Special Moral Demands of Criminal Justice and Moral Foundations of Criminal Guilt.

Special Moral Demands Special Moral Demands of Criminal Justiceof Criminal Justice

andandMoral Foundations Moral Foundations

of Criminal Guiltof Criminal Guilt

Why Be Moral?Why Be Moral?

Reasons for morality. Self-Interest Happiness (Making self and others happy) Self-Respect Self-Worth (Rising above desires) Sense of Community (Sociality)


When should a person responsible to society for acts considered to be criminal?

What is the relationship between law and moral values?

Should unjust or oppressive social conditions reduce criminal responsibility?


What role should moral concepts play in CJ?

Two Main Perspectives• 1. Achieving social order outweighs concerns for

social justice.• 2. CJ system goals must be achieved within

constraints of social justice.


First Perspective• 1. Achieving social order outweighs concerns for

social justice. Suggests that criminal law impose severe punishments

in order to deter others from illegal activity. Law As External Constraint Thesis


Second Perspective• 2. CJ system goals must be achieved within

constraints of social justice. Suggests that the moral foundation of order is tenuous

at best when people obey the law because they fear consequences of illegal behavior.

Law As Internal Constraint Concept


“A violent order is disorder.” Wallace Stevens


Law As External Constraint Thesis– The ends justify the means

Law As Internal Constraint Concept– If the CJ system does not consistently work

equally to the benefit of all members of society, the CJ system loses its differentiation from crime.


A “working definition” of morality.– Concept of Reciprocal Decency– Do unto others as you would have others do unto

you.


What do we mean when we say, “Not every act regarded as immoral by the dominant community should be made criminal, and no act should be made criminal if it is not viewed as immoral.”


What do we mean when we say, “Not every act regarded as immoral by the dominant community should be made criminal, and no act should be made criminal if it is not viewed as immoral.”

The conduct in question must be viewed by society as a moral wrong and a breach of some minimum condition of social existence.


The conduct in question must be viewed by society as a moral wrong and a breach of some minimum condition of social existence.

This suggests that the criminal code should define only minimum conditions of individual responsibility to other members of society.


Should the law consider limitations in capacity for choosing right from wrong?


Should the law consider limitations in capacity for choosing right from wrong?

What about these limitations?

Education

Low Intelligence

Impulse Control Disorders

Others


Can there be equal justice when the kind of trial a person gets depends on the amount of money, or family influence, that they have?

What are the implications of this for all society?


Recall: Law As External Constraint Theory• 1. Achieving social order outweighs concerns

for social justice. Suggests that criminal law impose severe

punishments in order to deter others from illegal activity.

Justifications: – Society cannot afford social justice.– We do not know with certainty what causes crime.– It is not cost effective to fight crime by social reform.


Choices in Addressing the Crime Problem.– The choice is goals.

Repressive Order, or Moral Order

• David Bazelon, Federal Appeals Court Judge

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Some Food For Thought:Anything worth having is worth working for.

Physical courage is more abundant that moral courage.

If we are not part of the solution, we are part of the problem.

Social Contract TheorySocial Contract Theory

What is the relationship between governmental protection and the citizen’s responsibility to obey the law?

What are the legitimate limits of power for the state to preserve the peace?

What is political obligation if people are free to decide whether the state is doing its job?


Basic Premise: One of the most important benefits the state provides is protection.

Protection from what?



Many urban residents and the poor feel they are victims twice.



The right to self preservation is not completely given up when one joins the state.

How do we join the state?



How do we join the state?Free people agree to give up some rights to the state

Right to be their own judge, jury, enforcer


Can there be exceptions of surrender of rights to the state?

What justifies disobeying government laws?

Can government/society survive if exceptions are allowed?


Can there be exceptions of surrender of rights to the state?– Yes

What justifies disobeying government laws?– Usurping individual rights, tyranny

Can government/society survive if exceptions are allowed?– Legal redress provides remedy without destabilization


Should the state violate civil liberties in order to decrease crime?

What should citizen response be to their perception of lack of governmental protection?– What about inequality for women and racial

minorities?


If the state does not take measures to make all members of society truly equal, is citizen obligation to the state weakened?


If the state does not take measures to make all members of society truly equal, is citizen obligation to the state weakened?

The state argues that no matter what your perception, you are always protected and thus always obliged to obey the law.


What is the relationship between governmental protection and the citizen’s responsibility to obey the law?

Free surrender of some rights in exchange for protection/services Equal protection

What are the legitimate limits of power for the state to preserve the peace?

Moral and ethical responses to given situations What is political obligation if people are free to decide

whether the state is doing its job? Could the answer reasonably depend on your perspective?

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Special Moral Demands of Criminal Justice and Moral Foundations of Criminal Guilt.

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