Criminal Law’s Core Principles
Washington University Jurisprudence Review (forthcoming).
66 Pages Posted: 10 Feb 2021 Last revised: 15 Oct 2021
Date Written: October 14, 2021
Modern criminal law scholars and policymakers assume they are free to construct criminal law rules by focusing exclusively on the criminal justice theory of the day. But this “blank slate” conception of criminal lawmaking is dangerously misguided. In fact, lawmakers are writing on a slate on which core principles are already indelibly written and realistically they are free only to add detail in the implementation of those principles and to add additional provisions not inconsistent with them. Attempts to do otherwise are destined to produce tragic results from both utilitarian and retributivist views.
Many writers dispute that such core principles exist. It is a common view that people’s justice judgments are personal to them or perhaps to their small group. If this were true, it would present an obstacle if not a permanent barrier to the creation of a criminal code that has legitimacy and moral credibility with most persons within its jurisdiction. But an investigation of the evidence from a wide variety of sources suggests that there does exist a set of core principles upon which humans generally agree.
This article examines six potential indicators of core principles: principles on which empirical studies suggest a high level of agreement across demographics within society, principles on which empirical studies suggest agreement cross culturally, principles emerging early in the historical development of formal criminal law, principles reflected in the universal path of child development, principles reflected in the behavior of social animals, and rules and principles regularly appearing in natural experiments of human groups beyond the reach of law. We identify nine principles with support from most or all of these sources and that properly qualify as near universal core principles.
One might speculate about why such core principles exist, and the article does, but whatever the reason—be it an evolutionarily created genetic predisposition or a process of generalized learning common to all social groups—the existence of such core principles has important and diverse practical implications: in suggesting reduced crime-control effectiveness where the criminal law conflicts with a core principle, in setting limitations on and strategies for social reform, in supporting a broader use of restorative justice, in suggesting a more nuanced application of the legality principle, in supporting the recognition of a general mistake of law defense and a mitigation for partial excuses, in assessing the feasibility of creating an international criminal law or of creating a criminal law for a territory now being created whose population does not yet exist, and even in planning initial contact with extraterrestrial beings.
Keywords: core principles, blameworthiness principle, proportionality, wrongdoing, empirical & cross-cultural studies, child development, desert, moral credibility, restorative justice, legality principle, mistake of law, mitigations, partial excuses, international criminal law, criminal codes, rules of war
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