Towards a Legal History of American Criminal Theory: Culture and Doctrine from Blackstone to the Model Penal Code

Abstract

Long before the birth of American law, English criminal jurisprudence had firmly established the general proposition that crime required not just a guilty act but a guilty mind. Coke’s maxim to that effect, actus non facit reum nisi mens sit rea, is still frequently deployed by courts and scholars alike. So is the phrase coined by Blackstone to describe that guilty mind: the “vicious will” that must be present for an act to become a crime. In another great maxim, however, Holmes said that “general propositions do not decide concrete cases.” It is not too shocking, then, that these general propositions of Coke and Blackstone have been pushed aside whenever judges have felt the need. While courts have often insisted on proof of a guilty mind, they have also freely applied strict liability and entrenched that doctrine in many areas of the criminal law. Still, in the face of established doctrine, modern defenders of a retributivist or subjectivist orthodoxy claim