Structure and Function in
This book has two themes. First, it argues that how we conceptualize the criminal law is not just a matter of theoretical interest but has important real-world practical effects. Legislators, policy makers, and people concerned about crime, not just criminal law scholars, ought to be concerned about the way in which we distinguish criminal law doctrines and define their interrelation.
A second theme is to demonstrate that there are any number of ways in which one could structure criminal law. This book focuses on two possibilities. Using as a starting point the outline that current law appears to follow, Part II of the book examines the operation of current law to develop a complete conceptual framework. The exercise is partially descriptive and partially apologetic. It constructs a conceptual framework from the actual distinctions that current law uses, at least up to the point where the current distinctions are fuzzy, irrational, or internally inconsistent. Where a weakness in current law is apparent, it makes necessary adjustments, while trying to stay within the spirit of current law's general approach. That is, it makes as good (in the sense of rational and logical) a presentation of current law's current conceptualization as is possible.
The book uses current American criminal law as its work base. Because of common roots--and because roots often determine conceptualization-- English criminal law has a generally similar structure, although there are important differences in detail. Other legal systems use more obviously different conceptual structures. The German conceptualization, for example, which has been influential worldwide, is different from the American structure in many fundamental and important ways.1 One could perform a similar reconstruction/refinement exercise for any legal system's criminal law, and each exercise would generate a different result. There are many conceptualization approaches that are better than others, Part II argues, but the advantages of each must be weighed against the practicality of making____________________