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So far as there is a school of criminal theory in the United States, it is a school devoted to sifting and celebrating the purposes of the criminal law. Discussions in the literature are dominated by endless recitals of the deterrent, rehabilitative and retributive functions of criminal sanctions. The orthodox view is that all of these purposes are relevant and that any proposed rule of criminal law must be measured by its tendency to further one or all of these goals. If the issue is punishing negligence, for example, the standard mode of analysis is to ask whether punishing negligent conduct tends to further the deterrent, rehabilitative or retributive functions of the criminal law.If it furthers none of these ends, then it presumably follows that negligence is not a suitable ground for liability. If the issue is punishment would harness any of these stalwarts that haul the system of criminal justice.This instrumentalist style of thought is so deeply entrenched in the United States that it is hard for our commentators and draftsmen to think of a reason for punishing or not punishing that is not a function of the ends of the criminal law.


Common Law | Criminal Law | Law


This article was originally published in UCLA Law Review.