Criminal Law Basics (Photocopy Edition)

Author: Leo Katz [USA]
Publisher:
Publish Date: 2005-01-01
Features: Criminal Law Fundamentals is a theoretical criminal law textbook co-edited by three professors from the University of Pennsylvania Law School: Leo Katz, Michael Moore (now serving as the Warren Distinguished Professor at the University of San Diego School of Law), and Stephen Morse. As a theoretical criminal law work, it differs from normative criminal law textbooks centered on specific criminal statutes, with its core content revolving 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. Authors such as 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 section, yet as the editors note, if criminal legislation adopts a provision or policy disconnected from criminological theory and facts, how can it help reduce crime? Therefore, to study criminal law, one must first study criminology.
Part II covers general theories of crime and punishment. Here, "crime" refers to criminal law crime, i.e., what acts should be defined as criminal, which involves the "boundary" of criminal law. Readers will benefit from reading works like Posner's Economic Analysis of Law. This section also discusses the justification for punishment, encompassing Bentham's utilitarianism, Kant's retributivism, Hart's unitary theory of punishment, and restorative justice as an alternative to punishment.
Part III addresses factors influencing criminal responsibility, including acts and omissions, causation, the principle of legality, and subjective mens rea. These are major theoretical issues in criminal law, some of which have reached consensus (e.g., the principle of legality prevents criminal law from being retroactive), while others remain contentious (e.g., the determination of criminal causation, with the book listing ten different views, such as the proximate cause theory and the foreseeability theory).
Part IV discusses accomplices, attempters, and conspirators. Why are these parties held criminally responsible, 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, and between attempters and infeasible actors.
Part V covers defenses. American criminal law categorizes defenses into two types: "justifications" and "excuses." The former includes self-defense and necessity, equivalent to the "defeasibility of illegality" in civil law. The latter includes minor status, insanity, and duress, equivalent to the "defeasibility of responsibility" in civil law. The differences are:
(1) "Justifications" are actually harmless or even beneficial to society, while "excuses" are harmful but forgiven due to the actor's subjective reasons.
(2) The defense right for "justifications" is universal, belonging to any person in such a situation, whereas the defense right for "excuses" is limited to specific individuals.
(3) Actors in "justifications" generally understand the nature of their actions, while actors in "excuses" often 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 Western societies' shift from the "rehabilitation model" prevalent in the 1960s to the "retribution model" in the 1970s, and 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 broad. It not only breaks through the boundaries of criminal law but even transcends the realm of pure law, touching on philosophy, economics, and many other fields. 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 few theoretical works from common law countries, giving the impression that common law is overly focused on practice and lacks theory. Through this book, we can see that this is a great misunderstanding.
It is worth noting 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. After each chapter and section, they append notes and questions, offering further information on the content discussed and posing 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, do you accept 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 feel 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.