Understanding the Topography of Moral and Criminal Law Norms
This chapter explores the following questions. Should criminal law norms be relatively general? Or instead should criminal law norms be relatively specific? Recent codification movements tend to simplify offence definitions by limiting the number of harms or wrongs that the criminal law addresses, and also by restricting the number of mens rea categories that are employed for purposes of grading the seriousness of a crime. Does that simplification come at too great a price? At the same time, a more particularist approach increases the chance that criminal law norms will be incommensurable. Is this outcome regrettable, or instead desirable? Finally, what is at stake in the decision whether to have the legal fact-finder employ descriptive or instead explicitly evaluative criteria, as criteria either of mens rea or of actus reus? Are evaluative criteria preferable, simply because criminal law norms depend, to some extent, on moral norms? The chapter takes a non-consequentialist perspective, for the most part, and concentrates on the justification for punishing malum in se rather than malum prohibitum crimes. The focus is not on the narrower (but important) questions of how to distinguish mens rea from actus reus, or culpability from wrongfulness.
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