The following five classic books should be required reading for any criminal lawyer or anyone simply interested in understanding the reason behind fundamental criminal law principles:
- Rethinking Criminal Law by George P. Fletcher. Although written in 1978, this book by George P. Fletcher, a prolific and thoughtful legal scholar and now Chair of Jurisprudence at Columbia Law School, is still a relevant and fascinating journey through the landscape of criminal theory. From his first chapter entitled The Topology of Theft to his last on The Theory of Justification and Excuse, Fletcher covers the wide and varied spectrum of criminal offences and defences through elegant, yet colourful, language. Throughout, he questions the reasons behind traditional common law precepts and lends a decidedly American dimension to criminal law principles.
- Punishment and Responsibility by H.L.A. Hart. What Fletcher is to American criminal jurisprudence, Hart, who was a professor of Jurisprudence at Oxford University, is to English criminal law, and then some. Hart, a legal positivist, expounded his legal philosophy in a series of books written in the sixties, his most famous being The Concept of Law in 1961. It is, however, his volume of essays in legal philosophy compiled in Punishment and Responsibility from 1968, which I have read and re-read since my first days in law school. Hart is definitely not for the “faint-hearted” as he extends and refines the theories of John Austin and Jeremy Bentham. Both John Rawls and Ronald Dworkin, also “giants” of legal philosophy, were past students of Hart’s and greatly influenced by him. Indeed, the “Hart-Dworkin” debate on the efficacy of legal positivism is legend in the annals of legal philosophy.
- The Limits of the Criminal Sanction by Herbert Packer. Another American legal scholar, Packer coined the present-day models of criminal process: the “crime-control” model, which emphasizes the efficient apprehension and punishment of criminals in order to protect the law-abiding citizen and the “due process” model, which protects the rights of the accused through a fair and just criminal process. In this 1968 book, Packer extends his models and discusses the role of punishment or sanction in our criminal law. He speaks of both traditional modes of sanctioning and the ability for these methods to deter crime. As well, he offers alternative methods. Interesting to note that some 40 years later, we are still struggling with the same issues.
- Narrative, Violence, and the Law: The Essays of Robert Cover. Although not a complete book written by Robert Cover, but a compilation of his works, the essays found within the covers are some of most mind-bending legal works I have read. Robert Cover, whom I discussed in a previous posting, was, in his short lifetime, a profoundly creative legal thinker, whose writings force the reader to think of traditional issues in a startling new way. I highly recommend Cover’s essay entitled Violence and the Word.
- Criminal Law: The Meaning of Guilt: Strict Liability, Working Paper No. 2 1974, Limits of Criminal Law: Obscenity: A Test Case, Working Paper No. 10, 1975, Criminal Responsibility for Group Action, Working Paper No. 16, 1976 – all by the LRCC. In the early to mid-1970s, Antonio Lamer, who later became Chief Justice of the Supreme Court of Canada, was the Vice-Chairman and then Chairman of the Law Reform Commission of Canada (LRCC). During his sojourn as head of the organization, the LRCC produced a number of excellent Working Papers on criminal law generally but more specifically, on the issue of criminal liability. Three, in particular stand out, and are a must read for anyone interested in the fault element of crime or criminal intention. They are written in a very clear manner as they were intended for public consumption. The actual 1976 Parlimentary Report is entitled Our Criminal Law.