The Habits of Legality: Criminal Justice and the Rule of Law

The Habits of Legality: Criminal Justice and the Rule of Law

The Habits of Legality: Criminal Justice and the Rule of Law

The Habits of Legality: Criminal Justice and the Rule of Law

Synopsis

The Habits of Legality provides a broad survey of American criminal justice in a time of troubles. It asks the central questions: In what degree are the justice system's functions guided by ascertainable legal norms? How accountable are public officials who wield the rigorous sanctions of the penal law? Where the habits of legality are weak, how can they be invigorated? A number of factors combine to constrict the rule of law in the criminal process. A crime epidemic of alarming proportions places enormous burdens on the system and gives rise to a "war on crime" that often oversteps the limits of legality. The institutional structure of the United States is severely fragmented, rendering coherent penal policy difficult or impossible and often freeing public officials of accountability for their uses of public authority. Even the courts and legislatures, the primary law-making agencies of society, often operate to weaken rather than strengthen the rule of law. Francis A. Allen asserts the vital and continuing importance of the legality principle to democratic societies, discusses how the habits of legality in American criminal justice can be strengthened, and demonstrates that a closer adherence to the rule of law may not only protect the rights of persons more efficiently, but also contribute to more rational and effective penal policy. The Habits of Legality offers solutions on how to revitalize the rule of law. It will be of interest to scholars and students of criminology and law, as well as the general reader concerned with issues of criminal justice.

Excerpt

The preceding discussion, encompassing a wide variety of contemporary and historical experience, rests on a series of underlying propositions. It proceeds, first, on the assumption that the rule-of-law concept is vital to the life and survival of liberal societies. Conceptual analysis, although essential to identification and resolution of critical issues, is insufficient to an understanding of the meanings and dimensions of the legality ideal in a functioning political society. To grasp the operational significance of the concept, we must look to the habitual behavior of public officials wielding the public force and to the levels of fidelity to law displayed in the community. It has also been asserted that the habits of legality practiced in the administration of criminal justice may be significantly weakened in times like the present and recent past, when fear and outrage are engendered by perceptions of rampant criminality. the resulting encroachments on the rights of individuals and disregard of the forms of law will likely not be confined to those situations in which emergencies are thought to arise but instead will extend to the operation of the system as a whole.

It has been argued in these comments, however, that the low vitality of the legality ideal in broad areas of American criminal justice is not alone a product of a passing time of troubles. It is to be explained in large measure by a decentralized and fragmented institutional structure--and per-

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