Using Structure to Advance
Part III explains the various functions that a criminal code performs. The code announces the law's commands to those whose conduct it seeks to influence. It also defines the rules to be used in deciding whether a breach of the law's commands will result in criminal liability and, if so, the grade or degree of that liability. In serving the first function, the code addresses all members of the public. In performing the second and third functions, it addresses lawyers, judges, jurors, and others who play a role in the adjudication process.
In part because of the different audiences, the different code functions call for different kinds of documents. To communicate effectively to the public, the code must be easy to read and understand. It must give a clear statement, in objective terms if possible, of the conduct that the law prohibits and under what conditions it is prohibited. Readability, accessibility, simplicity, and clarity are the central virtues if the code is effectively to articulate and announce the criminal law's rules of conduct.
The adjudicators, on the other hand, can tolerate greater complexity. Clarity and simplicity are always a virtue, but the judgements required of adjudicators necessarily limit how simple the adjudication rules can be. While the public can be told rather easily and clearly that 'you may not cause bodily injury or death to another person',1 when a prohibited injury or death does occur, the adjudicators need rules to determine whether the injurer ought to escape liability because he or she had no culpability, was insane, mistakenly but reasonably believed that the force used was necessary for self-defence, or for any number of other reasons. If liability is appropriate, the adjudication rules must determine the degree of liability that is appropriate, taking account of the level of the actor's culpability, the extent of the injury, and a variety of other mitigating and aggravating circumstances. Many, if not most, of these liability and grading factors must use complex and sometimes subjective criteria.
The use in current practice of a single code to perform all three functions means that none of the functions is performed as well as it could____________________