Function, Form, and the Criminal Law

Martha Grace Duncan, Emory University School of Law, has published "Beauty in the Dark of Night; The Pleasures of Form in Criminal Law," in volume 59 of the Emory Law Journal (2010). Here is the abstract.

After learning that the man she loves is the son of her 'great enemy,' Juliet goes to her window and speaks: What’s Montague? It is nor hand, nor foot, Nor arm, nor face, nor any other part Belonging to a man. O, be some other name! Unaware that Romeo is listening from the Capulets’ garden below, she continues her now-famous reflections: What’s in a name? That which we call a rose by any other word would smell as sweet. Like Juliet, numerous criminal law scholars have assumed that names are merely arbitrary symbols, capable of being changed with impunity to avoid unwanted connotations. According to these critics, the mellifluous names and definitions of criminal law are 'amorphous,' 'broad,' even meaningless. The defining characteristic of murder, malice aforethought, is said to be 'inscrutable on its face' and 'a term of art, if not a term of deception.' The premeditation-deliberation formula is criticized as a 'mystifying cloud of words.' And the various definitions of Depraved Heart Murder are dismissed as 'notoriously unhelpful,' 'a collection of colorful verbiage' that 'tend[s] to carry more flavor than meaning.' Disdaining criminal law’s figurative language, with its inevitable ambiguity, legal scholars have urged replacing the traditional terms with words whose meaning is precise and consistent. In a concrete manifestation of this ambition, the American Law Institute sponsored the creation of the Model Penal Code, which has been adopted in part by roughly half the states. The explicit purpose of the Code is to 'dispel the obscurity of the Common Law.' In contrast to these critics, Professor Duncan’s article seeks to show that the Common Law language of Criminal Law is valuable for its meaning, its beauty, and its rich historical resonance. Rather than being a failed attempt at precise language, the Common Law terms are, she proposes, a different kind of language altogether. It is what philosopher Philip Wheelwright calls expressive or depth language, whose ambiguity stems not from sloppiness but from an effort to unite diverse associations and thereby invent new meanings.

Download the article from SSRN here.