Of Liberalism and Conservatism in American Criminal Law

Authors

Gerhard O. W. Mueller

Abstract

Continental scholars traditionally have been preoccupied with the creation of theories about existing and emerging phenomena, and since these theories became identified with their creators and foremost proponents, the custom has emerged of focusing much of the scholarly writing on these theories and, of necessity, on their spokesmen. Thus, continental criminal law scholarship in theoretical, yet personal. American scholarship has not yet quite reached that point; it is not similarly focused on theories and their spokesmen, but deals with issues. In short, and with a bit of exaggeration, European scholars of criminal law talk to and about each other and each other's theories. American criminal-law scholars talk past each other and about the raw stuff from which useful theories can be constructed. Yet, in at least one respect, it has become rather customary among American criminal-law academicians, though only in recent years, to size each other up by extrinsic standards. This may be a first indication of a move in the continental direction. These extrinsic standards, however, are those running parallel to contemporary practical politics. In a nation as political in orientation as ours, this "sizing up," with a consequent theoretical grouping, is in terms of one's standing on issues of current public-political concern. As politicians are being rated and grouped in accordance with their standing on such issues as medical care for the aged, foreign aid, income taxation, or the public school system, criminal-law academicians are similarly being rated and grouped in accordance with their standing on such issues as their approach to juvenile delinquency, the capacity issue, police powers, capital punishment, and so on. Actually, since criminal law is of so much concern to those outside the closed circle of academicians, every scholar does risk a rating and grouping with anything he may utter or publish, on any issue within his domain. Not that it should not be that way! Quite to the contrary, there is something wholesome about such a concern with the views of one's contemporaries. Perhaps we may even reach the point at which we can size up-each other's theories directly rather than in terms of academical relatively insignificant groupings of political import.

First Page

137

Recommended Citation

Gerhard O. Mueller, Of Liberalism and Conservatism in American Criminal Law, 3 Duq. L. Rev. 137 (1965).
Available at: https://dsc.duq.edu/dlr/vol3/iss2/3