The Strangely Familiar History of the Unitary Theory of Perpetration

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Bruce Ackerman et al. (eds.), Visions of Justice, Essays in Honor of Professor Mirjan Damaška (Duncker & Humblot, Berlin, 2016)

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A unitary theory of perpetration is one that does not espouse different legal standards for different forms of participating in crime. In this Article, I pay homage to Professor Damaška’s influence on my work and career by reiterating my earlier arguments for a unitary theory of perpetration in international criminal law. This Article looks to the history of the unitary theory in five national systems that have abandoned differentiated systems like that currently in force internationally in favor of a unitary variant. Curiously, the same problems Norway, Denmark, Italy, Austria and Brazil sought to solve in dispensing with differentiated systems of blame attribution are prominent in international criminal justice today. The eerie sense of déjà vu that arises from reading these histories suggests that the unitary theory may have real potential as a way through many of the key points of conceptual impasse that presently characterize this aspect of the field. In this respect, the Article seeks to contribute an historical perspective to a burgeoning dialogue about forms of blame attribution internationally by again questioning whether the great struggle with “modes of liability” is worth continuing.

This article is a sequel to an earlier theoretical defense of the unitary theory of perpetration. For this earlier work, see: