crimes?
1 Murder
2 Attempted murder
3 Rape
4 Assault
5 Sexual abuse
6 Theft
No other types of crime involve a victim who is not consenting.
I will now discusss some actions which could be considered as worthy of criminal sanctions and whic in some places are.
Adultery clearly represents an injury by one party in a marriage to the other partner. We are not discussing the 'open marriage' type of relationship where both partners give their consent to mutual infidelity. Unless a husband and wife have a clear understanding that their partnership is an open marriage adultery by either partner constitutes an injury to the innocent party.
Should we therefore criminalise adultery?
Abortion is another area where it is clear that the destruction of a human life occurs. Should it be treated as infanticide and on a par with murder?
This post is already relatively long so I will present my thoughts on the rational basis of punishment in my second post.
|
|
Deleted
Deleted Member
Posts: 0
|
Post by Deleted on Nov 8, 2014 10:11:56 GMT -5
2)
There are essentially four main approaches to the punishment of crime. One is the policy of 'frightfulness' whereby extremely harsh punishments are imposed, often irrespective of the seriousness of the offence. There is the proportionate approach where crimes are graded in a kind of league table and the punishments are more severe for crimes regarded as the most serious offences. There is the rehabilitatory approach which focuses on attempting to prevent criminals from re-offending on release. There is also the psychological approach which first arose in the nineteenth century and regards crime as a form of mental illness requiring medical treatment rather than punishment.
One can argue about the relative effectivness or otherwise of each approach just as one can argue about the extent to which they are rational or moral.
It is quite easy to employ the 'reductio ad absurdum' argument to all these theories. Most advocates of various approaches to jurisprudence fail to consider the logical consequences of their position.
It is for example abundantly clear, at least to any rational person, that intent must also be involved in any crime. If I accidentally pick up someone else's coat in mistake for my own I am not guilty of theft while if I knowingly take the other person's coat I am. If a pedestrian darts out in front of my car and I hit him and kill him I am not guilty of murder but if I knowingly run him over I am.
Even the law recognises that without intent there cannot BE a criminal offence.
Just as 'no victim, no crime' so too 'no intent, no crime.'
This immediately shows the utterly irrationality, stupidity and injustice of the 'law of parties since it violates two fundamental principles of law. The first is that intent was absent and therefore no crime was committed. The second is that it substitutes the notion of the collective for the individual when in fact every crime represents an offence against a person.
In the same way one cannot commit a crime against the state, society, corporations or other groups. Only an act that harms individuals is or can be a criminal action.
If I rob a bank it is not HSBC, Lloyds or Barclays that I am injuring. They are abstract entities with a purely fictive identity. What makes my actions criminal is that they injure individuals, the customers of the bank and it is their money and not the bank's that I am stealing..
If I assassinated the Queen I would be guilty of murder but not, on any rational assessment, of the wholly fictitious crime of treason.
To return to the issue of punishment, the policy of 'frightfulness' is not only morally dubious but ineffective. As the old saying goes, 'you might as well be hung for a sheep as for a lamb.' The consequences of Draconian penalties have been the same throughout history and always will be.
For example, the imposition of death sentences for rape makes it MORE likely that a rapist will kill their victim. It is therefore a direct encouragement to murder and as such represents a clearly pro-criminal policy.
The imposition of death sentences for adultery has not led to a decrease in marital infidelity in those countries where that is the law.
Executing people for theft as remained the case in Britain until the 1820s had no effect on reducing the frequency of stealing.
What is more, in cases where harsh punishments were applied juries became increasingly reluctant to convict as they did not approve of the excessive penalties being applied and so guilty people went free precisely BECAUSE of the Draconian punishments inflicted on criminals.
The evidence is clear, consistent and unequivocal.
Harsh punishment does not work.
The argument that punishment should be proportional to the offence is admirably consistent and logical in theory but is remarkably difficult to apply in practice. Execution could be regarded as a proportionate punishment for murder but with every other crime it is hard to see how it could be administered rationally.
Should a rapist be raped? How could a paedophile be punished proportionately? How would attempted murder be punished? Should someone who commits an assault be beaten up? How should a kidnapper be punished? Can a robber be robbed or a mugger mugged?
Only in the specific instance of murder can a clear and logical basis for proportionate punishment be established.
The rehabilitatory argument is based on two principal assumptions. One is that the majority of prisoners will be released and it is the duty of the law and prison system to help them prepare for their re-entry into society. The second assumption is that because most criminals will be released the degree of punishment they receive should be as mild as possible. A rehabilitatory approach is coupled with advocacy of treatment of inmates that is not simply humane but actively seeks to minimise the punitive elements of incarceration.
The psychological approach is supported by the fact that, even on official figures, over 80% of prisoners - male and female - have serious mental problems. To put it bluntly, they do not belong in prison but should be receiving medical treatment in mental hospitals. The figures for US prisoners are around the same with the majority of inmates wrongly incarcerated rather than hospitalised.
Of course there are problems with that approach too. Criminals like Sutcliffe, Allitt, Brady and Huntley would have to remain in those places until their death.. The majority of patients would not however and if given appropriate treatment would recover and become productive members of society. It is if you like 'rehabilitation max' and whenever it has been tried it has consistently shown itself the most effective way of preventing re-offending and of maximising the re-integration of offenders into society.
So any rational system of crime and punishment has to begin on the basis of treating crime as a mental illness and criminals as mental patients in need of patient.
That is the only rational basis for any kind of punishment.
|
|
josephdphillips
Global Facilitator
January 2015 Member of the Month
Posts: 3,494
|
Post by josephdphillips on Nov 8, 2014 10:54:24 GMT -5
Intent is not required in California. We have convicted drunk drivers with murder here, as well as mothers who killed their unborn children with narcotics.
Keep trying your stupid arguments, though. Someone here is bound to believe them.
I'm glad I don't live in the UK, where the chances of being violently attacked are higher than they are over here.
|
|
|
|
Post by beth on Nov 8, 2014 12:27:02 GMT -5
Thanks for taking the time and trouble to write this, Mike. After lunch, I'm going to sit down and read it through. Then, maybe, used a highlighter and come back here to comment.
Joe, you, or any of us could say that about ideas we disagree with but it would be nice if you'd choose certain points and offer your own opinion. I'd really like to read that.
|
|
|
|
Post by beth on Nov 8, 2014 17:11:27 GMT -5
Mike, I'm not sure you can say "there has to be intent ..."
An example that leaps to mind is vehicular homicide.. If a driver is inebriated and due to impaired driving ability hits and kills someone or damages property. Here, that person is still charged with a crime although there was no intent.
Interesting read, I'm sure I'll have other comments.
|
|
josephdphillips
Global Facilitator
January 2015 Member of the Month
Posts: 3,494
|
Post by josephdphillips on Nov 8, 2014 17:52:34 GMT -5
you, or any of us could say that about ideas we disagree with but it would be nice if you'd choose certain points and offer your own opinion. I'd really like to read that. How to pick apart absurdities penned by a lunatic? That's the question. His positions are crazy, even by California's standards. In the United States, every crime is a crime against the state. It's taken for granted. In all fifty states, every criminal case is entitled either People vs. (Defendant) or Commonwealth vs. (Defendant.) This is as it should be. It is also not true only crimes against individuals merit punishment. The people of a state can simply not like certain behavior and want it criminalized. They have the right, if not a moral duty, to do that. Most importantly, I am extremely grateful to my fellow citizens that they don't regard criminals as simply misunderstood and having mental problems. We lock them up in prison for long periods of time, if not for life, because that is what they deserve. Furthermore, promotion of "rehabiliation" of convicts is laughable. That is no NOT the responsibility of the law-abiding. To be "rehabilitated" requires that criminals were once "habilitated" in the first place, and you can't say that about any of them. People have a choice whether or not to become criminals. The punishment of criminals and their ruined futures are on them, not me. |
|
|
|
Post by beth on Nov 8, 2014 18:05:43 GMT -5
I'm not pro-rehabilitation either. I do think some sentences ... especially drug related .. have been far too long. I don't think many of the perps are dangerous to anyone but themselves and it's expensive to keep them years and years.
Otherwise, I agree with most of your post.
|
|
Deleted
Deleted Member
Posts: 0
|
Post by Deleted on Nov 8, 2014 18:15:49 GMT -5
Intent is not required in California. We have convicted drunk drivers with murder here, as well as mothers who killed their unborn children with narcotics. Keep trying your stupid arguments, though. Someone here is bound to believe them. I'm glad I don't live in the UK, where the chances of being violently attacked are higher than they are over here. You are wrong in fact and wrong in law, Joseph. It is sad that you appear incapable of arguing rationally but simply respond with knee-jerk emotionalism. Nor is it true that the chances of being violently attacked are higher than they are in the US. But for your information I will post a relevant court ruling. "In every crime or public offense there must exist a union or joint operation of act and intent. To constitute criminal intent it is merely necessary that a person intend to do an act which, if committed, will constitute a crime. When a person intentionally does that which the law declares to be a crime, such person is acting with criminal intent even though he may not know that such act is unlawful and even though there be no bad motive." |
|
|
|
Post by mouse on Nov 10, 2014 3:40:31 GMT -5
""""For example, the imposition of death sentences for rape makes it MORE likely that a rapist will kill their victim. It is therefore a direct encouragement to murder and as such represents a clearly pro-criminal policy."""
the death sentence for """murder""" and rape of a child and if this is proved to encourage murder..then a taking out of the sex driver ..total lobotmy could be the answer..or castration and a lobectomy as sex is not the full story of rape adult or child
"""Executing people for theft as remained the case in Britain until the 1820s had no effect on reducing the frequency of stealing""" THAT WAS THEN. and times were much harder..today there is no excuse for theft petty or grand..
"""Possession of drugs by those who have attained the age of majority is a voluntary choice and the only possible concern of the law should be in terms of quality control of the product."""drugs are not victimless crimes from start to finnish and crimes related to drugs run the whole gamut of crime..theft..imtimidation..GBH..murder..and any one naïve enough to think the age of majority is a criteria is mad
""""The production, consumption and distribution of pornography involving consenting adults is equally clearly a victimless crime.""""
pornography is not a victimless crime...agreed there are greater and lesser degrees...but to think porn is victimless is naïve
porn is addictive and needs increasing titillation..pornography does not and never will stay between consenting adults
we can all live in la la land and mutter about this or that being fine and consenting adults...unfortunately consenting adults are just part of the picture and the problem...
|
|
|
|
Post by mouse on Nov 10, 2014 4:16:39 GMT -5
"""I'm glad I don't live in the UK, where the chances of being violently attacked are higher than they are over here.""" and your basis for your conclusion is  ? neither I nor to the best of my knowledge my friends and or their families have ever been attacked[so your talking an awful lot of people] son 2 was attacked at a gallery opening..by a man who had severe mental problems we later found out...[he was two days out of a mental institution]the only reason for the attack was that my son had disagreed with him about the qualities of a certain painter so it wasn't just some random attack] |
|
josephdphillips
Global Facilitator
January 2015 Member of the Month
Posts: 3,494
|
Post by josephdphillips on Nov 10, 2014 8:48:50 GMT -5
"""I'm glad I don't live in the UK, where the chances of being violently attacked are higher than they are over here.""" and your basis for your conclusion is ???? Mark Steyn |
|
|
|
Post by mouse on Nov 10, 2014 11:48:55 GMT -5
a Canadian I understand....well I wouldn't believe him if I were you...proof of the pudding and all that
|
|
josephdphillips
Global Facilitator
January 2015 Member of the Month
Posts: 3,494
|
Post by josephdphillips on Nov 10, 2014 15:37:51 GMT -5
a Canadian I understand....well I wouldn't believe him if I were you...proof of the pudding and all that He was raised in England. |
|
|
|
Post by mouse on Nov 11, 2014 4:20:45 GMT -5
a Canadian I understand....well I wouldn't believe him if I were you...proof of the pudding and all that He was raised in England. yeah and hitler visited his brother in Liverpool...a mere detail informe informe they've all got it informe... |
|
Omega
?