Rules of Conduct: Doctrines of Criminalization

Document Type

Book Chapter

Publication Date

4-1-2013

Abstract

This chapter examines the community's views on doctrines of criminalization, which answer the question: what conduct should be prohibited? A complete statement of law's prohibitions includes not just the prohibited conduct itself but also what might be called secondary prohibitions built upon it, and the nature of those rules may be more complex. While the law clearly should and does prohibit the (unjustified) killing of another, should it also prohibit attempting such a killing, creating a risk of causing another's death, assisting another in such a killing, causing another's death through an omission? And, if so, what form should these secondary prohibitions take—at what point does conduct become a criminal attempt or criminal assistance; at what point does a risk created become a criminal risk? What are community views on these more complex liability rules? The chapter reviews four studies which demonstrate that secondary prohibitions are indeed a rich source of disagreement between community views and criminal codes. Codes frequently impose liability where the subjects would not impose liability, or at least would impose considerably less. In other instances, the respondents impose liabilities greater than that imposed by legal codes, or assign liability in cases in which the codes assign none.

Keywords

criminal law, secondary prohibitions, criminal liability, community views, criminal codes, community view

Publication Title

Intuitions of Justice and the Utility of Desert

DOI

https://doi.org/10.1093/acprof:oso/9780199917723.003.0012

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