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Spring 2012


I. Why Study Law? -- Many of the most troubling moral and political issues that we face are addressed in our society as legal issues. . . .

II. Law As the "Tie That Binds." -- Sociologists write about the fragmentation of contemporary American life and bemoan the loss of a strong sense of community, but our laws accompanied by the opinions delivered daily in our courts tell a different story. . . .

III. Defining Crime. -- In an introduction to a course on the Philosophy of Law, it might be helpful to say something at the outset - right "off the bat" - about the nature of law and, more particularly, about crime. . . .

IV. What's Wrong with Definitions? -- The problems we face trying to define "theft" or "crime" or "the law" may be a consequence of a more general problem we have with defining anything, anything at all. . . . .

V. What Makes Something a Crime? -- What then makes something a crime . . . ?

VI. Actus Reus and Mens Rea -- Still, despite the exceptions, most crimes require the presence of a bad act and a guilty mind. . . . .

VII. There Is More To Murder Than Killing Someone. -- So the notion of a crime is inextricably bound up with our being able to show that the accused performed a bad act and did so with a guilty mind. . . .

VIII. Finding One's Way About -- Understanding what makes something a crime is more like knowing the rules of a game and what moves to make at critical points in the game than it is a matter of definition, . . .


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Many of the most troubling moral and political issues that we face are addressed in our society as legal issues. An acquaintance with the law, an awareness of some of the more important legal decisions that have been made in the last few years tells us more about ourselves than almost any other American institution or practice. Public debate about surrogate motherhood, capital punishment, hate speech, euthanasia, the electoral process and equality between the sexes is waged in terms of legal principle and acted out in our courts.

Philosophy of Law (PHIL 22B) reflects the conviction that the law, when it is studied in relation to fundamental social issues, is one of the most fascinating subjects to which we can be exposed. It is also a subject about which most of us already have intuitions. There is great joy (and often relief) in the discovery that an outcome in a given case or line of reasoning adopted by a judge to explain that outcome captures one of our own (not always fully articulated) opinions.

Each section of Philosophy of Law is organized around a controversial issue that raises important questions for which there are often more than one good answer. Indeed, each segment raises more questions than it answers. This is not intended to frustrate but to provoke thought, and to encourage anyone who elects to pursue a career in Law to develop a clearer idea of their own values and beliefs and to provide them with the means and the confidence to articulate and defend those beliefs.

The Course focuses upon a number of areas that are central to criminal, civil, and constitutional law and makes an effort to get at the principles underlying conflicting judicial judgments in hard cases. The course also explores more general issues: Under what conditions should a person in our society be held responsible for his or her acts? Under what conditions may one be excused? Suppose I simply make a mistake? Or was merely careless? Or was mentally unstable? Is it fair to punish me for a harm I caused but did not intend? And if I fail to commit a crime, should I be punished less severely than if I had succeeded?

Many Americans have grown cynical about lawyers and the law, and, I must admit, I myself was one of those Americans until I began to teach Philosophy of Law at Brandeis. The course has taught me to trust my own sense of right and wrong and helped, in turn, to mitigate my cynicism. This does not mean that cases have always turned out as I expected or as I might have hoped. But in those instances where a decision has gone against my own sense of what I thought would have been just or fair, I have been able to find in the law itself the building blocks of a counter-argument and ways to make the case for the other side.

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Sociologists write about the fragmentation of contemporary American life and bemoan the loss of a strong sense of community, but our laws accompanied by the opinions delivered daily in our courts tell a different story. The ideal of America is its diversity, Its an ideal so bright it tends to blind us to the areas of our communality, to the ways we share a common purpose and and stand on common ground. Our legal system is just such an area, but given the bias of the cultural presumption, we tend to see in the law a reflection of ourselves that only serves to confirm the image we have of ourselves as a diverse people.

The O. J. Simpson trial was a recent example of this phenomenon. Following the verdict, in one radio talk show after another, commentators saw in the outcome the reflection of a divided society. But at a deeper, less refractive, level the legal system holds a secret that we given our fascination with surfaces conspire to keep from ourselves. Just below the surface, at a depth not so unfathomable that it cannot be brought to light, lies a web of value and belief so strong it could bind a people and perhaps does. Buried within our legal system are the core values of liberty, equality, and justice. Every single trial is a proving ground for confirming the extent to which we share these values as well as a laboratory for testing the scope and limit of the values themselves.

Whatever else we may think about the law, our legal system is set up to redress wrongs and settle disputes. It seeks to establish as well as find ways for us all of us to live together in the same place. For the system to work, our courts cannot redress wrongs and settle disputes in any old way and our legislative assemblies cannot promulgate just any set of rules. The decisions of our courts must, on balance, make sense to us. For our system of laws to work and our courts to function., they must work and function in ways that we find credible, in ways that we those of us who live together in these United States believe are just and fair.

Legal theorists have debated since the time of Socrates whether justice and fairness are a part of the law or merely a moral judgment of it. From my own experience teaching a course on criminal law at Brandeis, I have come to the conclusion that justice and fairness are part and parcel of the law not separate or distinct from it. Legislators should pass laws that are fair and judges should render decisions that are just.

As you work your way through the readings for the course and as you discuss and debate various legal matters among yourselves, I am willing to bet that once arguments have been set forth both for and against a position, the argument that will tip the balance for you in one direction or the other, the argument that will sway you to take one side or another, will be the one that seems the fairest. In many of the cases we shall discuss you shall be asked what your decision would be if you were the judge. I am willing to bet that as a judge your decision in any given case will most likely be guided in the end by your sense of justice.

You will be amazed, however, to discover, as I was amazed when I first began to teach the Philosophy of Law at Brandeis, how much of our law already embodies a sense of justice and fair play in the rights it grants to defendants and the constitutional protections it provides for us as citizens. You will be struck, too, I hope, by how much legal thought about, say, what makes something a crime, or under what circumstances we hold someone responsible for committing a crime, or what excuses and justifications someone charged with criminal wrongdoing might successively offer in order to be found not guilty, is already shot through with considerations of justice and by notions of what it is to be a person.

As you shall see, the criminal law not only cares about what a person does but what a person thinks. The sort of person the criminal law identifies and promotes is also one who can make up his or her mind, who formulates intentions and makes plans, and acts on those intentions and plans. Our criminal laws commit us to a conception of a person who is capable of taking responsibility for what he or she does. The study of law is, then, a study not only of what we think is just, but of what kind of person we are capable of being as well as can reasonably expect one another to be and become.

The sense of justice and personhood that informs our laws is also that sense in which we are one nation, a united, rather than a divided, people. In a democratic society with no shared religion and no shared ethnic identity, our legal system is the tie that binds. But that system is more than just a set of abstract rules, it is also as I have tried to bring out here, a system of value and belief.

In a society such as ours, it is, therefore, crucial that judges render decisions that do not seem arbitrary or partial, but seem just to most of us as well as reflective of our shared understanding of what it means to be a person. If too many legal decisions begin to seem unconvincing, unreasonable or less than fully fair, the society shall certainly become unglued and all talk of fragmentation and a lack of a sense of community shall become true and we shall, to put it dramatically but by no means melodramatically, cease to exist as a people, to borrow Araham Lincoln's famous phrase

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In an introduction to a course on the Philosophy of Law, it might be helpful to say something at the outset - right "off the bat" - about the nature of law and, more particularly, about crime. What, after all, is a crime? Indeed, since you will be asked on numerous occasions to say whether you think a crime has been committed, it might seem especially useful to start with a definition of crime. But it is not quite so easy to define crime.

To illustrate how difficult it is to give a definition of crime, take, for example, murder and theft. What follows comes from Leo Katz in his Bad Acts and Guilty Minds, pp. 90-92:

"Give a definition of theft. Simple? Easy? How about theft is a crime against property? But so is arson. How about all involuntary transfers of property? But so is the foreclosure of a mortgage. How about all involuntary transfers of property, not pursuant to prior agreement, to rule out foreclosures? But so are robbery, blackmail, and the passing of bad checks. Below you will find three examples of theft. Can you give a definition of theft that captures the features that each of the examples have in common?


Alice ties her horse to a pole and heads into the local saloon to buy herself a stiff drink. John sneaks up, unties Alice's horse, and rides off into the sunset.


John who is Alice's trustee, secretly sells Alice's land to Henry and keeps the money from the sale.


John, who is oil prospecting, persuades Alice to sell him a valuable oil property which she happens to own in Texas, for a pittance by telling her (falsely) that a soon-to-be built highway will lower the value of her property dramatically.

"What do all three cases have in common? Can you say? Do not try for too long? No one, as far as I know, has been able to do it. No one. Presented with this difficulty, the common law has viewed each as a separate offense. Theft 1 has been called larceny: the trespassory taking and carrying away of personal property of another with intent to steal it. Theft 2 has been called embezzlement: the fraudulent conversion of the property of another by one who is already in lawful possession of it. And Theft 3 has been called false pretenses: a false representation of a material present or past fact which causes the victim to pass title to his property to the wrongdoer who knows his presentation to be false and intends thereby to defraud the victim. Whew!

"So there, we've done it. Three kinds of crimes, three forms of theft, defined. Happy? Should we be? But now consider the following:

Commonwealth v. OMalley (1867)
Bridget McDonald was a servant in a family residing in Boston and received from her employer, in payment of wages, thirty-eight dollars in bankbills. The defendant, Martin O'Malley, asked her to let him take the money and count it, she not being able to read or write. O'Malley counted it several times in her presence, and then, upon, her asking that he should return it to her, refused to do so. Bridget McDonald then locked the door to keep him from escaping but O'Malley threatened to jump out of the window or burn the bank-bills, inconsequence of which McDonald opened the door, and O'Malley went off with the money. O'Malley was arrested and charged with larceny. The trial court, however, believed that he was guilty of embezzlement, not larceny, since O'Malley had not actually taken the property away from McDonald but merely kept it against her will. The trial court acquitted O'Malley. The state then prosecuted O'Malley for embezzlement and a jury convicted him. On appeal, however, O'Malley argued that a jury could not possibly convict him of embezzlement, since what he had done clearly amounted to larceny. The appeals court agreed: When a person turns her property over to another for some brief, limited task, such as the counting of bank-bills, that person has never actually divested herself of her possession. Absconding with something that belongs to somebody else and that is in somebody else's possession is larceny, not embezzlement. The court acquitted O'Malley of the embezzlement charge and, as far as the records show, O'Malley was not tried again and so went free. (97 Mass. 584-85, 1867).

"To avoid these sorts of injustices, most state legislatures have consolidated larceny, embezzlement, and false pretenses into a single offense. What offense is that. Its called theft. So we are back to square one. How do we define theft? Since no attribute can be found that all three offenses have on common, some legislatures have defined theft as larceny-embezzlement-false pretenses. But how does this solve anything? Under the common law, fairness requires that a defendant be told whether he or she is charged with larceny, or embezzlement, or false pretenses in order to prepare the appropriate defense and that he or she be convicted only if a jury can agree upon which of the three was committed. Doesn't fairness require that a defendant be told with which kind of theft he or she is charged? If so, we're again without a definition of theft.

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The problems we face trying to define "theft" or "crime" or "the law" may be a consequence of a more general problem we have with defining anything, anything at all. So what's Jewish? Well, Jewish is tough to define, you say, tougher even than theft. Okay, how about chair or dog? Define either one of them.

Definitions are supposed to identify a set of necessary and sufficient conditions that will pick out those things, and only those things, which the definition is supposed to capture. So a definition of dog should pick out dogs and only dogs, not all dogs except Pekinese or all dogs plus a few cats. We tend to think that children are not very good at this sort of thing (Question: What is a dog? Answer: Is furry, goes woof, sometimes bites). We tend to think that as children grow older they will get better and better at defining things. We then think we those of us who have grown up can do it. But can we? Theres no reason to become too smug about this. Most studies show adults are not much better than children at this sort of thing and if recent experiments in Psychology are to be believed, words may not even have defintions! So the difficulies we face defining what makes soemthing a crime or what makes something a case of theft may be more a reflection of a general disability we have with this sort of thing than a reflection of any trouble we are having with defining crime or theft.

Take chair, for an example. How about has four legs and a back? But what about bean-bag chairs? And what about dogs? Dogs have four legs and a back. So we have not got very far; we havent even been able to distinguish chairs from cats and dogs. How about something to sit on? But so are sofas and benches and bucket seats are also things to sit on. Our difficulty arises in part from our trying to find what is common to all chairs, but there may be no such common criterion or set of criteria. Take the concept of a game. Put the games of chess and checkers next to one another. It is not difficult to find certain features that they have in common. But now put the game of jacks next to checkers, and next to jacks, solitaire, and next to solitaire, baseball, and so on and so on. Ludwig Wittgenstein, a philosopher from the earlier half of this century, proposed that there may indeed be no one thing that all games have in common, only a set of "family resemblances" between various games, no one feature which runs through the whole lot of them, but a series of overlapping commonalities, like a good piece of rope or hemp which is made up of many overlapping fibers but no single fiber runs through the entire length.

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What then makes something a crime? Well, just because it is hard, if not impossible, to come up with a feature or set of features that all crimes have in common, does not mean that we cannot uncover several family resemblances that some, if not all, crimes share. In this spirit there are at least two conditions, ceteris paribus, that must obtain if an individual is to be found guilty of a crime. An individual must (1) have committed a bad act and (2) have a guilty (or evil) mind.

Of course, it is possible to think immediately of exceptions to this simple formulation. The exceptions, however, are not necessarily unreasonable, but seem to be required by other considerations, such as considerations of justice or to follow, in some understandable fashion, from the very conditions themselves. Sometimes the exceptions are controversial and have been contested and so (not unsurprisingly) make for good discussion and debate. In any event, sometimes we acting as a community are ready to convict one of our members of criminal activity, even if there was, strictly speaking, no bad act only a guilty mind and other occasions where we are ready to convict even if there was, strictly speaking, no guilty mind, no evil intent, only a bad act. Criminal attempts are an example of the latter. The actual result of an attempt is often harmless. The bullet, for example, intended for the President, missed the President and became lodged in a tree. The tree absorbed the blow without much damage to itself and has grown into a grand old oak. Still, as we may well suspect, the bullet might have hit the President. But criminal attempts are by their nature failed crimes, and failed crimes are failed bad acts, and a failed bad act is not, strictly speaking, a bad act. It might have been bad. But it wasn't. That's why its an attempt. The criminal law also sometimes punishes omissions and omissions by their very nature are not acts, but failures to act. And yet omissions can also be crimes. Lifeguards and nurses who fall asleep while on duty can be charged with negligent homicide if someone dies on their watch and the death can be linked to their failure to respond. Some crimes such as the illegal possession of a weapon are also not acts in the strict meaning of the term. So much for the requirement that crimes must involve a bad act!

Then too there are some bad acts which are punishable, but which do not require a culpable state of mind, crimes that are punishable even though they were unintended, inadvertent, unforeseeable, and practically impossible to prevent. Examples of just such a class of crimes where no intent or guilty state of mind is required are strict criminal liability offenses such as statutory rape cases, felony murder cases, and many products liability cases. So much for intent and a guilty state of mind!

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Still, despite the exceptions, most crimes require the presence of a bad act and a guilty mind. The two basic elements of criminality are marked by their Latin names: actus reus and mens rea. Actus reus refers to an act of wrongdoing: running a red light, taking a Honda (someone else's) for a test drive and never coming back, shooting someone. In this respect, the criminal law is concerned with conduct, with things people do. So, ignoring the exceptions for there to be a crime, there must (first) be an act The Model Penal Code, upon which most states base their criminal laws, defines an act as a muscular movement under conscious control. This rules out acts committed while under hypnosis or while sleep-walking or done reflexively. The expression mens rea is sometimes taken to mean intent as well as guilty mind, evil mind or a culpable or blameworthy state of mind. One must have committed an act and the act must be accompanied by a blameworthy state of mind before one can be said to have committed a crime. This is frequently stated by saying that a criminal offence is an act committed with the intent to commit the offense.

The Model Penal Code suggests that every criminal offense be broken down into its constituent elements. Take burglary, for instance. Most jurisdictions put it in the following way: Knowingly breaking and entering the dwelling house of another with the intent to commit a felony therein. This is then broken down into its constituent elements: (1) breaking and entering, (2) dwelling house, (3) of another, (4) intent to commit a felony.

Then, given the two fundamental requirements for the commission of a crime, a bad act and a guilty mind, the Code proposes that in order to be convictable of the offense of burglary, I must have the requisite state of mind with respect to each element of the offense. I must, with intent or conscious purpose, have broken in and entered onto property; have done so with the awareness that it was a dwelling house and the dwelling house of another, and that I intended to commit a felony once I got inside. Failure to possess the requisite state of mind with respect to any one of these elements would mean that I could not be convicted of burglary.

So imagine that I leave my house late at night, intending to burglarize some homes down the street. It is unusually dark and foggy; I wander around, become lost, and break into my house. Have I committed burglary? No; though I acted with the conscious purpose or intent to enter, I did not do so with respect to the dwelling house of another. Frustrated, I set out again the following evening. It is even darker and foggier than the night before. I wander around, become lost, and decide to return home. I walk through the unlocked door of what I think is my own home. But it is not my house. Have I committed burglary? No; though I entered the dwelling house of another, I did not do so with the purpose to enter the dwelling house of another; I acted with the intent to go home, even though that is not where I ended up.

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So the notion of a crime is inextricably bound up with our being able to show that the accused performed a bad act and did so with a guilty mind. Equally important to understanding a crime is the practice of punishment. Not all bad acts after all are criminal offenses. Falling asleep at your sons >bar mitzvah is bad, some might even say unforgivable, but its not a crime! Crimes are those bad acts which the community as a whole seeks to prevent or prohibit. Our laws are sometimes preceded by a preamble which states what kind of conduct we are aiming to prevent. But the community also recognizes that conduct it aims to prevent may sometimes be justified. So, for example, the community forbids killing another person, but it is prepared to accept the defense that the killing was done in self-defense. If so, killing someone may turn out to be no crime at all! What constitutes a crime, therefore, is bound up with what constitutes an acceptable defense and what makes a defense acceptable is inextricably linked to what conduct we will punish, i.e., to what judges and juries will do.

So even if we know which bad acts the community as a whole seeks to prevent or prohibit as a public wrong (an offense, as it were, against us, the people), we still cannot know if a crime has been committed merely by looking to the penal statutes. Something more is needed. If we suspect that John has murdered Alice. And if we look murder up in the book of statutes and discover that it is indeed prohibited by the state as a public offense, we still shall not know if John has murdered Alice.

What does it mean for John to be guilty of murder? Well, at the very least it means (1) that there is some bad act that society prohibits and will punish and (2) John committed the prohibited act. But this is only a first step. To say that John did it, to say that John killed Alice, is a first step, but its just that, a step. It does not settle whether a crime has been committed or whether John is indeed responsible for what he did. Was his act intentional? Did he understand what he was doing? Does he have a justification or excuse for his behavior? These further requirements prompt the observation: There is more to murder than killing someone. Murder has at various times been described as a killing that is purposeful, willful, deliberate, calculated, premeditated, knowing, intentional, malicious, or conscious. But even if John purposefully, willfully, deliberately, calculatedly, premeditatedly, knowingly, intentionally, maliciously, and/or consciously killed Alice, he still may not be guilty of murder, he still may not have committed a crime. Why not? Because John may have a justification for what he did. He may, for instance, have acted in self-defense. He may also have an excuse. Typical excuses include being a minor (infancy), being forced or pressured against one's will by another (duress), being unaware of crucial facts or circumstances (mistake), or suffering from some kind of mental disability or defect (insanity). To know if John has committed murder, it is necessary to know not only what he did, but also to know what justifications and excuses are open to him and whether he is able, under the circumstances of his alleged wrongdoing to offer an acceptable justification or excuse.

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Understanding what makes something a crime is more like knowing the rules of a game and what moves to make at critical points in the game than it is a matter of definition, more like finding your way about town than a matter of coming up with a set of necessary and sufficient conditions which pick out things of only one kind. When you move into a new neighborhood, you may wonder where to buy milk and so you may wonder where to find the local shop. What you need are good directions, not definitions of milk and shop. Finding milk is more a matter of knowing where to look for it, knowing in which direction to travel once you leave the house, knowing where to turn and knowing how far down the block the shop which sells milk is located.

Much the same can be said about the criminal law. Knowing what makes something a crime is more a matter of understanding its relation to other things that we value and believe than it is a matter of identifying a set of features that all crimes have in common. To understand what makes something a crime it is necessary to become familiar with the role it plays within the legal system as well as what key moves can be made within the system, such as the mounting of a defense. Studying and learning about the law is more like familiarizing yourself with a set of relationships than coming to know a set of criteria

But enough said by way of introduction. You may now want to try your hand at the twenty-one legal puzzlers, which have their own role to play in introducing you to the study of law. You will have more fun if you do not dwell too long on a puzzler, to give your intuitions as much rein as possible. There will be plenty of time later on to think about the best way to resolve one or another puzzler. If you feel the need for a bit more information and/or guidance, feel free to make use of the commentaries on each of the puzzlers. Good luck!

One final note: you will notice that each of the puzzlers revolves primarily around the lives of three individuals: John, Alice and their (sometime) friend Henry. As you read through the puzzlers you will discover that John and Alice do not always get along. John does not seem to have a special liking for Alice and, as far as Alice is concerned, the feeling seems to be mutual. John sometimes shoots or tries to kill Alice and Alice sometimes shoots or tries to kill John. Occasionally they succeed. And so at the end of a puzzler, John is dead or Alice is dead. Sometimes Henry is dead. Since John and Alice (and Henry) always seem to "spring" back to life in subsequent puzzlers ready for new rounds of crime and mischief, their apparent indestructibility should be treated with dramatic license.

HERE then are the puzzlers.

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