|Individuals have a right to know what the "law" is at the time that they are said to violate it.|
|Individuals have a right to know that which could make a moral difference in their choosing to engage in the action or not.|
|Causation is a problem only where accidental harm is possible.|
|There can be no criminal liability without wrongdoing attributed to a particular actor.|
|Only crimes of harmful consequences can occur negligently.|
Note that the first proposition restates the principle of negative legality. The second interprets this principle as a moral right and gives an account of negative legality as a necessary basis for planning one's life rationally. The third and fifth propositions are conceptual in nature. They both derive from the conceptual argument that some harms are logically independent of actions (e.g., homicide), and other harms are logically implied in the action that produces them (e.g., rape). The properly conceptual conclusion is there should be no crime of negligence rape. Yet today in many legal systems lawyers speak of "negligent rape" in cases in which the defendant is negligently mistaken about whether his partner has consented to intercourse. The current usage of the law does not always fall into line with arguments about how we should develop and maintain our conceptual world.
The fourth proposition illustrates the interplay of logic, law-in- principle, morality, and justice. The "can" in the proposition means: in a proper system of criminal law, there can be no liability without wrongdoing in violation of the law (proposition one), wrongdoing (no justification), and attribution of the wrongdoing to a responsible actor. The principle of attribution requires validation of the actor's moral responsibility. Of course, there can be improper and unjust systems of punishment, systems motivated by political considerations and the utilitarian impulse to confine dangerous people and to punish excessively in order to deter others. These impulses are ever present in the criminal law, in systems of criminal "justice" that become unjust.
Developing an understanding of the distinctions that drive discussions of criminal justice cannot eliminate the political abuse of the system. But if we have a clearer understanding of the issues at stake, we can perceive the difference between merely following the law and seeking justice.
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Publication information: Book title: Basic Concepts of Criminal Law. Contributors: George P. Fletcher - Author. Publisher: Oxford University Press. Place of publication: New York. Publication year: 1998. Page number: 213.