Criminal Law Outline

Criminal Law Outline
Fall 2006
 
Introduction
 
I.                     Nature of Criminal Law
A.      Different from civil sanction in that the judgment of community condemnation that accompanies and justifies its imposition
B.     “Crime” is limited to conduct that will incur formal and solemn pronouncement of the moral condemnation of the community
 
II.                   Sources of Criminal Law
A.      Common law
B.     Statutes
C.     Model Penal Code
 
III.                  Five types of Legal Reasoning
A.      Legal text itself
B.     Intent—what txt meant to legislators
C.     Precedent
D.     Tradition—ways in which members of community have conducted themselves
E.     Policy—the expression of the underlying values and interests that the law is meant to serve
 
CRIMINAL THEORY
 
I.                     Distinction between common law and MPC
A.      Two dominant models
1.      Communitarian: attempts to enforce fundamental community standards
·         Holds that the criminal law is primarily a repository of a particular society’s fundamental values
○        Crime is an attack on the fundamental values of society
○        The criminal is personally responsible for that attack; seen as traitor
·         function: to punish acts that threaten to undermine society’s values
·         places relatively clear limits on the content of the criminal law
○        punishment is differentiated dependant upon whether the values are fundamental, threatening the continued existence of the community in its current form, or incidental to that existence
○        only those standards deemed fundamental are the proper subject of criminal sanctions
○        task of the legislature and courts is to identify which are the fundamental values and calibrate punishment accordingly
·         looks to substance
·         Miller claims it is most closely associated with the common law
·         modern trend (Hart) rejects this view—fits uncomfortably between these two
·         Devlin—communitarian version of personal responsibility
○        Public morality essential to maintain particular societies
Ø      Crime is treason to society
Ø      Immorality determined by standard of right-thinking person
Ø      No difference between public and private or “harmless” morality
Ø      If there is no moral agreement, then society will disintegrate
Ø      Common morality is a price we pay to live in society
○        Common morality is as necessary to society as a recognized government
○        Society may use the law to preserve morality in the same way as it uses it to safeguard against anything else that is essential to its existence
○        Ex: if half of the population got drunk every night, then society would fall apart
○        For Devlin, Robinson was wrongly decided. Victimless crime does not excuse immoral conduct. Society is kept together by invisible lens of common thought
○        Asks what is the connection between crime