The Model Penal Code has become the central document of American criminal justice. It has had some effect on law reform in over 35 states. More significantly, it provides the lingua franca of most people who teach criminal law in the United States. Most academics think that the precise definitions of culpability states in section 2.02(2) are really neat, and they applaud the liberal rules that restrict the use of strict liability to administrative fines. Indeed, all things considered, for a code drafted with almost total indifference to what might be learned from European models, the Model Penal Code is an impressive achievement.
The Model Penal Code's popularity is due probably to the lack of competition. Among the materials conventionally regarded as authoritative in common law jurisdictions, there is not much of a choice. Most teachers have contempt for the cases that appear in the case books. When I ask law professors to name a case that expounds the law in a way that they admire, they throw up their hands. In most other fields – torts, contracts, constitutional law, even civil procedure – there are many judicial opinions that command respect. Not so in the criminal law. Nor do the existing codes provide much solace. The adaptations of the Model Penal Code in states like New York and Illinois lack the conceptual integrity of the model statute. And surely, no one would take a 19th century state code, such as the California Criminal Code, as the model for proper analysis.
One could teach criminal law on the basis of theoretical articles and books. This is the way law is taught in all Continental jurisdictions and to a large extent in England and Canada, but for Americans, the use of real books to teach the law runs contrary to tradition. Books, however good they may be, are only secondary authority. They do not have the feel of the "real thing." Faute de mieux, the Model Penal Code offers itself to law teachers as an elegant and coherent alternative to the chaotic and ill-reasoned case opinions.
The downside of the Model Penal Code's influence is that it has come to shape our understanding of what a code should do in the field of criminal justice. The resulting assumptions are what I call the dogmas of the Model Penal Code. I formulate these assumptions as propositions of ironic advice to a legislature.
Criminal Law | Law
Center for Law and Philosophy
Center on Global Governance
George P. Fletcher,
Dogmas of the Model Penal Code,
Buff. Crim. L. Rev.
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