Revising the Model Penal Code: Keeping It Real

In deciding whether to reform or revise a document or institution, one must first address what the subject of the reform effort is. Before deciding whether the institution is serving its purposes well or badly, in other words, we must ask ourselves what purposes it is supposed to serve. The MPC is and does a number of things, though I suspect its predominantly academic audience of today is constitutionally predisposed to underappreciate its primary role, as intended by its authors and as it actually functioned in history. As all criminal law scholars understand, the Model Penal Code is one of the great intellectual accomplishments of American legal scholarship of the mid-twentieth century. In many ways, it marks the culmination of a project of re-interpreting and systematizing the common law of crimes that began with Wechsler and Michael’s A Rationale of the Law of Homicide in 1937, itself recently celebrated as one of the most important law review articles of the last 100 years. Surveying hundreds of years of common-law evolution in the criminal law, identifying underlying principles, and formulating rules that represented the best of the thinking of judges who had grappled over that period with the violent and destructive results of the unruly passions of humankind, the drafters of the Code, marshaled by the incredible energy, formidable intelligence, and sheer will of the great Herbert Wechsler, developed an intellectually coherent approach to this mass of material, and created a body of rules not only doctrinally consistent, but drafted for easy adoption by legislative bodies.