Thursday, July 28, 2011
Paul H. Robinson (University of Pennsylvania Law School) has posted Four Distinctions that Glanville Williams Did Not Make on SSRN. Here is the abstract:
In his time, Glanville Williams was a pioneer who brought sophistication and rationality to criminal law doctrinal analysis. Today's criminal law theorists have benefited from his advances in analytic approach. As he was a renegade of sorts in his generation, I like to think that he would hope and expect that we would look critically at what we were given by earlier scholars and would try, as he did, to be open to new approaches and ideas.
In that spirit, and in celebration of Glanville William's 100th birthday, this article offers four examples of what it argues are important criminal law organizing distinctions that Glanville Williams did not make. For each, the article describes the distinction, explains how it works, and illustrates how its use can improve the accuracy and insights of criminal law theory. The four distinctions it defends as important are: the conceptual differences among the general defence categories of justifications, excuses, and nonexculpatory defences; the distinct operational category of "doctrines of imputation," such as complicity and voluntary intoxication, which impute to an actor a required offence element that the defendant does not in fact satisfy; the distinction between those doctrines that function to articulate ex ante the criminal law's rules of conduct and those doctrines that function ex post as principles for adjudicating violations of the rules of conduct; and the distinction between two kinds of legality: conduct-rules legality and adjudication legality.