Consensus and Analogical Reasoning- Secondary Resources
criminal offenses state active role, crime against god as outlines in Koran & Sunna
defamation (related to extramarital sex)
use of alcohol
crimes against another person
"equal harm" or "retaliation" "eye for an eye"
serious crimes (mruder, assault, battery)
Crime whose penalties are not fixed by the Koran or Sunna, but are within descretion of a judge
rehabilitation include consumption of prok, bribery, provocative dress
treated as adultery
Ex: selling wine
Mala in se
evil in themselves
Mala in Prohibita
things we prohibit- gambling, prostitution
wrong because they have been made wrong by positive law
Elements of a Crime
Concurrence (union of the criminal act-actus reus- and criminal intent-mens rea-)
Causation (legal principle that the criminal act is the act that is the cause of the harm
TWO TYPES of causation: factual & legal
the guilty (criminal act) when thoughts are acted on
-voluntary bodily movements
-ommision in the face of a duty to act
some sort of guilty mind must exist
must be proven
motive different from intent
the accused wrong doing should be excused bc he or she lack the capacity to be held liable for the crime EX: too young, insanity, intoxication (voluntary not succesful, invol. forced or unaware of drug & alc interaction) mistake (law was not published or known to the public or person relied on an erroneous law enforcement statement.
defendent accepts responsibility committing an illegal act, but contends the act was justified (reason you did it)
EX: duress (forced to do it), self-defense, necessity(harm avoided greater than harm caused by your crime), entrapment(decieved by agent)
freedom of Religion, speech, press, assembly, petition
to bear arms
No Quatering Troops
freedom from unreasonable search and seize, warrants based on probable cause & stated with specifity
Grand jury, double jeopardy, incrimination, due process
Criminal prosecution- rights to speedy trial
right to jury- common law
rights against excessive bail, cruel & unusual punishment
Priveledges & Immunities, due process & equal protection
Aristotles definition of Justice
Consists of treating equals equally and unequals unequally according to relevant differences
Concerned with how a political entity such as a nation-state distributes resources to its members.
When does it become unjust? only when the accumulation of resources is exploitive
concerned with how a society's system of law goes about determining guilt or innonence(procedural), and then how it goes about determing the proper punishment for the guilty (substantive)
1. statutory gravity of crime (first degree, second etc.)
2. whether or not crime was committed on probation
3. amount of monetary loss
4. series of aggravating or mitigating circumstances
Problem with Aristotles definition of Justice?
defining what "relevant" differences are.
ex: skin color?
study of legal decision making
philosiphical position that emphasizes the primacy and superiority of the spiritual over the material.
attempts to explain the origins of law and justive with reference to the principles of evolutionary biology.
common practice of confusing "is" with "ought to be"
Ex: what "is" represents a scientific observation
what "ought to be" is moral hope
Justice vs. Law
Justice is the process, Law is the rule
Positivist definition of crime
crime is what the law says it is
Garofalo & Natural Crime
he believes that laws should not just be created by those who the laws benefit them.
"an act should be considered a crime only if it was universally condemned.
The rule of law
3 Elements of the rule of law
1. requires a nnation to recognize the supremecy of certain fundamental values and principles.
2. These values and principles must be committed to writing.
3. A system of procedures that hold the government to these principles and values must be in place.
argued that accused persons should be able to confront their acusers
enjoy the benefit of a public trial
if guilty, punishmnet should fit the crime
punishment should be identical for identical crimes
Packers Models- Crime Control
emphasizes community protection from criminals based on the argument that civil liberties can only have real meaning in a safe, well ordered society
a. an administrative fact-finding process leading to the exoneration of the suspect
b. the entry of a plea of guilty
Packers Model- The Due Process
more concerned with the integrity of the process rather than its efficiency
"let the decision stand"
creates a government - literally "constitutes the government
authority to act in certain areas, and within these areas, they may pass legislative enactments or bills (statutes)
another form of legislation, may have the force of law in some situations.
the court has the power to examine a law and determine whether it is constitutional.
Marbury vs. Madison established the authority of the high court
defined by statute, prescribes (what we should do) and proscribes (what we should not do) various types of conduct
the rules the state must follow when investigating suspects or prosecuting someone who has committed a crime.
the union of the criminal act (actus reus) and criminal intent (mens rea)
legal principle that the criminal act is the act that is the cause of the harm
Seperate Crminal Justice systems & Agencies
50 state systems
native american justice system
ALL INCLUDE: 18,769 seperate state and local law enforcement angencies
classic civic-book picture of justice- no bias, justice served
officials enforce the law as it is written
person who committs crime usually arrested and prosecuted for that offense
Portrays a cjs in which there is neither law, nor order, nor justice
chaos, punish on own agenda, racist and bias
Crime commission model
Accomplishes: providing a conceptual framework that helps identify general patterns, define problems,
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