TOWARDS A LEGAL HISTORY OF AMERICAN CRIMINAL THEORY:
Many writers in recent decades have objected to the utilitarian aspects of substantive criminal law that cannot be squared with modern, retributivist versions of criminal justice. One particular target of the retributivists has been the use of strict liability, especially as it is applied in statutory rape cases. This article is an effort, not to take sides between utilitarians and retributivists, but to historicize the ideas and assumptions on all sides of the debates in criminal law, including the debate about strict liability in statutory rape.
Discovering very little historical work on the subject, I offer the first general intellectual history of the theory of substantive criminal law in America from the late 18th century to the publication of the Model Penal Code in 1962. Along the way, the article provides a close case study of the origins of strict liability in the statutory rape cases. This history suggests, first of all, that the stark modern distinctions between subjective and objective liability and between retributivism and utilitarianism were of little salience before the 20th century. Instead, the real focus of criminal theory in that time was the post-Enlightenment goal of prevention of distinctively public wrongs, as opposed to the private wrongs that were thought not to implicate public policy. Moreover, a newly explicit attention to the regulatory needs of a society enmeshed in the market and industrialization reinforced this public perspective across the 19th century. But concern with moral justice to the individual accused was never absent and became especially salient at particular historical moments. It reached a particularly low ebb during the Progressive era when radical criminal reformers attempted virtually to purge criminal law of its moral dimension, substituting an entirely scientific model of treatment for the traditional model of punishment. This radicalism, however, ultimately prompted an equally radical reaction, which gave retributivisms focus on moral justice to the individual a preeminence it had never before enjoyed. The Model Penal Code, finally, exhibited both the strong, residual influence of the Progressive reformers and the emerging, critical power of the retributivists.
At the heart of this analysis is a close examination of the statutory
rape cases in the late 19th century. Viewed in light of the Victorian
ideology of chastity, the cases and commentary provide a case study of
judicial negotiation between the criminal-law values of private and public
justice. The judges persistently gave pride of place to a public justice
that, in the particular historical context of Victorian America, deployed
the ideology of chastity and stringent demands on the citizenrys
public character to justify the rule of strict liability in the sex cases.
But, at the same time, they often worked to assimilate the results to
at least some measure of private, moral justice. The production of doctrine
in these cases thus provides a concrete lesson in the historical contingency
and flexibility of criminal doctrine and the necessity of understanding
the interactions of both the larger cultural context in which the courts
operate and the internal imperatives of criminal law as a discipline.
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