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Posts Tagged ‘punishment’

The Felony-Murder Rule: Background and Justification

In American History, Britain, Criminal Law, History, Humanities, Jurisprudence, Justice, Law, Oliver Wendell Holmes Jr., Philosophy on October 8, 2014 at 8:45 am

Allen 2

The rule at common law as incorporated into the legal system of the early United States was that a person is guilty of murder (and not some lesser offense of killing) if he killed another person during the commission or attempted commission of any felony. This rule is known as the “felony-murder rule.” It was abolished in England in the mid-20th century and never existed in such continental nations as France or Germany. The rule became common, however, in various jurisdictions throughout the United States, although it never escaped criticism.

Felony murder is bifurcated into first-degree and second-degree murder: the former arises when the killing of another results from the commission of an enumerated felony; the latter arises when the killing of another results from the commission of an unspecified felony. The felony-murder rule negates any investigation into the objective intent of the offender; it obtains regardless of whether the offender killed his victim intentionally, recklessly, accidentally, or unforeseeably. Although it dispenses with the element of malice that is requisite to a finding of murder, the felony-murder rule retains by implication the concept of malice insofar as the intent to commit a felony is, under the rule, constitutive of malice for murder. The rule, in essence, conflates the intent to commit one wrong with the intent to commit another wrong, namely, the termination of another’s life. The intent to do a felonious wrong is, on this understanding, sufficiently serious to bypass any consideration of the nature of the exact wrong that was contemplated.

The most common justification for the felony-murder rule is that it deters dangerous felonious behavior and decreases the chance that an innocent bystander will suffer bodily harm from a high-risk felony. The possibility of a more severe conviction and sentence, according to this theory, reduces the number of negligent and accidental killings that might have taken place during the commission of a felony. Oliver Wendell Holmes, Jr., supported the felony-murder rule, believing as he did that a felonious offender who kills another person during the commission of any felony ought to be punished as a murderer, even if the killing was not foreseeable based on the circumstances of the felony. Critics of the deterrence justification for the felony-murder rule have argued that no rule can deter an unintended act.

Another justification for the felony-murder rule is that it affirms the sanctity and dignity of human life. This justification answers in the affirmative the question whether a felony resulting in death is more serious than a felony not resulting in death. Because a felony resulting in death is, in fact, more serious, according to this logic, a felony murderer owes a greater debt to society and must accordingly suffer a more extreme punishment. Critics of this view argue that the culpability for the two separate harms—the felony and the killing—must remain separate and be analyzed independently of each other. These critics suggest that the felony-murder rule runs up against constitutional principles regarding proportional punishment (i.e., whether the punishment “fits” the crime) and that there is no justice or fairness in punishing a felon for a harm (death) that was unintended.

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A Reminder from Augustine: Sin and the Law

In Arts & Letters, Books, Christianity, Humanities, Jurisprudence, Justice, Law, Philosophy, Western Philosophy on November 29, 2013 at 8:45 am

Allen 2

We do well to remember the consequences visited upon Augustine when, as a teenager, he succumbed to sin and shook a person’s pear tree in order to steal the fallen pears—not because he was hungry or in need, but because he delighted in the sin.  “To shake and rob,” he said, “some of us wanton young fellows went, late one night (having, according to our disgraceful habit, prolonged our games in the streets until then), and carried away great loads, not to eat ourselves, but to fling to the very swine, having only eaten some of them; and to do this pleased us all the more because it was not permitted.”[1]

The mature Augustine, looking back on this event, acknowledged that theft violates and is punished by law—not just human law, he adds, pursuant to the teachings of Jesus, but the law written on men’s hearts.  He relates that he suffered (and suffers) from shame and regret as a result of this sin, and his shame or regret is punishment that humans cannot implement ourselves; it is punishment that we must rely on God to summon forth in our hearts and minds.  “It is foul,” Augustine says of his sin, adding, “I hate to reflect on it.  I hate to look on it.”[2]  One wonders whether human punishment based on human law can ever have the same long-lasting effect as divine punishment for violating the law written on human hearts.

Augustine does suggest that there is a law of man and a law of God and that he violated both; the consequences for violating man’s law would have been different from the consequences of violating God’s law, especially insofar as his punishment may not be of this world, although the Christian believer in the triune God must acknowledge that God’s sovereignty and sovereign law precede and have jurisdiction over all men’s actions, for God does not let anything come to pass that he does not know about or have control over.


[1] St. Augustine, The Confessions of St. Augustine, edited by J. G. Pilkington (New York: Horace Liveright, 1927), p. 33.

[2] St. Augustine, The Confessions of St. Augustine, edited by J. G. Pilkington (New York: Horace Liveright, 1927), p. 40.

Lyotard’s “Differend” and Torts

In Arts & Letters, History, Humanities, Jurisprudence, Law, Law-and-Literature, Legal Education & Pedagogy, Libertarianism, Literary Theory & Criticism, Philosophy, Politics, Rhetoric, Rhetoric & Communication, Western Civilization, Western Philosophy on October 13, 2011 at 12:53 pm

Allen Mendenhall

 

“I would like to call a differend [différend] the case where the plaintiff is divested of the means to argue and becomes for that reason a victim.  If the addressor, the addressee, and the sense of the testimony are neutralized, everything takes place as if there were no damages (No. 9).  A case of differend between two parties takes place when the ‘regulation’ of the conflict that opposes them is done in the idiom of one of the parties while the wrong suffered by the other is not signified in that idiom.”

                             —Jean-François Lyotard, from “The Differend”

Lyotard’s term “differend” does not refer to a concrete, tangible thing; it refers to a situation.  The situation is one where a plaintiff has lost the ability to state his case, or has had that ability taken from him.  He is therefore a victim.  If the plaintiff has no voice, he has no remedies because he cannot prove damages.  Just as one cannot prove something happened if the proof no longer exists, so one cannot prove something happened if the proof depends upon the approval of another person or party denying or erasing the proof, or having the power to deny or erase the proof.  Lyotard describes this situation in relation to power or authority.  Because of the nature and function of power or authority, a person or group possessing power or authority can divest the plaintiff of a voice.  This divestiture results in what Lyotard calls a “double bind” whereby the referent (“that about which one speaks”) is made invisible.  A plaintiff who is wronged by the power or authority cannot attain justice if he has to bring his case before the same power or authority.  As Lyotard explains, “It is in the nature of a victim not to be able to prove that one has been done a wrong.  A plaintiff is someone who has incurred damages and who disposes of the means to prove it.  One becomes a victim if one loses these means.  One loses them, for example, if the author of the damages turns out directly or indirectly to be one’s judge.”  Specifically, Lyotard uses the differend to describe the situation where victims of the Nazi gas chambers lack the voice to articulate their case in terms of proof because, among other things, the reality or referent is so traumatizing and tragic as to be ineffable. 

If Entity A harms me in some way, and Entity A also represents the arbiter or judge before whom I must appeal for justice, Entity A can (and probably will) neutralize my testimony.  That is why a State may tax its citizens.  In effect, a State has the power or authority to do something—take a person’s earnings against his will and punish or threaten to punish him, by force if necessary, when he fails or refuses to yield his earnings—that a private person or party cannot do.  When a private party demands money from a person, and threatens to use force against that person if he does not yield the money, the private party has committed theft.  The difference between theft (an unauthorized taking by one who intends to deprive the other of some property) and taxation (an authorized taking by an institution that intends to deprive the other of some property) is the capacity or ability to sanction.  The difference depends upon who controls the language: who has the power to privilege one form of signification over another and thus to define, determine, or obliterate the referent. 

“Sanction” is a double-edged term: it can mean either to approve or to punish.  Both significations apply to the State, which, in Lyotard’s words, “holds the monopoly on procedures for the establishment of reality.”  (Note: Lyotard is not referring to any State, but to the “learned State,” a term he borrows from François Châtelet.)  Sanction is implicated when a party is harmed, or alleges to have been harmed, whether by the State or by a private party.  The State then resolves whether the harm, or the act causing the harm, is “sanctionable”—whether, that is, it receives State approval or condemnation.  The State either validates [sanctions] the alleged harm (in which case the alleged harm officially is not a harm), or it condemns the alleged harm (in which case the alleged “harm” is officially constituted as a “harm”) and then punishes [sanctions] the one who caused the harm.  In any case, the State sanctions; it enjoys the power to decide what the referent ought or ought not to be.  Read the rest of this entry »

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