Structure and Function in Criminal Law

This unique work sheds much new light on the old problem of conceptualization and classification within criminal law. Paul H. Robinson argues that the current operational structure of criminal law fails to fully account for its different functions, and proceeds to suggest new sample codes of criminal conduct and adjudication in a study that will be seen as an incisive departure from today's pragmatic approach. The book is an important and well-rounded exploration of the structure of criminal law systems that will appeal to both teachers of law and policy-makers around the globe.

Paul H. Robinson is Professor of Law at Northwestern University's School of Law. One of the leading criminal law scholars in the United States, Robinson has written many key texts on the subject.

Table of Authors

xix

(2)

Table of Cases

xxi

(2)

Table of Statutes

xxiii

PART I. INTRODUCTION

1

(8)

Chapter 1. Structure and Function in Criminal Law

3

(6)

A. The Formal Structure of Current Criminal Law

4

(2)

B. The Operational Structure of Current Criminal Law

6

(2)

C. A Functional Structure of Criminal Law

8

(1)

PART II. THE CURRENT OPERATIONAL STRUCTURE

9

(116)

Chapter 2. The Basic Organizing Distinctions of Current Law

11

(5)

A. The Offence-Defence Distinction

11

(1)

B. The Current Operational Structure: Offence Definitions, Doctrines of Imputation, and General Defences

12

(4)

Chapter 3. Offence Requirements

16

(41)

A. The Conceptual Difficulties of the Actus Reus-Mens Rea Distinction

16

(7)

1. Conceptual Diversity Within Actus Reus and Within Mens Rea

17

(2)

2. Terminological Confusion Among the Doctrines of `Actus Reus'

19

(3)

3. Conclusion and Proposal: Objective, Culpability, and Act-Omission Requirements

22

(1)

B. Objective Elements of Offence Definitions

23

(8)

1. Weaknesses in the Objective Element Categorization Scheme of Conduct, Circumstance, and Result Elements

25

(2)

2. Confusion in the Modern Code Conceptualization of Causation Requirements

27

(4)

C. The Act-Omission Requirements and the Involuntariness Defence

31

(8)

1. The Role of the Statutory Act Requirement

31

(4)

2. The Voluntariness Requirement as an Excuse

35

(4)

D. Culpability Elements of Offence Definitions

39

(18)

1. The Evolution to Element Analysis

39

(3)

2. The Culpability Distinctions

42

(2)

3. Asymmetry in the Definition of Culpability Requirements

44

(5)

4. Difficulties With Modern American Culpability Schemes

49

(8)

Chapter 4. Principles of Imputation

57

(11)

A. The Process of Imputation

57

(2)

B. The Doctrines of Imputation

59

(5)

C. The Theories of Imputation

64

(4)

Chapter 5. General Defences

68

(57)

A. Non-exculpatory Defences

71

(10)

1. Minimizing the Societal Costs of Non-exculpatory Defences

72

(6)

2. The Nature of the Entrapment Defence

78

(3)

B. Excuses

81

(14)

1. The Internal Structure of Excuse Defences

83

(9)

1.1 The Disability Requirement

84

(1)

1.2 Four Kinds of Excusing Conditions and Their Implications

85

(3)

1.3 Objective Limitations on Excusing Conditions

88

(4)

2. A Disability-organized System of Excuses and the Problem of Multiple Excuses

92

(3)

C. Justifications

95

(30)

1. Three Kinds of Justification Defences

96

(2)

2. The Internal Structure of Justification Defences

98

(2)

3. Competing Theories of Justification: Deeds v. Reasons

100

(4)

4. Incompatibility Between `Reasons' Rationale and Current Law's `Believes' Formulations

104

(1)

5. `Deeds' v. `Reasons': Liability Results

105

(10)

5.1 Mistake as to a Justification

105

(3)

5.1(1) Liability for Resisting a Mistaken Justification

105

(1)

5.1(2) Privileged v. Unprivileged Force

106

(2)

5.2 Unknowingly Justified Actor

108

(6)

5.2(1) Disagreement over the Significance of Resulting Harm

109

(2)

5.2(2) Unknowing Justification as a Legally Impossible Attempt

111

(2)

5.2(3) Liability for Resisting an Unknowingly Justified Actor

113

(1)

5.3 Summary of Liability Results

114

(1)

6. `Deeds' v. `Reasons': Terminology and Conceptualization

115

(6)

6.1 Clarity of Conceptualization: `Justification and Excuse' v. `Privileged Justification, Unprivileged Justification, and Excuse'

115

(3)

6.2 Articulating the Criminal Law's Commands to Those Bound by Them

118

(3)

7. The Deeds-Reasons Dual Requirement Proposal

121

(2)

8. Deeds v. Reasons: Summary and Conclusion

123

(2)

PART III. FUNCTIONAL STRUCTURE

125

(58)

Chapter 6. A Functional Analysis of Criminal Law

127

(16)

A. The Standard Conceptualization

128

(10)

1. `Actus Reus' Requirements

128

(1)

2. `Mens Rea' Requirements

129

(8)

3. Defences

137

(1)

B. Rule Articulation, Liability Assignment, and Grading

138

(5)

Chapter 7. The Rules of Conduct

143

(14)

A. Obscuring Rules of Conduct with an Overlay of Liability and Grading Rules

143

(2)

B. Confusing Conduct Rules and Liability Judgements: Ambiguous Acquittals

145

(1)

C. Mixing Rule Articulation and Liability Functions by Defining `Justified' Conduct Subjectively: The Failure to Define the Justified Conduct Rules

146

(2)

D. Mixing Conduct Rules of Risk-Creation with Liability Judgements of Risk-taking: The Failure to Define Criminal Risks

148

(7)

E. Conclusion

155

(2)

Chapter 8. The Doctrines of Liability

157

(14)

A. Elevating Base and Aggravation Culpability Requirements to the Status of Criminalization Mental States: Improperly Limiting Attempt Liability

157

(7)

B. Obscuring the Voluntariness Requirement's Shared Liability Function with Excuses: Distorting the Involuntary Act Defence

164

(5)

C. Conclusion

169

(2)

Chapter 9. The Doctrines of Grading

171

(12)

A. Mixing Liability and Grading by Using Culpability Terms to Define Prohibited Risks: Aggravation of Grade for Risk-Creation in the Absence of a Criminal Risk

172

(2)

B. Incomplete and Unsystematic Use of Central Grading Factors

174

(2)

C. Dichotomous v. Continuous Judgements: Using Rule-articulation and Liability-assignment Forms in Grading

176

(2)

D. Grading v. Sentencing: The Arguments Against Judicial Sentencing as a Substitute for Grading

178

(3)

E. Conclusion

181

(2)

PART IV. USING STRUCTURE TO ADVANCE FUNCTION

183

(28)

Chapter 10. Drafting a Code of Conduct

185

(11)

A. Eliminate Liability and Grading Language

185

(2)

B. Consolidate Overlapping Offences

187

(1)

C. Simplify Justification Defences

188

(2)

D. Use Simple, Accessible Language

190

(4)

E. Track Community Views Where Possible

194

(2)

Chapter 11. Drafting a Code of Adjudication

196

(15)

A. Adopt a Code Structure that Matches the Analytical Process

196

(2)

B. Include All Articulable Rules Relevant to Adjudication

198

(1)

C. Use General Principles Whenever Possible

199

(2)

D. Use Parallel Language in Conceptually Analogous Provisions

201

(3)

E. Provide Jury Verdicts that Make Clear Their Meaning

204

(3)

F. The Case Against `Acoustic Separation'

207

(4)

Appendix A: A Code of Criminal Conduct

211

(10)

Appendix B: A Code of Criminal Adjudication

221

(20)

Index

241

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Structure and Function in Criminal Law

Summary

Author Biography

Table of Contents

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Structure and Function in Criminal Law

Summary

Author Biography

Table of Contents

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