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Thursday, March 12, 2009

Philosophy of Law

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One day about six months ago while browsing the world wide web, I wandered into a website of a course at Brandeis University titled as Philosophy of Law. Intrigued by the outline which promises to raise profound questions such as
Under what conditions should a person be held responsible for his or her acts? Under what conditions may one be excused? Suppose I simply make a mistake? Or was merely careless? Or was mentally unstable? Is it fair to punish me for a harm I caused but did not intend? And if I fail to commit a crime, should I be punished less severely than if I had succeeded?
I decided to go through the content. Course highlights how difficult it is to define crime clearly but settles at definition which requires simultaneity of (1) bad act, where act is ‘conscious muscular movement’, and (2) evil mind or intent. Giving example of how simple crime as burglary can have ramifications in this definition, website quotes:
So imagine that I leave my house late at night, intending to burglarize…It is unusually dark and foggy; I…become lost, and break into my house. Have I committed burglary? No; though I acted with the conscious purpose or intent to enter, I did not do so with respect to the dwelling house of another. …following evening…even darker and foggier than the night before. I…become lost, and decide to return home. I walk through the unlocked door of what I think is my own home. But it is not my house. Have I committed burglary? No; though I entered the dwelling house of another, I did not do so with the purpose to enter the dwelling house of another; I acted with the intent to go home, even though that is not where I ended up.
The most interesting part of the course is set of 21 puzzles in law, which are not really puzzles of legality but puzzles of formation of law from common sense as and when exceptions were encountered. First puzzle introduces sine qua non (the without which not) test which says that without someone doing something consciously, something else wouldn’t have happened, and hence someone is responsible for crime if something else is defined crime. However, as we soon realize, such chain of causality can extend far back in time and one can say without Adam & Eve procreating nothing would’ve happened in the world and they are ultimate criminals! Further, test fails “in situations where an event is ‘over-determined,’ where two independent causes are sufficient to bring about the same result”. So if two people shot simultaneously, none is guilty as victim would have died without each doing his part by himself. At this point it is necessary to introduce concept of ceteris paribus (everything else being same) to define crime as
With the qualification of such phrases as "on the whole," by and large," and "all other thing's being equal," an act ("A") is the cause of some injury or harm ("B") if A was necessary to the occurrence of B and sufficient to produce B without the intervention of the free and deliberate acts of others or an abnormal conjunction of events.
This leads to an interesting puzzle and dilemma about classifying a death a murder or manslaughter (see this, this and this). If attempt to crime is also punishable, which it should be because evil intention is what matters not success or failure of execution, then how much action is attempt? Further, can one be punished when crime couldn’t possibly have been committed, such as in attempt to murder a corpse? Law recognizes that yes
[A] person can be found guilty of an attempt so long as the crime that was attempted could have been committed had the attendant circumstances been as [the defendant] believed them to be.
But it’s not without another challenge! Sometimes crime is necessary to be committed, such as in self defence, but crime should be just enough and should be really necessary.
Conduct that the actor believes to be necessary to avoid a harm or evil to himself or to another is justifiable, provided that the harm or evil sought to be avoided by such conduct is greater than that sought to be prevented by the law defining the offense charged.
So letting 5 people die is worse than killing 1, right? Perpetrator will be saving more lives. Yet, letting die is mere inaction while killing is deliberate action. Who is more guilty? Is letting die a valid response not requiring any punishment? In most cases yes, except in
[F]our sets of circumstances…persons have a duty to rescue: ‘First, where a statute imposes a duty of care to another; second where one stands in a certain [special] status relationship to another; third, where one has assumed a contractual duty to care for another; and fourth, where one has voluntarily assumed the care of another and so secluded the helpless person as to prevent others from rendering aid.’
Some places have a “Good Samaritan” law under which onlookers have responsibility to attempt to prevent someone from harm if they are in position to do so. There are some more interesting historical cases dealing moral dilemmas inherent in defining crime which are sure to make us think if crime & punishment are so easy.

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