Table of contents

Kalos: What is to be done with our World.
By Alfred de Grazia

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PART FIVE: Consensus and Character
CHAPTER XVII


CRIME AND PUNISHMENT




Three Faces of Violence

The peace which is unjust is hard to bear. Those who are persuaded that the injustice is inevitable and permanent can tolerate it: They can wait for heaven and hell to redress their wrongs. Sometimes injustice can be erased without breaking the peace. If necessary, some people will break the peace by force, and most others will approve.

Peace-breaking can be an obvious and rational response to a wrong. But violence also comes from wrongs once done in a different context and forgotten, and from fears inculcated by many unhappy events and infiltrated through the Soma until they emerge as hostility.

The paradox is finally that peace is always destroyed by just men, as justice is viewed in their own lights. Hence if peace is broken, it is always because it is "unjust"1

Peace can come them only when all who might break it feel that justice is in fact being served. more exactly, men do not use force against those whom they believe to be just. If a society is believed to be just, men will not revolt against it. Nor will men attack another country that they think to be just.

If justice then were an objective reality, and man could command his subconscious impulses, the establishment of a just society would put an end to violence and war. But the sense of justice and injustice is relative to a person's concept of the good society. It is, moreover, indirect and subconscious most of the time; men who are enthralled by their special deviations will resort to force quite in contradiction to the state of reality. The peace is often broken when there seems to be the least reason for breaking it. No wonder that violence pervades history. It feeds upon actual abuses, buried abuses, and fancied abuses.

Violence is advanced by the willingness to risk retaliation. This too is a psychological calculation. If a society is considered unjust by a person, it loses its legitimacy in his eyes. He feels no internal pangs from assaulting it and need consider only the external punishment that he may receive. If he is raised from infancy without continuous restraints and the consequent hostilities, he will suffer in his own mind less from his defiance of society, but whether he is inclined to use violent means then depends upon whether he learned his freedom in a loving or hostile early setting. If he is continuously restrained in childhood, so that he cannot bear to raise his hand in force against a private person or public authority, his training may well provide a hole through which all the frustrations caused by his restraints may be exploded legally and devastatingly upon foreign targets, be they enemies in war or isolated groups within his toparchy.

To conclude, kalos will bring peace to human relations when it is accepted as the legitimate philosophy of society and when it reduces, via its many reforms, the inner destructive tensions of people. Kalos as the legitimate philosophy of our age will employ force at a minimum level under strictly controlled rational conditions and means; it is a philosophy of minimum restraint. Kalotic force philosophy is applicable in the 360 context of personal force and police force, as well as in civil conflict and war, which have been dealt with already.

A Peaceful Person

Despite all the possibilities of violence that are coursing within man's body, he can be peaceful if he has a kalotic personality. He can be peaceful if he believes his society is just, that is, ligitimate. He can be peaceful if he is raised to respect groups apart from his own. He can be peaceful if he has known the nature of love from his earliest existence. He can be peaceful if he has a full life of work and play. He can be peaceful if he is not physically attacked. With all such conditions prevailing, peace will happen. The arrangements for dismantling the apparatus of police and armed forces would only be details to be executed afterwards. They would not, as they do now, form the major subjects of governmental and private concern. Peace in this sense brings disarmament, not disarmament peace.

To bring about the conditions of non-violence and peace requires a concert of plans and actions. In the first place, both toparchy and cosmarchy must be moving definitely and obviously towards kalocracy. We have far to go on this route. No society exists in this world today whose members unanimously agree upon its right to exercise authority over them. No system of failial and public education raises the young to respect all friendly. No society has means of assuring its children a loving universe. No society gives its members a lifetime to interesting work and absorbing leisure. Nor does and can any society feel free indefinitely from the threat of physical assault, internally by violence or externally by war.

Peace is both multicaused and quantitative. We must shape the causes all together and aim at the threshold where one crosses into a predominantly peaceful society and world, where, too, the momentum of pacific life disperse any gathering violence. Such is the kalotic design for revolution and order.

In the second place peace requires a strategy specifically directed at mastering the "force-organs." The "force-organs" are all the special systems of a society that are exercised for, prepared for, and set for a course of violence and war. Generally these are the armed forces, which were dealt with earlier, and the police.

Police and Crime

The character and conduct of the police force mirrors its society. In a great many rural areas of the world (as, for example, India) and in a number of urban regions of Europe such as West Germany and Sweden, the police are little in evidence. In the taxocratic state such as the U.S.S.R., Bulgaria, East Germany, and Czechoslovakia, they are multiplied and usually swollen on the political side, especially with secret police. Dystrocratic states have fewer police because of poverty, traditional social solidarity, immobility of the population, and paucity of complicated material and personal contracting. Stratocratic states generally have a large number of uniformed police and secret police (cf. Spain, Argentina, Egypt). Plutocratic states have few secret police but differ greatly in their employment of uniformed police. France and Italy have strong centralized traditions; their police are much in evidence; part respond to the orders of the central government, another to the local governments. There is less of this immediate central control in England. In the United States the police are locally governed but everywhere numerous because the society is rich, highly mobile, unbound by tradition, and full of complicated material arrangements.

The spirit of a country suffuses the police force. In the United States, the population is generally ambivalent respecting personal liberty and collective controls, producing at one and the same time an overregulated and landless society. The police themselves share this ambivalence and develop a conflictful character; they are also given more leeway than other countries' police so as to accommodate overlegislation to underobedience; they are more expressive of their communities' service workers classes and feel a patronizing but nonprofessional attitude about their vocation.2

In the United States, the retirement of a great many of the educated and potential leading elements of the cities into the suburbs or out of politics leaves the police generally without civic guidance beyond the morals of the force and the general instructions of the Roman Catholic Church, imparted unsystematically and occasionally to whosoever may be attending physically distinct churches as undifferentiated worshippers. Personal corruption is widespread.3 Criminology and scientific crime detection are advanced in America; they have little effect upon police work in general.

Criminality is epidemic in the United States. It is promoted by many conditions, not the least of which are neurotic overlegislation and the mass media's obsession with violence and disobedience. In no other country do citizens of all classes commit so many offences of murder,4 sex, alcoholism, drugs, physical assault, not to mention burglaries, embezzlements, bribery, and white collar crimes. In no other land is offensive and hostile treatment of strangers of different accents or physical appearance so common, even while the country itself is full of different physical types and strangers.

The chasm between the ideas and desires of the educated and those of the police is not only profound, as it is in most countries, but is not bridged by mutual respect and solidarity of view point. This fact, with all that has gone before, leads directly to the phenomenon of the egalitarian and politically influenced police force. The police do not look to anyone nor would they find anyone if they looked, and they perform actions frequently that, were it not for their political naivete, localization, and discontinuity of purpose, would add up to the police state so generally condemned by Americans.5

With all its peculiarities and excesses, the U.S.A. simply partakes of the universal syndrome of criminality. Its plutocratic consumer abundance multiplies the crime rate. (For example, autos are so common and carelessly handled in the U.S.A. that auto theft rates are the highest in the world.) In numerous potential areas of crime, its large size, polyglot origins, and functional complexity foster loose bonds of social conscience. Still, the same basic conditions, and the same basic remedies for them, exist everywhere in the world.

Aggression and indeed asocial aggression dominates criminal law, including even the legislature and the criminal law philosophers; aggression controls the spirit of criminal law. A profession related to the enforcement of criminal justice, which makes use of force to such a degree, and moreover has need of it, attracts the aggressive elements in society, for it provides an excellent opportunity for exercising aggression.6

The criminal law is built around counteraggression. It conjures a war. Like other armies, if it cannot find criminals, it will try to create them.

Man in neurotically fixed on crime and the criminal... he places the whole force of his projection on to the asocial... in the same breath he fights and preserves the criminal...7

Crime is generally of two types, organized and personal. Personal crime is tied to the conditions of private life; a review of kalotic formulas convinces us that a general decline in personal crime will follow their acceptance and application. There will be less motive throughout society, in all age groups, minority groups, occupational groups, etc. The reformation of police, as here proposed, would diminish rather than expand such crimes.

Organized crime presents a question: Will the reform of police systems and the other kalotic proposals increase the success and incentive for criminal conspiracies and network? The answer is no, if the kalotic attitude towards the laws prevails.

Organized crime originates out of widespread desires whose fulfillment is prohibited or blocked. Chief among these are the desires to gamble, to take drugs, avoid taxes, and to get protection against illegally acting authorities. Gambling, it is estimated, may consume $50,000,000,000 a year in transactions in the U.S.A. gambling, in itself, is not evil. A person who is dissatisfied with his "lot" in life or who requires the excitement of placing a bet on completely uncontrollable conditions plays the game. Drug use, including alcohol, marihuana, and tobacco, follows the same course. Both are common ways of changing oneself in socially repulsive ways.

It is important that normal people own these possibilites, but at the same time that self-abuse and associated disorders be discouraged.8 Therefore, the functional associations whose members know most about them should be charged with the supervision of their use. The traditional all-purpose legislators should give over a large share of this function, which in a kalocracy will be normally charged to medico-psychological boards.9 The police should not govern this sphere of life, either now or in the future, any more than they should act as censors for art or communications. The police should enforce the rules of the functional boards, but be specially educated for the purpose.

Since, organized crime is financed in large part out of illegal gambling and the drug traffic, it will be greatly reduced by these policies. It has other areas of concentration, however. Crime syndicates operate in the field of prostitution; here kalotic morality will negate the advantages of criminals, and in fact prostitution is less a problem nowadays in technically advanced societies because of the changes in morality that have already come about.

Occupational rackets are numerous. They deal with loans at "exorbitant" rates, pay-offs to officials, auto thieving, hijacking, and pilferage, among others. The abandonment of complicated and numerous taxing techniques will automatically restore "morality" to many types of transactions and eliminate inducements to fraud and theft. The reform of labor-union government and the reconciliation of labor and management, both of which will occur at least partially owing to kalotic structural changes, will also depress the conditions for organized crime. The take-over of the metropolises and the adoption of kalotic policies there will suppress numerous practices founded upon the unmanageable tangle of laws and lust in planning, building, traffic, and transportation.

In sum, the adoption of kalotic laws and structures will promote social peace and make the work of the police possible; then the police can be properly governed. They can become less connected with violent and militaristic elements, less heavily armed, more humane, less calloused, and more honest, better disciplined, and in general capable of recruiting men of kalotic personalities.

Courts and Penalties

In Rome on January 9, 1969, an unprecedented event occurred. As the President of Italy opened the Judicial Year at the Palace of Justice, hundreds of attorneys, magistrates, and even judges massed in the adjoining square to denounce the judicial and penal system. They attacked the incarceration of persons without bail, the delays of several years in prosecution of claims cases, the labyrinthine processes of the law, the high costs of justice, the illogical system of granting amnesties to convicts and accused persons to relive the crowded dockets of the courts and the jails, and the unregenerate Fascist nature of the penal code. Inside the Palace, the Minister of Justice was declaring, "The word `crisis' has many meanings. But in our case it indicates a disturbance in structures and men by reason of which the judicial organs do not function as they should."10

The same day a New York Times reporter made a quick reconnaissance of the American judicial scene.

Overcrowded calendars, the chasm between rich and poor in terms of treatment and access to the judicial process, the sometimes arbitrary and capricious sentencing statutes-all of which were causes of the Italian demonstration-have long been recognized and deplored in the United States. But with some notable exceptions, little has been done to correct abuses, and according to most legal experts, these matters seem to be more critical today than in the past.

A "highly placed New York judge" told the reporter: "I can't conceive of our lawyers and judges engaging in a demonstration. They're just not built that way here... may be it would be a good idea if they did." The judge may be a poor guesser; before 1965 everyone seemed to agree that American college students never got excited over anything more serious than football games and girls' panties. As a matter of fact, just nine months later, over a hundred lawyers descended upon the court room of Judge Hoffman in Chicago to protest his indecent conduct of the trial of leaders of the Chicago 1968 anti-convention demonstrations.

And even in the Soviet Union, where individual protest (as opposed to the Khrushchev type of revisionism) is still in its infancy as a technique, several prisoners subjected to barbarous confinement in a remote prison camp were able in May, 1969, to get a petition into the hands of the Supreme Soviet and the foreign press.

The courts in America are often both politically and economically polluted, but still maintain a certain dignity, a predictable adherence to precedent and an obedience of higher courts. Unfortunately, particularly as it pertains to the police, the courts are too amenable to local prejudices, as are the police, and they are too overburdened with cases, as are the police, to control themselves personally and institutionally in regards to the equal rights of the poor, women, Negroes, ethnic minorities, workers, or the young, so that these groups suffer not only law code discrimination and social discrimination, but also discrimination in the toils of the courts.

Gresham Sykes11 has said

I have been running a neighborhood law center for a year to help meet the legal need of the poor. I am now almost completely pessimistic about such institutions being able to accomplish anything. The legal need of the poor are overwhelming and there are not enough lawyers in the country to handle them... In a recent sample we found that there is an average of three legal needs per poor family.

A penalty is appropriate when what is done to a person in the name of society brings mutual forgiveness. Thus, reversing the telescope through which the legal establishment sees itself, we observe eccentrically behaving masses of mutual offenders, some crying out in the name of law and order, others spilling forth resentment and hostility from their offended bodies and minds. What appeared to the well-protected and comfortable people of the legal establishment to be isolated cases of individuals against the law turn out to be every man struggling with his offenses and finding rarely any rectification, fit punishment, or solace in what is called the system of justice.12

In most countries the judicial system suffers from a fundamental disregard structurally and behaviorally, of the rule of law, that is, dikeos. The courts are political, that is, concerned with the political effects, in a narrow sense, of their operations. They are at the same time technical, soulless.13 The communist courts are noteworthy in both regards.14 In nearly all countries corruption, both in a venal sense and in the general sense of favoring the rich and powerful, is rampant.

The United States presents a scene of legal disorder against a background of idyllic dikaic sophistication. The courts are overladen with political responsibilities that they cannot handle; they are structured to decide and restrain parties, not to guide society, but the legalistic character of the society demands from the courts everything that the agencies more specially equipped for social action are not providing.

More than this, owing to the unsystematic manner in which American law has grown, there is a need for simplification, modernizing, and codification of the laws. Not one true offense in ten against persons and groups is named a crime, but ten times as many actions are labelled criminal as are in fact offensive to the kalotic toparchy, Kalos which is a proposal for personal, social, and world rule, forgives man nine-tenths of his so-called crimes to begin with. Nothing but a revolutionary council on legal reform can provide the required major surgery. The impulse has to be political and politically guided. The attitudes and habits of courts and lawyers, though they would know what to do if they had to do it, impose insuperable obstacles in the way of self-reform.

Worse, owing to the general orientation of American plutocracy to problems of the rich and of corporate groups, the quality of law afforded the poor and ordinary citizen is low. Disrespect for and disregard of legal procedures have become so widespread as to make all constitutional philosophy a weird ritual chant. This behavior is not merely criminal; it is much more a desperate search for ways of resolving millions of cases that the courts are not handling properly or at all.

The courts are irregular, late, erratic and ineffective on a large-scale, not exceptionally. Not one legally defined crime in ten enters the judicial system.15 Not one indictment in ten is appropriate to the crime, that is, pairs the law and offense exactly.16 The courts are congested: many thousands of cases that should be admitted are politically, manipulatively, and informally resolved out of doors or in private court scenes with judicial collusion.

The poor man gets insufficient and deficient legal process. Not one defendant in ten gets a dikaic juridical defense. Practically all the judicial determinations made governing his life are made without full due process of law; only if he has been charged with a grave crime can he hope to enjoy the blessings of the constitution. Otherwise his administrators are his judges; those who order him also judge him. And when he is finally adjudged guilty, a person has no better than one chance in ten of receiving treatment or punishment that will cure him.17

Thus there exist at least six sets of dikaic improbabilities in the judicial system of the U.S.A. and in nearly all countries. (Deficiencies such as delay and inadequate representation have not been estimated here and now.) Each improbability of dikeos has been estimated as one-to-ten. Perhaps it is 8 or 12 or 15.18 In any event, justice is not of this present world.

Now anyone who believes that the courts will or can render legal process where it is due, is without proof, is politically naive, and is bereft of any sense of urgency. One who relies solely upon commissions of inquiry and other palliatives for reform anywhere is too weakly motivated to trust; results,not reports, must be demanded. A purely formal system of law can provide exquisite protection to a party in a closed society, but it is unlikely to realize itself in changing times because it lacks political dynamism. The revolution of the degraded legal systems of most countries can come about only in conjunction with general social revolution in local, national, and international spheres of human activity.

The authorities (even those who peek into the sanctum from their psychiatric, social welfare, or beneficial perches) are staggered by the great changes that must be made before they can emerge from their deluding trance and see with equanimity something called a just society.

They must contemplate:

1. A rewriting of the law and a junking of much of the old law.

2. A reconstitution of methods of observation of social (individual) diviance19 and the selection20 of cases for presentation before the institutions of justice.

3. A drastic revision of jurisprudence, involving a merger of psychology, legal procedure, and legal snactions.21

4. A parallel reconstitution of the science of legislature-law making to lift from the courts their burdens in this regard. In Chief Justice Warren Burger's words:

When courts do the job of a legislature, with their special tool of the individual case, they make a grave mistake in methodology. They have undertaken to rewrite the code of criminal procedure on a case-to-case basis, without evidence of the impact over the broad spectrum of the administration of criminal law.

5. A provision of social resources for treating torts and crimes on a scale at least ten times the prevailing amount -- a re-education of and resetting of social controls over all those who should participate in the 360 context of legal process; more judges; neighbourhood courts; co-option of jurors in new forms; and great expansion of the Social Counsellor function.

A most effective technique for bringing about these sweeping changes would be the organization of a kalotic shadow juridical system. Tutors concerned with the law can write new codes of laws, set up courts to try cases under them, and process all who would come before them. Each case should be conceived and processed in its total context, true judicial planning, that is. Especially invited to participate should be all those caught up in the toils of the existing system. Then let the world match kalotic justice with present justice and accept at its peril the excretions of the latter.

Let an accident victim, a boy accused of drug traffic, a couple wishing to separate, a student expelled from college, a manufacturer beset by the tax authorities -- yes, even a murderer -- try a parallel route to justice. But them also, remembering the six dikaic improbabilities of justice, bring persons before the bar who would not be before it as well as release those who have been failed in one or more ways by the prevailing scheme.

Then, when the revolution succeeds, anywhere, slip the kalotic juridical system into the place of the old.

These proposals already are revolutionary, prima facie. Their spirit is more radical: It asks questions that have not been put to all of mankind since Jesus and Buddha, and does so in the spirit of modernity. How is the base disregard of moral, aesthetic, traffic, and structural standards in the erection of a huge building to be compared with the crime of stealing a car? How is hostile prejudice against a group to be correlated with dropping out of school before the legal age? Dikeos cannot be achieved until the forbidden act, and the penalties associated therewith, are reconstructed on kalotic priorities.






Footnotes PART FIVE, CHAPTER XVII:
1. The extensive bibliography on force cannot be conveyed here. A recent systematic treatise is by Professors Robert E. Osgood and Robert Q. Tucker: Force, Order, and Justice (Baltimore: Johns Hopkins Press, 1967).
2. Louis A. Radelet, "Police-Community Relations", pp. 1-14 in Proceedings of the Third Annual Conference on Human Relations: March 29, 1969 (Michigan State University: Office of Human Relations, Institute for Community Development and Services)
3. Louis A. Radelet, Ibid., p. 3: "In an 11-month study of the police and crime patterns in eight slum precincts in Washington, Chicago and Boston, Dr. Albert J. Reiss of the University of Michigan's Bureau of Social Research found that, 'Altogether, 27% of all the officers were either observed in misconduct situation or admitted to observers that they had engaged in misconduct.' Misconduct is a mild word for what the report elsewhere cites as 'behavior that could be classified as a felony or a misdemeanor.' The major classes of police misbehavior were 'shake-downs' of traffic violators, businessmen, drunks and deviants; thefts from burglarized establishments; acceptance of pay-offs to return stolen property, to alter testimony in trial, and to protect illegal establishments. The carrying of weapons by policemen to plant on citizens as 'evidence' in case a police officer injures or kills someone was also found to happen on occasion. Shakedowns for free meals, for drinks, and other small favors were so common that they were simply excluded from the Reiss study. He originally did this study, by the way, for the President's Crime Commission; it is published as Field Survey III in two volumes, among the numerous publications of the President's Crime Commission. Dr. Reiss concluded: "The findings probably understated the amount of police misconduct in the slums."
4. E.G., Chief Warren E. Burger of the U.S. Supreme Court pointed out that with only one six-sixtieth the population of England, Washington, D.C., suffers more homicides (Quoted in the magazine of the Center for Study of Democratic institutions, Santa Barbara California, 19968). An abundance of such statistics is available in regard to the crimes here cited. Cf. Hugh D. Graham and Ted R. Gurr, Violence in America: historical and Comparative Perspectives, two volumes (Washington, D.C.: U.S. Government Printing office, 1969). These have given full exposure to the incidence and dynamics of violence in American private and public life. In every respect the Kalotic Revolution and Order stands to erase this record, even though it cannot be expected that the process of the Revolution will be immune from violence and, in extreme cases, will be compelled by circumstances to resort to physical coercion.
5. Substantiation of the details of these paragraphs occurs in many places; for example, see Richard Quinney, ed., Crime and Justice in Society (Boston: Little, Brown, 1969); Arthur Neiderhoffer, Behind the Shield (New York: Doubleday and Co., 1967).
6. Paul Reiwald, Society and Its Criminals (trans. New York: International Universities Press, 1950), p. 261.
7. Ibid., p. 289.
8. Bernard Barber, "Statement on Psychotropic Drug Use and Abuse," (2 West 45th Street, New York: Center for policy Research, 1969). Professor Barbers stresses three key ideas: the positive side of drugs; the punitive, ineffective role of the police; the need for greater professional responsibility.
9. Regarding marihuana use, Dr. Stanley F. Yolles, Director of the National institute of Mental Health, testified: "I know of no clearer instance in which the punishment for an infraction of the law is more harmful than the crime." In this and many other special areas of life, the expert should weigh much more heavily than the police and "man in the street" on the special problem, law, penalties, and cure, if any is needed. (New york Times, Sept. 18, 1969, p. 43.)
10. New York Times, January 10, 1969, pp. 1, 18.
11. Director of Studies of the Administration of Justice at the University of Denver Law Center. Quoted in the Magazine of the Center for the Study of Democratic institutions, Santa Barbara California, 1968. Cf. Lee Silverrstein, Defense of the Poor in Criminal Cases in American State Courts: A Field Study and Report (American Bar Foundation, 1965).
12. Cf. Edward H. Levi, "Unrest and the Universities," LXI University of Chicago Magazine (1969), p. 24, p. 25, for a capsule iteration of my points by the former Law School Dean and now University President; also John P. Frank, American Law: The Case for Radical Reform (New york: Macmillan, 1969).
13. Cf. Ernst R. Huber Verfassungsrecht des Grossdeutschen Reiches (1938) wrote "Allowances for the technical functioning of the judicial and administrative apparatus are the real reasons for the method of legality." I.e., leagal processes are ways of getting things done routinely. The autonomous spirit of the law had no existence to the Nazis.
14. Note the contrast between dikeos and the concept of law in official Soviet and, all too often, other regimes. Vyshinskii, the leading Soviet authority, viewed law as the coercive instrument of domination by the state embodying the will of the people (The Law of the Soviet State, 1938, New York: Macmillan, 1948). Vyshinskii's leading predecessor, Pashukanis, urged a highly plastic, politicized, almost non-law. He was shot. Communist China rejects the presumption of innocence of defendents and the requirement that crimes be defined in law; it demands that its courts apply "class justice" and fulfill the needs of politics. Mass persuasion and "brainwashing" are regular features of judicial administration. (Shaochun Leng, Justice in Communist China [New York: Oceana, 1967].).
15. E.g., in years (1961-8), reported serious crimes increased by 115% in America. Arrests increased by only 53%. For every 100 crimes, an average of 18 persons were charged. In New York State, felony arrests in 1967 rose to 49,803; felony convictions declined to 3,296. (New York Times, April 6, 1970, p. 35.)
16. E.g. it is common practice to book a defendent on the most numerous and serious charges possible to get him to confess to the least of charges.
17. The New York State Senate Committee on Penal Institutions reported in November, 1969, that city and country jails were "more fertile breeding grounds for crime than the street." Karl Menninger (The Crime of Punishment, New York: Viking, 1968) regards the system of criminal justice that prevails as "a public ritual of theatrical character," a "social monstrosity" "a kind of medieval morality play" In an ironic case of a hopeless remedy reaching a desperate impasse, on January 19, 1972, the Florida State Prisons announced that, because of overcrowding, they would accept no more prisoners.
18. A careful reading of Richard Quinney's essay "Toward a Sociology of Criminal law" (in his book of readings called Crime and Justice in Society, Boston: Little Brown, 1969) turns up general assertions in support of the six dikaic probabilities, and several more. There is little rule of law in the field of criminal law -- begnning with the non-meaning of the word "law," and ending when a person dies with his past record still plaguing him. Cf. Julius Stone, Human Law and Human Justice (Stanford: Stanford University Press, 1965), a general survey of the history of jurisprudence, listing 9 "quasi-absolute precepts of material justice" nowadays, such as equality of parties (pp. 314-44). Also F.A. Hayek, The Constitution of Liberty (Chicago: University of Chicago Press, Part II. Hayek's work is excellent, but like other defenders of the status quo of law, he slights the defects of the rule of law in actuality and avoids the gaps in its scope in the vast realm of private government (especially corporations). Piero Calamandrei's famous essay on Procedure and Democracy (New York: New York University Press, 1956) is likewise unrealistic and sweetly careful of the judge's role.
19. It has been a generation, for instance, since Jerome Michael and Mortimer J. Alder presented a report of Crime, Law and Social Science New York: Harcourt, Brace, 1933). Trillions of dollars have been spent upon war and crime since then, but almost no resources relatively have gone into the investigation and reform of injustice.
20. Cf. "Prosecutor's Discretion," CIII University of Pannsylvania Law Review (1955), p. 1058. It has long been known in realistic jurisprudence that the prosecutor is the key official in criminal process. This institution has to be redesigned into a multi-disciplinary conciliar organ for setting standards and quotas on what material is admitted into the court-therapeutic process. See also Harris Saul Cohen, Establishing Alternatives in the Allocation of Justice unpublished PhD dissertation, New York University,1970); George F. Cole, "The Decision to Prosecute," (unpublished paper, American Political Science Association Conference, 1968); and Justine Wise Polier, The Rule of Law and the Role of Psychiatry (Baltimore: Johns Hopkins, 1968).
21. Cf. Walter Probert, "Creative Judicial Sanctioning," 49 Iowa Law Review (1964), pp. 277-324; Arens and H.D. Lasswell, In Defense of Public Order (1961); Kenneth C. Davis, Dicreationary Justice (Baton, Rouge, La.: University of Louisiana Press, 1969); Edward J. Sachar, "Behavioral Science and Criminal Law," 209 Scientific American (1963).


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