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The criminal law has three primary functions. First, it must define and announce the conduct that is prohibited (or required) by the criminal law. Such rules of conduct, as they have been called, provide ex ante direction to members of the community as to the conduct that must be avoided (or that must be performed) upon pain of criminal sanction. This may be termed the rule articulation function of the doctrine. When a violation of the rules of conduct occurs, the criminal law takes on a different role. It must decide whether the violation merits criminal liability. This second function, setting the minimum conditions for liability, marks the shift from prohibition to adjudication. It typically assesses ex post whether the violation is sufficiently blameworthy to warrant the condemnation of conviction. Finally, where liability is to be imposed, criminal law doctrine must assess the relative seriousness of the offense, usually a function of the relative blameworthiness of the offender. This sets, in a general sense, the amount of punishment that is to be imposed. While the first step in the adjudication process, the liability function, requires a simple yes or no decision as to whether the minimum conditions for liability are satisfied, this second step, the grading function, requires judgments of degree. It must consider such factors as the relative harmfulness of the violation and the level of culpability of the actor. This Article argues that these three primary functions of criminal law - rule articulation, liability assignment, and grading - are a useful way in which to analyze and organize criminal law doctrine. Modern criminal codes commonly acknowledge that criminal law serves each of these three functions. However, these same codes fail to see that a given code provision may serve one function but not another; the entire undifferentiated code is seen as serving these functions together.


criminal law, criminal code, criminal liability

Publication Title

Northwestern University Law Review

Publication Citation

88 Nw. U. L. Rev. 857 (1994)