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Dubber on Commonwealth v. Keller

By Lawrence Solum

Markus D. Dubber (University of Toronto - Faculty of Law) has posted Commonwealth v. Keller: The Irrelevance of the Legality Principle in American Criminal Law on SSRN. Here is the abstract:

Commonwealth v. Keller, 35 Pa. D. & C.2d 615 (1964), is not a leading case in American criminal law, but it should be. Ostensibly about the common law misdemeanor of "indecent disposition of a dead body," this trial court opinion in fact raises important questions about the foundation of the state?s power to punish through criminal law, questions that have not received sufficient attention in American legal and political discourse in general, and in American criminal law teaching in particular.

In fact, Keller?s irrelevance itself is symptomatic of the irrelevance of the principle of legality in American criminal law. Rather than being regarded, and employed, as a fundamental principle of legitimacy of state penal power, the principle of legality is poorly understood as a disconnected aggregate of maxims, rules, and guidelines ? preferably cited in lawyers? Latin phrases of uncertain formulation and meaning (?nullum crimen sine lege? and ?nullum crimen, nulla poena sine lege? being two popular variations) that join other groundless, anachronistic, and ill-examined bedrocks of American criminal law, most notably actus reus and mens rea, or their combination as ?actus non facit reum nisi mens sit rea.?

And here is the key passage from Keller:

The landmark case in this Commonwealth which enounces the principle of preserving common law offenses is Commonwealth v. McHale, 97 Pa. 397. After analyzing and determining that common law crimes are preserved, Mr. Justice Paxton, at page 408, asks the question, ?What is a common-­?law offense??

?The highest authority upon this point is Blackstone. In chap. 13, of vol. 4, of Sharswood's edition, it is thus defined: 'The last species of offenses which especially affect the Commonwealth are those against the public police or economy. By the public police and economy I mean the due regulation and domestic order of the kingdom, whereby the individuals of the state, like members of a well-­?governed family, are bound to conform their general behavior to the rules of propriety, good neighborhood and good manners, and to be decent, industrious and inoffensive in their respective stations. This head of offenses must therefore be very miscellaneous, as it comprises all such crimes as especially affect public society, and are not comprehended under any of the four preceding series. These amount some of them to felony, and other to misdemeanors only.??

Very interesting.

Full post as published by Legal Theory Blog on January 12, 2010 (boomark / email).