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Article
THE 100-plus YEAR OLD CASE FOR A MINIMALIST CRIMINAL LAW (Sketch of a General Theory of Substantive Criminal Law)
New Criminal Law Review (2015)
  • Mike C Materni, Harvard University
Abstract

Criminal law defines the system of government of which it is the political expression; thus having a normative theory of substantive criminal law is paramount. U.S. criminal law has developed in the absence of such overarching theory, and is now plagued by overcriminalization. This article advances a model of a minimalist criminal law grounded on strong normative principles that are presented and defended not from the perspective of metaphysics or moral philosophy; but rather, in a historical and comparative perspective, as a matter of political choice. Core among those principles is the idea that in a liberal democracy the criminal law should be seen as the extrema ratio, or option of the last resort. After laying out and defending the model, the article deals with issues related to its implementation, advancing an argument for the constitutionalization of substantive criminal law. The article argues that, on the basis of existing yet overlooked constitutional doctrine, criminal laws should be subject to strict scrutiny.

Keywords
  • criminal law,
  • overcriminalization,
  • due process
Disciplines
Publication Date
Summer June, 2015
Citation Information
Mike C Materni. "THE 100-plus YEAR OLD CASE FOR A MINIMALIST CRIMINAL LAW (Sketch of a General Theory of Substantive Criminal Law)" New Criminal Law Review Vol. 18 Iss. 3 (2015)
Available at: http://works.bepress.com/mike_materni/3/