The Problem Of Mistaken Self-Defense: Citizenship, Chiasmus, and Legal Form

2010 ◽  
Vol 13 (2) ◽  
pp. 357-378 ◽  
Author(s):  
Alan Norrie
Keyword(s):  
Modern Society ◽  
Mens Rea ◽  
Legal Form ◽  
Wrong Thing ◽  
Self Defense ◽  
Wrong Reason ◽  
The Law ◽  
Right Reason ◽  
The Right ◽  
Political Understanding

This essay concerns the law of mistaken self-defense in England and Wales. It considers the widely held view that the honest mistake rule is wrong because it relates the mistake to mens rea. It accordingly fails to distinguish between offense and defense, and within defenses between justification and excuse. I argue against this view that these core criminal law concepts are fluid and irresolute. Mistaken self-defense can be analyzed in terms of an irreducible chiasmus (antithesis) in the law between "doing the right thing for a wrong reason" and "doing the wrong thing for a right reason." This makes it doctrinally unstable. When this is understood, it becomes clear that it may sometimes make moral and legal sense to analyze mistaken self-defense as concerning proof of mens rea, and sometimes not. What determines the matter in individual cases is a political understanding of the nature of citizenship in modern society. The analysis is offered in the light of recent police killings of innocent members of the public in London.

Utilitarianism and the Noble Art

Philosophy ◽  
1988 ◽  
Vol 63 (243) ◽  
pp. 63-81 ◽  
Author(s):  
Colin Radford
Keyword(s):  
The Other ◽  
Main Claim ◽  
Positive Difference ◽  
Moral Rightness ◽  
Wrong Thing ◽  
Human Happiness ◽  
Wrong Reason ◽  
Right Reason ◽  
The One ◽  
The Right

Utilitarianism tells us that actions are morally right and good if and to the extent that they add to human happiness or diminish human unhappiness. And—or, perhaps, therefore—it also tells us that the best action a person can perform is that which of all the possible actions open to him is the one which makes the greatest positive difference to human happiness. Moreover, as everyone will also remember, utilitarianism further tries to tell us, perhaps intending it as a corollary of that first, main claim, that the motive for an action has nothing to do with its moral rightness or goodness. (This, of course, is just a philosopher's excessive and incorrect way of making the platitudinous point that one may do the wrong thing for the right reason and the right thing for the wrong reason.) But even if, as utilitarians, we accepted the dubious corollary, it would not follow, as many have thought, that utilitarians have no moral interest in motives. For unless, absurdly, a utilitarian believed either that there was never more than a fortuitous connection between on the one hand what we intended to do and on the other what we did and the consequences of what we did, or that, if there were such connections, we could not know of them, he must believe, as a moralist, that the best motive a person can have for performing an action is likely to be the desire to produce the happiest result. Indeed, utilitarians ought to be morally committed, it would seem, to trying to find out as much as they can about the consequences of our actions, e.g. what connections exist, if any, between how we raise children and what sort of adults they grow up to be.

scholarly journals Commercial Appropriation of a Person's Image: Wells V Atoll Media (Pty) Ltd (Unreported 11961/2006) 2009 ZAWCHC 173 (9 November 2009)

2017 ◽  
Vol 14 (2) ◽  
pp. 181
Author(s):  
Steve Cornelius
Keyword(s):  
Modern Society ◽  
Commercial Exploitation ◽  
Business People ◽  
The Law ◽  
The Rich ◽  
The Individual ◽  
The Right

Our modern society has become transfixed with celebrity. Business people and marketers also endeavour to cash in on the popularity enjoyed by the stars and realise the value of associating merchandise or trademarks with the rich and famous. This leads to difficulties when the attributes of a person are apparently used without consent, which poses new questions to the law: should the law protect the individual against the unlawful use of his or her image? If so, to what extent should such protection be granted? These were some of the questions which the court had to answer in Wells v Atoll Media (Pty). The judgment in Wellshas redefined the right to identity and provided some clarity on what the infringement of that right would amount to. When the attributes of a person are used without consent, the right to identity can be violated in one of four ways. A person's right to identity can be infringed upon if the attributes of that person are used without permission in a way which cannot be reconciled with the true image of the individual concerned, if the use amounts to the commercial exploitation of the individual, if it cannot be reconciled with generally accepted norms of decency, or if it violates the privacy of that person.

Mensrea

1990 ◽  
Vol 7 (2) ◽  
pp. 1-28 ◽  
Author(s):  
Jean Hampton
Keyword(s):  
Daily Life ◽  
Mental States ◽  
Penal Code ◽  
Detailed Account ◽  
Mens Rea ◽  
Model Penal Code ◽  
States Of Mind ◽  
Criminal Conviction ◽  
The Law ◽  
The Right

Accusing, condemning, and avenging are part of our daily life. However, a review of many years of literature attempting to analyze our blaming practices suggests that we do not understand very well what we are doing when we judge people culpable for a wrong they have committed. Of course, everyone agrees that, for example, someone deserves censure and punishment when she is guilty of a wrong, and the law has traditionally looked for a mens rea, or “guilty mind,” in order to convict someone of a criminal wrongdoing. But philosophers and legal theorists have found it interestingly difficult to say what mens rea is. For example, noting the way in which we intuitively think people aren't culpable for a crime if they disobey the law by mistake, or under duress, or while insane, theorists such as H.L.A. Hart have tried to define mens rea negatively, as that which an agent has if he is not in what we consider to be an excusing state. But such an approach only circumscribes and does not unravel the central mystery; it also fails to explain why the law recognizes any excusing states as mitigating or absolving one of guilt, much less why all and only the excusing states that are recognized by the law are the right ones. Moreover, the Model Penal Code, which gives a very detailed account of the kinds of mental states which justify criminal conviction, does not tell us (nor was it designed to tell us) why these states of mind (e.g., knowledge, purposiveness, intention, assumption of risk of harm, negligence) are relevant to an assessment of legal guilt.

scholarly journals Сoncepts and elements of judicial enforcement

2021 ◽  
Vol 2021 (2) ◽  
pp. 33-45
Author(s):  
L. P. Samofalov ◽  
◽  
О. L. Samofalov ◽  
Keyword(s):  
Law Enforcement ◽  
International Standards ◽  
Judicial Power ◽  
Judicial Reform ◽  
Public Authorities ◽  
Legal Form ◽  
Positive Law ◽  
The Law ◽  
Judicial Procedure ◽  
The Right

The problems of judicial enforcement are considered in the article. It is emphasized that judicial enforcement is a legal form of state functions implementation. The need to study this legal category is emphasized. This need is related to the harmonization of legislation with international standards, judicial reform, and increased protection of human rights. Different points of view of legal scholars concerning judicial enforcement are investigated. It is concluded that the judicial application of the law is based on the rules of positive law. A judge may not refuse to hear a case due to gaps in the law. Judicial enforcement is associated not only with the application of the law, but also with their interpretation, and sometimes lawmaking. On the one hand, the judiciary is a manifestation of power, and on the other it is the most rational and effective form of control over the activities of state power. It is stated in the article that justice, as a court activity carried out in the form of civil, administrative, criminal, economic and constitutional proceedings, takes place in the procedural forms established by law. Law enforcement activity of the court is a long, complex and systematic process. It has a specific purpose, that is a clearly defined value, which includes recognition of a person, their life, health, honor and dignity, inviolability and security. It is stated that law enforcement cannot be carried out beyond the principles of law, as they go through all the rules of law and are the basis of the legal system. The components of the rule of law are recognized by the international community. In particular, they are: – the right to appeal against the actions of public authorities; – free assessment by the court of the circumstances of the case; – independence and impartiality of judges; – independent judicial procedure, which covers fairness, openness, reasonable time for consideration of the case, availability of legal aid; – binding nature of court decisions. In order to ensure the proper judicial system functioning, it is proposed to amend the current legislation in the process of judicial reform. The conclusions to the article stipulate that the court performs both law enforcement and law-making functions. The essence of the administration of justice and judicial activity is reduced to the application of law. In the process of administering justice, the judiciary acts in clearly defined procedural forms. Judicial power, as a subject of constitutional regulation, is exercised precisely in justice, and justice is administered and administered by the court through judicial enforcement. Key words: judicial enforcement, justice, judicial activity, judicial power, judicial proceedings, judicial lawmaking.

scholarly journals Mexico and the tobacco industry: doing the wrong thing for the right reason?

BMJ ◽  
2006 ◽  
Vol 332 (7537) ◽  
pp. 353-354 ◽  
Author(s):  
Jonathan Samet ◽  
Heather Wipfli ◽  
Rogelio Perez-Padilla ◽  
Derek Yach
Keyword(s):  
Tobacco Industry ◽  
Wrong Thing ◽  
Right Reason ◽  
The Right

Lawful War of Self-Defense

2018 ◽  
Author(s):  
Yishai Beer
Keyword(s):  
The Self ◽  
The Other ◽  
Legal Issue ◽  
Military Doctrine ◽  
Self Defense ◽  
The Law ◽  
Imminent Threat ◽  
The Right ◽  
Military Professionalism

This chapter deals with the application of the suggested professionalism criterion in the other segment of the law, the ad bellum sphere. An unresolved legal issue in the self-defense context concerns its timing: When can a self-defendant state be proactive in its defense and strike preemptively? On the assumption that a self-defendant is not obliged to remain a sitting duck when confronted by an imminent threat against it, this chapter suggests that the criterion to be used in defining the legal-timing threshold, vindicating the right of self-defense, be taken from the toolbox of military professionalism. It should be the last reasonable point, according to the self-defendant’s military circumstances, at which it can, according to its military doctrine, successfully face the aggressor’s threat and still operationally defend itself—including, when necessary, by taking the initiative in its own self-defense.

scholarly journals XII.—On Archaic conceptions of property in relation to the Laws of Succession; and their survival in England

Archaeologia ◽  
1887 ◽  
Vol 50 (1) ◽  
pp. 195-214
Author(s):  
G. Laurence Gomme
Keyword(s):  
Dominant Form ◽  
Legal Form ◽  
The Law ◽  
The Right ◽  
Rural England

Primogeniture, aided by legal powers and by the strong necessities of feudal polity, has become in this country the dominant form of succession to title and estate, and has consequently thrust out of consideration many other forms which exist here and there. Two of these other forms, Gavelkind and borough-English (so called), have received some attention from lawyers and legal antiquaries, and they obtain in many localities as the legal form of succession; but there are other customs which have been altogether neglected, and which obtain in only a few isolated localities. The lawyer at the bidding of statesmen has striven for the furtherance of the right of primogeniture, and every other custom has had to prove its case before it could obtain recognition. Therefore, in a certain sense the law has never recognised any other form of succession than primogeniture. But what I shall have to point out in the following pages is that in the annals of rural England there are many conceptions attached to the holding of property, which, though succumbing in law to primogeniture, have left a history behind which is well worth examining. Before Mr. Elton dealt with primogeniture and junior-right as common descendants from one parent, an examination of the right of primogeniture never led the inquirer beyond the area bounded by feudal history. But by examining the two forms of succession together it has been shown that we arrive at the archaic family.

scholarly journals STUDENTS MISCONCEPTION IDENTIFICATION OF CHEMICAL CANDIDATES TEACHERS USING THREE TIER TEST METHOD IN THE BASIC CONCEPT OF CHEMICAL BOND

2020 ◽  
Vol 1 (1) ◽  
pp. 37-43
Author(s):  
Napsin Palisoa ◽  
Dominggus Tahya ◽  
Victor Kayadoe
Keyword(s):  
Teacher Candidates ◽  
Diagnostic Methods ◽  
Test Method ◽  
Chemistry Teacher ◽  
Tier 2 ◽  
Wrong Answer ◽  
Wrong Reason ◽  
Teacher Students ◽  
Right Reason ◽  
The Right

Misconceptions possessed by prospective chemistry teacher students greatly affect the learning process when teaching in class, because the information or concepts conveyed to students are misconceptions. Prospective chemistry teacher students who experience misconceptions are simply reduced, because if a long misconception is left in the memory of the student there is a resistant misconception, namely a strong misconception that is difficult to reduce and constantly occurs. To find out whether the concepts stored in the memory of prospective chemistry teacher students, misconceptions need to be detected using the diagnostic three-tier test method. Diagnostic three-tier test method consists of 3 tiers, tier 1 is the choice of answers, tier 2 choices of reasons, and the third tier is the choice of the level of confidence of the answers and reasons. Diagnostic three-tier test method can detect misconceptions owned by students with the category of misconception 1 (M1), misconception 2 (M2), and misconception 3 (M3). The MK1 category students have the right answer choices, the wrong reason choices, but have the right beliefs, the M2 category students have the wrong answer choices, the right reason choices, but have the right beliefs, while the M3 category of students have the wrong answer choices, the wrong reason choices, but have confidence right. Detection test results using three-tier diagnostic methods, obtained from 32 students who took the test there are (28) 87% of chemistry teacher candidates experienced misconceptions (M1, M2, and M3). Prospective chemistry teacher students who have detected misconceptions on the basic concepts of chemical bonds need to be corrected, so that after graduating from college they do not bring misconceptions to students while teaching. Students' misconceptions can be reduced using an integrated 3R conceptual change (recall, recognition, and reintegration) (CC3R) strategy

scholarly journals IMPLEMENTATION OF THE CONCEPT OF "FAMILY" IN THE MODERN SOCIETY

2020 ◽  
Vol 4 ◽  
pp. 329
Author(s):  
Lidija Rozentale
Keyword(s):  
Public Space ◽  
Modern Society ◽  
Legal Framework ◽  
Legal Aspects ◽  
The Family ◽  
The Law ◽  
Legal Security ◽  
The Individual ◽  
Legal Fact ◽  
The Right

There is a continuous debate in the public space on the need for a legal framework for the partnership institute to ensure equal legal security for the family, regardless of the existence or non-existence of the legal fact of its foundation. The fundamental aspects of the debate include the insufficient regulatory framework and vulnerability of partners before the law, divergent national views on partnerships as a union between opposite-sex partners, religious beliefs condemning non-marital relationships, including the existing property issues in the context of partnerships. According to the Author of the Paper, the existing partnerships in Latvia are discriminated in favour for the marriage due to the moral views and legal aspects, as the individual living in the partnership is restricted in terms of access to information and is vulnerable in terms of property rights. For example, when an individual lives in the partnership, he or she is denied the right to be informed about the health status of the other partner and the existing liabilities in credit institutions. In cohabitation, the individual is not recognised as a member of the family of the tenant for the purpose of the Law on Residential Tenancy and the potential consequences of the partnership may be the denied right to inheritance or tenancy.Main methods used: sociological method for analysing the compliance of laws and regulations with public interests and aims. 

The Rights of the Accused in Islam (Part Two)

1994 ◽  
Vol 11 (4) ◽  
pp. 504-518
Author(s):  
Taha J. Al ‘Alwani
Keyword(s):  
Best Interests ◽  
Self Defense ◽  
The Law ◽  
The Right

Under the law of Islam, the accused enjoys many rights. Thesewill be summarized below.The Right to a DefenseThe accused has the right to defend himselfherself against anyaccusation. This may be accomplished by proving that the evidencecited is invalid or by presenting other evidence that contradicts it. Inany case, the accused must be allowed to exercise this right so that theaccusation does not turn into a conviction. An accusation means thatthere is the possibility of doubt, and just how much doubt there is willdetermine the amount and parameters of defense. By comparing theevidence presented by the defense with that of the party making theaccusation, the truth will become clear-which is, after all, the objectiveof the investigation.Therefore, self-defense is not only the right of the accused to useor disregard as helshe pleases, but is also the right and the duty ofsociety as a whole. If it is in the best interests of an individual not tobe convicted when he/she is in fact innocent, the interests of societyare no less important. It is the society’s concern that the innocent arenot convicted and that the guilty do not escape punishment. It is forthis reason that the Shari‘ah guarantees the right to a defense, andprohibits its denial under any circumstances and for any reason ...

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