REVIEWS

Date01 September 1962
DOIhttp://doi.org/10.1111/j.1468-2230.1962.tb02220.x
Published date01 September 1962
REVIEWS
GENERAL
PRINCIPLES
OF
CRIMINAL
LAW.
By
JEROME
HALL.
Second
edition by the author. [The Bobbs-Merrill
Coy.
Inc. Indiana-
polis.
1960.
xii
and
649
pp.
(with tables
and
index).
€5
10s.l
IT
is not
Lou
much
to
say of this book that
its
appearance in
1947
marked
a
milestone in the history of criminal law, at any rate in the Anglo-American
system
:
naturally Continental jurists, more philosophic in their outlook, have
treated of the “general part” of the criminal law, but on the whole Anglo-
American authors have fought shy of any attempt “to elucidate the basic
ideas of criminal law.” There
is
of course the notable exception of Hale
whose
general observations relating
to
all crimes
are of outstanding value
for his age. But though in Professor Hall’s own words “Hale’s treatise
remains in many ways the greatest accomplishment of any single scholar in
the field
it could not transcend the knowledge and critical apparatus avail-
able in the seventeenth century.
In
the present century Kenny sketched
in
the
outline for
a
modern analysis in the introductory chapter to his brilliant
book,
unfortunately subsequently relegated to an appendix, and there is
naturally much general material in Stephen’s
Ziistory
of
the
Criminal Law.
In
the U.S.A., as Professor Hall points out in his survey of the earlier
literature, rather more had been done; for there is the work of Bishop
(1856)
and
of
course
there is much of general interest to the criminal lawyer
in
Holmes’
Common
Law.
However it remained for Professor Hall to earn the
gratitude of the Anglo-American legal world by the production of the work
under review, and this he did in no uncertain fashion for it was immediately
0bvi0~~
that it stood
in
a
class
apart. Not many years later
(1958)
there
appeared
Dr.
Glanville Williams’
Crilninal
Law:
The
General Part
which
provides
in
a number of ways an even clearer elucidation and is certainly a
worthy rival to the American volume.
So
that it can now be said that we have
two
treatises of outstanding value on this important and dficult subject.
Professor Hall has during the dozen intervening years pondered many
of
the
problems afresh with the result that in his new edition he has provided a
thorough reconstruction of the original work.
So
much
so
that this edition
is
almost
a
new
book
The structure has been substantially rearranged, and
a
great
deal
of
new material has been added: indeed this edition cannot be
far short of double the length of the earlier one.
It
ia
not
my
object to attempt a detailed analysis of Professor Hall’s
work. In broad appraisal
one
can say that it is a book for the advanced
student rather than for
the
beginner, and for the practitioner with
a
juris-
prudential training rather than for the work-a-day lawyer. The author, who
in his earlier career was more generally associated with the teaching of
jurisprudence than with criminal law, has always approached his problems
aa
a philosopher
of
the law, and has not entirely in the present book freed himself
from the philosophic jargon which often tends to repel the plain man from
venturing into the liternture of jurisprudence
:
or
to put it more bluntly the
argument is not always easy to follow. Happily this criticism applies only
to
a
few parts of the book, though unfortunately these are areas where the
plain lawyer is particularly in need of help. It will perhaps not surprise the
reader if
I
mention the discussion of causation as an illustration of this
thoup$ it is hardly more difficult than the analyses of causation in the work.
by Hart and Honor6 on this subject!
Professor Hall’s plan is broadly to open with a short description of tho
604
SEPT.
1962
REVIEWS
605
earlier professional literature on criminal law, and then to give an intro-
ductory account of the theory of penal law which he will expound
:
it
&
what
he calls “a descriptive normative theory” concerned with certain
typed
of
proposition which
it
distinguishes
as
the rules, doctrines and principles of
criminal law, and which it “interrelates to comprise
a
system of
criminal
law.” It might be deduced from this that Professor Hall is a systematist, and
so
indeed he is, and this
is
by no means the least valuable of his qualities, but
he is very much more than this :indeed his main interest in
the
criminal law
is rather a sensitive concern with
the
ethical problem which it exposes and
with the repercussions upon them of the developed and developing
penal
policy of the common law.
In pursuance of his theory Professor Hall divides his subject into
two
main parts: the Principles and the Doctrines. Under the heading of prin-
ciples he discusses, in nine chapters, legality
(wZ1u
poem
dne
legs),
mtu
rea
(in
a
series of three chapters), criminal conduct (he
fiats
shy of
the
expres-
sion
actw
yew
in this chapter), harm (in which he introduces
uctw
rew).
causation, punishment and strict liability which for some
reason
not made
clear is expressed
to
be by way of an appendix to the “Principles.” The
subjects dealt with
as
‘‘
doctrines
are ignorance and mistake,
necessity
and
coercion, mental disease, intoxication, criminal attempt, and criminologg and
penal theory. Even on the rather peculiar definition of “doctrine” given by
Professor
Hall
at
p.
17
as
an “intermediate proposition more general than
the rules
of common law but lacking the extensiveness of the principles,
this
“scheme” is obviously open to criticism, since the first four chapters
of
doctrine
are really aspects of the
menu
re6
‘I
principle
while to
use
the
word doctrine in relation to
I‘
criminal attempts
seems to me
to
be open
to
objection. Again while an evaluation of penal theory, especially in the light
of modern research is obviously valuable to the student of criminal law
the
subject can hardly be properly regarded
as
a doctrine of the law
nor
&
it
something betwixt and between a rule and
a
principle.
There is a great deal of original thinking, milch of it of
great
interest, in
the chapter on legality. In particular the problem of criminality by analogy,
so
beloved in autocratic states but on
the
whole eschewed by the
common
law,
receives much thought and discussion. Professor
Hall
chooses to deal with
the problem of statutory construction
at
this point, and
as
one would expect
has some very pertinent observations to make
upon
it. Here, too, he
discusMs
the indeterminate sentence used in some Continental countries, and which has
powerful advocates here. He takes the view that it
is
an infraction of
the
legality principle. Surely this is not logical: there are
a
number
of
good
arguments, mainly psychological in character, which can
be
effectively dc
ployed against the indeterminate
santence,
but
I
should not have included
this legality argument among them. In the last resort
the
matter
will
probably
be decided in the light of practical experience, and in this regard
Borstal
sentences, which have now for some years been indeterminate, suggcst
a
possible line of advance.
However it is the chapters on
mew
zeu
which chiefly call for comment
If one accepts that much of the discussion under “doctrine”
b
in
reality
concerned with
menu
zeu,
at
least half the book
is
taken up with that basic
conception: the argument in reality extends into several of the chapters not
specifically concerned with the subject and its ancillaries. Thus in the chapter
on criminal conduct there
Is
much useful discussion
of
man#
req
and
the
chapter on strict liability, which incidentally some would
regard
as
a
“doc-
trine,” rather than as
a
principle, is also evidence of many profound inslghts
by the author into the very core of criminal jurisprudence, and personally
I
have found these chapters much the most impressive
part
of the book.
though
at
the same time, as
I
have snid, the argument is often difticult
to
follow.
The whole of this analysis ought to be carefully studied by all serious
806
TEE
MODERN
LAW
REVIEW
VOL.
!a
atudents of Anglo-American criminal law, and yet one wonders how many of
the
judges administering the criminal law
in
this country are even acquainted
with
it.
In
the
light of the experience of our
own
courts over the problem of
the subjective and objective elements
in
mew
rea
which have proved
so
troublesome of recent years in cases like
R.
v.
Ward
[I9661
1
Q.B.
851
and
D.PP.
v.
Bmith
[
1960) A.C.
835.
I
turned with particular expectation to the
discussion of this matter by Professor
Hall,
especially
as
I
had understood
it
had
been
very much canvassed
in
the U.S.A. In the result
I
was
a
little
disappointed.
Professor
Hall
is
more interested
in
the
difference of opinion
between
Holm- and Stephen over this matter than in the actual decisions.
It
is
true
that
although he agrees with Stephen rather than with his “brilliant
American confr&m,” he
docs
not
m8~3hd
the U.S.
cases
in
which Stephen’s
view was
accepted,
but gives
more
spaa
to
the
English c88e~ which have
come
down
on
the
side of Holmen.
It
would
appear
that
there
is
no settled
opinion
on
this
matter
in
the
U.S.A. but
that
the
doctrine tends to vary from
state
to
state,
and even within some of the
states.
Befoorc
leaving
the subject of
mew
rea
one may note that Professor
Hall
sum18
to
think
that
the Anglo-Saxons were worklng their way towards this
doctrine
md
he subscriba,
to
the
late
Profeaaor Winfield’s view that the
bMorial
“strict
liability”
is
a
“myth.”
According
to
him
“the
thcorythat
Anglo-Saxon
law
was
wholly disintereatmi
in
whether an injur~r was committed
lnta~tlonrlly,
by
negligence,
or .cddent.uy,
is
a
grow
over-sitnplificrrtion.”
The
problem of
the
concurrence
or
llnldng
up of the
gull@
mind
with
the
criminal
conduct charged
agaht
the
prisoner has not mually been
eatie-
fectorily
attended
to
in
the
English textbooks,
ao
that
Profeseor
Hall’s
examination
of
it
in his chapter
011
criminal
conduct
will
be moat helpful to
&w?ds.
It
ia
not
without
its
connection with causation,
treated
in this
book
in
a
6cparate
and difscult
chapter.
Causation
again
is
a
subject
which
hrs
dved
all
too
little
attention
in
En@h
cridnd
Jurbprudencer
indeed It
may
be
said
that
until recent times
it
waa
pretty
well ignored,
and
the
dimmadon of
it
in
the
madern
cases,
such
M
there
are,
is
not
at
all
profound
(8.p-
Kwaku
Iletuah
[l946] A.C.
68,
Jordan
(lB5s)
40
C.A.R.
lm)
while
tbe atandard btbooka
hardly
touch the problem.
In
them matters
Profeaoor
Hall’s
work
ia
indubitably of
great
theoretic
significance, and should
in
due
wurac
indlwrr
the
practical administration of the law. The short
chapter
entitled
“The Sanction-Puaiehment,”
a
new
one, though incorpora-
ting
earlier
material,
doca not
call
for much comment.
It
is naturally rather
peripheral
to
the
principle0 of criminal law, despite
ita
profound aociologlcal
tmportroec
Proferrsor
Hall
is
eontent
to
indicate
the
main
lines which have
been
taken
by
dal
philosophers
and
penologieta
on
this
topic and devotes
a
pod deal of space
to
modern American writing
on
the
subject, particularly
to
the
thsriea
of Professor
J.
D.
Mabbitt. However, throughout
this
chapter
the author‘r preoccupation with
the
ethical
~pect
of
crimindty
is
very
evident
In
Part
I1
of
thb
book concerned
with
the so-called “doctrina” Professor
Hall
is
on ground more familiar
to
the ordinary student of the subject.
He
does
not break
so
much new ground and his contribution though effective and
to
the
point
is
not
so
thought provoking.
I
do not propose
to
examine this
part
of
the
book
in
any detail. The chapter
on
Ignorance and Mistake
is
rather
uneven, but
an
the author remarks the student
is
much handicapped by
thc
thoroughly disorganlsed
state
of the law
which
resta
so
largely
on
conjecture and dubious psychology.” This chaotic situation has been produced
during
the
last century
or
so
by judges, few
of
whom have had any grounding
in
&a1 philosophy, attempting
to
administer the vast output
of
legislation
directed
to
social control in our modern complicated
state,
and enacted
by
legialatura feeling their way
in
a
comparatively unexplored territory. The
excellent chapter on Necessity and Coercion which breaks some new
ground
enables Professor Hall
to
make good use of his philosophic interest in the

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