Structure and Function in Criminal Law

By Paul H. Robinson | Go to book overview

2
The Basic Organizing
Distinctions of Current Law

Using as a starting point the general outline of current law diagrammed in Chapter 1, this Part examines the operation of current law to develop a complete and internally consistent conceptual structure. As noted, 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 keep current law's general thrust. That is, it presents current law's conceptualization in the best light possible.


A. THE OFFENCE-DEFENCE DISTINCTION

The most basic organizing distinction in current law is between offences and defences, but that distinction is problematic when one examines how current law actually operates. In casual language, anything that prevents conviction of a defendant is called a 'defence', but this term includes doctrines that are very different from one another. An 'alibi defence', for example, simply refers to the presentation of facts that suggest the defendant was somewhere else when the offence was committed, and therefore cannot be the perpetrator. It is not a legal doctrine but a form of factual counterclaim. A defence of diplomatic immunity, on the other hand, may admit commission of the offence (although it need not), yet suggest that the defendant nonetheless cannot be prosecuted for the offence. The legal doctrines that we refer to as defences typically are one of five sorts.1

Like the alibi defence, many defences simply prevent proof of the requirements of an offence. Mistake or mental illness negating a culpability ('fault') element are of this sort. Where they do not provide complete exculpation but only a reduction in liability, they sometimes are referred

____________________
1
See also Paul H. Robinson, "Criminal Law Defenses: A Systematic Analysis" ( 1982) 82 Columbia LR 199 at 204-43.

-11-

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Structure and Function in Criminal Law
Table of contents

Table of contents

  • Title Page iii
  • General Editor's Introduction vii
  • Preface ix
  • Acknowledgements xiii
  • Contents xv
  • Part I - Introduction 1
  • 1 - Structure and Function in Criminal Law 3
  • Part II - The Current Operational Structure 9
  • 2 - The Basic Organizing Distinctions of Current Law 11
  • 3 - Offence Requirements 16
  • 4 - Principles of Imputation 57
  • 5 - General Defences 68
  • Part III - A Functional Structure 125
  • 6 - A Functional Analysis of Criminal Law 127
  • 7 - The Rules of Conduct 143
  • 8 - The Doctrines of Liability 157
  • 9 - The Doctrines of Grading 171
  • Part IV - Using Structure to Advance Function 183
  • 10 - Drafting a Code of Conduct 185
  • 11 - Drafting a Code of Adjudication 196
  • Appendices 211
  • Index 241
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