University of Kansas, Spring 2005
Philosophy 674: Philosophy of Law
Ben Egglestoneggleston@ku.edu

Study questions: chapter 5, “Criminal Law”

The following questions are intended to guide your reading of the assigned texts by calling attention to key concepts, distinctions, principles, and other parts of the texts. The questions are listed in the order in which their answers should become evident to a close reader.

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  1. pp. 135–147 (based on questions written by Nathan Grubb)
    1. What are three of the four effects of punishment that Altman mentions as potential sources of a utilitarian justification for punishment?
    2. How, according to Altman, does the utilitarian approach to punishment conflict with the rule of law?
    3. What are two of the three reasons why criminals deserve to be punished that Altman attributes to retributivists?
    4. What are two of the three objections to retributivism that Altman discusses?
    5. What is the therapeutic approach to punishment?
    6. In what way does the therapeutic approach run the risk of violating the rule of law?
  2. pp. 147–157 (based on questions written by Nathan Grubb and questions written by Casey Meek)
    1. How do utilitarians determine what the right amount of punishment for some crime is?
    2. What do retributivists usually have in mind when they focus on how morally blameworthy a criminal’s conduct naturally is?
    3. According to Davis’s retributivist theory, what makes criminal conduct deserving of punishment?
    4. What is one of the two criticisms of Davis’s theory that Dworkin offers?
    5. What is the mens rea element of a crime? What are the four kinds of mental states used in defining it?
    6. What is the difference between strict liability and objective liability? How is strict liability more of a departure from the guilty-mind principle (as a necessary condition for a crime’s having been committed) than objective liability is?
    7. How does the debate over strict liability show the conflict between considerations of utility, or social good, and considerations of fairness?
  3. pp. 157–166 (based on questions written by Casey Meek)
    1. Why, according to the harm principle, should individuals not be punished paternalistically?
    2. How is Mill’s notion of harm in need of clarification, particularly in regard to cases in which some individuals are offended by others’ behavior?
    3. How is the practice of requiring a prescription for the purchase of certain drugs an apparent counter-example to Mill’s rejection of paternalism?
    4. How does Devlin object to Mill’s harm principle? Does Devlin’s objection amount to a defense of moralism or a defense of paternalism?
    5. On what grounds does Hart object to Devlin?
    6. What is Altman’s criticism of Devlin’s conception of rights?