Individual responsibility provides a just and effective base that current Australian legal system. This following essay will analyse how the criminal justice system rests upon the idea of individualised responsibility with reference to the main two core principles that make person criminal liable, these being the Latin phrases Mens Rea “guilty mind and atus reas “Guilty act”. These two core principles will then be used to critically analyse the current model of individual responsibility to support that it is an effective and fair system for Australian criminal law. Finally this essay will conclude by outlining another alternative to the current model of individualised responsibility, which theory of scientific critique.
Criminal responsibility
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Criminal responsibility is the moral practice of holding an individual accountable for there crimes. This responsibility allows people who are found guilty of crimes to endure punishment or rehabilitation, which can vary in different countries and legal systems. This not only punishes and discourages crime but also allow people to see the tools of state power and the symbolic power that it has to show the community the consequences for the individual, at least when looking at serious criminal offences. This demand on individual responsibility also hold person to account for the conduct, and often society want a response that condemns remorse or regret for their actions and to reflect on their tort (Tadros, 2010). Although individual responsibility holds persons reasonable for crimes, there are certain circumstances which persons are exempt. For example, children under a certain age to not have the mental capacity of being responsible agents which refereed back to as the Latin term ‘doli incpax’, incapable of forming intent to commit a tort. In Queensland, the federal law surrounding criminal liability states that persons under the age of 14 are doli incapax (Australian Parliament, nd) This exemption can also be perceived with persons who have mental illness. These exemption are reasonable due to that some people are incapable of controlling or understanding their mental and physical actions, therefore providing reasonable outcomes for those don’t have mental guilt or physical capability to commit a crime (Australian law reform commission, 2015). This acknowledgment to those who don’t understand criminal wrongs in relation to Mens rea and Actus reas, caters to the society diversity and overall doesn’t make a person liable for a criminal act that they didn’t have the capacity to undertake.
Criminal law attempts to balance the rights of individuals to freedom from interference with person or property, and society’s need for order. Procedural matters, the rights of citizens and powers of the state, specific offences and defences, and punishment and compensation are some of the ways society and the criminal justice system interact.
Within the Federal Government there are three main branches; “the Legislative, the Judicial, and Executive” (Phaedra Trethan, 2013). They have the same basic shape and the same basic roles were written in the Constitution in 1787.
This paper considers the desert arguments raised to support retributivism, or retribution. Retributivism is "the application of the Principle of Desert to the special case of criminal punishment." Russ Shafer-Landau and James Rachels offer very different perspectives on moral desert which ground their differing views on the appropriate response to wrongdoing. In "The Failure of Retributivism," Shafer-Landau contends that retributivism fails to function as a comprehensive theoretical foundation for the legal use of punishment. In contrast, in his article "Punishment and Desert," Rachels uses the four principles of guilt, equal treatment, proportionality and excuses to illustrate the superiority of retribution as the basis for the justice system over two alternatives: deterrence and rehabilitation. Their philosophical treatment of the term leads to divergence on the justification of legal punishment. Ultimately, Rachels offers a more compelling view of desert than Shafer-Landau and, subsequently, better justifies his endorsement of a retributive justice system.
Sentencing is the process by which people who have been found guilty of offending against the criminal law have sanctions imposed upon them in accordance with that particular law. The sentence of the court is the most visible aspect of the criminal justice system’s response to a guilty offender. In Tasmania, the Sentencing Act 1997 was enacted to amend and consolidate the law relating to the sentencing of offenders. The crime rate in Tasmania is lower than it was 10 years ago but higher than it was 20 years ago. In the Australian context, Tasmania is below the national average of recorded crimes for the crimes of robbery, burglary and motor vehicle theft.
Each position in criminal justice holds power and responsibility, and therefore, it is very important that said people in those positions do not abuse it. Unethical behavior in the criminal justice system takes away trust and respect from authority, and as a consequence, the law is more easily disregarded if the people lack faith in the system. It can, also, contribute to crime and/or cause citizens to not report crimes. Society should have indubitable confidence in the men and women of the criminal justice system. Law enforcement officers violating even the smallest rule could lead to more serious infractions. Syed (1997) states, "Every instance of corruption bends or violates a rule or law and, similar to the granting of impunity, may contribute to an officer's perceptions of the law as applying differently to different people and increase the ease with which violations can be rationalized." Having less than ethical persons in our criminal justice system can lead to a weakened society, the ruining of lives, and even add to crime.
Society subscribes to a value system to focus on the concepts of justice and equality. Justice which is used in a legal system can help determine whether an individual’s act was wrong or right and it helps other make a fair judgment among individuals equally. George Cole, Christopher Smith and Christina DeJong (1984) discuss how individuals will go through the process of the justice system to determine whether they are found guilty or not guilty, in their book, “Criminal Justice in America.” They clarify that less punishment can be offered to middle or upper class by a systematic bias that works to the disadvantage of the poor. When comparing the treatment of blacks and Latinos to whites, black Americans and Latinos are disproportionately poor
...lacks, and men. Furthermore, the competing paradigms influence public policy. Those that maintain acts as voluntary are more inclined to punish the individual or group, however those that are seen to act under determined forces, judge treatment to be more suitable. Even though these theories contrast, they still contain similarities which are shared in the new penology. Aspects are taken from all to create a new perspective on crime that centres on the management of offenders.
The criminal justice system is composed of three parts – Police, Courts and Corrections – and all three work together to protect an individual’s rights and the rights of society to live without fear of being a victim of crime. According to merriam-webster.com, crime is defined as “an act that is forbidden or omission of a duty that is commanded by public law and that makes the offender liable to punishment by that law.” When all the three parts work together, it makes the criminal justice system function like a well tuned machine.
The criminal justice system views any crime as a crime committed against the state and places much emphasis on retribution and paying back to the community, through time, fines or community work. Historically punishment has been a very public affair, which was once a key aspect of the punishment process, through the use of the stocks, dunking chair, pillory, and hangman’s noose, although in today’s society punishment has become a lot more private (Newburn, 2007). However it has been argued that although the debt against the state has been paid, the victim of the crime has been left with no legal input to seek adequate retribution from the offender, leaving the victim perhaps feeling unsatisfied with the criminal justice process.
It does not consider other factors such as criminal associations, individual traits, and inner strains, which plays significant role in determining punishment for the individuals in committing crimes. It is observed that this theory endeavours to know that whether the activities of crime as well as the victim’s choice, criminals commit the activities on start from rational decisions. The theory also determines that criminals consider different elements before committing crime. They engage in the exchange of ideas before reaching on any final decision. These elements consist of consequences of their crimes, which include revealing their families to problems or death, chances of being arrested, and others elements, which comprises of placement of surveillance systems (Walsh & Hemmens, 2010; Lichbach,
In all Australian legal jurisdictions, children under the age of ten are considered to be too young to have criminal intent. That means, that children under this age cannot be held legally responsible for their actions. Australia is the only region in the world to have uniform legal guidelines on the lower age limit of criminal responsibility. (Weijers, Grisso 2009 p.45). Having the presumption that children under the age of ten are unable to know the law completely, therefore not being able to have mens rea, is in my opinion, necessary in our criminal courts. This essay will look at the reasons for the necessary use of the minimum age of criminal responsibility, such as the Beijing rules, the convention
The Law today is a summary of various principles from around the world from the past and the present. Early practises of law were the foundation of the law that we know and abide by today. These practises were referred to as the Classical school. Over time however, different criminologist have altered and greatly improved the early, incomplete ideas and made them more complete and practical to more modern times. This newer version is referred to as the Positivist school. This rapid change from the classical to the positivist perspective was due to the change and growth of civilization. Even though one perspective came from another, they are still different in many ways and it is evident when relating them to section 462.37, Forfeiture of Proceeds of Crime, and section 810, Sureties to keep the Peace. The Classical School of criminology’s time of dominance was between 1700 and 1800. Its conception of deviance was that deviance was a violation of the social contract. Classical theorists believed that all individuals were rational actors and they were able to act upon their own free will. A person chose to commit crimes because of greed and because they were evil. The primary instrument that could be used in regards to the classical school to control crime was to create “criminal sanctions that instil fear of punishment in those contemplating criminal acts” (Gabor 154). Classical school theorists believed the best defence was a good offence and therefore they wanted to instil so much fear into people about what would happen to them if they were to commit a crime that even those who were only thinking of committing a crime were impacted greatly. The classical school individuals operated entirely on free will and it was their ...
Mens rea known as the “mental element” of an offence has long been regarded as a crucial factor in criminal law, aiming to ensure that only those who are blameworthy are punished for crimes thus inputting the role of fairness into the criminal law system. H.L.A Hart agreed with this fairness rationale arguing that it would be wrong to convict and punish anyone who had not been given ‘a fair opportunity’ to exercise the capacity for ‘doing what the law requires and abstaining from what it forbids.’ “The general rule is that no crime can be committed unless there is mens rea.” But this is departed from when creating strict liability offences.
Have you ever thought about the world you live in, on how its structure for humans in America? The only society who system and laws were establish by the founding fathers over a century ago. Throughout the century many laws have change but many of the amendments that we follow we interpret through the criminal justice system. As today the laws that are enforced by the government, the media, and political correctness play a major role and also impact the criminal justice system.
Since the Enlightenment, there have been many different theories attempting to explain why crime and criminal behaviour occurs in society. Focusing upon Lombroso’s biological positivism and his work on gendered criminology, Feminist criminology and Subcultural theorists, this essay will compare and contrast the three different theories, finding where they overlap and where they differ in their explanations of crime, how they define the typical ‘criminal’ and how they describe the extent of human behaviour and how that links to criminality.