Document Type

Article

Publication Date

2004

Abstract

Writing Rethinking Criminal Law ("Rethinking") was a gamble. No one had ever written a serious book on comparative criminal law – in English or in any other language. No one had ever addressed English-speaking readers with the argument that some other system of legal thought – espoused by a nation defeated in a major war just thirty years before – had a superior literature on criminal law and a more refined way of thinking about the structure of criminal offenses. No one had tried to present the system of criminal law as though it were a species of "political and moral philosophy." If ever there was chutzpah, this was it.

The structure of Rethinking almost defied readers to find it interesting or useful. The conventional way to write textbooks in continental Europe is to distinguish between the general part and special part and devote a book to each. The general part always receives attention first because it is considered the foundation of the whole system. For all my devotion to philosophical and Continental thinking, my basic training was in the common law, and I still thought about law in the inductive style of the case method. This is why I took the highly unconventional approach of beginning the book with the special part, initially with a detailed analysis of the history of theft in the common law. I would have thought that this choice of topics and the detailed analysis of the cases would turn off most of my readers.

The approach was unfamiliar to almost everyone. The style of writing on the Continent is always deductive and authoritative and – though I did not notice it in the late 1970s – the Continental approach is almost always internal and parochial. The German literature cites only German authors; the French cite only the French. The Germans refer to their work on the general principles of criminal law as Dogmatik – a term borrowed from the Catholic Church to refer to the teachings offered by the priests to elaborate the tenets of the faith. This term aptly describes the system of thought that the Germans have developed. They have faith in a certain set of organizational distinctions, and their task is to elaborate and explain the system.

Common law lawyers have a similar set of dogmas. They are not aware of the extent to which they subscribe to their ideas as a matter of faith. They subscribe to certain formulae as though they were unquestionable truths – claims, for example, about the necessity of mens rea and actus reus. They believe in the indispensability of "policy" decisions and adhere to Holmesian realism ("general propositions do not decide concrete cases") as though there were no other way to think about law. At the outset I was restrained, in Rethinking, by the assumption that I would not repeat these standard orthodoxies without subjecting them to a thoroughgoing critique.

At the level of style and substance, Rethinking was an iconoclastic book. It occurs to me now that it was also a conservative book. I will explain why.

Disciplines

Criminal Law | International Law | Law | Law and Philosophy

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