Prototype Theory and the Classification of Offenses in a Revised Model Penal Code: A General Approach to the Special Part

Abstract

How we classify offenses is fundamental to how we think about criminal law. Following the recent tentative determination by the American Law Institute's Program Committee to revisit the Model Code, the paper considers the principles that animate the Code's classification of offenses and, more broadly, the possibility of developing a general theory of the criminal law's Special Part. Drawing on insights regarding classification developed in the literature on cognitive science, the paper seeks to show how concepts of prototype classification, family resemblance, fuzzy boundaries, cognitive economy, central members, and basic level categorization all are relevant to the classification of criminal offenses. The paper then attempts to show how such analysis is useful in resolving structural questions concerning gaps and overlaps in coverage, the reorganization of offense categories, the addition of new offenses, and the omission of old ones. Particular offenses considered include computer crimes, carjacking and vehicular homicide, drug offenses, racketeering, theft, and regulatory crimes.