通往刑法之路.pdf

S T A N F O R D L A W S C H O O L
A Canon of the Criminal Law
by Robert Weisberg
Stanford Law School
Working Paper No. 10
May, 2000
Stanford Public Law
and Legal Theory
Working Paper Series
Stanford Law School
Crown Quadrangle
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Stanford, California 94305-8610
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A Canon of the Criminal Law
Robert Weisberg
Stanford Law School
I write in the imperative (more modestly, in the exhortative) to one who has asked
what one must read to understand our criminal law. And since this essay will address the
relationship between desert and utility, let "canon" here mean bination of those
works most deserving to be read for their merit and those most useful to read, even as
only data (though crucial data).
Few associate Blackstone with the criminal law, but read the section of his
Commentaries on “Public Wrongs.”1 You will be chastened: However much we believe
in elemental principles, we are all probably anti-Langdellian enough to be embarrassed by
the near sufficiency of Blackstone in laying out, over two centuries ago, the fundamentals
of criminal jurisprudence and the elements of major crimes. Perhaps most strikingly,
Blackstone quickly recognizes the main problem in generating prescriptive principles of
criminal liability. He posits the various potential purposes of criminal punishment, and
he recognizes that bination of two or more of them will thwart any very
systematic formula for correlating crime to punishment. And he makes no effort to
finesse the problem by suggesting any easy pluralism.

1William Blackstone, mentaries on the Laws of England (e Sharswood, ed. 1908).
1
For though the end of punishment is to deter men from offending, it never
can follow from thence that it is lawful to deter them at any rate and by
any means; since there ma