A Functional Structure
This Part critiques the current operational structure of criminal law as developed in Part II, and suggests that it fails to take account of the different functions of criminal law. The criminal law has three primary functions.
First, it defines and announces the conduct that is prohibited (or required) by the criminal law. Such 'rules of conduct', as they have been called, provide ex ante direction to the members of the community as to the conduct that must be avoided (or that must be performed) upon pain of criminal sanction. This may be termed the rule articulation function of the doctrine.
When a violation of the rules of conduct occurs, the criminal law takes on a different role. It determines whether the violation merits criminal liability. This second function, setting the minimum conditions for liability, marks the shift from prohibition to adjudication.1 It typically assesses ex post whether the violation is sufficiently blameworthy 'to warrant the condemnation of conviction'.2
Finally, where liability is to be imposed, criminal law doctrine assesses the relative seriousness of the offence, usually as a function of the relative blameworthiness of the offender. This sets, in a general sense, the amount of punishment to be imposed. While the first step in the adjudication process, the liability function, requires a simple yes or no decision as to whether the minimum conditions for liability are satisfied, this second step of the adjudication process, the grading function, requires judgements of degree. It must take account of such things as the relative harmfulness of the violation and the level of culpability of the actor.
This Part argues that these three primary functions of criminal law --rule articulation, liability assignment, and grading--are a useful way in which to analyse and organize criminal law doctrine. The first chapter in the Part describes and segregates current doctrines according to the function that each performs. The next three chapters consider each of the three functions respectively and illustrate how the failure to take account of a doctrine's function causes errors and distortions in the formulation the doctrine.____________________