Moral Responsibility and Voluntariness

2021 ◽  
pp. 185-208
Author(s):  
A P Simester
Keyword(s):  
Moral Responsibility ◽  
Criminal Law ◽  
Actus Reus ◽  
Ways Of Thinking ◽  
The Relationship

This chapter explores some of the ways in which moral responsibility for events can be negated through a lack of voluntariness. It looks at how such negations are best accommodated within the criminal law. The chapter begins by identifying two ways of thinking about voluntariness. Some writers see voluntariness as a counterpart to involuntariness, envisaging behaviour ‘done in the presence of open alternatives’. Others explain voluntary behaviour in terms of ‘volitional’ behaviour that is intentional under some description; behaviour, one might say, done willingly. The chapter goes on to consider the relationship between voluntariness and the varieties of actus reus elements, including omissions, situational liability, and possession.

Fundamentals of Criminal Law

2021 ◽  
Author(s):  
A P Simester
Keyword(s):  
Moral Responsibility ◽  
Criminal Law ◽  
Mens Rea ◽  
Criminal Convictions ◽  
Foundational Principle ◽  
Actus Reus ◽  
General Part ◽  
Major General

This book explores the theoretical principles underlying the general part of the criminal law. It demonstrates how the major general part doctrines governing actus reus, mens rea, and defences are informed by deeper considerations of responsibility, culpability, and wrongdoing. The book shows how many of the criminal law’s doctrines can and should accommodate the demand that criminal convictions be imposed only upon persons who are culpable for their wrongdoing. But those same doctrines are not always driven by culpability. They are grounded also in certain further principles that the book identifies: specifically, principles of “moral responsibility”, “ascriptive responsibility”, and “wrongdoing”. Neither can many of those doctrines be separated from questions of criminalization. Doctrines governing such matters as causation, omissions, complicity, and even mens rea all serve more than one foundational principle, requiring mediation and compromise. As such, the book argues, they engage wider debates about wrongdoing, and about the boundaries between liability and freedom.

The Voluntary Act

1975 ◽  
Vol 15 (1) ◽  
pp. 31-36 ◽  
Author(s):  
D. O'Connor
Keyword(s):  
Free Will ◽  
Criminal Law ◽  
Psychotic Symptoms ◽  
Criminal Behaviour ◽  
General Acceptance ◽  
Actus Reus ◽  
The Will ◽  
Evaluation Of Data ◽  
The Relationship ◽  
Considerable Complexity

The importance of the actus reus in the analysis of criminal behaviour has only gained ground in recent years. The defence that the act complained of was involuntary raises directly the question ‘What is meant by voluntary conduct?’ In its earliest formulations the general acceptance of the doctrine of free will led to a ready acceptance of voluntary as simply meaning being a product of an exercise of the free will. More recent investigations, and in particular those following the development of ego psychology, have shown that the mechanism precedent to the operation of the will is of considerable complexity. Perception, cognition and evaluation of data must each be considered in an analysis of voluntary behaviour, so that what may seem voluntary may well flow from a defective capacity in any or all of these functions. The relationship between defective psychic functions such as those described and the pervasive concept of ‘insanity’ in the criminal law, it is suggested, may have led to the neglect of a study of voluntarism since many cases of psychic malfunction have displayed psychotic symptoms. It is argued that the distinction between self-induced and other-induced as a basis for attaching responsibility in law, as is strongly suggested in the cases, is unsatisfactory. The merit of the recent discussions of the nature of voluntary conduct is that the limitations of a pre-Freudian theory of conscious behaviour enshrined in McNaughton will be recognized within the debate on the nature of voluntary and, more particularly, involuntary conduct.

Intellectual Difficulty and Moral Responsibility

2017 ◽  
Keyword(s):  
Moral Responsibility ◽  
To Come ◽  
The Relationship

This chapter considers the relationship between intellectual difficulty and moral responsibility. It focuses on this question: if it is difficult for us to come to believe the truth about some matter, and we do not in fact come to believe it, so that we are ignorant of that matter, does that affect our responsibility if we then act from our ignorance? Answering this question requires getting clearer on both intellectual difficulty and moral responsibility for actions done from ignorance. This chapter takes up both tasks, distinguishing three different kinds of intellectual difficulty—skill-related difficulty in performing, effort-related difficulty in performing, and difficulty in trying—and two different families of views regarding moral responsibility: agential control views and agential revelation views. The chapter then considers the interaction between these different kinds of intellectual difficulty and these different views of moral responsibility, focusing particularly on the familiar case of the Ancient Slaveholder.

The Principle of Complementarity: A Reflection on Its Meaning, Origin and Types in International Criminal Law

2021 ◽  
Vol 29 (1) ◽  
pp. 82-94
Author(s):  
Muyiwa Adigun
Keyword(s):  
Criminal Law ◽  
International Criminal ◽  
International Criminal Law ◽  
World War ◽  
International Criminal Tribunals ◽  
The First World War ◽  
Domestic Courts ◽  
The Relationship ◽  
First World ◽  
Principle Of Complementarity

The principle of complementarity is one of the most important concepts in international criminal law as it defines the relationship between international criminal tribunals and domestic courts. Certain claims have been made in respect of this concept thus this study examines the correctness of the claims made. The study finds that the concept is claimed to have originated from the sciences and that its expression in international criminal law has taken a distinctive form different from that in the sciences, that it is traceable to the First World War and that there are at least about four categories of the concept. The study, however, argues that while the concept originated from the sciences, its expression in international criminal law is no different from that in the sciences, that it is traceable to the trial of Peter von Hagenbach in 1474 (the Breisach Trial) and that there are at least five categories of the concept. The study therefore concludes that the claims made are incorrect.

Quintilian and the Law

2021 ◽  
pp. 258-277
Author(s):  
Olga Tellegen-Couperus
Keyword(s):  
Criminal Law ◽  
Roman Law ◽  
Private Law ◽  
Legal Procedure ◽  
Legal Expert ◽  
The Law ◽  
Law Of Succession ◽  
The Relationship

How did Quintilian regard the relationship between rhetoric and law? It is only in the last book of his Institutio oratoria that Quintilian deals with this question. In 12.3 he states that the well-educated orator must have a broad knowledge of the law so that he will not be dependent on information from a legal expert. In the course of the book, Quintilian shows that he himself was well acquainted with Roman law for he often explains rhetorical technique by giving legal examples, and these examples deal with a wide variety of topics and refer to a wide variety of sources. The topics include criminal law and private law, particularly the law of succession, and legal procedure. The sources range from speeches by Cicero to fictitious laws and cases. Quintilian regarded rhetoric as superior to law but he will have agreed with Cicero that rhetoric and law were partners in dignity.

scholarly journals Groźba popełnienia przestępstwa o charakterze terrorystycznym w ujęciu art. 115 § 20 k.k. – wybrane problemy wykładni

2019 ◽  
Vol 28 (3) ◽  
pp. 41
Author(s):  
Aneta Michalska-Warias
Keyword(s):  
Criminal Law ◽  
Criminal Code ◽  
Eu Law ◽  
Terrorist Threat ◽  
Special Part ◽  
New Type ◽  
The Relationship

<p>The paper discusses the concept of a terrorist threat in the light of Article 115 § 20 of the Polish Criminal Code. The author stresses the relationship between this term and the punishable threat described in the special part of the Criminal Code. The conducted analysis leads to the conclusion that the terrorist threat must be treated as a special type of the punishable threat and, as a result, many real terrorist threats may not meet the criteria of a forbidden act, e.g. because of the lack of an individualised victim. As a result, there appear serious doubts as to whether Polish criminal law meets the requirements of EU law referring to the criminalisation of terrorist threats and, therefore, the introduction of a new type of offence of a terrorist threat and some changes in Article 115 § 20 and Article 115 § 12 of the Criminal Code have been proposed.</p>

scholarly journals POLITICAL CRIME IN THE IRANIAN PENAL SYSTEM AND THE POSITION OF CONSTITUTIONAL CIVIL LIBERTIES IN CRIMINALIZING POLITICAL CRIME

2021 ◽  
Vol 9 (3) ◽  
pp. 1099-1112
Author(s):  
Mehrdad Soleiman Fallah ◽  
Abdolvahid Zahedi
Keyword(s):  
Criminal Law ◽  
Civil Liberties ◽  
Penal System ◽  
International Level ◽  
Related Research ◽  
The Public ◽  
History Of ◽  
Political Crime ◽  
The Relationship ◽  
Historical Periods

Purpose: This study aims to analyze political crime in the Iranian penal system and the place of civil, constitutional freedoms in the criminalization of political crime. Methodology: In this study, we have tried to study articles and related research in this field and analyze the results of each to make a proper conclusion about the relationship between the Iranian systems in dealing with political crimes. Therefore, the only tools used in this study are documents related to political crimes at the international level. Main findings: Political Crime Law enacted in 2016, despite the basic forms of extensive discretion and lack of specific criteria for the judicial authority in determining whether a crime is political or non-political, practically made this law ineffective, regardless of the problems mentioned. Application of the study: Since the commencement of the country, political wrongdoing has been viewed as wrongdoing against the public authority. Therefore, the results of this study can be very effective in improving the performance of governments in preventing possible crimes against governments. Novelty/Originality: Given the multiplicity of political crimes in our country, as well as the complexities involved in the case of political crimes, it seems that in the history of our criminal law, there has been a will to legislate and determine the exact causes of political crime, and governments in most historical periods, they have made great efforts to identify political criminals. The novelty of this research lies in investigating the effect of political crimes on legal confusion in legislating political offenses.

scholarly journals TALKING ABOUT RAPE – AND WHY IT MATTERS: Adjudicating rape in the Western Cape High Court

2016 ◽  
Author(s):  
Stacy Moreland
Keyword(s):  
Criminal Law ◽  
Institutional Factors ◽  
Western Cape ◽  
Sexual Offences ◽  
High Court ◽  
The Law ◽  
The Relationship ◽  
Selection Of ◽  
Do So

This article asks the question: how do judges know what rape is and what it is not? The statutory definition contained in the Criminal Law (Sexual Offences and Related Matters) Amendment Act1 (SORMA) guides courts in adjudicating rape cases, and as such the definition is theirs to interpret and implement. This article analyses a small selection of recent judgements of the Western Cape High Court2 (WCHC) for answers. The article begins by establishing why judgements are an important source for understanding what rape means in society at large; it then discusses the relationship between power, language, and the law. This is followed by specific analyses of cases that show how patriarchy still defines how judges express themselves about rape. It concludes by looking at the institutional factors that discourage judges from adopting new ways of talking about rape, and their constitutional mandate to do so.

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.

scholarly journals Hubungan Hukum Dokter dan Pasien Serta Tanggung Jawab Dokter Dalam Penyelenggaraan Pelayanan Kesehatan

2018 ◽  
Vol 6 (1) ◽  
pp. 163-182
Author(s):  
Yussy A. Mannas
Keyword(s):  
Therapeutic Relationship ◽  
Criminal Law ◽  
Civil Law ◽  
Civil Code ◽  
Legal Relationship ◽  
Medical Disputes ◽  
Legal Effect ◽  
Two Factors ◽  
The Relationship ◽  
Legal Consequences

Abstract:The emergence rights and obligations as a result of legal relationship between doctors and patients could potentially trigger a dispute between doctors and patients or medical disputes. In an effort to avoid or reduce medical disputes, it is necessary to understand the construction of the legal relationship between doctor and patient. From this legal relationship which will result legal actions and gave rise to legal consequences. In a legal effect, it can’t be separated is about who is responsible, as far as what responsibility can be given. It describes that relationship and the patient's physician if constructed, it can be divided based on two factors; transaction of therapeutic and act. In relation patient - physician based therapeutic, known as therapeutic relationship or transaction therapeutic, there is a binding between patients and physicians in the treatment of the disease or treatment. Engagements happens is inspanningsverbintennis and not resultaatsverbintennis, and must comply with the provisions of Article 1320 of the Civil Code. The relationship between doctor and patient is based on the Act - legislation occurred under Article 1354 of the Civil Code, which formulates zaakwaarneming. Legal relationship that occurs by two things above give rise to legal liability for doctors, the responsibility in the field of disciplinary law, criminal law, civil law and administrative law.Keywords: Doctor, Patient and Legal Relationship.Abstrak:Munculnya hak dan kewajiban sebagai akibat hubungan hukum antara dokter dan pasien berpotensi memicu terjadinya sengketa antara dokter dengan pasien atau sengketa medik. Dalam upaya menghindari atau mengurangi sengketa medik yang terjadi, maka perlu dipahami mengenai konstruksi hubungan hukum antara dokter dengan pasien. Dari hubungan hukum inilah yang akan melahirkan perbuatan hukum dan menimbulkan adanya akibat hukum. Dalam suatu akibat hukum, hal yang tidak dapat dipisahkan adalah mengenai siapa yang bertanggung jawab, sejauh apa tanggung jawab dapat diberikan. Dalam tulisan ini diuraikan bahwa hubungan dokter dan pasien ini jika dikonstruksikan maka dapat dibagi berdasarkan dua hal, yaitu transaksi terapeutik dan undang-undang. Pada hubungan pasien- dokter berdasarkan terapeutik, dikenal hubungan terapeutik atau transaksi terapeutik, yaitu terjadi suatu ikatan antara pasien dan dokter dalam hal pengobatan atau perawatan penyakitnya. Perikatan yang terjadi ialah inspanningsverbintennis dan bukan resultaatsverbintennis, dan harus memenuhi ketentuan Pasal 1320 KUHPerdata. Hubungan dokter dan pasien berdasarkan undang–undang terjadi berdasarkan Pasal 1354 KUHPerdata yang merumuskan tentang zaakwaarneming. Hubungan hukum yang terjadi oleh dua hal diatas menimbulkan tanggung jawab hukum bagi dokter, yaitu tanggung jawab dalam bidang hukum, hukum pidana, hukum perdata dan hukum administrasi.Kata Kunci: Dokter, Pasien dan Hubungan Hukum. 

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