Basic Concepts of Criminal Law

By George P. Fletcher | Go to book overview

is law for the judge to resolve and what is fact for the jury to find, provides it own distinctive take on the distinction between substance and procedure.

This study in the way in which one fundamental legal distinction plays itself out in different legal contexts could generate the wrong message. One might think these decisions of classification were simply arbitrary and politically motivated. But that would be the wrong lesson to grasp from this inquiry. The impact of context on legal analysis is not arbitrary. There are good reasons why the distinction comes out one way when the concern is legality and another way when the inquiry is achieving harmony between state and federal courts sitting in the same city.

The deep message that unites this chapter with the others that follow is that the basic distinctions of criminal justice transcend the enacted law of particular states and countries. The local statutory law does not determine the boundary that runs between substance and procedure or the way the boundary adapts to the changing context of the inquiry. The message of this chapter illustrates the overarching theme of this book. The basic distinctions of criminal justice require philosophical and conceptual analysis. On these matters, you cannot simply look up the law in the books. You have to think about the problem and clarify in your own mind the construction of the concepts that makes the most sense.


Notes
1.
U.S. Constitution, art. I, sec. 9, cl. 3
2.
German Basic Law 7103(II); Mexican Constitution art. 14; Portugese Constitution art. 29(1); European Convention on Human Rights §7(I).
3.
See Judgment of Constitutional Court, October 24, 1996, 1997 Neue Juristische Wochenshrift929. For a critical assessment of the Court's allowing a breach of the prohibition against retroactive liability, see Jorg Arnold, Einschränkung des Rückwirkungsverbot, 1997(5) Juristische Schulung399.
4.
See authorities cited in note 2 supra.
5.
It is worth noting the difference between the two Latin maxims. Ex post facto laws are statutes enacted after the occurrence of the crime. The maxim nulla poena sine lege is violated if the court, imposes liability, in the absence of a statute, simply as a matter of common law development. Common law crimes, so far as they still exist in England and the United States, violate the maxim nulla poena sine lege but do not infringe on the constitutional prohibition against ex post facto laws.
6.
BVerfGE 25, 269 (Decision of the Constitutional Court 1969).
7.
Resolution of the Constitutional Court of Hungary, No. 11/ 1992 (III.5) AB.
8.
George P. Fletcher, Two Kinds of Legal Rules: A Comparative Study of Burden-of-Persuasion Practices in Criminal Cases, 77 Yale L. J.880 ( 1968).

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Basic Concepts of Criminal Law
Table of contents

Table of contents

  • Title Page iii
  • Acknowledgments vii
  • Contents ix
  • Introduction 3
  • 1 - Substance Versus Procedure 7
  • Notes 23
  • 2 - Punishment Versus Treatment 25
  • Notes 40
  • 3 - Subject Versus Object 43
  • Notes 56
  • 4 - Human Causes Versus Natural Events 59
  • Notes 72
  • 5 - The Crime Versus the Offender 74
  • 6 - Offenses Versus Defenses 93
  • Notes 108
  • 7 - Intention Versus Negligence 111
  • 8 - Self-Defense Versus Necessity 130
  • Notes 145
  • 9 - Relevant Versus Irrelevant Mistakes 148
  • Notes 167
  • 10 - Attempts Versus Completed Offenses 171
  • Notes 184
  • 11 - Perpetration Versus Complicity 188
  • Notes 203
  • 12 - Justice Versus Legality 206
  • Notes 213
  • Index 215
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