Chapter

Legal, Moral, and Metaphysical Notions of ‘Sameness’ of Action-Types

Michael S. Moore

in Act and Crime

Published in print August 2010 | ISBN: 9780199599509
Published online September 2010 | e-ISBN: 9780191594656 | DOI: http://dx.doi.org/10.1093/acprof:oso/9780199599509.003.0013
Legal, Moral, and Metaphysical Notions of ‘Sameness’ of Action-Types

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This chapter takes up the first of the two ‘sameness’ questions distinguished in the last chapter. This is the question of whether an accused can be punished separately for two (or more) offenses when a single act by him instantiates both (or all) such offenses. Multiple punishments are banned when the offenses are ‘the same.’ A ‘wrong-relative’ test is proposed for deciding upon the legal sameness of offenses. Such a test does not demand that the prohibited act types be fully identical in order to be legally ‘the same offense’, rather, merely partially identical act-types should be legally ‘the same’ when the parts that overlap constitute the same moral wrong, and when the parts that do not overlap do not constitute new and different moral wrongs. The basic idea is that the goal of proportionate punishment (that lies behind the relevant double jeopardy prohibition) demands that we assess the amount of wrongdoing done by an accused's single act, and that to assess this we must be able to count distinct wrongs.

Keywords: act types; same offense; partial identity; wrong-relative individuation; overlapping statutes

Chapter.  12349 words. 

Subjects: Jurisprudence and Philosophy of Law

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