Principles of Criminal Law

Author: (American) Arnold H.
Publisher:
Publishing Date: 2004-01-01
Features: Criminal Law Principles is one of the renowned American Casebook series. Since its first publication in 1975, it has now been revised into its fourth edition (the latest edition was published in March 2003). The author, Arnold H., graduated from Boston University and Harvard University and has served as a professor at the University of North Carolina School of Law since 1973, currently holding the position of Distinguished Professor at Graham Kenan College. His teaching and research cover criminal law, criminal procedure law, and constitutional law. This book, in a concise format, provides a highly summarized and condensed overview of several fundamental issues in American criminal law across seven parts, making it an excellent introductory work for studying American criminal law. The part discusses the theory of the purpose of punishment. The author deviates from the traditional approach of starting with criminal theory when discussing criminal law, instead beginning with an inquiry into the purpose of punishment. He summarizes the purpose of punishment into four categories: 1) reforming and correcting offenders; 2) imprisoning dangerous offenders to protect society; 3) retribution; 4) deterrence (which is further divided into specific deterrence against the offender themselves and general deterrence against others in society with similar harmful tendencies). The author also analyzes potential conflicts among these four purposes and their value choices in practice. In the specific discussions, we observe the writing style commonly used by Anglo-American scholars, which employs case law to enrich theoretical arguments. Frankly, I have no reservation in admiring and advocating this writing style, and I have always incorporating more such elements into theoretical criminal law works in China (see Liu Renwen: The Ontological Inquiry of Criminal Law, Chinese and Foreign Law Studies, Issue 3, 2002). The second part explores specific crimes, focusing on crimes worth elaboration such as homicide, rape, and other crimes against the person and property. The author also ingeniously places general principles like causation in this part for explanation, making a good attempt to achieve an organic connection between the specific and general parts of the law. However, I find the author's justification for moving the defense of self-defense to this section debatable. The third part introduces the "dual theory" of criminal elements in Anglo-American criminal law, which includes subjective criminal intent and objective criminal conduct. Subjective criminal intent further involves strict liability and vicarious liability, which are forms of no-fault liability. This part notably introduces the limitation of criminal law by the constitution into the discussion, which is undoubtedly meaningful for Chinese criminal law scholars exploring the path toward a constitutional state. Many years ago, while reading Professor Chu Huizhi's American Criminal Law, I was deeply impressed by the dedicated section on "Constitutional Limitations on American Criminal Law." To this day, it remains vivid in my memory. While writing this preface, I searched online for the author's information and learned that in addition to being a renowned expert in criminal law, he has also made significant contributions to constitutional law, which is why his book maintains a constant constitutional review and vigilance over criminal law. This is something we can learn from. In a discussion titled "Where Should Chinese Criminal Law Go," I pointed out that China's criminal law can only truly achieve modernization and democratization when a constitutional review mechanism for criminal legislation and enforcement is established (see Liu Renwen: Advocating a "Three-Dimensional Criminal Law," Journal of Law and Business, Issue 3, 2003). The fourth part lists several special defenses, including: insanity, minority, intoxication, coercion, necessity, police entrapment, etc. These defenses differ in circumstances under which they can be invoked, whether as exonerating defenses or mitigating defenses. For example, intoxication must be distinguished between voluntary and involuntary states, and police entrapment depends on whether the defendant's criminal intent was induced by the police or already existed. The fifth part discusses issues such as the burden of proof, standards of proof, and presumptions, which appear to be procedural law matters. However, as the author points out in the book, a deeper look reveals their inseparable connection to criminal substantive law. Indeed, one of the key features of Anglo-American criminal law's theory of criminal constitution is placing static criminal elements within the dynamic criminal procedure process for consideration. This dynamic process, through certain rules, establishes a dual adversarial logical structure, enabling the active elements of criminal intent and conduct to serve the function of criminalization, while the negative element of defenses achieves the function of exonerating. This differs from China's inherited four-element theory of criminal constitution (object, subject, objective aspect, subjective aspect) and the three-stage progressive theory of countries (conformity to elements, illegality, culpability). Although each theory has its own tradition and characteristics, the utilitarian philosophy reflected in Anglo-American criminal law reminds me of a view expressed by Professor Lin Dongmao of Taiwan at a recent academic conference: Is the theory of criminal constitution not just about defining what constitutes a crime? Why make it so complex? Can't it be simpler and more practical? The sixth part covers incomplete offenses and joint offenses. If defenses address why a person is not held criminally liable when their actions meet the external characteristics specified in the specific provisions of the criminal law, then incomplete offenses and joint offenses address why a person is held criminally liable when their actions do not meet all the required elements. In this part, we can see the Anglo-American approach of including "attempted abandonment of crime" within "incomplete offenses," as well as unique concepts like "conspirators" rooted in common law traditions. We know that Anglo-American criminal law generally does not punish preparatory acts, but "conspirators" actually criminalize certain particularly serious preparatory acts as independent offenses for punishment. Whether this is done by criminalizing certain particularly serious preparatory acts or by some countries listing certain necessary preparatory acts separately in the specific provisions, both reflect the policy of "preparatory acts are generally not punished, but are punished in exceptional cases." This clearly differs from China's legislative approach of punishing all preparatory acts uniformly under the general provisions. In practice, although China's criminal law stipulates punishment for all preparatory acts, it is difficult to implement them uniformly. Considering the ambiguity of preparatory acts, from the perspective of predictability in a rule-of-law society, I tend to advocate decriminalizing general preparatory acts and focusing the criminal law's intervention on the stages of attempt and abandonment of crime, while specifically listing preparatory acts that absolutely require punishment in the specific provisions. The seventh part is titled "The Boundaries of Criminal Law." The author once again takes a constitutional perspective to argue for the principles of prohibiting vague language in criminal law and retroactive application, and leads the discussion on constitutionality toward challenging issues such as how much criminalization should be given to crimes without victims under common law. In the conclusion of the book, the author states: Just as humans eventually discovered that the Earth is round, readers should not stop thinking after finishing the last page of this book. Instead, they should return to the starting point and begin a new round of reflection. As my preface nears its end, I have turned to the last page of Criminal Law Principles, yet my thoughts have returned to the starting point: What exactly is criminal law? What is a crime? What is punishment? Traditional criminal law is primarily characterized by punishment, but this cannot explain the rise of modern security measures, as many of them are based on rehabilitation rather than punishment. Correspondingly, the crime and punishment perspectives brought by security measures are also sufficient to subvert the traditional concepts of crime and punishment (see Liu Renwen: We Cannot Simply Release Mentally Ill Individuals with Harmful Behavior, http://www.jcrb.com/zyw/liurw/index.htm). As the saying goes, "Read a book a hundred times, and its meaning will become clear." If we follow the author's advice to "read this book through from beginning to end two or three times" and supplement it with a necessary sense of inquiry and critical thinking, I believe we will achieve the expected results. November 20, 2003, at my home in the western suburbs of Beijing.