Vol. 9 No. 10 (October 1999) pp. 472-475.

FOUNDATIONS OF CRIMINAL LAW by Leo Katz, Michael S. Moore, and Stephen J. Morse (Editors). New York: Oxford University Press, 1999. 352 pp. Cloth $49.95; Paper $19.95.

Reviewed by Marvin Zalman, Criminal Justice Department, Wayne State University.

This anthology, a volume in the "Interdisciplinary Readers in Law" series, is designed as supplementary reading for American law school courses on criminal law. The editors, law professors at the University of Pennsylvania, are leading authorities in criminal law. The anthology consists of 49 previously published selections, accompanied by extensive introductory and post-selection notes and questions in the style of a law school casebook. The readings are divided into six chapters: The Crime Problem: Theory and Evidence (5 selections); Crime and Punishment (18 selections); Principal Liability (10 selections); The General Part: Accomplice, Attempt and Conspiracy Liability (4 selections); Justification and Excuse (11 selections); and Sentencing Theory and Practice (1 selection).

Given the considerable literature on criminal law, it is appropriate to ask what organizing principle guided the editors in making selections. They appropriately focus on the "general part" of criminal law. Penal codes are divided into the "special part" (i.e., definitions and distinctive rules of the specific crimes) and the "general part," which includes all other rules necessary for a coherent penal law. Although there are many challenging issues concerning the special part, the more interesting and thorny intellectual problems lie with the general part, which includes general principles of liability (e.g., causation, the nature of voluntary acts, the mental element of criminality), doctrinal defenses (e.g., insanity), inchoate crimes (attempt, conspiracy, and solicitation), parties' responsibility (principals and accessories), and the like.

The authors also provide a second selection criterion, stating that the readings are drawn from law, philosophy and social science. This second guideline, however, does not mean that the book is evenly balanced between the social sciences, philosophy, and law. The volume on the whole is far more focused on philosophical analysis than on social scientific inquiry.

Many of the selections and authors in this volume will be familiar to criminal law teachers. Punishment philosophy is covered by well worn but valuable excerpts from Kant, Bentham, C. S. Lewis, H. L. A. Hart and others. Under the concept of what constitutes criminal harm - which the editors place in the chapter on the moral justifications for punishment but which could be otherwise classified - are indispensable readings by Joel Feinberg. Excerpts by Norval Morris and Herbert Fingarette and Ann Fingarette Hasse are found in the section on mental abnormality. The authors draw on Kent Greenawalt and Joshua Dressler in the chapter on justification and excuse. Selections by

Page 473 begins here

Sanford Kadish and George Fletcher constitute the bulk of a brief chapter on accomplice liability and attempt. Although Paul H. Robinson is discussed in some of the excerpts and notes, there are no selections from his valuable work. Two giants of criminal law theory - Glanville Williams and Jerome Hall - who reestablished criminal law as a respectable intellectual pursuit in the mid-twentieth century, are missing from the volume.

There are several curious features about the selections that might make this volume less (or more) attractive to potential adopters. For example, the selections appear often to reflect excessively on the particular concerns of the editors. The 49 selections were written by 35 authors (three were co- authored). Most authors had single entries; the philosopher Joel Feinberg had three relevant and interesting selections; editors Katz and Morse and three other authors (or co-authors) each contributed two selections. In contrast to this breadth of authorship, editor Michael Moore wrote nine of the selections. This in-depth concern with Moore's work is also seen in five pages of notes, questions and excerpts devoted to a running argument with an article by David Dolinko (not included in the anthology) criticizing the retributivism favored in selections by Herbert Morris and Michael Moore. At this point, rather than allowing students to draw their own conclusions about retributivism, the extensive notes give Moore a platform to continue his argument with Dolinko. This is the prime, but not the only, example of the editors using this anthology as a forum from which to continue their particular scholarly interests. Some teachers may find this exciting, but others might find it too confining. In all fairness to the editors, they do not always figure prominently in the debates that characterize many of the sections of this text.

Another curious feature of the book is that the last chapter on Sentencing Theory and Practice contains only one selection, and one wonders why it was not included in the second chapter on punishment. Rightly or wrongly, this gives the impression that the book was hastily compiled to meet the publication demands for the Interdisciplinary Readers in Law series.

The initial chapter is on criminology and crime control, subjects that are not, strictly speaking, aspects of criminal law. As a criminal justice specialist (lawyer and social scientist) I find this attractive. Aside from lawyer's law (e.g., civil procedure, evidence), law is about both rules and something else (e.g., divorce law is about relationships gone sour, sports law is about athletics, and criminal law is about crime and criminals). It is not clear, however, that lawyers need to become expert in the underlying something that is the focus of the legal topic, and the need for expertise may differ from one area to another. Although it is useful for them to know quite a bit about sociology or counseling, divorce lawyers, for example, can be competent without obtaining advanced degrees in these disciplines or professions. Criminal lawyers probably need even less insight into criminal behavior to be effective advocates. They better serve their clients by knowing how the criminal justice system works and understanding cognate fields like forensic science. Nevertheless, it is arguably worthwhile to introduce a law student to an overview of criminology.

How well this is done is another matter. In a volume that presents law students with abstruse excerpts from philosophers and jurisprudents, the excerpts on criminology are rather thin. The excerpt

Page 474 begins here

by John Braithwaite, who has written an interesting and provocative book on punishment, is exploited to present very basic facts about crime. The editors might have discovered that law students, like most Americans, know less than nothing, which is accurate about crime. Therefore, it would have been more efficient for them to have written an introduction that lays out the basic facts about crime patterns and statistics. The first selection is from an interesting and valuable contribution to criminology by Jack Katz in which he tries to understand and appreciate the subtle attractions of criminal behavior from the criminal's perspective. But his views are somewhat unorthodox, and are probably attractive to lawyers who have to interact with criminal suspects as real people. The editors quite openly admit that, "[b]ecause the theoretical terrain [of criminology] is so rich, complicated, embattled, and dependent on basic research from allied disciplines, we have chosen not to include basic theory among the readings." However, if law students are ignorant of basic criminological theory and if the editors believe that it is important for students to have an overview, it might have been far more valuable to depart from the format of this book to have written a solid chapter on competing criminological theories. The problems of this chapter are amplified by offering selections by Michael Tonry and James Q. Wilson, which deal with crime and public policy. These are important excerpts, but they do not do justice to this important area of inquiry.

Given the number of excerpts and the length of the notes and questions, there is no way to comment on more than a small slice of this book. Many of the excerpts are classic expositions familiar to most law teachers. I came upon some excellent readings for the first time in this book. For example, an excerpt by John Jeffries on the vagueness doctrine helped to clarify my long standing vague dissatisfaction with vagueness that was nicely explained by pointing out the formality and artificiality of the doctrine as applied by the courts. At another point, the editors provide a useful service in specifying ten ways of classifying the principle of causation, thereby helping to clarify this philosophically dense subject.

One of the unexpected pleasures I've derived from reading this volume straight through is to juxtapose readings from different parts of the book. For example, the editors include an excerpt by Richard A. Posner on the economic theory of criminal law in the section on punishment, but this excerpt is as much about criminal behavior. His economic analysis of the "inefficiency" of rape as bypassing the "implicit market" of dating stands in such sharp contrast to Jack Katz's suggestion of the "sensuality" of shoplifting as to cry out for comparison. The requirements of a textbook, however, preclude such cross-subject analysis. Another such juxtaposition could be made by comparing the dense, philosophical treatment of causation in the chapter on Principal Liability (excerpt by Hart and Honore) with Stephen J. Morse's enlightening excerpt, entitled Brain and Blame, in the chapter on Justification and Excuse that locates the basis of blameworthiness in the irrationality and incapability of actors rather than on underlying but-for causes of behavior, including mental pathology.

FOUNDATIONS OF CRIMINAL LAW could admirably serve its intended purpose as supplementary readings in a law school course in the hands of an instructor who wishes to emphasize the philosophical analysis of criminal law. On the other hand the book may not be useful to law teachers

Page 475 begins here

with different teaching agendas. It also seems to me that the book is of limited value to non-law school criminal law instructors. The volume is too long and too advanced to supplement undergraduate criminal justice courses in criminal law, although it might be considered for graduate courses. FOUNDATIONS OF CRIMINAL LAW might be useful for an undergraduate philosophy of law course that entirely emphasizes criminal law.

Anthologies are often valuable resource volumes for scholars. Unfortunately, the mode of editing the large number of excerpts and the copious notes make this more a teaching volume than a resource book. Indeed, one thing that struck me as I read the volume was how we lawyers have become habituated to open ended questions. It occurred to me that each of the hundreds (perhaps more) of the questions following the excerpts could, if taken seriously, be the basis of a semester long inquiry. How on earth could a thoughtful student seriously attend to the kind of intellectual work that would provide a good answer to each question in a matter of minutes? To make it worse, the questions are often imbedded in lengthy, run-on commentaries that, while coherent, tend overload one's intellectual circuits. Once again I was reminded that we legal scholars (and I plead guilty) often forget the lesson that less is more.