Criminal Law Principles (4th Edition) (A Concise Introduction to American Law · Photocopy Edition)

Author: Arnold H. Loewy
Publisher:
Publish Date: 2004-01-29
Features: Criminal Law Principles is one of the renowned American Casebook series. Since its publication in 1975, it has now been revised to its fourth edition (the latest edition was published in March 2003). The author, Arnold H. Loewy, graduated from Boston University and Harvard University and has been a professor at the University of North Carolina School of Law since 1973. He currently holds the position of 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 American criminal law.
Part focuses on the theory of the purpose of punishment. The author deviates from the traditional approach of discussing criminal law starting with criminal theory, instead delving 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 detailed discussion, we observe the writing style commonly used by Anglo-American scholars—supporting theory 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, where the author selects crimes worth elaborating on, such as homicide, rape, and other crimes against the person and property, as the subjects of analysis. He 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 has moved the defense of self-defense to this section.
Part III introduces the "dual theory" of criminal elements in Anglo-American criminal law, which includes subjective criminal intent and objective criminal conduct. Subjective criminal intent also 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 Limits 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. No wonder his book maintains a constant constitutional perspective on criminal law. This is something we can all learn from.
I once pointed out in a roundtable discussion titled "Where Should Chinese Criminal Law Go?" that the true modernization and democratization of China's criminal law can only be achieved 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).
Part IV lists several special defenses, including: insanity, minority, intoxication, coercion, necessity, police entrapment, and so on. These defenses differ in circumstances under which they can be invoked, whether as exonerating or mitigating factors. 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 preexisting.
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 of the key features of Anglo-American criminal law's theory of criminal constitution is placing static criminal elements into the dynamic context of 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 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 traditions and characteristics, the utilitarian philosophy reflected in Anglo-American criminal law reminds me of a viewpoint expressed by my Taiwanese colleague, Professor Lin Dongmao, at an academic conference recently: The theory of criminal constitution is not supposed to be so esoteric—why 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 criminally liable when their actions meet the external criteria of a specific crime, then incomplete crimes and joint offenses address why a person is held criminally liable even when their actions do not fully meet the criteria of a specific crime. In this part, we can observe the Anglo-American approach of classifying "incomplete crimes" as "attempts" and 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 as independent crimes or by some countries listing specific preparatory acts that must be punished separately in the specific provisions, both reflect the policy of "preparatory acts are generally not punished, except 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 on criminal intervention at the stages of attempt and abandonment, while specifically listing preparatory acts that must be punished in the specific provisions.
Part VII is titled "The Boundaries of Criminal Law." The author once again stands at the height of the constitution to argue for principles such as prohibiting vague language in criminal law and retroactive application, and leads the discussion on constitutionality to challenging questions such as how to increase the clarity of common law crimes and to what extent crimes without victims should be criminalized. In the conclusion of the book, the author points out: Just as humans eventually discovered that the Earth is round, readers of this book should not stop thinking after reading the last page. 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 overturn traditional notions of crime and punishment (see Liu Renwen, We Should Not Simply Release Mentally Ill Individuals with Harmful Behavior, 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 through from beginning to end a couple of 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.