Visibility, Accountability and Discourse as Essential to Democracy: The Underlying Theme of Alan Dershowitz's Writing and Teaching

Article excerpt

I have been writing about the law and justice for half a century. My first published law review piece appeared in 1960 as a student note in the Yale Law Journal. (1) Since that time, I have published nearly thirty books and hundreds of articles covering a wide range of legal, philosophical, historical, psychological, biblical, military, educational, and political issues. Until I listened to the excellent papers presented at this conference on my work, I had never realized--at least on a conscious level--that a single, underlying theme, with multiple variations, runs through nearly all of my writings. As a response to those papers, I will seek to articulate that theme, show how it pervades my writing and teaching, identify some of its roots in the teachings of my own mentors, try to defend its fundamental correctness, and point to several weaknesses and limitations that remain to be considered before I complete my life's work.

The theme is not obvious, and no single speaker at the conference identified it fully, though most touched on elements of it. It is not obvious because, on the surface, it is difficult to see one single-colored thread running through a tapestry that appears to weave together so many different subjects. After all, I have written, inter alia, about the crimes of attempt and conspiracy; the commitment of the mentally ill; the defense of insanity and other legal excuses and justifications, such as "necessity," "self-defense," and "provocation"; sentencing and plea bargains; corporate and group crime; legal codification; freedom of speech; pornography; search and seizure; wiretapping; entrapment; coercive interrogation and torture; bail and preventive detention; the causes of terrorism; preemptive and preventive wars and other anticipatory measures; affirmative action; the Israeli-Arab conflict; freedom of and from religion; biblical interpretation; the sources of rights and morality; the Declaration of Independence; Jefferson's views regarding religion, speech, and terrorism; judicial selection; legal ethics; and the appropriate criteria for interpreting the Constitution.

I. THE OVERT TEXTUAL MESSAGE OF MOST OF MY WRITING

One theme that has been common to many, but not all, of my writings has been the prevention of harmful conduct, as contrasted with the after-the-fact punishment of completed crimes. My first published note began by adumbrating this issue:

 
   Legal folklore includes the notions that the criminal process is 
   invoked only against acts which cause demonstrable injury, and that 
   sanctions are applied in rough proportion to the actual harm 
   inflicted upon society. But concern for the safety of society often 
   provokes use of the criminal law to protect its citizens from 
   potentially dangerous behavior patterns. Thus, when some harmful 
   acts indicate a propensity in the actor to cause even greater harm, 
   the criminal law frequently measures the sanction to be imposed, 
   not merely by the actual injury done, but also by the potential 
   injury implicit in the actor's conduct. Simple assault and assault 
   with intent to kill may produce the same quantum of injury, but the 
   sentence prescribed for the latter offense is more severe, probably 
   because it includes consideration of the propensity to kill. This 
   concern for potentially dangerous behavior has led to the 
   imposition of criminal sanctions for certain acts which result in 
   no injury at all--so-called inchoate crimes. The law of "attempts" 
   is one category of such crimes. When a person attempts to commit a 
   crime such as murder, but fails for some reason to achieve his 
   intended result, he may be guilty of an attempt. Because injury is 
   not an essential element of a criminal attempt, the only rational 
   function of the law of attempts must be the identification of 
   individuals whose overt behavior manifests dangerous criminal 
   propensities. …