Structure and Function in Criminal Law

By Paul H. Robinson | Go to book overview

6
A Functional Analysis of
Criminal Law
Modern criminal codes commonly acknowledge that criminal law serves each of the three functions described above but fail to see that a given code provision may serve one function but not another; the entire undifferentiated code is seen as serving these functions together. The Model Penal Code, for example, describes '[t]he general purposes of the provisions governing the definition of offenses' as:
1. to forbid and prevent conduct that unjustifiably and inexcusably inflicts or threatens substantial harm to individual or public interests;
2. to give fair warning of the nature of the conduct declared to constitute an offense;
3. to safeguard conduct that is without fault from condemnation as criminal;
4. to subject to public control persons whose conduct indicates that they are disposed to commit crimes;
5. to differentiate on reasonable grounds between serious and minor offenses.1

The first two purposes embody the rule articulation function, the second two the liability assignment function, and the last the grading function. This Chapter dissects current criminal law doctrine in terms of these three functions, and demonstrates that one can identify specific doctrines as serving specific functions.

The functional differences among doctrines have not been obvious in the past, in part because the current organizing structure of criminal law uses distinctions that obscure the law's different functions. The central organizing distinctions in criminal law doctrine have traditionally been those between offences and defences and between 'actus reus' and 'mens rea' requirements. Yet, as Chapter 3 demonstrates, each of these categories, as well as the subcategories into which they commonly are divided, contains doctrines that perform each of the three functions of rule articulation, liability assignment, and grading.

____________________
1
Model Penal Code, § 1.02(1) (The order of the subsections is altered from the original).

-127-

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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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