Pub Date : 2003-04-01DOI: 10.1525/NCLR.2003.7.1.275
Sarah Armstrong
This paper uses the private prisons debate to explore the legitimacy and accountability of prison generally. Attempts to determine the superiority (or inferiority) of private prisons cannot be resovled because of the normative and operational ambiguity of prison as a form of punishment. Instead this debate obscures the spread of a particular bureaucratic rationality in contemporary punishment that facilitates the expansion of prisons.
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Pub Date : 2003-04-01DOI: 10.1525/NCLR.2003.7.1.233
Bernd Schüünemann
As is the case in the United States today, only the basics of the legal position of inmates were regulated by statute in Germany pre-1976. According to both case law and academic writing, a conviction, which was properly based on the criminal and criminal procedure codes, provided a sufficient basis for the limitation of the rights of inmates. This was predicated on the view that a conviction established a special relationship of subordination, the extent of which could be defined more precisely by the correctional authorities using their own discretion. In 1972, the German Constitutional Court handed down a now famous decision which held this state of affairs to be unconstitutional. Any limitations on the fundamental rights of inmates, which were consistently and comprehensively imposed, had to be regulated comprehensively, and in detail, by the legislature. Hence, the enacting of a Correctional Code was mandated by the Constitution. The legislature was forced to enact the Correctional Code in 1976. In more than 200 sections, the law regulates in detail every aspect of imprisonment and
{"title":"Some Comments on Parts III and IV of the Model Penal Code from a German Perspective: Fundamentals of the Statutory Regulation of Correctional Practice in Germany","authors":"Bernd Schüünemann","doi":"10.1525/NCLR.2003.7.1.233","DOIUrl":"https://doi.org/10.1525/NCLR.2003.7.1.233","url":null,"abstract":"As is the case in the United States today, only the basics of the legal position of inmates were regulated by statute in Germany pre-1976. According to both case law and academic writing, a conviction, which was properly based on the criminal and criminal procedure codes, provided a sufficient basis for the limitation of the rights of inmates. This was predicated on the view that a conviction established a special relationship of subordination, the extent of which could be defined more precisely by the correctional authorities using their own discretion. In 1972, the German Constitutional Court handed down a now famous decision which held this state of affairs to be unconstitutional. Any limitations on the fundamental rights of inmates, which were consistently and comprehensively imposed, had to be regulated comprehensively, and in detail, by the legislature. Hence, the enacting of a Correctional Code was mandated by the Constitution. The legislature was forced to enact the Correctional Code in 1976. In more than 200 sections, the law regulates in detail every aspect of imprisonment and","PeriodicalId":344882,"journal":{"name":"Buffalo Criminal Law Review","volume":"3 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2003-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"134416794","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2003-04-01DOI: 10.1525/NCLR.2003.7.1.109
Cornelius Nestler
The purpose of this paper is to provide an understanding of the practical reality of sentencing in Germany. My brief discussion of sentencing in Germany will show that the German approach to sentencing is far less punitive than its U.S. counterpart although both countries belong to the so-called Western World and have rather similar political and economic structures. The question whether such an illustration of a much less punitive criminal justice system will aid the discussion of the sentencing provisions in a revised Model Penal Code will have to be answered by Americans familiar with U.S. law, with the American practice of sentencing, with the reality of the criminal justice system, and generally with criminal policy in the United States. Irrespective of the judgment of these legal experts and of the reader, a comparison between American and German sentencing is extremely difficult due to major differences among the criminal justice systems regarding practically all important aspects. A significant divergence of the two systems can already be seen in the case of substantive law: while the German approach is very systematic, includes a highly developed dogmatic interpretation through the courts which in every verdict have to offer a comprehensive written body of arguments explaining how the law applies to the facts, and involves numerous commentaries in the academic discussion of criminal law, in the American system the outcome of a case is plea bargained in more than 90% of all cases, and in the case of a jury verdict no legal arguments are provided to support the “yes or no”
{"title":"Sentencing in Germany","authors":"Cornelius Nestler","doi":"10.1525/NCLR.2003.7.1.109","DOIUrl":"https://doi.org/10.1525/NCLR.2003.7.1.109","url":null,"abstract":"The purpose of this paper is to provide an understanding of the practical reality of sentencing in Germany. My brief discussion of sentencing in Germany will show that the German approach to sentencing is far less punitive than its U.S. counterpart although both countries belong to the so-called Western World and have rather similar political and economic structures. The question whether such an illustration of a much less punitive criminal justice system will aid the discussion of the sentencing provisions in a revised Model Penal Code will have to be answered by Americans familiar with U.S. law, with the American practice of sentencing, with the reality of the criminal justice system, and generally with criminal policy in the United States. Irrespective of the judgment of these legal experts and of the reader, a comparison between American and German sentencing is extremely difficult due to major differences among the criminal justice systems regarding practically all important aspects. A significant divergence of the two systems can already be seen in the case of substantive law: while the German approach is very systematic, includes a highly developed dogmatic interpretation through the courts which in every verdict have to offer a comprehensive written body of arguments explaining how the law applies to the facts, and involves numerous commentaries in the academic discussion of criminal law, in the American system the outcome of a case is plea bargained in more than 90% of all cases, and in the case of a jury verdict no legal arguments are provided to support the “yes or no”","PeriodicalId":344882,"journal":{"name":"Buffalo Criminal Law Review","volume":"35 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2003-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"124983099","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2003-04-01DOI: 10.1525/NCLR.2003.7.1.139
A. Doob, C. Webster
Looking back at “American” sentencing over the past fifty years, those of us from outside the United States cannot help but be struck by three phenomena. First, there has been considerable volatility in the manner in which those who offend are punished. Indeed, it is difficult to imagine two sentencing systems that could be as different as an indeterminate model based on a rehabilitative paradigm and a determinate model rooted—it would appear—in an often unstated and unprincipled combination of denunciation, deterrence and harshness. In fact, one would be tempted to speak of revolutionary rather than evolutionary changes in American sentencing structures, particularly with regard to their ramifications on imprisonment rates. Second, the U.S. history of sentencing clearly reflects the characteristically American optimism about the ability of the state to achieve various difficult and diverse goals. Indeed, one notes a persistent belief in the possibility of legislating away the crime problem. Crime—like any social problem—is seen to be surmountable as long as there is sufficient will to do so. Certainly in examining American sentencing structures over the last half century, it would not be difficult to imagine President Kennedy announcing in the early 1960s that not only would the U.S. place a man on the moon by the end of the decade, but it would also solve the problem of crime. Third, the story of sentencing in the U.S. might also be told in terms of shifts in the relative power of the various groups involved in the sentencing process. Depending on the era which one examines over the course of the last fifty years, sentencing can be seen to have been controlled by such differing groups as the legislatures, trial judges,
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Pub Date : 2003-04-01DOI: 10.1525/NCLR.2003.7.1.85
James Q. Whitman
As we all know, the United States has embarked on a campaign of intensifying harshness in criminal punishment over the last three decades or so. Longer prison sentences and the reinstatement of the death penalty are the most important aspects of this campaign, but they are only part of it. These thirty years of harsh justice have made for an epochal shift in American law, opening a large divide between the United States and the other countries of the western world. American criminal punishment is now staggeringly harsher than punishment in such countries as Germany, France, or Japan: In criminal punishment, there is no longer any single “western” or westernized world. There is an American world, tough and unforgiving, and a Euro-Japanese world, mild in ways that have come to seem wholly impossible in the American climate. The last thirty years have been, indeed, the era of a great and unparalleled American crackdown. This is an event that deserves a place on the grand American timeline, alongside wars, depressions, and other defining collective experiences. To be sure, this late twentiethcentury campaign has not touched as many lives as the Great Depression or World War II or the war in Vietnam. Nevertheless, it has touched a great many lives indeed. In impoverished parts of black America in particular, the crackdown has struck a disturbing percentage of the male population, with an impact comparable in its epidemiology
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Pub Date : 2003-04-01DOI: 10.1525/NCLR.2003.7.1.247
J. Simon
Wechsler’s Century and Ours: Reforming Criminal Law In a Time of Shifting Rationalities of Government Jonathan Simon • If we are to avoid dictatorship, we must be content to face problems that are of trivial importance to a dictator. 1 I. Introduction: Herbert Wechsler and the 20 th Century Herbert Wechsler who died in 2000 at over 90, led a life in the law that could well define the legal 20 th century in America. Students today might first encounter him as a constitutional scholar whose article “Toward Neutral Principles of Constitutional Law.” 2 was for decades discussed as the most principled intellectual criticism of the Supreme Court’s greatest 20 th century decision, Brown v. Board of Education. 3 Wechsler was one of the leading exponents of the legal process school that dominated academic law in the 1950s and 1960s. 4 Along with Herbert Hart, Wechsler was the original co-author of the most influential casebook in that quintessentially 20 th century field legal field “federal courts.” 5 Wechsler served as the reporter for the Model Penal Code, 6 which since the 1960s has served as the most influential source of modern criminal law reform thought for American scholars and state legislatures. 7 His casebook on criminal law, co-authored with Jerome Michael became the template for all contemporary criminal law casebooks and perhaps the modern casebook more generally. 8 A teacher at Columbia Law School for over half a century, Wechsler also helped define the role of the law professor in the post-World War II legal academy and influenced its relationship with other institutions including the social sciences and government. It is in these last two roles that I want to draw on Wechsler in the 1930s, when his approach to criminal law (and I would speculate his view of law more generally) entered into its public form, to reflect on the criminal law at moments of history when the very Professor of Jurisprudence and Social Policy, Boalt Hall, School of Law, UC Berkeley Caveat, at 633 73 Harv. L. Rev. 1 (1959) 347 U.S. 483 (1954) Harold Edgar, “Herbert Wechsler and the Criminal Law: A Brief Tribute,” 100 Colum. L. Rev. 1347, 1355 (2000). Avowed admirers of the legal process school in the current faculty of American law schools today are few. Like other dominant academic theories of the post-World War II period, it often seems tainted by having co-existed with national security hysteria in the political mix of that day, but there is one point at least, on which I for one, would want to wholly affirm the legal process school and that was its focus on law as a form of governance, and of legal expertise as a form of expertise about governance. Henry Hart and Herbert Wechsler, Federal Courts and the Federal System (Brooklyn, NY: Foundation Press 1953) American Law Institute, Model penal code and commentaries : official draft and revised comments, with text of Model penal code as adopted at the 1962 annual meeting of the American Law Institute at Washington,
韦氏的世纪和我们的世纪:在政府理性转变的时代改革刑法乔纳森·西蒙•如果我们要避免独裁，我们必须满足于面对对独裁者来说微不足道的问题。赫伯特·韦克斯勒于2000年去世，享年90多岁，他在法律领域的一生可以很好地定义20世纪的美国法律。今天的学生第一次见到他可能是作为一位宪法学者，他写了一篇文章《走向宪法的中立原则》。《布朗诉教育委员会案》(Brown v. Board of Education)是20世纪最高法院最伟大的判决，几十年来被认为是最具原则性的知识分子批评。韦克斯勒是法律程序学派的主要倡导者之一，该学派在20世纪50年代和60年代主导了学术法。与赫伯特·哈特(Herbert Hart)一起，韦克斯勒是20世纪法律领域最具影响力的案例手册《联邦法院》(federal courts)的最初合著者。韦克斯勒是《示范刑法典》的作者，自20世纪60年代以来，《示范刑法典》一直是美国学者和州立法机构最具影响力的现代刑法改革思想来源。他与杰罗姆·迈克尔(Jerome Michael)合著的刑法案例汇编成为所有当代刑法案例汇编的模板，或许更广泛地说，也是现代案例汇编的模板。韦克斯勒在哥伦比亚大学法学院担任了半个多世纪的教师，他还帮助定义了二战后法律学院法学教授的角色，并影响了法学学院与包括社会科学和政府在内的其他机构的关系。正是在这最后两个角色中，我想借鉴韦克斯勒在20世纪30年代，当他的刑法方法(我推测他对法律的看法更普遍)进入公共形式时，在历史时刻反思刑法当法学和社会政策教授，Boalt Hall，加州大学伯克利分校法学院，在633 73 Harv。L. Rev. 1 (1959) 347 U.S. 483(1954)哈罗德·埃德加，“赫伯特·韦克斯勒与刑法:简短的致敬”，100栏。修订1347,1355(2000)。在目前美国法学院的教员中，公开表示仰慕法律程序学派的人很少。就像二战后时期的其他主流学术理论一样，它似乎经常因为与当时政治混合中的国家安全歇斯底里共存而受到玷污，但至少有一点，我个人想要完全肯定法律程序学派，那就是它把法律作为一种治理形式，把法律专业知识作为一种治理专业知识。亨利·哈特和赫伯特·韦克斯勒，联邦法院和联邦系统(布鲁克林，纽约:基金会出版社1953年)，美国法律研究所，示范刑法典和评论:正式草案和修订意见，以及1962年5月24日在华盛顿特区举行的美国法律研究所1962年年会上通过的示范刑法典文本(1985年)“MPC”以下简称桑福德·卡迪什，刑法五十年:赫伯特·韦克斯勒和杰罗姆·迈克尔:《刑法及其管理:案例、法规、评论》(芝加哥:基金会出版社，1940年)
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Pub Date : 2002-11-08DOI: 10.1525/NCLR.2002.6.1.389
A. Danner
Nine years after Wisconsin v. Mitchell, bias crime statutes have become a settled feature of the American legal landscape. In philosophical terms, however, these statutes remain only partially understood. The most widely accepted justification for the penalty enhancement associated with bias crime statutes derives from evidence that these crimes potentially engender more harm than do "ordinary" crimes. Scholars have less successfully articulated, however, the special blameworthiness of the bias crime perpetrator that justifies his enhanced punishment on the grounds of his personal culpability. The dominant account of the culpability associated with bias crimes derives from a conviction that the perpetrator's motives are particularly culpable. In this article, by contrast, I argue that the perpetrator's decision to select a particular victim - and not necessarily his motive - is the morally relevant event, and the basis upon which we may justly inflict increased punishment. Traditional explanations of the culpability associated with bias crimes suffer from a failure to consider fully the group aspects of these crimes. Crimes against humanity under international law provide a useful prism through which we can examine bias crimes. Through a comparison with crimes against humanity, I argue that the bias crime perpetrator's culpability can only be understood by reviewing the social context in which the perpetrator acts and his understanding of that context. In particular, it is important to consider the perpetrator's understanding of discrimination against the group of which his victim is a member. I maintain that a perpetrator should be found culpable for contributing to this discrimination - and hence guilty of a bias crime - if he intentionally selects a victim who is a member of a group subject to discrimination in the community, and if he is at least reckless as to that discrimination. Under these conditions, the bias crime perpetrator's actions reinforce and perpetuate social meanings that facilitate and solidify existing discrimination. His conscious decision to select a member of a vulnerable group as his victim makes the perpetrator more blameworthy: he knowingly or recklessly joins other wrongdoers in a demonstration of bias and discrimination that ultimately harms our society.
在威斯康辛诉米切尔案(Wisconsin v. Mitchell)发生九年后，偏见犯罪法规已成为美国法律界的一个固定特征。然而，从哲学的角度来看，这些法规仍然只是部分地被理解。最被广泛接受的与偏见犯罪法规相关的加刑理由是，有证据表明，这些犯罪可能比“普通”犯罪造成更大的伤害。然而，学者们没有那么成功地阐明，偏见犯罪者的特殊罪责，证明了他的个人罪责，从而加强了对他的惩罚。对与偏见犯罪相关的罪责的主要解释源于一种信念，即犯罪者的动机尤其应该受到谴责。相比之下，在本文中，我认为犯罪者选择特定受害者的决定——而不一定是他的动机——是与道德相关的事件，也是我们可以公正地施加更多惩罚的基础。对与偏见犯罪有关的罪责的传统解释由于未能充分考虑这些犯罪的群体方面而受到影响。国际法规定的危害人类罪为我们审视偏见罪提供了一个有用的棱镜。通过与反人类罪的比较，我认为只有通过回顾犯罪者行为的社会背景以及他对该背景的理解，才能理解偏见犯罪人的罪责。特别重要的是要考虑犯罪者对其受害者所属群体所受歧视的理解。我坚持认为，如果犯罪者故意选择受害者是社会中遭受歧视的群体中的一员，并且他对这种歧视至少是不顾后果的，那么他应该为这种歧视做出贡献，从而犯了偏见罪。在这些条件下，偏见犯罪者的行为强化和延续了促进和固化现有歧视的社会意义。他有意识地选择弱势群体中的一员作为他的受害者，这使得犯罪者更应该受到谴责:他故意或不顾后果地加入其他不法分子的行列，表现出偏见和歧视，最终损害了我们的社会。
{"title":"Bias Crimes and Crimes Against Humanity: Culpability in Context","authors":"A. Danner","doi":"10.1525/NCLR.2002.6.1.389","DOIUrl":"https://doi.org/10.1525/NCLR.2002.6.1.389","url":null,"abstract":"Nine years after Wisconsin v. Mitchell, bias crime statutes have become a settled feature of the American legal landscape. In philosophical terms, however, these statutes remain only partially understood. The most widely accepted justification for the penalty enhancement associated with bias crime statutes derives from evidence that these crimes potentially engender more harm than do \"ordinary\" crimes. Scholars have less successfully articulated, however, the special blameworthiness of the bias crime perpetrator that justifies his enhanced punishment on the grounds of his personal culpability. The dominant account of the culpability associated with bias crimes derives from a conviction that the perpetrator's motives are particularly culpable. In this article, by contrast, I argue that the perpetrator's decision to select a particular victim - and not necessarily his motive - is the morally relevant event, and the basis upon which we may justly inflict increased punishment. Traditional explanations of the culpability associated with bias crimes suffer from a failure to consider fully the group aspects of these crimes. Crimes against humanity under international law provide a useful prism through which we can examine bias crimes. Through a comparison with crimes against humanity, I argue that the bias crime perpetrator's culpability can only be understood by reviewing the social context in which the perpetrator acts and his understanding of that context. In particular, it is important to consider the perpetrator's understanding of discrimination against the group of which his victim is a member. I maintain that a perpetrator should be found culpable for contributing to this discrimination - and hence guilty of a bias crime - if he intentionally selects a victim who is a member of a group subject to discrimination in the community, and if he is at least reckless as to that discrimination. Under these conditions, the bias crime perpetrator's actions reinforce and perpetuate social meanings that facilitate and solidify existing discrimination. His conscious decision to select a member of a vulnerable group as his victim makes the perpetrator more blameworthy: he knowingly or recklessly joins other wrongdoers in a demonstration of bias and discrimination that ultimately harms our society.","PeriodicalId":344882,"journal":{"name":"Buffalo Criminal Law Review","volume":"50 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2002-11-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"129690757","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2002-08-07DOI: 10.1525/NCLR.2002.6.1.219
K. Simons
The conventional mental state or culpability categories recognized in the criminal law are purpose, knowledge, recklessness, and negligence. Should the law also recognize as an additional category some version of "culpable indifference"? Yes, according to a number of scholars; and some courts have also recognized this category, especially in the context of depraved heart murder. Culpable indifference can describe a modestly culpable mental state, sufficient for manslaughter liability (or, with respect to a circumstance element, roughly equivalent in seriousness to cognitive recklessness). It can also identify a more aggravated form of culpability, sufficient for murder (or, with respect to a circumstance element of an offense, roughly equivalent in seriousness to knowledge). But some critics raise an important objection: punishing those who display culpable indifference punishes for "character" rather than for "acts," and is no more justifiable than punishing a person for a free-floating mental state (for example, punishing a pure bystander who takes perverse delight in another's commission of a crime). By contrast, punishment for acts accompanied by the more conventional mental states of purpose, knowledge, and recklessness supposedly is not subject to this objection. This paper explores when culpable indifference is indeed especially problematic in punishing merely for an attitude disconnected from conduct, and when it is not. The connection problem, we will see, is much more manageable on some formulations of culpable indifference. At the same time, this problem is hardly unique to culpable indifference; connection problems arise to a surprising extent with the conventional mental states of purpose, knowledge, and recklessness, as well. Two types of culpable indifference standards are distinguished. The first is a cognitive counterfactual criterion, and it asks whether the actor would have chosen to create a risk even if he had a higher degree of confidence (than he actually had) that it would result in harm. This approach must be carefully circumscribed in order to avoid the "punishment merely for character" objection. The second type of culpable indifference standard is an idealized counterfactual criterion, and it asks whether (and to what extent) the actor's conduct falls short of what an idealized, non-indifferent person would do. This approach does not pose the "punishment for character" objection; however, it raises serious problems of vagueness. To some extent, these problems can be overcome by articulating more specific, multiple criteria of culpable indifference (for example, the actor's intent to create a risk, or his participation in an immoral or illegal activity, or, as a mitigating factor, his efforts to avoid harm).
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Pub Date : 2002-04-01DOI: 10.1525/NCLR.2002.6.1.525
K. Reitz
The following pages contain a faithful reproduction of the American Law Institute’s Model Penal Code: Sentencing, Plan for Revision, a document that stands at the beginning of the ALI’s project to revisit as much as onehalf of the original Model Penal Code. The Plan for Revision is not a traditional law review article, nor does it reflect the official positions of the ALI. Rather, it was my attempt (as reporter for the revision) to draw the outlines of a new sentencing structure for the Code, as a step preliminary to the first round of black-letter proposals. Within the context of the ALI drafting process, which includes multi-layered deliberations over a number of years, and is informed by comments and feedback from hundreds of participants and observers, the Plan for
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Pub Date : 2002-04-01DOI: 10.1525/NCLR.2002.6.1.147
R. Duff
In criminal law theory, as in other kinds of theorizing, there is a powerful temptation (or, less question-beggingly, a powerful disposition) to search for a grand, unitary theory of criminal liability: some unitary account of what we are or should be liable for, of the conditions under which we are or should be held liable, of the basic structure and elements of liability, which applies across the whole range of criminal offenses. Such theorizing is typically an exercise in censorial rather than in purely analytical jurisprudence: although theorists of a Herculean disposition might claim that their account makes best sense of the values and aspirations that can be discerned within our existing legal systems and structures, their claim has in the end to be that this is how the law ought to be, not that this is how the law actually is in its contingent historical complexity. Such theories thus offer us, as any good normative theory should offer us, a standard against which we can assess and criticize existing legal doctrine and practice. The most ambitious theory would specify necessary and sufficient conditions of criminal liability: for instance that we are liable for and only for the choice to do or to risk doing what the law defines as the actus reus of a crime. Others, more modestly, claim only to specify a necessary condition of liability: for instance that criminal liability always requires, or must always be for, an “act” or a
{"title":"Virtue, Vice, and Criminal Liability: Do We Want an Aristotelian Criminal Law?","authors":"R. Duff","doi":"10.1525/NCLR.2002.6.1.147","DOIUrl":"https://doi.org/10.1525/NCLR.2002.6.1.147","url":null,"abstract":"In criminal law theory, as in other kinds of theorizing, there is a powerful temptation (or, less question-beggingly, a powerful disposition) to search for a grand, unitary theory of criminal liability: some unitary account of what we are or should be liable for, of the conditions under which we are or should be held liable, of the basic structure and elements of liability, which applies across the whole range of criminal offenses. Such theorizing is typically an exercise in censorial rather than in purely analytical jurisprudence: although theorists of a Herculean disposition might claim that their account makes best sense of the values and aspirations that can be discerned within our existing legal systems and structures, their claim has in the end to be that this is how the law ought to be, not that this is how the law actually is in its contingent historical complexity. Such theories thus offer us, as any good normative theory should offer us, a standard against which we can assess and criticize existing legal doctrine and practice. The most ambitious theory would specify necessary and sufficient conditions of criminal liability: for instance that we are liable for and only for the choice to do or to risk doing what the law defines as the actus reus of a crime. Others, more modestly, claim only to specify a necessary condition of liability: for instance that criminal liability always requires, or must always be for, an “act” or a","PeriodicalId":344882,"journal":{"name":"Buffalo Criminal Law Review","volume":"144 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2002-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"128984572","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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