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What is a “law?”

What is a “law?”

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What is a “law?”

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Presentation Transcript

  1. What is a “law?” • Norms are behavioral codes that guide people into actions that conform to societal expectation • Folkways are everyday norms based on custom, tradition, or etiquette (violate somebody’s personal space) • Mores are norms based on broad societal morals (illegitimate childbearing) • Laws are norms supported by codified social sanctions. BUT: Mores and folkways have always influenced the law

  2. Brief History of Law I • 2000 BC Earliest Surviving Legal Codes • 1750 BC Code of Hammurabi: lex talionis • Roman “Twelve Tables”: 451 BC • “Dark Ages” (500-1000 AD) • Written codes were lost and superstitions and fear of magic dominated thinking.

  3. Brief History of Law II • Before the Norman Conquest (1060 AD), the legal system in England was decentralized. • Power given to tithings, hundreds and shires. • Several legal/court systems were active • Wergild (compensation) was divided between the King and victim.

  4. Development of Common Law • Norman Conquest (1066 AD) • William the Conqueror establishes “royal court” • Stare decisis became the dominant standard • English common law born during the reign of Henry II (1154-1189) • “Circuit Judges” • Royal Prosecutors and movement toward national law • Development of Jury System

  5. Common Law v. Statutory Law Common Law is judge-made law. The law is found in previously decided cases. Statutory Laws are derived from legislative acts that decide the definition of the behavior that is codified into law.

  6. Criminal and Tort Law • Both seek to control behavior. • Both impose sanctions (punishments) • Similar areas of legal action exist: e.g., • personal assaults • white-collar offenses like environmentalpollution

  7. A public offense Enforcement is statebusiness Punishment is oftenloss of liberties or sometimes death Fines go to the state State doesn’t ordinarily appeal Proof beyond a reasonable doubt A civil or private wrong Individuals bring action Sanction is normally monetary damages Both parties can appeal Individuals receives thecompensation for harmdone “Preponderance of the evidence” is required for a decision. Criminal and Tort Law

  8. FELONY MISDEMEANOR More serious offenses Punishable by death or imprisonment for more than a year in a state prison. Less serious offenses Punishable by incar- ceration for less than a year in a local jail or house of correction. Classification of Crime

  9. Mala in SeIllegal acts rooted in the core values inherent in Western civilization. Also referred to as “natural law” Mala ProhibitumViolations of law that reflect current public opinion and social value. Also called “statutory crime” Types of Crime

  10. Substantive vs. Procedural Law • Substantive Law • Written code that defines crimes and punishments • Procedural Law • Rules of the court, trials...

  11. A criminal law must indicate a type of criminal intent and the specific elements of a behavior that are illegal. • Actus Reas • Physical act must be voluntary • If crime is“Failure to act,” there must be legal obligation. • Mens Rea • General or specific intent • Negligence

  12. Specific Criminal Defenses • Deny the Actus Reas (I didn’t do it) • Deny the Mens Rea • Ignorance / Mistake • Intoxication? • Insanity Defense

  13. The Dreaded “INSANITY PLEA” • Insane in the Membrane? • “Insanity” is a legal, not clinical term • Different States have different insanity rules: • M’Naghten Rule • Irresistible Impulse Test • Substantial Capacity Test • Reality? Defense used in < 1% of cases • Successful in very few cases • When “successful?”

  14. Other Specific Criminal Defenses • Justifications: Acknowledge actus reas and mens rea, but… • Necessity • Duress • Self-defense • Entrapment • Exotic Defenses (PMS, PTSS…insert your favorite acronym here)