Discussion NotesWeek4 - Discussion Notes Week Four This...

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Discussion Notes Week Four This week we’re looking at the question of the limits of criminalization? What criteria or principles should the legislature use in deciding which acts to criminalize? Choice of the legislator: when is it appropriate and justified to limit liberty? Baseline presumption in favor of liberty, and any state coercion that infringes on that liberty needs to be justified. Benefits of liberty: [FCL, p. 123] 1. “the person deprived of a liberty will think of its absence as a genuine personal loss” 2. “loss of liberty both in individuals and societies entails loss of flexibility and greater vulnerability to unforeseen contingencies” 3. “free citizens are likelier to be highly capable and creative persons through the constant exercise of their capacities to choose, make decisions, and assume responsibilities” 4. it maximizes our ability to pursue our desires 5. Can you think of other reasons? Types of Harm: 1. Direct Harm: examples = murder, battery, rape, destruction of property 2. Unreasonable risks of harm: examples = reckless driving, reckless discharging of lethal weapons 3. Public harms: those that affect society as a whole or the state itself (including its institutions or practices); examples = tax evasion, environmental pollution, contempt of court Seriousness of the Harm: “Clearly not every kind of act that causes harm to others can rightly be prohibited, but only those that cause avoidable and substantial harm.” [FCL, p. 125]; so there must be a threshold past which state coercion is justified, but under which we decline to consider the act criminal (e.g., left up to other remedies, such as the civil law context, contract negotiation, mediation, injunctions, etc.) How do we define with specificity the threshold level of seriousness?
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