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The authors use social science methodology to determine whether a doctrinal shift-from an objectivist view of criminality in the common law to a subjectivist view in modern criminal codes-is consistent with lay intuitions of the principles of justice. Commentators have suggested that lay perceptions of criminality have shifted in a way reflected in the doctrinal change, but the study results suggest a more nuanced conclusion: that the modern lay view agrees with the subjectivist view of modern codes in defining the minimum requirements of criminality, but prefers the common law's objectivist view of grading the punishment deserved. The authors argue that there is practical value in having criminal law track shared community intuitions of the proper rules for assigning liability and punishment. For that reason, the study results support the often criticized subjectivist view of modern codes in setting the minimum requirements of liability, but disapprove of the modern codes' shift away from the common law's objectivist view of grading.

Publication Title

Oxford Journal of Legal Studies

Publication Citation

18 Oxford J. Legal Stud. 409 (1998).