Dynamic Incorporation of the General Part: Criminal Law's Missing (Hyper)Link

In theory, the law that defines criminal offenses is exclusively statutory. In practice, though, criminal statutes often leave important offense-requirements undefined or even unexpressed. In particular, criminal statutes often fail to address questions that belong to the criminal law’s so-called General Part — questions like what counts as a “cause,” for example, or what culpable mental states are required of accomplices. When courts face fundamental questions like these, as the Supreme Court did twice last year, they often turn for guidance to the judge-made law of the General Part, which is vast and rich. But this resort to judge-made criminal law raises a difficult, if usually unacknowledged, methodological question: How, if it all, does the judge-made law of the General Part bear on the interpretation of statutes that define individual criminal offenses?

This Article argues that the answer to this question lies in the idea of dynamic incorporation — in the idea that the words of criminal statutes sometimes contain hyperlinks, so to speak, to bodies of still-evolving judge-made law. It argues, specifically, that when criminal statutes leave critical offense-requirements undefined or unexpressed, and these requirements fall within the subject matter of the General Part, the courts’ best alternative usually is to fill the “gap” by dynamically incorporating the judge-made law of the General Part. In support of this view, the Article compares dynamic incorporation to the alternatives — static incorporation, for example, and strict construction — and shows that only dynamic incorporation provides a workable solution to the gap-filling problem.