May 3, 2011


Francis A. Allen, The Habits of Legality: Criminal Justice and the Rule of Law (New York & Oxford: Oxford U. Press, 1996) ("The purpose of this book is to contribute to a holistic view of criminal justice as it exists in late twentieth-century America, by measuring its institutional performance against the requirements of the rule-of-law concept. . . The values are not new. They were given expression near the beginning of the modern era in the seventeenth and eighteenth centuries; the legality principle, itself, is one of the most notable products of the liberal revolution of that time. . . ." Id. at vii. "For many modern Americans the legality ideal has largely lost its status as an icon. The concept, on the contrary, is met with a spectrum of attitudes ranging from tentative support to insouciance, skepticism, and even hostility. A measure of skepticism is surely comprehensible. Any citizen awake to the political life of contemporary American society will see, in the language of Aristotle, much of 'desire' and 'appetite' and long for more intelligence' and 'reason' in the administration of justice, even at the highest levels. The extremes of disillusionment and hostility are another matter, however, and contribute quite different ingredients to the present environment of legality. As we track the rule of law into the morass of actual institutional behavior, we may rarely expect to find expressions of the legality principle in pristine and unqualified forms. Rather, the situation is one in which history, tradition, institutional structure, expediency, and sometime massive unconcern exert powerful negative pressures on the habits if legality. A certain moral and intellectual toughness is required to attempt invigoration of legal in institutional contexts that doom all efforts of reform to, at best, partial and measured success. . . ." Id. at 7-8. "Declarations of war are portentous acts, not to be taken lightly, which is true whether the enemies contemplated are external or internal, whether force is to be launched against foreign nations or members of one's own society. A war on crime or a war on drugs [or as war on terror?] is a war on people. There can be no war without enemies, and defining adversaries as enemies may produce attitudes and measures that are difficult, if not sometimes, impossible, to contain. For the large part of a generation, we have found it easier to mount moral outrage over the spectacle of offenders escaping just deserts than over persons suffering excessive and unjust punishment by the state, although both phenomena have been in abundant evidence. Such attitudes--we may call them the war psychology--are not confined to the United States A number of industrial nations . . facing seemingly uncontrollable escalations of crime and terrorism have adapted their legal institutions to conform more closely to what Sir Leon Radzinowicz has descried as authoritarian models of criminal justice. These are systems emphasizing a more unrestrained exercise of the public force, enhanced discretion of official agents, and increasingly insensitivity to the rights and immunities of persons caught up in the criminal process. The movement has, in short, been one toward the weakening of the legality principle and the accompanying institutional habits of legality." Over two centuries ago Voltaire warned that 'where charity is wanting, law is always cruel.' Charity has not been the salient characteristic of American penal policy during the last generation. . . ." Id. at 37-38. "It cannot be expected that the importance of the search for a more lawful law will always be widely understood or appreciated within the community. This is not because the American public is indifferent to the claims of legality. On the contrary, from the beginning of our national identity, the ideal of a government of laws has exerted potent influences on the theory of our political institutions and has contributed much that is most attractive to our public life. There seems no reason to doubt that threats to the rule of law, when widely perceived and understood, will continue to evoke public concern and response, In the welter of a complex and contentious society, however, legality issues may be obscured or overridden by apparently more pressing concerns, Public attention will ordinarily and understandably be engaged by such purposes as diminishing the threat of private violence, enlarging the availability of medical care, or achieving economic security for an uncertain future. The community's interests in public measures clearly directed to improving the conditions of life will ordinarily be strong, but understanding of and concerns about the means by which the law can best achieve its social purpose must be supplied initially and in larger part by legally trained persons. In the generation just past, lawyers on the whole, have not made strengthening the legality ideal in American society an objective of central concern; not have they adequately communicated to the larger community the importance of such revitalization. The dangers of neglect, however, are becoming increasingly evident. The present realities provide a basis for hop that American lawyers, both those in practice and in the academy, may be moved to encompass reinvigoration of the habits of legality within the urgent obligations of professional responsibility." Id. at 98-99 (italics added). I would not hold out much hope for lawyers, be they in practice or in the academy,acting to safeguard or enhance the habit of legality. Lawyers are the product of law schools, and law schools in the early twenty-first century are in the process of devolving from profession schools to mere trade schools. Except in the elite school, and perhaps not even there, there will be little substantive discussion of basic principles such as the rule of law because knowing, valuing and respecting the rule of law will neither get students jobs nor improve the ranking of laws schools on those fraudulent ranking systems. Few law schools strive to train lawyer-philosophers, lawyer-statesmen and stateswomen, lawyer-intellectuals. Rather, most law schools limit themselves to producing lawyer-mercenaries (i.e. lawyers as hired guns) and lawyer-businesspeople. As to the latter, it is not that I am against business people. Commerce is good for society. But business people tend to limit value to dollars and cents, profits and loss. And, the most important values in a society, or at least in any society worth being a member, are about things for which monetary value cannot be placed.).