NCJ Number
61256
Journal
Hastings Law Journal Volume: 29 Issue: 5 Dated: (MAY 1978) Pages: 893-919
Date Published
1978
Length
27 pages
Annotation
GENERAL ELEMENTS OF LAW BEARING ON REFORM ARE IDENTIFIED, FOLLOWED BY A DISCUSSION OF THE NATURE OF LAW REFORM AND ITS MEANING FOR ASPECTS OF CALIFORNIA LAW, AND A DESCRIPTION OF A REFORM METHOD.
Abstract
THREE GENERAL ELEMENTS COMPRISE SUBSTANTIVE CRIMINAL LAW: (1) 'RULES,' WHICH STATE DISTINCTIVE ELEMENTS FOR EACH CRIME, INCLUDING THE PARTICULAR MENS REA THAT MUST ACCOMPANY THE ACT FOR A CRIME TO OCCUR; (2) 'DOCTRINES,' WHICH ARE PROPOSITIONS RELATED TO DEFENSES, SUCH AS INSANITY, SELF-DEFENSE, COMPLICITY, AND CONSPIRACY; AND (3) 'PRINCIPLES,' WHICH CONSIST OF THE UNION OF 'RULES' AND 'DOCTRINES' TO FORM THE UNDERLYING CONCEPTS OF A SYSTEM OF CRIMINAL LAW. REFORM MUST PRESERVE WHAT IS SOUND IN THE CRIMINAL CODE AND JURISPRUDENCE, IMPROVE THAT LAW, AND ORGANIZE THE STATUTES ACCORDING TO THE THREE AFOREMENTIONED ELEMENTS OF CRIMINAL LAW. PRINCIPLES IN CALIFORNIA LAW REQUIRING REFINEMENT AND CLARIFICATION ARE THE DEGREE OF NECESSARY FORCE WHICH MAY BE USED TO PROTECT PERSONS OR PROPERTY; BATTERY, COERCION, GENERAL INTENT AND SPECIFIC INTENT, DIMINISHED CAPACITY, AND FELONY-MURDER. INITIAL EFFORTS AT REFORM SHOULD FOCUS UPON IMPROVEMENT RATHER THAN CODIFICATION BECAUSE CODIFICATION IMPLIES A RADICAL CHANGE IN CRIMINAL LAW WHICH COULD RENDER MEANINGLESS COMMON LAW AND CASE LAW AS TOOLS FOR INTERPRETING THE STATUTES IN PARTICULAR SITUATIONS. THE AMERICAN MODEL PENAL CODE, THE REPORTS OF THE ENGLISH CRIMINAL LAW REFORM COMMITTEE AND THE CANADIAN LAW REFORM COMMISSION, AND THE 1975 CODE OF WEST GERMANY CAN BE VALUABLE RESOURCES IN ANY EFFORT TO IMPROVE CRIMINAL LAW. CRIMINAL LAW REFORM SHOULD BE AN ONGOING EFFORT, WITH RECORDS OF ALL MAJOR REFORM DISCUSSIONS DEVELOPED IN DETAIL AND PRESERVED FOR REFERENCE IN ALL FUTURE CONSIDERATIONS OF LAW REFORM. FOOTNOTES ARE PROVIDED. (RCB)