Criminal Law Basics (Photocopy Edition)

Author: (USA) Katz / (USA) Moore
Publisher:
Publish Date: 2005-03-01
Features: Criminal Law Fundamentals is a theoretical criminal law textbook co-edited by Leo Katz, Michael Moore (now serving as the Distinguished Professor at the Warren Lecture, University of San Diego School of Law, USA), and Stephen Morse from the University of Pennsylvania Law School. As a theoretical criminal law textbook, it differs from normative criminal law textbooks centered on specific criminal law provisions. Its central focus revolves around the general principles of criminal law. The book, excluding the introduction, is divided into six parts to elaborate on several fundamental theories of criminal law.
Part I is on criminological knowledge. Among the authors, figures like Michael Tonny from Cambridge University and James Wilson from Harvard University are prominent figures in the international criminology field. Traditional criminal law textbooks often exclude this content. However, as the editors note, if criminal legislation adopts a provision or policy that is disconnected from criminological theory and facts, how can it help reduce crime? Therefore, to study criminal law, one must first study criminology.
Part II is on general theories of crime and punishment. Here, "crime" refers to crime in the criminal law sense, i.e., what acts should be defined as crimes, which involves the "boundary" issue of criminal law. Readers will benefit from reading works such as Posner's Economic Analysis of Law. This part also discusses the justification for punishment, covering Bentham's utilitarianism, Kant's retributivism, Hart's theory of the unity of punishment, and restorative justice, which aims to serve as an alternative to punishment.
Part III covers factors influencing criminal liability, including acts and omissions, causation, the principle of legality, subjective mens rea, etc. These are major theoretical issues in criminal law. Some have gained consensus, such as the principle that criminal law cannot be retroactive under the legality principle. However, others remain contentious, such as the determination of criminal causation. The book lists ten different views, including the proximate cause theory and the foreseeability theory.
Part IV discusses accomplices, attempters, and conspirators. Why are these parties held criminally liable, and what are their principles of punishment? Leading American criminal law scholars like Kadish and Fletcher will explain this. The book also delves into the distinctions between principal and accessory accomplices, as well as between attempters and incapable actors.
Part V is on defenses. American criminal law categorizes defenses into two types: "justifications" and "excuses." The former includes self-defense and necessity, equivalent to the doctrine of illegality negation in civil law. The latter includes minority, insanity, and duress, equivalent to the doctrine of responsibility negation in civil law. The differences are:
(1) Acts under "justifications" are actually harmless or even beneficial to society, while acts under "excuses" are harmful, but only forgiven due to the actor's subjective reasons.
(2) The defense right under "justifications" is universal, belonging to anyone in such a situation, while the defense right under "excuses" is limited to specific individuals.
(3) Actors under "justifications" generally recognize the nature of their actions, while actors under "excuses" generally do not.
Part VI is on the "Theory and Practice of Sentencing." The selected materials are from Andrew Ashworth of the University of Oxford. He not only discusses several sentencing principles, such as the principle of equality and the principle of restraint, but also describes the shift in Western societies from the "rehabilitation model" prevalent in the 1960s to the "retribution model" in the 1970s, as well as the rapid development of "restorative justice" since the 1980s from a criminal policy perspective.
As shown above, the book's content is rich and its perspective is broad. It not only breaks through the boundaries of criminal law but even goes beyond the realm of pure law, touching on fields such as philosophy and economics. This contrasts sharply with the narrowing specialization of criminal law research, if not the entire legal research field, in China. Since the reform and opening-up, China has introduced more criminal law works from civil law countries like Germany, Japan, and Italy, but aside from a few textbooks, there have been few outstanding theoretical works from common law countries, giving the impression that common law pays too much attention to practice and lacks theory. Through this book, we can see that this is a great misunderstanding.
It is worth mentioning that the three editors of this book do not take shortcuts like some domestic editors but have put considerable effort into how it is organized. For example, before each chapter and section, the editors provide an introduction to briefly introduce the selected materials and guide readers on how to read them. Additionally, after each chapter and section, annotations and questions are appended. These not only provide further information on the content discussed but also raise a series of sharp, challenging questions for readers to ponder. For instance, the last question in Part I is: "The introduction to this chapter reminded readers that over-reliance on criminal law to reduce crime has not been successful in our experience. After reading this chapter, have you accepted this view? Can you think of other ways to help criminal law contribute to this goal, at least without making things worse?" Such thought-provoking questions make one realize the boundless nature of thinking. And for criminal law theory to further develop, it must rely on such thinking.
This book is suitable for English-speaking college and graduate students, as well as teaching and research personnel. I believe its publication will make its due contribution to promoting the development of criminal law in China.