THE HABITS OF LEGALITY: CRIMINAL JUSTICE AND THE RULE OF LAW by Francis A. Allen. New York: Oxford University Press, 1996. 156 pp. Cloth $33.50.
Reviewed by Michael Musheno, School of Justice Studies, Arizona State
CESARE BECCARIA LIVES! Imagine that the Milanese political authorities sided with the Church of Rome over the publication of AN ESSAY ON CRIMES AND PUNISHMENTS. Beccaria, condemned and on the run, escapes to Paris and later, to Boston under the sponsorship of John Quincy Adams. Recognizing that he will not live long enough to see whether his call for the rule of law in criminal justice becomes a reality in America and Europe, he conspires with an alchemist who promises that his potion, while fatal immediately, will lead to his awakening on or about the second millennium.
Beccaria takes the potion, and his body is entrusted originally to the Dean of Harvard Law School. But, it is later moved to a frontier village in the West after the law faculty learn of Beccaria’s nefarious contract. After years of neglect, his body comes under the guardianship of the faculty of a newly formed law school and remains so for nearly two hundred years. Fearing that the rule of law is in grave danger and yet worrying what RESURRECTING Beccaria might do to their hard-earned reputation, the law faculty engages in a three-day meeting following the election of Ronald Reagan. They take the decision to resurrect Beccaria, but give him a fictitious identity and alias -- that of Francis A. Allen.
Allen quickly emerges as an expert in criminal law, and undertakes an essay on the conditions of the rule of law in American criminal justice as the second millennium approaches. In a concise form, THE HABITS OF LEGALITY demonstrates that the institutions and processes of criminal justice pay only lip service to the rule of law. Allen gives particular attention to the discretionary practices of local police, prosecutors and judges. Also, he reveals how legislative bodies and the high courts neglect legality in formulating and interpreting criminal law.
Fundamentally, he points to intellectual, institutional, and structural conditions as the causes of the erosion of the rule of law. "Nihilistic trends of thought" in the academy coupled with the radical decentralization of American criminal justice, his notion of the key structural condition, and the "enormous burdens being born by the system of criminal justice," his characterization of the institutional environment, have weakened the vitality of the rule of law. Allen wants to get back to the original blueprint for reform as laid out by Beccaria. He wants to restore utility to criminal justice and the virtues of certainty, predictability, and consistency. Arguing that serious attention to the forms of criminal law can lead to a "rebirth" of its practices, Allen calls for the (re)articulation of criminal law with "clarity and generality" or essentially, better rule making at the legislative and administrative levels of governance.
The essay provides no historical accounting of the golden era of criminal justice when legality ruled. Instead, Professor Allen makes brief reference to Nixon’s use of "law and order" and "war" metaphors in his successful bid for the U.S. presidency in 1968 as marking "...the end of a penal policy in the criminal area based on the principles of liberal politics" (28). What these slogans represented were code words encouraging the continuation of racism as THE historically-embedded condition of American criminal justice. It is the absence of race and racism in the discourse of this essay that renders the text ineffective as a treatise about American criminal justice.
A second failing is the lack of attention to the political economy of criminal justice as the second millennium approaches. The enormous material expansion of the criminal justice system is conditioned, in part, by global capitalism and fueled by the convergence of corporate and state interests. It is vitally important to give empirical attention to this institutionally-driven build up as the one condition that is most changed about American criminal justice, including the emergence of a "prison-industrial complex" as a harbinger of a new mode of state/corporate tyranny. Professor Allen references the expansion of the criminal justice system, but as derivative mostly of "rampant criminality" (98), one of a number of empirical claims unsubstantiated in the text. Rather than registering alarm over the shape and scope of the build-up, he focuses on the problem of system overload (see 29-34) and takes the position that more, not less criminal justice, is likely to restore the habits of legality.
Professor Allen does recognize the insidiousness of the war on drugs,
but gives little attention to its opposition, including recently formed
political alliances of doctors, terminally ill patients, libertarians,
and marijuana growers pressing for legalization and decriminalization.
The successes of these "new" communities to win state propositions in the
western United States have unsettled the rulers of law--the federal and
state criminal justice establishment and their allies in both mainstream
political parties. Resisting the rulers of law, rather than turning to
them for more rule making, makes more sense as we approach the second millennium.
Remember Professor Allen, Beccaria’s text came forward in a turbulent time.
And, like other radical treatises of its time, it provided intellectual
grist for ruining both the aristocratic class and the "enlightened" RULERS
Beccaria, Cesare. 1963. AN ESSAY ON CRIMES AND PUNISHMENTS. Indianapolis: The Bobbs-Merrill Company (originally published in 1764).