Historical and Theoretical Problems
Criminal law reform is not simply an issue between those who favor liberalization of the existing systems (because they themselves are too weak to face the appropriate measures to eliminate crime or to uphold traditional standards or values) and those who are strong enough to take a stand against crime and the deterioration of standards which they associate with crime. Certainly, all decent people oppose crime and its increase. But still misleading theoretical over-simplifications are resorted to by those who want to settle the problem of crime by more laws but will not face the more difficult sociological question: “What are the reasons for crime?” and “How can we combat crime effectively?” Fear of crime and distress over social conditions has been used by hard line advocates of retributive justice and liberal reformers alike to popularize viewpoints and programs. We are well aware of the tactics of scare speeches and headlines about the rising crime rate. But, to avoid the pitfalls of misrepresentation, it is not enough only to recognize the social and personal impact of crime or only the disheartening quality of its social origins. One must himself retain the personal moral judgment to distinguish willful and destructive crime and violence from circumvention of subjectively or historically established regulations and social controls which may no longer retain the respect of many people who look for a modern rational basis for the laws they follow. A person who is a champion of law and order must either recognize what the law guarantees or the order he is talking about is not justice under law. At the same time we must consider the purpose and again the history of the laws in question, or the controversy over the justice of one law becomes challenge to law in general. That is in fact the attitude—no objective—of some radical groups, precisely the challenge to law as such—at least the law of present authorities. But that is in another way also the attitude of many who claim to advocate law and order, but mean the enforcement of prohibitions they favor while forgetting the guarantees of due process of law. The latter undermine the law by selective enforcement of it. The former want the power of the latter to abuse the law in the same wav.
KeywordsTheoretical Problem Criminal Code Fourth Amendment Model Penal Code General Deterrence
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