The Rules of Conduct

Document Type

Book Chapter

Publication Date



This chapter demonstrates the usefulness of a functional analysis. It starts by presenting the obscuring rules of conduct with an overlay of liability and grading rules. Instead of clarifying and reinforcing the rules of acceptable conduct in people's minds, the current verdict system often undercuts and confuses an understanding of the rules. The rules of conduct are obscured not only by the overlay of liability and grading doctrines, but also by mixing functions in the formulation of a single doctrinal provision. The claim presented here is not that the Model Penal Code drafters are insensitive to factors that are significant to the definition of criminal risk-creation or to the definition of culpable risk-taking. That is, there seems nothing better that one can do in giving guidance on these issues than to give general formulae. The claim here is that, by failing to see that the issues of risk-creation and risk-taking are distinct, the general formula that the Code gives is less likely to be effective in performing either task.


rules of conduct, functional analysis, Model Penal Code, risk–creation, risk–taking

Publication Title

Structure and Function in Criminal Law