About | HeinOnline Law Journal Library | HeinOnline Law Journal Library | HeinOnline
LOG IN
LOG IN

88 Nw. U. L. Rev. 857 (1993-1994)
Functional Analysis of Criminal Law

handle is hein.journals/illlr88 and id is 873 raw text is: Copyright 1994 by Northwestern University, School of Law Printed in U.S.A. Northwestern University Law Review Vol. 88, No. 3 ARTICLES A FUNCTIONAL ANALYSIS OF CRIMINAL LAW Paul H. Robinson* The criminal law has three primary functions. First, it must define and announce the conduct that is prohibited (or required) by the crimi- nal law. Such rules of conduct, as they have been called, provide ex ante direction to members of the community as to the conduct that must be avoided (or that must be performed) upon pain of criminal sanction. This may be termed the rule articulation function of the doctrine. When a violation of the rules of conduct occurs, the criminal law takes on a different role. It must decide whether the violation merits criminal liabil- ity. This second function, setting the minimum conditions for liability, marks the shift from prohibition to adjudication.1 It typically assesses ex post whether the violation is sufficiently blameworthy to warrant the condemnation of conviction.'2 Finally, where liability is to be imposed, criminal law doctrine must assess the relative seriousness of the offense, usually a function of the relative blameworthiness of the offender. This sets, in a general sense, the amount of punishment that is to be imposed. While the first step in the adjudication process, the liability function, re- quires a simple yes or no decision as to whether the minimum conditions for liability are satisfied, this second step, the grading function, requires judgments of degree. It must consider such factors as the relative harmfulness of the violation and the level of culpability of the actor. This Article argues that these three primary functions of criminal law-rule articulation, liability assignment, and grading-are a useful way in which to analyze and organize criminal law doctrine. Modem criminal codes commonly acknowledge that criminal law serves each of these three functions. However, these same codes fail to see that a given code provision may serve one function but not another; the entire undif- ferentiated code is seen as serving these functions together. The Model * Professor of Law, Northwestern University. Earlier drafts of this Article benefitted from crit- icisms by Ronald Allen, Andrew Ashworth, John Donohue, Antony Duff, Dennis Patterson, and participants of law school faculty workshops at Northwestern University and New York University. 1 For a general discussion of the distinction between rules of conduct and principles of adjudica- tion, see Paul H. Robinson, Rules of Conduct and Principles of Adjudication, 57 U. CH. L. REv. 729 (1990). 2 This is a Model Penal Code phrase. See, eg., MODEL PENAL CODE § 2.12(2) (1985).

What Is HeinOnline?

HeinOnline is a subscription-based resource containing thousands of academic and legal journals from inception; complete coverage of government documents such as U.S. Statutes at Large, U.S. Code, Federal Register, Code of Federal Regulations, U.S. Reports, and much more. Documents are image-based, fully searchable PDFs with the authority of print combined with the accessibility of a user-friendly and powerful database. For more information, request a quote or trial for your organization below.



Short-term subscription options include 24 hours, 48 hours, or 1 week to HeinOnline.

Purchase Access

Contact us for annual subscription options:

Contact Us

Already a HeinOnline Subscriber?

Log In

profiles profiles most