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Hard cases make bad laws

Dear Reader,

I have seen on the news that the gun thug from Norway has chosen to justify his actions, in some ways this makes it even worse than it was already. To me that is a new aggravating factor in the crime.

If we apply some of the legal reasoning from the USA regarding murder then using the law on murder taken from a state chosen at random (Wyoming) then we can see that several aggravating circumstances are present within the crime. Using those from the Wyoming statute I think that the following apply. (For details of other states see here)

(iii) The defendant knowingly created a great risk of death to two (2) or more persons;

(vii) The murder was especially atrocious or cruel, being unnecessarily torturous to the victim;

(ix) The defendant knew or reasonably should have known the victim was less than seventeen (17) years of age or older than sixty-five (65) years of age;

(xi) The defendant poses a substantial and continuing threat of future dangerousness or is likely to commit continued acts of criminal violence; (His justification of the crime suggests to me that if given the chance he would do it all over again)

I would add to the list the fact that he impersonated a police officer during the shooting spree.

Now I think it should be clear to all my readers that using this check list that it is clear that this murder is more serious than the average murder. Some people right now may be calling out for Norway to change the law to permit the use of capital punishment.

I have to admit that if capital punishment was available in Norway that Anders Behring Breivik would be a likely candidate for such punishment, the extreme gravity of his crimes should single him out for special punishment. I hold the personal view that legal reasoning similar to the american law should be applied, but instead of considering the question of “should the sentance be death ?”, the question should be “should the sentance be prison for the rest of the person’s life without any hope of release ?”.

But as the death sentence was not on the statue book on the day of the vile murders then I strongly think that he should be not executed for his crime. The great problem is the injustice of retrospective laws. In Victorian england the phrase “Hard cases make bad law” was coined.

Here I see a clear possibility that our rightful disgust at the murders could lead to a bad law being created.

The problem is that if we allow law to be applied retrospectively then we create a series of injustices, if today we allow retrospective law to change the penalty for murder to death then what will be next. After accepting the retrospective law on murder it could for argument’s sake be extended to speeding.


One monday I drive along a road which has a speed limit of 60 mph at 55 mph, and a police officer observes my driving and measures my speed with his radar gun.

On tuesday the law of the land is changed to make the top speed on that road 40 mph, this is the result of a horror crash on monday afternoon on the same road.

It would be wrong on thursday for me to be dragged to court and fined for breaking the speed limit imposed on tuesday by driving on monday.

I hope that all of my readers can see that the hypothetical speeding case which involves retrospective law that it will lead to a series of injustices.


3 Responses

  1. There is an interesting article on Wikipedia about ex post facto or retrospective laws. The US constitution prohibits them. Surprisingly, the UK does allow them and has made some ex post facto laws.

    • I think that retrospective criminal law is a bad idea. Thanks for the tip about the wikipedia page. I have had a look and it seems OK but I never like trusting wikipedia.

      • I agree, wikipedia is banned in my classrooms!

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