CRIMINAL LAW AND THE MODERN CONSCIOUSNESS - SOME OBSERVATIONS ON BLAMEWORTHINESS

• NCJ Number: 47233
• Journal: Tennessee Law Review Volume: 44 Issue: 3 Dated: (SPRING 1977) Pages: 735-763
• Author(s): F A ALLEN
• Date Published: 1977
• Length: 29 pages
• Corporate Author: Tennessee Law Review Assoc
• Publication Format: Article
• Language: English
• Country: United States of America
• Note: PRESENTED AS THE ALUMNI DISTINGUISHED LECTURE IN JURISPRUDENCE AT THE UNIVERSITY OF TENNESSEE COLLEGE OF LAW, APRIL 6, 1977

Annotation

THE FEASIBILITY OF STUDYING SUBSTANTIVE CRIMINAL LAW TO GAIN INSIGHTS INTO THE NATURE AND QUALITY OF SOCIETY IS CONSIDERED.

Abstract

CRIMINAL JUSTICE HAS OFTEN BEEN USED AS A MIRROR TO REFLECT SOCIETY OR AS A MEANS OF PROBING CULTURAL MECHANISM AND UNCOVERING THEIR PATHOLOGIES. HOWEVER, SUBSTANTIVE CRIMINAL LAW RARELY HAS BEEN PUT TO SUCH USES. THIS IS TRUE EVEN THOUGH CERTAIN BASIC CRIMINAL LAW ISSUES -- RESPONSIBILITY, LEGAL OBLIGATION, JUSTIFICATIONS FOR PUNISHMENTS -- ARE STAPLES OF MORAL PHILOSOPHY, AND DESPITE THE FACT THAT SUBSTANTIAL CRIMINAL LAW DEFINES THE BEHAVIOR AUTHORIZING THE IMPOSITION OF THE MOST DRASTIC SANCTIONS AT THE GOVERNMENT'S COMMAND. IN THIS LIGHT, CHARACTERISTIC CRIMINAL PROBLEMS ARE CONSIDERED IN RELATION TO THEIR MODERN INTELLECTUAL, POLITICAL, AND CULTURAL CONTEXTS. SPECIAL ATTENTION IS DRAWN TO THE BLAMEWORTHINESS PRINCIPLE -- THE ASSERTION THAT BEHAVIOR FAIRLY SUSCEPTIBLE TO MORAL CONDEMNATION IS AN ESSENTIAL INGREDIENT IN THE DEFINITION OF CRIMINALITY. IN SUPPORT OF RETAINING AND ENLARGING THE LAW'S RESPONSIVENESS TO MORAL VALUES AND DISTINCTIONS, IT IS POINTED OUT THAT, IF THE LAWMAKER'S PRINCIPLES ARE FRUSTRATED BY THE REALITIES OF CRIMINAL JUSTICE ADMINISTRATION (MOUNTING CASELOADS, PLEA BARGAINING, UNREGULATED DISCRETION), THE JUSTIFIABLE COURSE IS NOT TO ABANDON THE PRINCIPLES BUT TO SEEK TO ELIMINATE THE PROBLEMS OF ADMINISTRATION. IN THAT THE CASE FOR ETHICAL CONCERNS IN THE CRIMINAL LAW IS AN UNEASY ONE, THE LAW DEMONSTRATES ITS KINSHIP WITH THE MODERN ERA, IN WHICH ACTION MUST BE HAZARDED ON THE BASIS OF UNEASY CASES. THE PERIL IS THAT, FINDING THE TENSION OF UNCERTAINTY UNENDURABLE, SOCIETY MAY SUCCUMB TO ONE OR ANOTHER EXTREME PROMISING AN END TO DOUBT AND CONTINGENCY. IT IS CONCLUDED THAT, BY CONFRONTING THESE ISSUES IN THE LAW, ONE GAINS A 'FAMILIARITY WITH THE TERRAIN' AS ONE TURNS TO MATTERS OF POLITICS, THE ARTS, AND OTHER FIELDS OF SOCIAL CONCERN. (AUTHOR ABSTRACT MODIFIED--LKM)