Kevin Jon Heller and Markus D. Dubber
The comparative analysis of criminal law can do many things for many people. For the legislator, it can be a source of possible approaches to a specific issue or even to the enterprise of criminal law reform and criminal lawmaking in general. For the judge, it can suggest different solutions to tricky problems of interpretation or common-law adjudication. The theorist can mine the vast stock of principles and rules, of structures and categories, and of questions and answers that can be found in the world’s criminal law systems. And the teacher, too, can draw on the positive manifestation of different, or not-sodifferent, approaches to particular or general questions of criminal law to challenge students’ ability to comprehend, to formulate, and eventually to critically analyze black-letter rules that are all too oft en presented by judicial— or, occasionally, professorial— oracles of law as the manifestations of inexorable logic or, at least, of stare decisis.1
Oddly, it is precisely this critical potential that may well account for the fact that the comparative study of criminal law traditionally has been neglected. In fact, if not in theory, Anglo-American criminal law continues to be regarded as an exercise of the police power of the state, where the power to police is thought to be closely related, even essential, to the very idea of sovereignty. More particularly, the police power is the modern manifestation at the state level of the deeply rooted power of the house holder (oikonomos, paterfamilias) over his house hold (oikos, familia).2 In Blackstone’s memorable phrase, “public police or oeconomy” is “the due regulation and domestic order of the kingdom: whereby the individuals of the state, like members of a well-governed family, are bound to
Kevin Jon Heller is a Senior Lecturer at Melbourne Law School. His recent publications include “The Cognitive Psychology of Mens Rea,” 99 Journal of Criminal Law and Criminology 317 (2009), and “Mistake of Legal Element, the Common Law, and Article 32 of the Rome Statute: A Critical Analysis,” 6 Journal of International Criminal Justice 419 (2008).
Markus D. Dubber is Professor of Law at the University of Toronto. His recent publications include The Police Power: Patriarchy and the Foundations of American Government (Columbia University Press, 2005) and The Sense of Justice: Empathy in Law and Punishment (New York University Press, 2006).