The 100-Plus Year Old Case for a Minimalist Criminal Law (Sketch of a General Theory of Substantive Criminal Law)

18 (3) New Crim. L. Rev. 331 (Summer 2015)

38 Pages Posted: 11 Jan 2015 Last revised: 24 Jun 2015

See all articles by Mike Materni

Mike Materni

Harvard Law School; Harvard University - Faculty of Arts and Sciences

Date Written: June 23, 2015

Abstract

Criminal law defines the system of government of which it is the political expression; thus having a normative theory of substantive criminal law is paramount. U.S. criminal law has developed in the absence of such overarching theory, and is now plagued by overcriminalization. This article advances a model of a minimalist criminal law grounded on strong normative principles that are presented and defended not from the perspective of metaphysics or moral philosophy; but rather, in a historical and comparative perspective, as a matter of political choice. Core among those principles is the idea that in a liberal democracy the criminal law should be seen as the extrema ratio, or option of the last resort. After laying out and defending the model, the article deals with issues related to its implementation, advancing an argument for the constitutionalization of substantive criminal law. The article argues that, on the basis of existing yet overlooked constitutional doctrine, criminal laws should be subject to strict scrutiny.

Keywords: criminal law, strict scrutiny, overcriminalization

Suggested Citation

Materni, Mike, The 100-Plus Year Old Case for a Minimalist Criminal Law (Sketch of a General Theory of Substantive Criminal Law) (June 23, 2015). 18 (3) New Crim. L. Rev. 331 (Summer 2015), Available at SSRN: https://ssrn.com/abstract=2548034

Mike Materni (Contact Author)

Harvard Law School ( email )

1563 Massachusetts Ave
Cambridge, MA 02138
United States

Harvard University - Faculty of Arts and Sciences ( email )

1875 Cambridge Street
Cambridge, MA 02138
United States

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