Morality
of Law Overview
This section looks at
the conditions under which society can hold an individual responsible for acts
it considers crimes
|
|
|
Author, Title &
summary |
Criminal Justice
Ethics topics and pages |
In "The Morality of the Criminal
Law," David Bazelon (former judge of the Court of Appeals for
Washington D.C.) examines the relationship between law and moral values,
arguing that the law should do more than merely enforce order. He takes
up the question of what should be a crime, and addresses the mental and
social conditions of criminal responsibility. Recounting his own
struggles to define a usable standard for the insanity defense, he goes
on to speculate about whether unjust or oppressive social conditions
ought to reduce criminal responsibility in the way that mental illness
does.
|
|
Bill Lawson follows up on Bazelon's
concerns about the relevance of social inequalities to criminal guilt.
"Crime, Minorities, and the Social Contract" looks
specifically at the obligations minorities have to obey the laws when
the state fails in its obligation to protect citizens from urban crime.
In general, a contractarian view of legal obligation treats it as a debt
that citizens owe one another in return for the benefits (such as peace,
predictability, and security) that come when most citizens obey the law
and the state protects citizens against those would break the law.
Lawson contends that important features of this two-way bargain are not
kept for poor inner-city residents. His reading of social contract
literature leads him to "the unsettling conclusion that the fear of
being a victim of crime for many urban residents releases them from an
obligation to obey governmental dictates and consequently from any moral
or legal obligation to obey the law."
|
|
In her challenging article, “Mens
Rea,” Jean Hampton tries to spell out clearly what is guilty about a
guilty mind, and why the guilty are appropriately blamed and punished.
The nature of the guilty mind is more puzzling than it might immediately
seem to be. Consider that a criminal disobeys the law in order to
satisfy some desire of his (say, for wealth). Now, if he doesn’t know
that he should obey the law, then he is ignorant that he is doing wrong
(if not insane) and blameless. If he does know he should obey the law,
then how did his desire get him to go against what he knew he should do?
If the desire was too strong to resist, then the criminal “couldn’t
help it” when he broke the law and is, again, blameless. If his desire
wasn’t too strong to resist, then he must have acted on it because he
decided he should do what he desires. But, if he knew that he should
obey the law, how did this happen? Was he irrational enough to believe
something contrary to what he knew, or did he become ignorant that he
should obey the law? Either of these seems to render him blameless
again.
|
|
| Readers who are
interested in exploring these topics further can visit Findlaw
and The Jurist: The Law
Professors’ Network. Within the ‘topics’ section will
be resources about criminal law, and The Jurist contains
links to web pages that law professors have developed for teaching
criminal law. The heading ‘legal theory’ at both pages accesses
many resources that discuss the relationship of law to race and
gender. |
|
The section concludes with a case study,
Leo Katz's "The Crime That Never Was," about impossible
attempts. This article asks us to think about what it is that the law
aims to punish. Normally, the law punishes attempted crimes even though
they fail and thus produce no harm. Certainly the one who attempts a
crime but fails is just as evil as one who attempts and succeeds. But
what is an attempted crime? Suppose Bob shoots Frank, wanting to kill
him, but Frank was already dead, having died minutes before of a heart
attack. Has Bob committed attempted murder? Suppose Jane tries to poison
Jill, giving her a substance she believes is poison, but which is really
harmless. Has Jane committed attempted murder? Is Joe guilty of
attempted murder if he is doing voodoo rituals that he thinks will bring
about Kim's demise? Katz's case is about a man who tries to smuggle a
painting across international borders, except that, unbeknownst to him,
the painting is a forgery and taking it out of the country is not
illegal. Is he guilty of a criminal attempt? Katz writes three opinions
to the case that represent different balancing between the necessity of
punishing inner evil (the one who tries voodoo believing it will kill
his enemy is just as inwardly evil as the one who shoots a living person
and misses) and protection against acts likely to be dangerous.
|
|
