David Wolitz (University of the District of Columbia David A. Clarke School of Law), Reflections on the Codification Debate in American Criminal Law, Quinnipiac Law Review, Vol. 44, 2026 (forthcoming) on SSRN. Here is the abstract:
Should criminal law be codified by legislatures or developed by judges in the common law method? After almost half a century of dormancy, the codification debate is back in American criminal law. The traditional account has long maintained that codified law replaced common law in the law of crimes and that this development constituted a triumph for the principle of legality and the rational definition of crimes. However, a burgeoning revisionist account argues that the codification efforts of the twentieth century failed to displace the common law of crimes and failed to improve the substance of criminal law. Accordingly, some revisionists argue that judges ought to reassert control over substantive criminal law doctrine and consciously revive the suppressed but enduring common law of crimes.
This article lays out a populist, democratic case for criminal codification, one that confounds both the triumphalist traditional account and the critical revisionist view. Although revisionists accurately identify the major flaws plaguing our incompletely codified law of crimes, the answer to incomplete and poorly executed codification is better and more comprehensive codification—not an abandonment of the project or a turn back to judges. As the least representative and most cloistered government officials, judges are poorly positioned to make the quintessential policy choices involved in deciding what behaviors should be criminalized. And while legislatures pose their own dangers to the development of a just body of criminal law, any chance for durable and effective criminal law reform in a democratic polity must come through the crucible of electoral and legislative politics, not through the courts.
By exploring the revived codification debate, this article explains where contemporary criminal law comes from (legislatures), what strategies criminal justice reformers should pursue (comprehensive criminal code reform), and even how professors ought to teach criminal law in law school classrooms (by emphasizing statutes and legislative process).
Recommended!
To receive new posts from Legal Theory Blog by email, get a free subscription to Legal Theory Stack.
Lawrence Solum