Document Type

Article

Publication Date

1971

Publication Information

1971 Duke L.J. 663 (1971)

Abstract

The four chief factors influencing the quality of American justice were identified by Dean Roscoe Pound as personnel, administration, procedure, and the substantive law. It is certain that better judges, prosecutors, and enforcement officers, better organization of courts, better administrative methods, and more adequate administrative personnel must come first in any effective program for the improvement of our nation's system of criminal justice. At the same time, the men who staff that system will be guided by an authoritatively prescribed criminal procedure, and they will be giving effect to an authoritatively prescribed criminal law. An archaic code of procedure and patchwork criminal laws will, of course, give better results if well administered than the most modern procedure or well reasoned, up-to-date substantive criminal law that is ill administered. Nevertheless, the conclusion seems unavoidable that the satisfactory administration of criminal justice must ultimately rest, as Dean Pound noted, upon a satisfactory criminal code. This means, in short, that concern with the improvement of our system of criminal justice must embrace reform of not only personnel, administration, and procedure, but also of the substantive law itself.

The proposed Code may, in one sense, be seen as a model of what an attempt at re-codification may accomplish when the theoretical framework of the Code is consciously worked out as an initial matter and the substantive provisions are then carefully integrated into that framework.

Analysis of the structural aspects and substantive provisions of the proposed Code is, of course, important. Nevertheless, attention must also be given to the historical context in which the proposed Code was drafted. This attempt at codification, like those before it and those that will follow it, ought not be examined or carried out in a vacuum. Any attempt at codification must be recognized to be a part of a continuing historical process-a part of the overall evolution of the law-and it ought to be undertaken with due regard for the clear teaching of history. In the consideration of the proposed Code, therefore, there are lessons which the Congress and the nation should draw from the history of the codification movement, and which should be applied to the consideration of the issues posed by the Code.

Comments

Reprinted with permission of Duke Law Journal.

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