[...]... legality and justice in the criminal process? Some of these distinctions may be difficult to understand At this stage, it is not important to grasp the full significance of all of them They illustrate the underlying thesis of this book that a basic set of distinctions generates the "deep structure" of all systems of criminal law This is, as it were, the universal grammar of criminal law As Noam Chomsky developed... personalities and talents of those charged with making the decision of guilt The 7 8 Basic Concepts of Criminal Law agony of Joseph K derives not only from the inscrutable rules of substance but from the torture of undefined procedures The rules of legal procedure allocate functions among the lawyers, the judge, and the jury or the lay people who assist the judge in finding the facts of the cases They also... arbitrary rulings of the legislature In the local rules that you learn, you will find a lasting message, a solution to a basic problem that runs to the foundation of the legal system You have reason to be proud of your local law, for it represents an answer—and perhaps the correct answer—to questions that criminal lawyers and judges pose all over the world 6 Basic Concepts of Criminal Law Mr Efficient:... when you argue basic questions of law Anyone can look up the rules in a handbook What you need to excel in court is an understanding of the deeper dynamic of the law, the hidden structure that influences and shapes the thinking of judges If you delve into the deep distinctions that shape the contours of the law, you will have an edge on the pedestrian lawyers who tread on the surface of the law Mr Sport:... languages of the world, here, in these twelve distinctions lies the grammar of criminal law Understanding the deep, universal structure of criminal law provides an antidote for the positivist bias of recent decades It is true that every country has a criminal code, but these codes should be understood as local answers to the universal questions that constitute the foundation of criminal law Different... under its own procedural law but under the substantive law of New York or France It is worth noting that in criminal law, the jurisdiction of the court determines the applicable substantive law It is very rare that one court will apply the substantive law of another Why is it possible in contract and tort disputes, but not in criminal cases, to determine liability under the law of another jurisdiction?... follow is that the basic distinctions of criminal justice transcend the enacted law of particular states and countries The local statutory law does not determine the boundary that runs between substance and procedure or the way the boundary adapts to the changing context of the inquiry The message of this chapter illustrates the overarching theme of this book The basic distinctions of criminal justice... What is a rule of substantive (or material) criminal law? What is a rule of procedural criminal law? How do we tell the difference? 2 How do we mark the boundaries of criminal punishment as opposed to other coercive sanctions, such as deportation, that are burdensome but non -criminal? 3 What is the difference between treating the suspect as a subject and an object, both in terms of the criminal act and... the Offender, 74 The Basics of Wrongdoing, 77 The Basics of Attribution, 81 The Operative Significance of the Distinction, 85 A Problem in the Borderland: Putative Self-Defense, 88 6 Offenses versus Defenses, 93 Disputes about the Burden of Persuasion, 94 From Defeasible to Comprehensive Rules, 97 Formal Reasoning, 97 The Presumption of Innocence, 98 The Moral Theory of Guilt, 99 The Necessity of the... Consequently, Continental lawyers purport to use the same standard of proof in criminal and civil [private law] trials Substance versus Procedure 17 This accounts for a common law procedural option that strikes Continental lawyers as odd In common law courts and only exceptionally in Continental courts, a finding of not guilty in a criminal trial in no way hinders a subsequent action at private law for damages . class="bi x0 y0 w0 h0" alt="" BASIC CONCEPTS OF CRIMINAL LAW This page intentionally left blank BASIC CONCEPTS OF CRIMINAL LAW George P. Fletcher New . intentionally left blank BASIC CONCEPTS OF CRIMINAL LAW This page intentionally left blank Introduction Criminal law has become codified law. Everyplace