Commonwealth v. Keller: The Irrelevance of the Legality Principle in American Criminal Law

Abstract

Commonwealth v. Keller, 35 Pa. D. & C.2d 615 (1964), is not a leading case in American criminal law, but it should be. Ostensibly about the common law misdemeanor of indecent disposition of a dead body, this trial court opinion in fact raises important questions about the foundation of the state’s power to punish through criminal law, questions that have not received sufficient attention in American legal and political discourse in general, and in American criminal law teaching in particular. In fact, Keller’s irrelevance itself is symptomatic of the irrelevance of the principle of legality in American criminal law. Rather than being regarded, and employed, as a fundamental principle of legitimacy of state penal power, the principle of legality is poorly understood as a disconnected aggregate of maxims, rules, and guidelines – preferably cited in lawyers’ Latin phrases of uncertain formulation and meaning (“nullum crimen sine lege” and “nullum crimen, nulla poena sine lege” being two popular variations) that join other groundless, anachronistic, and ill-examined bedrocks of American criminal law, most notably actus reus and mens rea, or their combination as “actus non facit reum nisi mens sit rea.”