Folk intuitions and the Criminal Law

During the break I finally had a chance to read a few books that I had been excited to read but that for some time now had been set aside for more pressing things.  One of these books is Paul Robinson and John Darley's "Justice, Liability, and Blame: Community Views and the Criminal Law"( 1995)--a highly recommended read for any of you who, like myself until recently, have yet to do so.  One of the issues that they raise is particularly fascinating:  What is the proper relationship between folk intuitions--or, as they say, community views--and the criminal law.  More specifically, should a system of criminal law reflect the views of the community concerning condemnation, punishment, deserved liability, desert, justice, proportionality, etc.?  If so, to what degree?  If not, why not?  Robinson and Darley discuss the results of some fascinating empirical studies they ran that probed folk intuitions concerning issues as diverse as criminal attempt, self-defense,  voluntary intoxication, insanity, felony murder, and sexual offense.   Their data suggest that there is a tension between the legal code in America and folk intuitions concerning criminal culpability and the proportionality of punishment.  The existence of this sort of tension should force us to evaluate the proper relationship between a legal code and public opinion.   Rather than attempt to address such a broad, yet important, question, I will focus instead on the pending Surpreme Court decision in the Acuna death penalty case--(out of where else--Texas!)--involving the Constitutionality of executing someone who committed the crime before the age 18.  According to the landmark Furman v. Georgia (1972), a punishment is cruel and unusual under the 8th Amendment if it is either:  a) severe to the point of degrading either the criminal or society, b) arbitrarily inflicted, c) unacceptable to contemporary society, or d) excessive or disproportional.  For present purposes,  (c) is the most salient.  If it turned out that opinion polls showed that a majority of American citizens living in states that have capital punishment are opposed to executing juvenile offenders, is that a good reason--in and of itself--for judging that these executions are unconstitutional?   Should a legal code be subject to the waxing and waning of the beliefs of "the people" in this way?  What is going to count as a majority in these sorts of situations?  Does world opinion matter and should it?  By asking these sorts of questions, we are forced to examine the proper relationship between folk intuitions, the criminal law, and public policy--thereby cutting across issues in moral, political, and legal philosophy.   During the next few weeks I will be running some studies in an effort to get at folk intuitions concerning the legal notion of transferred intent--a notion that I think conflicts with our ordinary notions of intent and intentional action.  In the meantime, I wanted to probe each of your intuitions concerning some of the issues that Robinson and Darley raise.

Comments

[Josh Silverstein]

This has nothing to do with your post. please read anyway.

Defining Sanity

My Definition of sanity: The display of adaptive behavior

Insanity is the display of maladaptive behavior. But, who determines which behaviors are maladaptive and which are adaptive?. I could take a bath in molasses instead of in water. Some may call this insane behavior. But why? One may say it is because it does not fit in place within a certain culture’s belief system and therefore is out of its realm. Instead of calling this person insane, I would say that he has stepped outside the boundaries of his society and made his own culture, a culture in which people bathe in molasses instead of in water. Okay, so we agree that this person has acquitted himself of being insane? Well, not yet. He is sane only if it is adaptive for him to step outside of the boundaries of his original culture. From what we know about molasses and its interaction with the human body, I think we can say it’s not maladaptive for one to take a bath and molasses. If he took a bath in molasses under a hornets nest, that might be a different story. If he took a bath in molasses every day instead of bathing in water, that may be maladaptive. What is supposed to officially define the boundaries of society? Written law. So, I guess are example of molasses man is moot because it is not against the law to do so. Laws should be designed to aid each human in his or her pursuit of behaving adaptively. This should mean, anybody who stays within the law will be well off. One may argue that, in reality, some laws actually keep people from acting adaptively (Examples? E-mail me).

Can thoughts be labeled as sane or insane?
I personally think that thoughts are just part of the larger process of behaviors, along with emotions. Thoughts and emotions are intertwined with your bodily movement to determine a behavior. Given this definition, a thought which facilitates a maladaptive action by a person could be labeled as a factor contributing to insanity. If thinking of taking one’s own life leads one to take one’s own life, then, well, you know the answer to this one.