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

Abstract

Ask the man (or woman) in the street what the criminal law is all about and you are likely to hear about murder and manslaughter, or rape and robbery. You are likely, in other words, to hear about the concepts that make up the criminal law’s “special part.” But ask a criminal law scholar what he or she considers most important, or interesting, in the criminal law, and chances are you will hear about “general part” concepts such as culpability, acts and omissions, and justification and excuse. Indeed, many criminal law scholars view the special part with a certain condescension. Characterized as it is by frequently changing, jurisdiction-specific provisions, the special part seems to many undeserving of systematic analysis. Nowhere is this antipathy to the special part clearer than in connection with the Model Penal Code. Herbert Wechsler himself, the Code’s Chief Reporter, seems to have viewed Part II (the special part) of the Code as inherently local and transitory. Perhaps partly as a result, the most influential part of the Code, in state legislatures and court decisions, as well as that most engaging to scholars, has