Dressler, p. 1-6, “Nature, Sources, and Limits of the Criminal Law”


Here we have a treatise from Henry Hart.


What is a crime?  What is the method of criminal law?


1.     Criminal law uses commands that tell everyone they must either do something or not do something.

2.     You have to do or not do these things whether or not they are explicitly written down.  These are the rules made by the community for the community.

3.     If you break the rules, you’ll get punished.


But…what makes this any different than contract law or tort law?  All of them try to prevent injury to society.  All of them can be used by public officials.  All of them can cause people to get punished.


Is a crime just anything that we call a crime?[1]  Hart doesn’t want to believe it.  He goes on to:


4.     A crime is something that is morally condemned by the community.

5.     The method of criminal law, according to Hart, is the imposition of community condemnation plus negative consequences (he says physical consequences).


Finally, Hart makes the point that if you are for rehabilitating criminals, it’s important to not lose sight of the fact that they have earned society’s condemnation, unlike other people who are treated for diseases or other ailments.


Notes and Questions


1.     Perkins & Boyce’s definition would include, on Hart’s accounting, breaking contracts, committing torts, and other stuff we don’t normally think of as falling under the category of “crime”.  Maybe P & B know this, and they’ve decided to make their definition of crime broad.  Is it helpful?  If I play Goofus for a moment, I might ask if any discussion of the definition of crime is really helpful.  Isn’t a crime something we know when we see it, at least most of the time?

2.     Hart makes the distinction that criminal behavior earns society’s moral condemnation, while civil wrongs do not.[2]

3.     Criminal law has gone from mostly common law to pretty much all statutory.

4.     Legislatures deal with crime before the fact, while courts deal with them after they’ve occurred, says Hart.  For criminal statutes to work, four conditions must be met:

a.      The potential criminal must know the law exists and what it says.

b.     He or she needs to know to what circumstances the law applies.

c.     He or she needs to be able to follow the law.

d.     He or she must be willing to go along with the law.


These are conditions for a law to work.  But Dressler says, what about fairness?  If one of these conditions isn’t met, is it fair to convict someone?  Let’s take them one at a time.


a.      We say that “ignorance is no excuse”, but what if the law is obscure and dumb, or so complicated that no one could reasonably comply?  What if there was a law that said: “You must drink 1.2 liters of Vanilla Coke every alternate Thursday in a state starting with the letter O.  Violation is punishable by death.”  I suppose we count on the democratic process to prevent a legislature from being elected that would pass such a dumb law.

b.     I kind of don’t get this one.  I think I need an example.

c.     I think we agree that if someone doesn’t have the mental capacity to file a tax return we’re not going to punish them for not doing so.  Then again, I don’t think that’s the way the law is written.  If it’s impossible for a particular individual to comply with the law (“count the number of grains of sand in the world”), we would consider it unfair to impose punishment for breaking that law.  But then again, that’s a dumb law.

d.     If you’re not willing to follow a law, you can get punished anyway, and most people would agree that’s fair.  If the community says you must do or not do something, you defy them at your own peril.

5.     The Constitution limits the kind of laws the legislature can pass.  The Constitution can also raise issues like the power of states versus the federal government.  It is suggested that since the legislature represents the will of the majority, the judiciary stands up for the interests of the minority.

6.     So if criminal law is so statutory these days, what’s the role of the courts?  They must interpret the laws, especially when the legislature doesn’t make itself clear.  What “presumptions” do courts bring in when there’s a law that can be interpreted in more than one way?  We’ll find out as we proceed.

7.     What was wrong with state criminal codes?

a.      They left out some common law crimes and defenses.  Did they do that on purpose?

b.     They left out important doctrines like accomplice liability.

c.     Some of the statutes were contradictory.

d.     Many of the codes applied principles inconsistently.


Judges, lawyers, and professors got together to write the Model Penal Code.  Many states have adopted all or part of it for their own statutes.


Back to Casebook Notes


[1] This makes me think of the question: is there something biologically distinctive about a weed?  Or is a weed just any plant that people find undesirable?  Unfortunately, I forget the answer just now.

[2] A jury awards a zillion dollars in a medical malpractice suit.  Doesn’t the jury represent the community?  Doesn’t a multi-zillion dollar punitive judgment against a defendant represent moral condemnation of that defendant?  Then why isn’t medical malpractice a crime instead of a tort?  Wouldn’t it save a lot of money to throw bad doctors in jail instead of mugging their insurance companies for a zillion dillion dollars?