This book compares the civil and common law approach to analyze the question - 'What sorts of conduct may the state legitimately make criminal?'. Through a comparative focus on an Australian and German context, this book utilizes interviews with Australian criminal law experts and contrasts them with the German model based on 'Rechtsgutstheorie'. By comparing the largely descriptive, criminology-based Australian approach with the more sophisticated German legal theory model the author finds the Australian approach to be suffering from a 'normative flaw', illustrated by the distinction of different approaches to the offences of incest, bestiality and possession of illicit drugs. Carl Constantin Lauterwein discovers that while there is strength in the common law approach of describing the possible reasons for criminalizing certain conduct, the approach could be significantly improved by scrutinizing the legitimacy of those reasons.

The argument of this book begins with the proposition that there are certain things we must understand about the criminal sanction before we can begin to talk sensibly about its limits. First, we need to ask some questions about the rationale of the criminal sanction. What are we trying to do by defining conduct as criminal and punishing people who commit crimes? To what extent are we justified in thinking that we can or ought to do what we are trying to do? Is it possible to construct an acceptable rationale for the criminal sanction enabling us to deal with the argument that it is itself an unethical use of social power? And if it is possible, what implications does that rationale have for the kind of conceptual creature that the criminal law is? Questions of this order make up Part I of the book, which is essentially an extended essay on the nature and justification of the criminal sanction. We also need to understand, so the argument continues, the characteristic processes through which the criminal sanction operates. What do the rules of the game tell us about what the state may and may not do to apprehend, charge, convict, and dispose of persons suspected of committing crimes? Here, too, there is great controversy between two groups who have quite different views, or models, of what the criminal process is all about. There are people who see the criminal process as essentially devoted to values of efficiency in the suppression of crime. There are others who see those values as subordinate to the protection of the individual in his confrontation with the state. A severe struggle over these conflicting values has been going on in the courts of this country for the last decade or more. How that struggle is to be resolved is a second major consideration that we need to take into account before tackling the question of the limits of the criminal sanction. These problems of process are examined in Part II. Part III deals directly with the central problem of defining criteria for limiting the reach of the criminal sanction. Given the constraints of rationale and process examined in Parts I and II, it argues that we have over-relied on the criminal sanction and that we had better start thinking in a systematic way about how to adjust our commitments to our capacities, both moral and operational.

Concentrating upon those doctrines that make up the general part of the criminal law this collection of essays by leading American and British legal experts sheds theoretical light on key issues of contemporary relevance.

Criminal Law offers a unique hybrid approach to learning criminal law. Most textbooks oversimply the law by presenting the black letter law for major and defenses, but they rarely present any corresponding exploration of the gray areas that exist beyond the basic rules of law. Conversely, casebooks present numerous edited judicial opinions, often with context. Criminal Law takes the best from each of these approaches by merging textual pedagogy and case analyses into a coherent framework that includes legal history, social context, and public policy. Taking a historical approach, legal expert Henry F. Fradella presents the law as it evolved from English common law and compares it with the modern statutory approach to crimes set forth in the American Law Institute's highly influential Model Penal Code. After providing such comparative pedagogy for each crime or defense, Criminal Law presents 1-2 edited cases that allow the reader to contrast how the black letter law plays out in the real world. After each case, a series of questions challenge students to engage in critical thinking about the case and its implications as precedent. Finally, chapters contain a number of additional pedagogical features that focus on public policy concerns and statutory interpretation skills using penal laws from a variety of U.S. states.

Containing original articles on timely topics, full reports of important cases, and a digest of all recent criminal cases, American and English.