scholarly journals Belief States in Criminal Law

2019 ◽  
Author(s):  
James A. Macleod

Belief-state ascription—determining what someone “knew,” “believed,” was “aware of,” etc.—is central to many areas of law. In criminal law, the distinction between knowledge and recklessness, and the use of broad jury instructions concerning other belief states, presupposes a common and stable understanding of what those belief-state terms mean. But a wealth of empirical work at the intersection of philosophy and psychology—falling under the banner of “Experimental Epistemology”—reveals how laypeople’s understandings of mens rea concepts differ systematically from what scholars, courts, and perhaps legislators, have assumed.As implemented, mens rea concepts are much more context-dependent and normatively evaluative than the conventional wisdom suggests, even assuming that jurors are following jury instructions to the letter. As a result, there is less difference between knowledge and recklessness than is typically assumed; jurors consistently “over”-ascribe knowledge to criminal defendants; and concepts like “belief,” “awareness,” and “conscious disregard” mean different things in different contexts, resulting in mens rea findings systematically responsive to aspects of the case traditionally considered irrelevant to the meaning of those terms.This Article provides the first systematic account of the factors driving jurors’ ascriptions of the specific belief states criminal law invokes. After surveying mens rea jury instructions, introducing the Experimental Epistemology literature to the legal literature on mens rea, and examining the implications of that literature for criminal law, this Article considers ways to begin bridging the surprisingly large gap between mens rea theory and practice.

2021 ◽  
Vol 1 (91) ◽  
pp. 5-15
Author(s):  
Aldona Kipāne

From January 1, 2018, amendments to the Criminal Law, which provide criminal liability for the persecution of a person, came into force in Latvia. The constituent elements of persecution are defined as a specific form of violence.The aim of the paper is to describe the constituent elements of persecution based on the theory and practice of criminal law. During the study, the author provides a framework of the criminal law theory and outlines the elements of the persecution. The object of the study is the criminal relations, which arise from the persecution of another person. The subject of the study is the criminal legal framework to be followed for the determination of criminal liability. The following legal interpretation methods and approaches have been used in the study: grammatical, systematic, teleological, and historical, as well as analytical method for analysing doctrine and practice of criminal law. Doctrines of criminal law, national legislation, and the sources of legal literature relevant to the aim of the paper have been in the study, too.The analysis carried out leads to the conclusion that persecution covers a wide range of socio-psychological behaviour that manifests in the sacrifice’s victimization and specific harm caused to him/her. Persecution is an active illegal, threatening activity in the form of repeated or lasting tracking, surveillance of another person, expressing threats or unsolicited communication with such a person, if victim have had reasonable grounds to fear for their safety or the safety of their relatives


Author(s):  
Ralph Wedgwood

Wedgwood focuses his discussion around two evaluative concepts: correctness and rationality. Wedgwood proposes that these two concepts are related in the following way: one belief state is more rational than another if and only if the first has less expected inaccuracy than the former. He argues, however, that this view should not be understood as a form of consequentialism since it is not the total consequences of a belief state that determine its rationality. The view is rather a version of epistemic teleology. Wedgwood deploys this view to illuminate the difference between synchronic and diachronic evaluation of belief states as well as to disarm objections that have been leveled against epistemic consequentialism.


2021 ◽  
pp. 104-108
Author(s):  
Andrianov V. K. ◽  
◽  
Pudovochkin Yu. E. ◽  
Tolkachenko A. A.

The publication presents a report on the All-Russian round table organized by the Center for the Study of Problems of Justice of the Russian State University of Justice and devoted to topical issues of theory and practice of the application of criminal law measures. A summary of the content of the speeches of the participants and the main content of the discussion are presented.


Author(s):  
Shukhrat Khodjievich Alirizaev ◽  

The article deals with the theoretical problems of social danger of the crime of abuse of power or official position (Article 205 of the Criminal Code), its place in criminal law, its connection with other official crimes. It also analyzes the increase in this crime in public life, corruption offenses and the origin of crimes. Signs of these and other official crimes are highlighted. Qualification issues in the competition of general and special official crimes are analyzed.


2012 ◽  
Vol 25 (4) ◽  
pp. 847-855 ◽  
Author(s):  
ELIES VAN SLIEDREGT

Fragmentation of international law is a phenomenon that has been discussed ever since the ILC in 2000 decided to add to its programme of work the topic ‘Risks ensuing from the fragmentation of international law’. Koskenniemi, in a paper published in this journal, was one of the first to address fragmentation in legal literature. In 2006, he finalized a voluminous report on ‘Fragmentation of International Law’, providing for means and ways to cope with fragmentation.


Legal Studies ◽  
1981 ◽  
Vol 1 (3) ◽  
pp. 267-286
Author(s):  
Jenny McEwan ◽  
St. John Robilliard

‘The House of Lords has a dismal record in criminal cases. All too often their lordships’ decisions have to be reversed by legislation…the present decision could well be another'.In two recent criminal appeals of major importance on the meaning of mens rea, Caldwell and Lawrence, the House of Lords has departed so far from the academically accepted deffition of ‘recklessness’, that Professor Smith is driven to ask, ‘Can we really afford the House of Lords as an appellate criminal court?’. Such desperation surely indicates that their Lordships have got things badly wrong and it is our purpose in this article to examine whether this is indeed the case.


2021 ◽  
Vol 17 (1) ◽  
pp. 85-103
Author(s):  
Kenneth L. Critchfield ◽  
Julia Dobner-Pereira ◽  
Eliza Stucker

This commentary is organized in parallel with Westerman’s (2021b) comparison to include focus on (1) the formulation methods used by IRT and Interpersonal Defense Theory, and then (2) their treatment implications. In each major section, comments center first on comparison of the approaches in general, and then turn to a focus on the details of Sharon’s case. In sum, we wish to underscore the need for continued empirical work in both IRT and Interpersonal Defense Theory traditions as ways to advance our field. We see each method as offering a different scope and focal areas of concern. With a mind toward the advancement of research and application along both lines of thought, our commentary provides an overview of how we see areas of alignment, divergence, and their potential meaning for theory and practice. The two methods share a great deal in terms of assumptive worldviews, prioritization of relational material, and even specific measurement methodology (SASB). Where the methods diverge, we believe it is primarily because they seek answers to different kinds of questions.


2016 ◽  
Vol 1 (1) ◽  
pp. 17
Author(s):  
Nurul Sasmita

The aims of this thesis is (1) to investigate andexplain the positions of corporations in conducting banking criminalacts, and (2) also to identify and explain the criminal responsibility ofbank as the perpetrator in banking criminal acts. This research isnormative, conceptual approach and the approach of legislationregarding responsibility principles of the corporation for banking criminalacts.Corporations have chances in committing a crime, especially bankingcriminal acts just by making a corporation recognized as a subject ofexistence apart from human beings, so that in practice there is a criminal offense committed by the corporation. The corporation takespart in the occurrence of a crime. In practice, the determination of acriminal offenseconducted by the corporation is known through two things: first, the works of the committee: they should be constructed as theyuse the principles of the liability of corporation’s criminal actions. Principally, stakeholders and officials or employees of a corporationhave the responsibility for its owncorporate actions; second, errors in the corporation,as long as it is in the science of criminal law, the overview of criminals is still oftenassociated with physical actions performed by the manufacturers(fysieke dader) but this can be overcome by the study of  "functionalactors" (functioneledader). We can prove that the action of committeeor employees of the corporation in the society act traffic concerned,the acts of the corporationerrors in the forms (dolus or culpa) must be regarded ascorporate faults.Towards the corporations that make banking criminal acts we canhave their responsibility with the principles of strict liability. Onthe principle of strict liability, it is known that the responsibility ison them even if they do not have the required mens rea. The substanceof this principle is that the perpetrator has been punished if theperpetrator may have provable conduct prohibited by the criminalprovision (actus reus) withoutsee the inner attitude. In this conception, the corporation is consideredhaving responsibility forphysical acts performed by management. A corporation convicted in principles isintended to develop a sense of justice in the corporation who commitsbanking criminal acts as stated in Article 46 paragraph (2), sothat if a corporation committed criminal acts, we can also have theresponsibility of the corporation. Keywords:Banking Criminal Acts, Corporation, ResponsibilityMenurut peraturan perundang-udangan, korporasi sebagai subyek hukum dapat dikenakan pidana sebagaimana manusia melakuka tindak pidana. Pada praktiknya, penentuan tindak pidana yang dilakukan oleh korporasi diketahui melalui dua hal, yaitu pertama tentang perbuatan pengurus yang harus dikonstruksikan sebagai perbuatan korporasimaka digunakanlah asas pertanggungjawaban pidana. Pada asas tersebut stakeholder maupun pengurus atau pegawai suatu korporasi, bertanggungjawab terhadap perbuatan korporasi itu sendiri. dan kedua tentang kesalahan pada korporasi, memang selama ini dalam ilmu hukum pidana gambaran tentang pelaku tindak pidana masih sering dikaitkan dengan perbuatan yang secara fisik dilakukan oleh pembuat (fysieke dader) namun hal ini dapat diatasi dengan ajaran “pelaku fungsional” (functionele dader). Kita dapat membuktikan bahwa perbuatan pengurus atau pegawai korporasi itu dalam lalu lintas bermasyarakat berlaku sebagai perbuatan korporasi yang bersangkutan maka kesalahan dalam bentuk (dolus atau culpa) mereka harus dianggap sebagai kesalahan korporasi. Terhadap korporasi yang melakukan tindak pidana perbankan dapat dimintai pertanggungjawaban pidana dengan menggunakan asas strict liability.Pada asas strict liability diketahui bahwa pembebanan tanggung jawab pidana kepada pelakunya sekalipun pelakunya tidak memiliki mens rea yang dipersyaratkan. Adapun substansi dari asas ini adalah pelaku sudah dapat dijatuhi pidana apabila pelaku telah dapat dibuktikan melakukan perbuatan yang dilarang oleh ketentuan pidana (actus reus) tanpa melihat sikap batinnya. Dalam konsepsi ini, korporasi dianggap bertanggung jawab atas perbuatan yang secara fisik dilakukan oleh pengurus (direksi dan komisaris). Dipidananya korporasi pada asas ini dimaksudkan dapat menimbulkan rasa keadilan pada korporasi yang melakukan tindak pidana perbankan, sehingga apabila korporasi melakukan tindak pidana maka korporasi juga dapat dimintai pertanggungjawaban.Kata kunci: Korporasi, Pertanggungjawaban, Tindak Pidana Perbankan


Actus Reus is known as the external element of the objective component of Criminal Law. Mens Rea, the guilty intention, determines the criminal responsibility. Mens Rea and Actus Reus both are the components of a criminal activity that determines the liability of the accused person. An action carried out in furtherance of criminal activity doesn’t become an attempted crime unless it is confirmed by the illegality for which it was conducted. An attempted crime is an action that reveals the illegal intention on its face. The aspects of a crime such as the Mens Rea, Actus Reus, intentional crime, unintentional act caused as a result of carelessness, motivates to indulge in violating the provisions of law. The four theories of law such as the rule of proximity, the test of unequivocally, the indispensable element approach and the test of social danger are the elements of a crime.


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