Proportionality and the Psychotic Aggressor: Another View

1983 ◽  
Vol 18 (2) ◽  
pp. 178-214 ◽  
Author(s):  
Mordechai Kremnitzer
Keyword(s):  
Criminal Responsibility ◽  
Apple Orchard ◽  
Bodily Harm ◽  
Injury Death ◽  
Legitimate Interest ◽  
Self Defense ◽  
Grievous Bodily Harm ◽  
Serious Injury ◽  
The Right

In an article published in this journal in 1973, Professor George P. Fletcher maintained that there ought to be no limitation of proportionality on the exercise of self-defense. The requirement of proportionality signifies that there is a limit to the price society is willing or agreeable to pay for the protection of a legitimate interest against an unlawful attack. The right to use self-defense therefore rests upon the condition that there be some kind of relationship, which is not one of equivalence, between the interest attacked and that sacrificed in order to save it. In the absence of such a relationship, self-defense may not be employed. Thus, for example, in the case of a petty theft, if the interest attacked (ownership or possession of the property) can be defended only by inflicting serious injury—death or grievous bodily harm—upon the aggressor, one must refrain from doing so, even if this means sacrificing the interest at stake. If self-defense is not circumscribed by the requirement of proportionality, then the owner of an apple orchard who shoots and kills a thief, lacking any other means of stopping him from running off with the fruit he has stolen, will bear no criminal responsibility for his act.

scope of that design and used the extreme violence which was intended to cause grievous bodily harm or death. The judge’s direction in the appellant’s case did not deal with that situation (or with) the appropriate verdict of not guilty should the jury find the second and/or third defendant went beyond what was contemplated by the appellant. On the facts of the case there were only two verdicts open to the jury, guilty or not guilty of murder. If, as the Crown contended, she was a party to an agreement to kill, she was guilty of murder. If she was a party to an agreement to inflict some harm, short of grievous bodily harm, then she was guilty of neither murder nor manslaughter. The victim’s killing and the manner of the killing could not be within the ambit of the agreement to which the appellant was a party, if the ambit was confined on her part to an intention that only some harm should befall the deceased, albeit not death or really serious injury. The issues involved could not be distinguished from those adumbrated by Widgery LJ in Lovesey and Peterson (1969) 53 Cr App R 461. The judge failed to remind the jury of the law as laid down in Anderson and Morris (1966) 50 Cr App R 216 and followed in Lovesey and Peterson (1969) 53 Cr App R 461. The result of that non-direction was that the jury returned a verdict which was not open to them. R v Stewart and Schofield [1995] 3 All ER 159 (CA)

1996 ◽  
pp. 408-424
Keyword(s):  
Bodily Harm ◽  
Grievous Bodily Harm ◽  
Extreme Violence ◽  
The Law ◽  
Serious Injury

scholarly journals CRIMINAL AND LEGAL CHARACTERISTICS OF VIOLENCE IN ARTICLE 43 OF THE CRIMINAL CODE OF UKRAINE

2020 ◽  
Keyword(s):  
Criminal Responsibility ◽  
Use Of Force ◽  
Criminal Organization ◽  
Criminal Code ◽  
Bodily Harm ◽  
Illegal Activity ◽  
Final Goal ◽  
Criminal Offenses ◽  
Grievous Bodily Harm ◽  
Subjective Side

Introduction. The article provides a criminal law characteristic of violence as a category of the General Part of the legislation on criminal responsibility. In particular, its role and significance in cases of application of the rule that determines the responsibility of persons who perform a special task to prevent or detect criminally illegal activities of organized groups and criminal organizations is considered. It is accentuated that violence in this norm, as well as in other norms that provide for circumstances that exclude criminal unlawfulness of the action, has the following meaning: characterizes the factual and legal basis of circumstances that exclude criminal unlawfulness; determines the use of violence against a person as grounds for "unlimited" use of force for protection; establishes that in some cases, excessive use of force leads to criminal prosecution. Summary of the main research results. The analysis of the current criminal legislation of Ukraine allowed the author to conclude that severe and especially severe consequences prescribed in Part 2 of Art. 43 of the Criminal Code of Ukraine characterized not only by physical damage, but also its other types, for example, by property, organizational and so on. In addition, the legislation does not clearly dividing the consequences to severe and particularly severe. In most cases, they coincide, and in practice there are difficulties in delimitation them. To solve this problem, it is proposed to specify the consequences of exceeding the limits by a person performing a special task. This can only be the most dangerous harm to a person, which is to take his life (murder) and inflict grievous bodily harm. The meaning of the term "compulsion" in the corresponding norm is investigated. According to the author, compulsion is an element of the objective side of criminal offenses committed during the performance of a special task, namely the circumstance of the commission of such offenses. These are the specific objective-presentive conditions in which a criminal offense is committed. In fact, the compulsion of harm causing during a special task is due to two factors: the final goal that characterizes a person's behavior - prevention or detection of criminally illegal activity of an organized group or criminal organization and the situation in which the person operates. The article states that an important characteristic of illegal behavior, namely its subjective side, is the motives and purpose of a person's actions. The closest (immediate) goal is to avoid detecting, to ensure the security of their stay in an organized criminal group or criminal organization. The final goal is to prevent and detect criminally illegal activity of an organized group or criminal organization. The article considers the concepts of "detection of criminal offenses" and "prevention of criminal offenses". On the basis of researches of modern works which are devoted to the given subject the author's definitions of these terms are given. It is also given the author's wording of part 2 of Art. 43 of the Criminal Code of Ukraine, which determines the conditions of criminal responsibility of persons performing a special task. Conclusions. The article makes scientifically substantiated conclusions and provides author's recommendations for improving the current legislation on criminal responsibility, in particular, clearly defines exceeding the limits in this circumstance, which can only be murder or grievous bodily harm; the author's definition of the concept "disclosure of criminally illegal activity" is given; indicated that in criminal offenses committed by persons performing a special task, motive and purpose are mandatory features of the subjective side.

scholarly journals Toleration as the Balance Between Liberty and Security

2021 ◽  
Author(s):  
Anna Elisabetta Galeotti ◽  
Federica Liveriero
Keyword(s):  
Social Security ◽  
Harm Principle ◽  
Social Tolerance ◽  
Individual Liberty ◽  
Self Defense ◽  
The Right ◽  
The Harm Principle

AbstractTraditionally, an adequate strategy to deal with the tension between liberty and security has been toleration, for the latter allows the maximization of individual liberty without endangering security, since it embraces the limits set by the harm principle and the principle of self-defense of the liberal order. The area outside the boundary clearly requires repressive measures to protect the security and the rights of all. In this paper, we focus on the balance of liberty and security afforded by toleration, analyzing how this strategy works in highly conflictual contexts and sorting out the different sets of reason that might motivate individual to assume a tolerant attitude. We contend that toleration represents a reliable political solution to conflicts potentially threatening social security when it is coupled with social tolerance. Hence, we examine the reasons the agents may have for endorsing toleration despite disagreement and disapproval. In the range of these reasons, we argue that the right reasons are those preserving the moral and epistemic integrity of the agent. The right reasons are however not accessible to everyone, as for example is the case with (non-violent) religious fundamentalists. Only prudential reasons for toleration seem to be available to them. And yet, we argue that an open and inclusive democracy should in principle be hospitable towards prudential and pragmatic reasons as well, which may potentially lay the grounds for future cooperation. We conclude therefore that the tolerant society has room for the fundamentalists, granted that they do not resort to violence.

Legal nature of individual proceedings in cases of granting the right to marriage

2021 ◽  
pp. 88-93
Author(s):  
T.M. Balyuk
Keyword(s):  
Family Law ◽  
Adoptive Parent ◽  
Intangible Asset ◽  
Scientific Article ◽  
Adopted Child ◽  
Legitimate Interest ◽  
Civil Proceedings ◽  
Legal Nature ◽  
Specific Material ◽  
The Right

The scientific article is devoted to the study of the legal nature of separate proceedings in cases of granting the right to marry.It is established that a separate proceeding as a type of non-litigious civil proceedings is characterized by: 1) the absence of a dispute about the right, which, at the same time, does not exclude the existence of a dispute about the fact; 2) a special object of judicial protection – a legally protected (legitimate) interest, which is the needs and aspi-rations to use a specific material and (or) intangible asset, which may or may not be mediated by a certain subjective right. Protection of legally protected (legal) interest is carried out by the court by deciding on the presence or absence of legal facts relevant to the protection of rights, freedoms and interests of a person or creating conditions for the exercise of personal non-property or property rights or confirmation of the presence or absence of undisputed rights.It is determined that a separate proceeding in cases of granting the right to marry is a type of non-litigious civil proceedings for consideration of applications for confirmation of the presence or absence of legal facts that are im-portant for creating conditions for a person’s right to marry. It is substantiated that the legal nature of separate proceedings in cases of granting the right to marry is a set of substantive grounds for granting the right to marry and features of the procedural form of consideration by the court of relevant applications that mediate changes in family law. The court, establishing the presence or absence of legal facts, decides to grant a person the right to marry, thereby expanding the family law capacity of such a person due to the ability to exercise the right to marry before reaching marriageable age or marry between the adopter’s adopted child and the adopted child, as well as between children who have been adopted by an adoptive parent.

Reflections on the existence of the science of criminal law

2021 ◽  
pp. 156-161
Author(s):  
I. Mytrofanov
Keyword(s):  
Social Justice ◽  
Public Relations ◽  
Criminal Law ◽  
The State ◽  
Crime And Punishment ◽  
Self Defense ◽  
Illegal Acts ◽  
The Subject ◽  
The Individual ◽  
The Right

The article states that today the issues of the role (purpose) of criminal law, the structure of criminal law knowledge remain debatable. And at this time, questions arise: whose interests are protected by criminal law, is it able to ensure social justice, including the proportionality of the responsibility of the individual and the state for criminally illegal actions? The purpose of the article is to comprehend the problems of criminal law knowledge about the phenomena that shape the purpose of criminal law as a fair regulator of public relations, aimed primarily at restoring social justice for the victim, suspect (accused), society and the state, the proportionality of punishment and states for criminally illegal acts. The concepts of “crime” and “punishment” are discussed in science. As a result, there is no increase in knowledge, but an increase in its volume due to new definitions of existing criminal law phenomena. It is stated that the science of criminal law has not been able to explain the need for the concept of criminal law, as the role and name of this area is leveled to the framework terminology, which currently contains the categories of crime and punishment. Sometimes it is not even unreasonable to think that criminal law as an independent and meaningful concept does not exist or has not yet appeared. There was a custom to characterize this right as something derived from the main and most important branches of law, the criminal law of the rules of subsidiary and ancillary nature. Scholars do not consider criminal law, for example, as the right to self-defense. Although the right to self-defense is paramount and must first be guaranteed to a person who is almost always left alone with the offender, it is the least represented in law, developed in practice and available to criminal law subjects. Today, for example, there are no clear rules for the necessary protection of property rights or human freedoms. It is concluded that the science of criminal law should develop knowledge that will reveal not only the content of the subject of this branch of law, but will focus it on new properties to determine the illegality of acts and their consequences, exclude the possibility of using its means by legal entities against each other.

scholarly journals Individual Laterality in Ghost Crabs (Ocypode saratan) Influences Burrowing Behavior

Symmetry ◽  
2021 ◽  
Vol 13 (8) ◽  
pp. 1512
Author(s):  
Reuven Yosef ◽  
Michal Daraby ◽  
Alexei Semionovikh ◽  
Jakub Z. Kosicki
Keyword(s):  
Natural Selection ◽  
Red Sea ◽  
Selection Pressure ◽  
Left Handed ◽  
Self Defense ◽  
Temporal Segregation ◽  
Ghost Crabs ◽  
Left And Right ◽  
Burrowing Behavior ◽  
The Right

Behavioral handedness is known to enhance an individual’s handling capabilities. However, the ecological advantages in brachyuran crustaceans remain unclear, despite the Ocypode species having been studied extensively. Thus, in this study, we analyzed the laterality of the endemic Red Sea ghost crab on one beach in Eilat, Israel. We successfully documented the laterality of the large cheliped in 125 crabs; in 60 (48.0%), the right cheliped was larger, and in 64 (51.2%), the left. We also observed temporal segregation between the right- and left-clawed crabs. The right-handed crabs start activity just after sunrise, while left-handed crabs appear ca. 40 min after it. Similarly, temporal segregations were also observed in the evening. The right-clawed crab activity peaked ca. 20 min before sunset, while the left-clawed crabs were active uniformly. Additionally, burrow entrances corresponded to the larger cheliped of the resident individual and is probably a self-defense-related behavior. We conclude that cheliped laterality in O. saratan populations should be considered as a bimodal trait, where left- and right-handedness is not under natural selection pressure.

scholarly journals Przyczyny i procedura wydalania duchownych z instytutu zakonnego

2011 ◽  
Vol 54 (3-4) ◽  
pp. 147-168
Author(s):  
Ambroży Skorupa
Keyword(s):  
Holy See ◽  
Self Defense ◽  
Religious Institute ◽  
The Right ◽  
The Church ◽  
The Way ◽  
Moral Questions

A religious in an institute fulfills his vocation by following the way adequate to the charism of the institute. An attitude unsuited to a religious’ priestly vocation as well as to the institute’s charism, can be the cause of dismissal from religious institute. Among the causes of dismissal can be diffusion of doctrine inconsistent with the magisterium of the Church or an attitude incompatible with position of the Church. In the article were presented some exemplary statements of the Congregation for the Doctrine of the Faith regarding doctrinal and moral questions. Stubborn diffusion of views recognized by the Holy See as opposed to the Catholic doctrine, may be another cause for dismissal from an institute. Dismissal from religious institute may also result from an attitude incompatible with the ecclesiastical and religious discipline. Attitudes causing grave scandal require reaction of the competent religious superiors. The superiors are obliged to act in accordance with the process regulated by the norms included in the CCL 1983 and in other ecclesiastical documents. Choosing proper process depends on the nature of an offense committed by a religious. For offenses described in can. 694 a religious is dismissed by the fact itself of committing the offense (ipso facto). Therefore the process described in the cannon for this form of dismissal must be kept. In instances of offenses described in cannons 695 and 1395, for which the legislator provided an obligatory dismissal, the process is different. In case of offenses pointed out in can. 696 the superior is obliged to initiate process indicated in can. 697. The right of the accused to self-defense, participation of a notary in the process, required decision by the major superior and approval of a decree by ecclesiastical hierarchical authority – the Holy See or diocesan bishop, depending on the approval level of the institute, deserves attention.

scholarly journals CRIMINAL DELINQUENCY – CYBERSTALKING: CHARACTERISTICS OF OBJECT AND OBJECTIVE SIDE

2018 ◽  
Vol 2 (83) ◽  
pp. 45
Author(s):  
Uldis Ķinis
Keyword(s):  
Criminal Law ◽  
Criminal Responsibility ◽  
Written Text ◽  
Legitimate Interest ◽  
International Regulations ◽  
Actus Reus ◽  
The Law ◽  
Definition Of ◽  
Objective Side ◽  
First Time

On January 2018 significant amendments to the Criminal Law and the Law On the Procedure for Application of the Criminal Law came into force in Latvia. These changes not only in the first time introduce the criminal responsibility for the emotional violence, but also determine the procedure for assessing emotional disparity, equating the effects to telepathic injuries.In the article, the author reviews a modality of crime “persecution” - cyber-persecution. Although the legislator in the annotation of the law provides that the article also shall be applicable to acts committed in cyberspace, at the same time, the author indicates some problems that may arise due to the narrow interpretation of the law by the law enforcement. The purpose of the article is to study the object (protected legitimate interest) and the objective side (actus reus) of the offense - cyber-stalking. For purposes of research, several methods have been used. The method of comparative analysis, for examination and comparison of external and international regulations. Methods of legal interpretation used to disclose the differences between the understanding of the written text of the definition of the crime and what ought to be understood in the meaning of the norm. Finally, the author presents the conclusions and proposals on the application of the norm.

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