Basic Concepts of Criminal Law

By George P. Fletcher | Go to book overview

the police interrogation. It is not so easy to understand how the untutored who need legal representation in the police station can make a rational decision, on their own, about whether to waive their right to counsel. We seem to fluctuate in common law systems between a conception of a strong criminal defendant, master of his own defense, and a picture of a weak defendant in need of a lawyer to be able to act autonomously.

Though expressed differently in substantive law and procedural institutions, the distinction between subject and object provides an important window on the respect for human autonomy in the criminal law. The requirement of agency or action as a condition for liability means that we punish only individuals who autonomously violate the law. The emphasis on the criminal suspect as a subject of the proceedings carries this idea of a suspect's autonomy further into the structuring of the criminal trial and the assessment of responsibility. The opposing mode of proceeding, once entrenched in the inquisitorial methods of the European Continent, underscores the state's duty to determine liability and to punish offenders. The more the state takes charge, the less room remains for the suspect's role as a subject shaping the trial. Wherever a legal system falls on this spectrum, ranging from treating the suspect as master of the trial to regarding the suspect as object of the state's investigation, the distinction between subject and object provides the best vantage point for understanding the issues at stake.


Notes
1.
Immanuel Kant, Fundamental Principles of the Metaphysics of Morals 46 ( Thomas Abbot trans. 1949).
2.
But it is not necessarily "barbaric" to punish legal entities for crimes committed by the people who constitute the entity--e.g., states, corporations, etc. For further discussion of this issue, see section 11.4.
3.
Oliver W. Holmes Jr., The Common Law 54 ( 1881); Restatement (Second) of Torts §2. For a critique of this account of acting, see Herbert Morris, Book Review, 13 Stan. L. Rev. 185 ( 1960).
4.
Michael Moore, Act and Crime 28 ( 1993). See also Douglas Husak, A Philosophy of Criminal Law 174 ( 1987) (concluding that the criterion of bodily movements "has been vigorously attacked, no satisfactory alternative has emerged to take its place").
5.
Moore, supra note 4, at 28.
6.
Id.
7.
E.g. StGB art. 323c; French Penal Code art. 63; Spanish Codigo Penal 619.
8.
Moore may take this position. See Moore, supra note 4, at 277-78.
9.
H. L.A. Hart & Tony Honoré, Causation and the Law35-38 ( 2d ed. 1985).

-56-

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Basic Concepts of Criminal Law
Table of contents

Table of contents

  • Title Page iii
  • Acknowledgments vii
  • Contents ix
  • Introduction 3
  • 1 - Substance Versus Procedure 7
  • Notes 23
  • 2 - Punishment Versus Treatment 25
  • Notes 40
  • 3 - Subject Versus Object 43
  • Notes 56
  • 4 - Human Causes Versus Natural Events 59
  • Notes 72
  • 5 - The Crime Versus the Offender 74
  • 6 - Offenses Versus Defenses 93
  • Notes 108
  • 7 - Intention Versus Negligence 111
  • 8 - Self-Defense Versus Necessity 130
  • Notes 145
  • 9 - Relevant Versus Irrelevant Mistakes 148
  • Notes 167
  • 10 - Attempts Versus Completed Offenses 171
  • Notes 184
  • 11 - Perpetration Versus Complicity 188
  • Notes 203
  • 12 - Justice Versus Legality 206
  • Notes 213
  • Index 215
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