The Rules of Conduct
What does the criminal law command? It is not too much to ask of a society that it tell its people in a form they can understand what the criminal law expects of them. Indeed, our condemnation and punishment of criminals, as distinguished from civil violators, rests upon an assumption that a criminal violation entails some consciousness of wrongdoing or at least a gross deviation from a clearly defined standard of lawful conduct. How can this assumption be sustained if the commands of the law are unclear? How can we condemn and punish violations of the rules of lawful conduct if the rules are not and cannot reasonably be known by the general public? One also may wonder how effective the criminal law can be in deterring criminal conduct if the law's prohibitions are unclear. The criminal law has a great interest in effectively communicating the rules of conduct. This is, in part, expressed by the law's commitment to the 'legality principle' or 'rule of law'.
Do current criminal codes tell citizens the commands of the criminal law? What would it take to construct a rough approximation of the rules of conduct from a modern criminal code? One could begin by reading the offence definitions but then most of the culpability requirements would have to be removed. Of course, some culpability requirements must be retained, those that serve the rule articulation function, such as the future conduct intention in attempt, as Chapter 6 discusses. And all result elements must be excluded. Result offences, without the results, are only riskcreation offences, many of which already exist in the code. Manslaughter without death is reckless endangerment. In other words, some entire offences, such as manslaughter, exist not to serve a rule articulation purpose but only to serve a grading purpose. These 'grading offences' also must be excluded in an approximation of the rules of conduct. Also excluded are all of the doctrines of aggravation, mitigation, and grading, noted in Chapter 6. Some defences also must be excluded, notably excuses and nonexculpatory defences, while others are kept, such as justification defences.