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REVIEW & OVERVIEW

Background In applying theory, we learn more about: o Cases: uncover bias, new angles o Theory: limits, strengths and weaknesses Allows us to critically re-assess the theory o Dont just apply the theory and walk away

RETRIBUTIVISM
Overview Right of retaliation For punishment to both stand for and serve justice o It requires equivalency: an eye for an eye: retaliation/retribution o Cannot make an example out of somebody (especially an innocent) in the name of the greater good Punishment can never be administered merely as a means for promoting another good but must in all cases be imposed only because the individual on whom it is inflicted has committed a crime (144) Punishment fits the crime Only the guilty are punished Think of it from a judges perspective Application to Cases R v Dudley & Stephens [1884] 1. If you were judging this case from a retributive standpoint, what punishment (if any) would you hand down? o An eye for an eye: a murder for a murder o Must keep it in context: there were extenuating circumstances, therefore equivalency must be met 2. Does the Retributive lens offer you any new perspective on the case? o Their sentence cannot be lessened they killed their friend, therefore they must be sentenced to death R v Beatty [2008] 3. If you were a retributivist, would you agree with the acquittal? o Not looking for equivalency in this instance: a greater good; dont want to over criminalize, therefore not retributive o How do you determine equivalency with an accident? Re-Assessment of Theory Applying the theory reveals assumptions Expectations around the standard of care what does it say about our assumptions of human nature? What assumptions does Kant make about: o Human nature? o Responsibility and authority of the state? o Responsibility and authority of the citizen? Do these assumptions weaken the theory?

If so, what can be done to strengthen the theory?

UTILITARIANISM
Overview Bygones are bygonesonly future consequences are material to present decisions (5) Punishment is justifiable only by reference to the probable consequences of maintaining it as one of the devices of the social order (5) Seeks to dissuade us from assigning to penal institutions the improper, if not sacrilegious, task of matching suffering with moral turpitude (8) o Moral turpitude: criminal conduct that (quite extremely) violates social norms Need to limit discretionary power, or it becomes too arbitrary o Price system (12): every crime has an equivalence know the cost of committing certain crimes too arbitrary because you have one person deciding the price. Look at it from a legislators view Application to Cases R v Dudley & Stephens [1884] 1. If you were judging this case from a utilitarian perspective, what punishment, if any, would you hand down? o Life sentence o Dont need to go overboard its not a common occurrence to be stranded at sea for 20 days dont need to worry about it becoming a norm. o Difference between 1884 and 2014 death penalty would be extreme today, o R v Beatty [2008] Cant prevent accidents cant benefit greater good by punishing him for an accident Satisfies utilitarian approach because it takes power away arbitrary powers Re-Assessment of Theory Applying the theory reveals assumptions Expectations around the standard of care what does it say about our assumptions of human nature? What assumptions does Rawls make about: o Human nature? o Responsibility and authority of the state? Political motivations of the state? Not an order that should be challenged no moment where you should be able to challenge state make decisions in best interest of the citizens o Responsibility and authority of the citizen? Trapped in absolute system: cannot challenge state Do these assumptions weaken the theory? o If so, what can be done to strengthen the theory?