The Modern General Part: Three Illusions
Criminal law theorists like to think that they are moving existing criminal law theory to a higher plateau of rationality. In truth, however, their advances in rationality often are less than they appear, sometimes only advances in the appearance of rationality. This chapter gives illustrations of three illusions with respect to the modern general part of criminal law. The first illustrates the inevitable limitation of any theoretical advance; the second is an example of an inevitable limitation that has been unnecessarily retained over time; and the third is a case of possibly cynical deception. The focus is on American criminal law and its development (with some reference to the Draft Criminal Code for England and Wales). The chapter looks at the purposes of liability and punishment, unfairness of the objective reasonable person standard used in common law in judging culpability, problem with the concept of dangerous persons, and preventive detention as criminal justice.
criminal law, general part, liability, punishment, reasonable person, common law, culpability, dangerous persons, preventive detention, criminal justice
Criminal Law Theory: Doctrines of the General Part
Robinson, Paul, "The Modern General Part: Three Illusions" (2002). Book Chapters. 162.