The Structure of Criminal Law

Abstract

Click to increase image sizeClick to decrease image size Notes I thank Dennis Patterson for comments on this manuscript.] 1 R. A. Duff, Answering for Crime: Responsibility and Liability in the Criminal Law (Oxford: Hart Publishing 2007). [Bracketed page numbers in the text refer to this volume.] 2 Markus D. Dubber, Criminal Law: Model Penal Code (New York: Foundation Press, 2005), 5. 3 I thank Chris Emrich for this point. 4 17 So.2d 427 (1944). Duff discusses the British analogue [59]. 5 Michael S. Moore, Act and Crime: The Philosophy of Action and its Implications for Criminal Law (Oxford: Clarendon Press, 1993). 6 Duff also discusses the mala in se/ mala prohibita distinction and gives a defense of how even mala prohibita offenses can constitute wrongs [166–74]. 7 This hostility is the normative assessment of the meaning of the action as opposed to an occurrent desire state [149–150]. See generally Kimberly Kessler Ferzan, “Holistic Culpability,” Cardozo Law Review 28 (2007): 2523–43. 8 Joshua Dressler, Understanding Criminal Law, 4th ed. (New York: Matthew Bender 2006): 133–34; Michael Moore, “Intentions and Mens Rea,” in Issues in Contemporary Legal Philosophy: The Influence of H.L.A. Hart, ed. Ruth Gavison (Oxford: Oxford University Press, 1987), 245–70. 9 Cf. Model Penal Code § 2.02(2)(a) (knowledge of an attendant circumstance suffices for acting purposefully toward that element). 10 See Morissette v. United States, 342 U.S. 246 (1952). 11 Kimberly Kessler Ferzan, “Beyond Intention,” Cardozo Law Review 29 (2008): 1147–91. 12 Larry Alexander and Kimberly Kessler Ferzan, with Stephen J. Morse, Crime and Culpability: A Theory of Criminal Law (New York: Cambridge University Press, 2009). 13 Duff notes that “[a]ttacks typically endanger their objects” [150]. 14 See George P. Fletcher, “The Nature of Justification,” in Action and Value in Criminal Law, ed. Stephen Shute, et al. (Oxford: Oxford University Press, 1993), 175–186. 15 At one point, Duff argues against the conduct-cause harm model, stating “if we are to label offenses fairly, in ways that capture the wrongfulness in virtue of which they are criminalized, we must eschew the aetiolated language of harm and its causation in favour of a richer, morally laden language of thick concepts that captures the moral contours of the actions in question, reflecting not merely the harm that is caused, but the wrongful injury that is done, and the way, context and spirit in which it is done” [155]. 16 For support of my view, see quoted text in note 15. 17 John Gardner and Stephen Shute, “The Wrongness of Rape,” in Oxford Essays in Jurisprudence, 4th Series, ed. Jeremy Horder (Oxford: Oxford University Press, 2000), 193–217. 18 Land v. Indiana, 802 N.E.2d 45 (Ind. Ct. Appeals 2004). 19 Lozano v. State, 860 S.W.2d 152 (Tex. Ct. App. 1993). 20 Alexander and Ferzan, chapt. 8; see also Kimberly Kessler Ferzan, “Arson and the Special Part,” Criminal Law and Philosophy 3 (2009): 97. 21 Duff admits that this is the way that offense definitions for endangerments would work [156]. Additional informationNotes on contributorsKimberly Kessler FerzanKimberly Kessler Ferzan is Associate Dean for Academic Affairs, Professor of Law, and Co-Director, Institute for Law and Philosophy, Rutgers University, School of Law-Camden