When Deborah Denno invited me to participate in the panel of the Association of American Law Schools discussing possible revision of the Model Penal Code, I initially declined, not having taught criminal law for more than two decades and having written only sporadically in the field. Professor Denno urged that as one involved in the revision of the Commentary, I might nonetheless have something to contribute. In these reflections, as at the session, I have mainly restricted myself to the relationship between the final commentary and the Code itself.
As Gerard Lynch's essay explains, the Model Penal Code was the fruit of work during the 1950s, and its intellectual roots can be traced back to the late 1930s when Herbert Wechsler and Jerome Michael, in A Rationale of the Law of Homicide, developed a systematic utilitarian approach to that central aspect of the criminal law. Other scholars made very considerable contributions, but the Model Code was decidedly the product of Professor Wechsler's vision. Although he was a utilitarian, his utilitarianism was highly nuanced, encompassing not only multiple reasons for condemnation and punishment, but the fundamental idea that no criminal code should drift too radically from the public's sense of wrongful behavior and of degrees of wrongdoing. This sensitivity helps to explain why most provisions of the Code can, as Judge Lynch points out, fit a "just deserts" deontological approach to criminal liability.
Criminal Law | Criminal Procedure | Law
A Few Reflections on the Model Penal Code Commentaries,
Ohio St. J. Crim. L.
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