Criminal Law Principles (4th Edition)

Author: Arnold H. Loewy
Publisher:
Publication Date: 2004-01-01
Features: Criminal Law Principles is one of the renowned American Casebook series. Published in 1975, it has now reached its fourth edition (the latest edition was released in March 2003). The author, Arnold H. Loewy, graduated from Boston University and Harvard University before serving as a professor at the University of North Carolina School of Law since 1973. He is currently a Distinguished Professor at Graham Kenan College of the university. 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 U.S. criminal law.
Part covers the theory of the purpose of punishment. The author shifts from the traditional approach of discussing criminal law starting with criminal theory to exploring the purpose of punishment. He summarizes the four purposes of punishment as: 1) reforming and correcting offenders; 2) protecting society by imprisoning dangerous offenders; 3) retribution; and 4) deterrence (divided into specific deterrence of the offender and general deterrence of others with similar harmful tendencies). The author further analyzes potential conflicts among these four purposes and their value choices in practice. In the discussion, we observe the writing style commonly used by Anglo-American scholars—supporting theories with case law. Frankly, I have no reservation in admiring and advocating this writing style, and I have long advocated incorporating more such elements into theoretical criminal law works in China (see Liu Renwen, The Ontological Inquiry of Criminal Law, China and Foreign Law, Issue 3, 2002).
Part II explores specific crimes, focusing on crimes worth elaborating, such as homicide, rape, and other crimes against the person and property. The author also ingeniously places general principles like causation in this section to achieve an organic connection between the specific and general parts of the law. However, I find it debatable why the author moved the defense of self-defense to this section.
Part III introduces the "dual theory" of criminal elements in Anglo-American criminal law—subjective criminal intent and objective criminal conduct. Subjective intent also involves strict liability and vicarious liability, which are forms of no-fault liability. The highlight of this part is that the author introduces constitutional restrictions on criminal law 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 section dedicated to "Constitutional Restrictions on American Criminal Law." During my research for this preface, I learned that the author, in addition to being a renowned expert in criminal law, is also an expert in constitutional law, which explains why his book maintains a constitutional perspective on criminal law. This is something we can learn from.
In Part IV, the author lists several special defenses, including: insanity, minority, intoxication, coercion, necessity, entrapment, etc. These defenses differ in circumstances—whether they are exonerating or mitigating, and whether intoxication was voluntary or involuntary, or whether entrapment was induced by the police or preexisting in the defendant.
Part V 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 substantive criminal law. Indeed, one distinctive feature of Anglo-American criminal law's theory of criminal constitution is placing static criminal elements in a dynamic criminal procedure. Through certain rules, this dynamic procedure establishes a dual adversarial logical structure, enabling the active elements of criminal intent and conduct to serve as the basis for criminalization, while the negative element of defenses achieves exonerating effects. This differs from China's inherited four-element theory (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: Isn't the theory of criminal constitution just about defining what constitutes a crime? Why make it so complicated? Can't it be simpler and more practical?
Part VI covers incomplete crimes and joint offenses. If defenses address why a person is not held liable when their actions meet the external characteristics of a crime under the specific provisions of the criminal code, then incomplete crimes and joint offenses address why a person is held liable when their actions do not meet all the required elements. In this part, we see the Anglo-American approach of classifying "attempted abandonment" as an "incomplete crime," as well as unique concepts like "conspirators" rooted in common law traditions. While Anglo-American criminal law generally does not punish preparatory acts, "conspirators" actually criminalize certain particularly serious preparatory acts as independent offenses for punishment. Whether this is done by criminalizing certain serious preparatory acts or by some countries listing specific preparatory acts separately in the specific provisions, both reflect the policy that "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 under the general provisions. In practice, however, China's criminal law, though it mandates punishing all preparatory acts, has not fully implemented this in judicial practice and faces difficulties in doing so. Considering the ambiguity of preparatory acts, from the perspective of predictability in a rule-of-law society, I lean toward decriminalizing general preparatory acts and focusing the criminal law's intervention on the stages of attempt and abandonment, while specifically listing those preparatory acts that truly require punishment in the specific provisions.
Part VII is titled "The Boundaries of Criminal Law." The author again takes a constitutional perspective to argue for principles such as prohibiting vague language in criminal law and retroactive application. He extends the discussion of constitutionality to challenging questions such as how common law crimes can be made more specific and to what extent crimes without victims should be criminalized.
In the conclusion, the author states: Just as humans eventually discovered that the Earth is round, readers of this book should not stop thinking after finishing the last page but rather return to the starting point for 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 overturn traditional notions of crime and punishment (see Liu Renwen, We Should Not Simply Release Mentally Harmful Individuals, http://www.jcrb.com/zyw/liurw/index.htm).
As the saying goes, the more you read a book, the clearer its meaning becomes. If we follow the author's advice to "read this book 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, in a suburban home in Beijing.