Structure and Function in Criminal Law

By Paul H. Robinson | Go to book overview

Preface

During the past fifteen years I have struggled with the question of how best to organize criminal law: what is the interrelation among the rules and doctrines of criminal law? How can those interrelations best be described in a comprehensive conceptual framework? Inevitably, the inquiry came to face the question of what 'best' means in this context: what should be the guiding principle in conceptualizing criminal law? To track as closely as possible the distinctions shown to be most significant by moral philosophy? To replicate how common people intuitively decide issues of criminal liability and punishment? To provide the organizational system that most effectively performs the functions we want a criminal code to perform? To increase the rationality of the conceptualization that history has given us, recognizing how difficult it is in the real world to change something so fundamental as how lawyers and judges have come to conceptualize criminal law? Some combination of these goals?

This book claims to answer the first question: what is the interrelation among the rules and doctrines of criminal law? It offers several alternative answers to the second question: how can those interrelations best be described in a comprehensive conceptual framework? The need for alternative answers is created by the complexity of the third question: what should be the guiding principles in conceptualizing criminal law? People will not agree upon the answer to that question. Thus, to speak to a full range of people and goals alternative conceptualizations are needed.

The book's contribution is less in its new ideas and more in its pulling together into a coherent whole my fifteen years of thought on the subject. First was an attempt to organize the area of criminal law defences, in "Criminal Law Defenses: A Systematic Analysis" ( 1982), which was later elaborated in Criminal Law Defenses (2 volumes, 1984). Then came a similar organizing expedition for offence definitions, in "Element Analysis in Defining Criminal Liability: The Model Penal Code and Beyond" ( 1983), with Jane Grall. The final piece of the trilogy came in Imputed Criminal Liability ( 1983), which argued for recognition of a class of doctrines that operate in the reverse of general defences and ought to be given equal prominence. Just as general defences exempt an actor from liability despite the satisfaction of offence elements, so these doctrines impose liability despite the absence of an offence element. In this present work, I claim that, taken together, these three efforts offer a comprehensive framework for criminal law. A few other articles incorporated here provide refinements on

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