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14 Santa Clara Lawyer 83 (1973-1974)
A Final Assault on Attempted Assaults

handle is hein.journals/saclr14 and id is 97 raw text is: COMMENTS A FINAL ASSAULT ON ATTEMPTED ASSAULTS INTRODUCTION In theory it has been recognized that the function of the courts is to provide justice through the written law, although in practice some flexibility is necessary in interpreting the written law in order for the courts to dispense substantial justice.' Despite the fact that the wording of statutes can rarely be sufficient to encompass all situations which might be deserving of sanction, the interpretative function of the courts, as applied in the criminal law, can be a danger to the rights of every individual if it brings the court into the realm of judicial legislation.2 A certain amount of judicial leeway is required if the court is to function properly within the bounds of the law, but this ju- dicial flexibility can never extend so far as to pre-empt the legis- lature by judicial declaration of crimes which the state itself has not seen fit to recognize. The California Supreme Court, when faced with the issue of whether a crime of attempted assault could be recognized and punished in this state, concluded that though the concept of such a crime might not be logically absurd, such an academic conces- sion could not be the equivalent of declaring it to be a punishable offense under the laws of this state.' The court reversed the decision of the court of appeal,4 which had upheld a conviction 1. Nulla Crima Sine Lege, no crime without law, is a legal principle so ancient that its origin is uncertain. However, by the time America became independent this doctrine had largely been replaced by Nulla Poena Sine Lege, no punishment without law. Today strict adherence to either of these principles has waned in favor of allowing more flexibility in fitting the punishment to the crime. HALL, GENERAL PRINCIPLES OF CRIMINAL LAW (2d ed., 1960). That the abolition of Nulla Poena Sine Lege took place first in the treatment of juveniles is . . . significant as an index to the motivation behind the movement for individualization in democratic countries. But the hazardous possibilities of this are now all-too-apparent-the abolition of Nulla Poena Sine Lege may result not in the humane use of science but in harsh repression and stupidity. Id. at 68. Cf. Calder v. Bull, 3 U.S. (3 Dall.) 386 (1789). 2. Judicial legislation, also termed judge-made law, refers to a judicial deci- sion which construes away the meaning of a statute, or finds meaning never contemplated by the legislature. The danger of it lies in the abridgement of the doctrine of the separation of powers. 3. In re James M., 9 Cal. 3d 517, 510 P.2d 33, 108 Cal. Rptr. 89 (1973). 4. Court of Appeal of the State of California, Second Appellate District, Division One (Dec. 29, 1972). Decision by Thompson, J., with Lillie, Acting

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