Abstract

http://ssrn.com/abstract=529882
 
 

Citations



 


 



The Possession Paradigm: The Special Part and the Police Model of the Criminal Process


Markus D. Dubber


University of Toronto - Faculty of Law


DEFINING CRIMES, R.A. Duff, S. Green, eds., Oxford University Press, 2005

Abstract:     
Possession crimes have become common features in the special parts of modern criminal codes. Defying traditional categories and principles of criminal law, they are paradigmatic of the Police Model of the criminal process, which regards criminal law not as an institution for the regulation of interpersonal conflict but as an administrative mechanism for the enforcement of state authority.

Possession offenses appear both in the general part (as a variety of inchoate liability) and the special part (attached to particular offense categories), as a single broad offense (such as possession of criminal instruments) and as several specific offenses (such as possession of drugs, guns, stolen property, and so on). They collapse the distinctions between offense and defense (more specifically, between offense definition and justification) by including, within their definition, the concept of "unlawfulness," "illegality," or "criminality," along with separate "exemptions." Possession offenses also do away with traditional notions of imputed (and "group") liability, through the doctrine of constructive possession, which makes room for vicarious liability (through dominion over a person) and spatial liability (through dominion over an area). They resist categorization according to the traditional distinction between conduct and status offenses. They challenge the traditional distinction between voluntariness and mens rea, particularly in varieties that do away with mens rea.

Perhaps most important, possession offenses straddle traditional distinctions among various aspects of the criminal process, definition, imposition, and infliction. Through the use of presumptions they incorporate procedural elements into substantive criminal law, thus breaking down the distinction between definition and imposition. More fundamentally they are specifically designed for ease of enforcement and imposition, reflecting an approach to criminal law that emphasizes crime control over just punishment, application over definition, and results over rules.

Keywords: criminal law, criminal process, possession, special part

JEL Classification: K14, K30

Accepted Paper Series


Not Available For Download

Date posted: April 14, 2004  

Suggested Citation

Dubber, Markus D., The Possession Paradigm: The Special Part and the Police Model of the Criminal Process. DEFINING CRIMES, R.A. Duff, S. Green, eds., Oxford University Press, 2005. Available at SSRN: http://ssrn.com/abstract=529882

Contact Information

Markus D. Dubber (Contact Author)
University of Toronto - Faculty of Law ( email )
78 and 84 Queen's Park
Toronto, Ontario M5S 2C5
Canada

Feedback to SSRN


Paper statistics
Abstract Views: 887

© 2014 Social Science Electronic Publishing, Inc. All Rights Reserved.  FAQ   Terms of Use   Privacy Policy   Copyright   Contact Us
This page was processed by apollo3 in 0.390 seconds