November 8, 2006

Rashomon and Thinking About Criminal Law

Denis J. Brion, Washington and Lee University, has published "Pluralism: Rashomon and Contested Conceptions of Criminality" as Washington & Lee Legal Studies Paper No. 2006-11. Here is the abstract.
The 1951 Akira Kurosawa film, Rashomon, is famous for depicting four often radically different reports of a violent incident that took place in a grove of trees in twelfth century Japan, the reports of the three participants in the incident and of the one witness to it. By considering this seemingly puzzling depiction in light of advances being made in the field of cognitive science, each of these conflicting reports can be understood as being based on one of the four fundamental ways in which the human mind can place events in a cognitive frame and thereby provide the structure for individual human consciousness. In his 1978 text, Rethinking Criminal Law, George Fletcher provided a trenchant description of his thesis that “the criminal law is a polycentric body of principles”, bringing to light four fundamental ways in which the judiciary, by way of resolving particular disputes, determines the criminality of particular acts. Again, these four fundamental modes of determining criminality can be understood as being based on the four cognitive frames available for the structuring of consciousness. Because this polycentric nature can be identified across the various substantive areas of the law, this understanding provides a way of addressing the possibilities for developing a substantive jurisprudence of the law.

Download the entire paper from SSRN here.

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