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Criminal Law TheoryDoctrines of the General Part$
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Stephen Shute and Andrew Simester

Print publication date: 2002

Print ISBN-13: 9780199243495

Published to Oxford Scholarship Online: January 2010

DOI: 10.1093/acprof:oso/9780199243495.001.0001

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PRINTED FROM OXFORD SCHOLARSHIP ONLINE (oxford.universitypressscholarship.com). (c) Copyright Oxford University Press, 2021. All Rights Reserved. An individual user may print out a PDF of a single chapter of a monograph in OSO for personal use. date: 22 September 2021

The Modern General Part: Three Illusions

The Modern General Part: Three Illusions

(p.75) 4 The Modern General Part: Three Illusions
Criminal Law Theory


Oxford University Press

Criminal law theorists like to think that they are moving existing criminal law theory to a higher plateau of rationality. In truth, however, their advances in rationality often are less than they appear, sometimes only advances in the appearance of rationality. This chapter gives illustrations of three illusions with respect to the modern general part of criminal law. The first illustrates the inevitable limitation of any theoretical advance; the second is an example of an inevitable limitation that has been unnecessarily retained over time; and the third is a case of possibly cynical deception. The focus is on American criminal law and its development (with some reference to the Draft Criminal Code for England and Wales). The chapter looks at the purposes of liability and punishment, unfairness of the objective reasonable person standard used in common law in judging culpability, problem with the concept of dangerous persons, and preventive detention as criminal justice.

Keywords:   criminal law, general part, liability, punishment, reasonable person, common law, culpability, dangerous persons, preventive detention, criminal justice

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