Center for Law and Philosophy
Center on Global Governance
The practice of teaching and writing in the field of criminal law has changed dramatically in the last half-century. In the United States and England, and to a lesser extent in other English-speaking countries, we have witnessed a turn toward theoretical inquires of a greater depth and variety than had existed previously in the history of Anglo-American law. The subjects of this new literature include the nature and rationale of punishment; the theory of justification and of excuse, that is, of wrongdoing and responsibility; the relevance of consequences to the gravity of offenses (the problem of moral luck); and the proper structuring of specific fields of law, notably the law of homicide, particularly at the beginning and the end of life, of rape, and of victimless offenses that result in no material harm to other persons. As far as the United States goes, the roots of this flowering lie in the classic article by Jerome Michael and Herbert Wechsler, A Rationale of the Law of Homicide. The casebook by the same authors provided the first serious teaching tool for a reflective and systematic approach to American criminal law. The Model Penal Code, a project initiated by Herbert Wechsler and the American Law Institute in the 1950s, brought together many of the most serious legal minds of the generation to work out, for the first time, the rules and principles that would constitute the general part of American criminal law, namely the rules and principles that would be applicable to all offenses. And significantly, the 1962 publication of the first edition of the novel, theoretically-minded casebook by Sanford Kadish and Monrad Paulsen helped to create a community of scholars who read the same cases and followed up on the same set of citations to the journals and law reviews.
George P. Fletcher,
The Nature and Function of Criminal Theory,
Cal. L. Rev.
Available at: https://scholarship.law.columbia.edu/faculty_scholarship/1059