Document Type

Article

Publication Date

1988

Abstract

My subject, the problem of precision in criminal codes, is hardly novel. Greater precision has been a major aim of systematic codification, which can specify what behavior is criminal in a way that is more rational, coordinated, and exact than would be possible if liability were determined by occasional statutory enactment, by common-law development, or by a combination of occasional statutes and judicial development. Under this last approach, which was typical in the United States prior to the Model Penal Code, statutes loosely set out the list of offenses and their penalties; critical elements of offenses and many defenses of justification and excuse were left to judicial interpretation.

For a jurisdiction to move from the haphazard catalogue of crimes and penalties that results from occasional statutes to a more systematic legislative treatment involves considerable gain and very little loss. But the trade-off in moving to codification of matters previously left to judicial interpretation is more even. Any careful specification of the elements of offenses and defenses risks insensitivity to relevant factors and risks rigidity. First, the drafters may simply fail to see important problems that they would have dealt with had they been aware of them. Second, the need for relatively concise language imposes constraint. Unless a formulation is to be wholly open-ended, cast in terms of reasonableness or something similar, only a limited number of factors can be taken into account. At some point, the drafters must say: "Yes, ideally this particular case should come out differently but we cannot try to cover that and all similar cases and maintain clear and relatively simple language." Third, according to the traditional view in common-law countries, a resolution accomplished by statutory formulation can be altered only by fresh legislative action. Since legislatures cannot consistently attend to minor defects in criminal codes, change may be more difficult than if a subject were left to the evaluation of judicial interpretation. Worries of these sorts underlay some opposition to the entire codification effort. More frequently among serious students of the criminal law, who understood the sorry state of penal law in this country, these worries led to opposition to codifying particular aspects of the criminal law, such as principles of "causation" and the general justification or "necessity" defense. The Reporters of the Model Penal Code and the American Law Institute, though providing important elements of flexibility in some rather open-ended formulations, chose the path of comprehensive codification.

My paper is about a few areas in which the language of the Model Code points in the direction of results that I believe are not sound; I try to illustrate with examples some of the perils of precision. Before embarking on that task, I off er some cautionary comments and a few words about why the effort seems worth doing.

Disciplines

Criminal Law | Law

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