Explaining History: Shifting Views of Criminality

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Book Chapter

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This chapter examines the doctrinal changes that occurred in the shift from the common law to modern criminal codes. The chapter is organized as follows. Section A describes a claim that the doctrinal changes show a coherent pattern, one that reflects a shift in the dominant view of what makes something criminal—what George Fletcher calls the shift from a “traditionalist” to a “modernist” view of criminality. Fletcher's claims are, in part, empirical in nature—that the doctrinal shift reflects a change in the way people think about criminality—and Section B shows how the theory can be tested empirically. Section C demonstrates that there is indeed a coherent pattern to the doctrinal shifts in the many different doctrinal areas, supporting Fletcher's speculation, but also suggests that the view of modern lay persons does not match what Fletcher describes as the “modernist” view. Rather, modern lay persons appear to take a subjectivist (“modernist”) view of criminality when making liability judgments but take an objectivist (“traditionalist”) view of criminality when making grading judgments.


common law, criminal codes, criminal law, George Fletcher, traditionalist view, modernist view, doctrinal changes, judgments

Publication Title

Intuitions of Justice and the Utility of Desert