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A Crisis of Legitimacy
A Great Trust Waiting to be Reawakened
ONE HUNDREDTH GRADUATING CLASS OF THE FBI NATIONAL ACADEMY
March 20, 1975
Edward Levi chose for one of his first speeches as Attorney General a graduation ceremony. The Federal Bureau of Investigation's National Academy provides professional training to law enforcement officials from the United States and abroad. Speaking there so early in his time as Attorney General emphasized the importance of all parts of the justice system—starting with the street police officer—in the restoration of confidence in the administration of justice. The theme of the expressive and symbolic impact of law in action often appeared in Levi's talks.
... As law enforcement officials, you, more than anyone else, represent the power and quality of the state. You hold a unique and difficult position of enormous responsibility to our society. It is by watching you that many of our citizens learn what kind of country this is. They learn what laws are to be enforced, what determination we have, what kindnesses and decencies we honor as a people. As government has grown larger—both at the state and federal level—as rules and regulations have grown more complicated, as rights and duties have proliferated, the government has come to be seen as an increasingly impersonal and remote force. Your action and direction bridge the gap between the government and the individual. By your conduct you represent the government as it affects people in their daily lives. Yours is a close relationship with the average citizen. And, I might add, where law enforcement is concerned, we are all average citizens because the law must act with a sense of fundamental equality.
Because you serve as the clearest intermediary between the government and the society, your role has a wide scope and your functions are not easily defined. Studies have shown that many policemen spend most of their working time on things other than crime control. One researcher found that only 17% of police service calls and responses in one major city related to crime. Detailed studies of another large city showed that police spent about two-thirds of their effort on social service and administrative work. I realize this kind of data might suggest there is something wrong with the way police and investigatory work is organized. I can imagine a flock of management control buzzards descending upon your profession to reorganize it, to narrow its objectives. But I venture to suggest the wider scope of the police functions not only reflects the fact that someone must perform the range of essential tasks police now perform, but it also reflects the judgment that these tasks are inherent and important to the intermediary and symbolic role of law enforcement. When people know that the purpose of police is to be helpful and to make the society work better for the individual, when people know that rules are to be guides and not traps, a trust arises within them that is very important. If it is any comfort to you, let me remind you that this wider aspect to an occupation is characteristic of most professions. Indeed, I am inclined to believe that the more important a profession is, the broader will be the field of duty surrounding its core of technical functions. In any event, that is most surely an attribute of the three learned professions of law, medicine and the ministry. Persons in those professions spend great amounts of time on matters far beyond the technical structure of their discipline. Most of what they do is to deal with people and to try to be helpful to them. So it is also with the police. What you do reaches the vast numbers of Americans who will never see the criminal justice system firsthand. When you act strictly as agents of the criminal justice system, the people with whom you deal will see in your conduct a mirror of the totality of government. Probably it is yours, as it is for no other groups in our country, to build or reinforce—or at times unfortunately to destroy—a basic trust in our system of law enforcement....
You leave here to enforce the laws at a time when the very nature of law and its enforcement have been called into question, both by an increasing fear of crime that no one has yet been able to stem and by a deep want of belief in the fairness with which law is enforced. As police officials, you will bear the burden of that fear and of that lack of faith more than anyone else. You will also have more opportunity than anyone else to calm the fears and to restore the faith in American justice.
We must never forget one essential truth: Neither the law in general nor the criminal law in particular can be entirely enforced by the government. Ultimately, enforcement must spring from the faith of citizens. In a free society there are essential values which would be destroyed were law enforcement to depend entirely upon the force of arms. Another kind of force must operate. That force is the willing acceptance by an overwhelming proportion of our people of the law's demands. People must believe, if not in the wisdom of a particular law, at least in the fairness and honesty of the enforcement process. I am afraid that many Americans have come to believe that law is not evenly enforced, that the law is being used not for the sake of the social good but rather for the sake of the people who created it. I happen to believe that this kind of cynicism is wrong, but the fact is that it exists. And it has serious consequences for law enforcement in our system in which general belief in the law's fairness plays so important a role.
I don't believe it has been the rigor of enforcement that has caused people to lose faith in their laws. Rather it has been a failure to show in our actions as enforcers of the law an adherence to principle—really an adherence to the ideal of justice itself—a recognition that since laws exist for the common good, they must be enforced with fairness, evenhandedness and a proper and common concern for each individual.
As I have said, your profession is the agency which brings the criminal justice system to the people it serves. Your presence, your conduct, your basic decency and concern can make a great difference in the public's perception of the fairness of law. By your gentleness, civility and determination you can build or reinforce a basic trust in how our system of law operates. Another way of saying this, of course, is that you must have the discipline and proper goals of a profession which exists to serve society and protect the individual. For if law can be enforced only when there is a belief in the law, your job as policemen and our job in the Department of Justice must be in large part to strengthen that belief and to see it is a faith well-founded.
What I have suggested to you about the subtle way in which all of our conduct shapes the adherence to law in this country should give us all pause. How much easier it would be to believe that specific new laws, amazing new technological devices or vast expenditures of money would by themselves solve the crime problem in America. How much more difficult it is for us to realize that as enforcers of the law, everything we do has a deep and abiding effect. It is more difficult to worry about the whole range of our official conduct than to satisfy ourselves by drafting new statutes or buying new devices, but I believe it is also more sensible.
Your job as a profession is to cope with one of the greatest problems of our society. You stand where fear and cynicism now meet. But there is also a great trust waiting to be reawakened. By your conduct and skill—and I hope in part by virtue of what you have learned at this Academy—I am sure you will show the people of America that they may trust in the law and in you.
Security, Power and Equality
THE AMERICAN ASSEMBLY ON LAW AND A CHANGING SOCIETY
June 28, 1975
The American Assembly has set for itself a difficult, customary task—to look into the future so that our present institutions of law will be better prepared for what is to come, and to consider creating new institutions, if that is the part of wisdom. This is an optimistic adventure. We assert our ability to control our destiny somewhat. The discussion is for the purpose of informing action. We have sufficient faith in some statistical predictions to listen to them, although we realize such predictions sometimes have been in great error. We think, in short, it is possible and worthwhile to foresee future movements and requirements, and we are committed to social engineering. This attempt to fashion the new world seems a typical and very American enterprise.
But this probably does not describe our present mood or at least the attitude of our day. The buoyancy and conviction we once had—or think we had—are diminished. America once was the new world. The achievement was here. What was required was to permit it—or to encourage it—to work its ways. Now we are not so certain. We have no particular utopian dream to guide us, as older societies frequently had, either of the past or the future, although of course there is plenty of talk that things will be different. Utopian dreams—at least to the extent that they are elaborated and worked out—are always commentaries on the present. But we seem overwhelmed and puzzled by what has happened to us. Even as we assert the power to guide the future, we are conscious we have been taken over by a tidal wave of past and present events. Some of our guesses for the future, of course, may be satisfying because without more they may suggest some present irritants will diminish. But others gain meaning only as we see where we are today. It is our present condition, then, we must first try to understand. And as to our view of our present condition, I suspect we are compelled to welcome disagreement in good cheer.
In thinking of where we are today, three ideals or clusters of reactions, which summarize the events of the last half century, may suggest factors which have profoundly influenced us. The substance of the ideas could be put in many different ways and under different names. I have thought of them in terms of security, power and equality. The concepts are among the constellation of ideas which rule or are reflected in any society. They never can be seen only by themselves. They compete for dominance, not only among themselves, but with other sovereign constructs. Their meaning changes. It is because their meaning changes, and has been reactive in ways we recognize, that perhaps they help describe the commonplaces of our period. I certainly do not suggest them as insights but rather as ways to problems.
As to security, let me say we have not escaped the aftermath of the rise of an aggressive authoritarianism on an international scale, as to which it was widely thought the international community was slow in responding, and it gave the world an example of terror and destructiveness. The words of Churchill condemning Munich may not have been widely known or appreciated by a generation which died in Vietnam, but the connection was there. The international order, or the attempt to achieve security in the presence of old and new forms of hostility, inevitably gained a preeminence it never before had in American life. We were not prepared for this then. In some ways we are not prepared for it now. The domestic repercussions of reaction and counter-reaction were severe. We have not fully overcome or adapted to these reactions. Moreover, we are a society where many elements combine, including the freedoms we cherish most, to produce swings of reaction. In our bafflement as to how to reconcile the different requirements of international and domestic order or disorder, we have moved from one extreme to another, and perhaps the most constant theme is the refusal to face up to the differences between the international and the domestic settings. But since the realms cannot be separated completely, and each realm tends to influence the other, the relationships require much more jurisprudential thought than has been given. We have found it hard to come to terms with the measure of security required for our day and with the control of that security. Unfortunately the ramifications are many.
The emphasis on problems of the international world has influenced our views on the many forms of power. It has also, perhaps through the convergence of particular movements, influenced ideas about the place of law within the body politic. There is a paradox in this, since if the international community suffers from an absence of law and the absence of institutions of law, it is odd that this absence should be used to conclude that law when it exists is but one more aspect of the many forms of power. But other factors have contributed to this view, including, it must be said, movements which have been willing to challenge the law on this very basis. Law is a normative subject. Its stated purpose and the stated purposes of its institutions have special importance. Its commands are not simply descriptive of behavior, and indeed its orders are often violated. But as countless examples show, even in times of great stress and objection, these orders have meaning and influence conduct. The stated purposes and their reflection in the orders given are influential with respect to the conduct of citizen-rulers, for that is our concept of the rule of law. An explicit purpose in the rule is that it is not to be used as merely one more instrument in the hand of the strong against the weak. And it is a gross misuse of law if its special attributes of formality, legitimacy and fairness are ignored, because then law is seen as only one more available means of influence. Law and legal institutions can be seen in that way, as can all human institutions, but it is a partial view, and the incompleteness so far as law is concerned is particularly damaging because it can be self-fulfilling.
There are other reasons for the emphasis on power in our time. Wars have produced social change. They have influenced demographic factors. The shape of the American population is different than it was. This has had a direct relationship for example on the problem of crime because of the larger youth population. Other changes have occurred. While it is customary to cite Tocqueville—at least for something on occasions such as this—and he did speak of the litigious spirit of the Americans as well as their proclivity to form associations, one has the impression that groupism has never been more prevalent than it has been in recent times. This is one of those statements that may be over-reaching and may well be wrong. All that need be said is that along with the claim that there is increased anomie or perhaps just loneliness, there has also been a felt need to find identity in group membership. Frequently this is coupled with the claim that injustice can be averted or corrected only through group action.
The phenomenon, in addition to involving an assertion of power or the need for power, says something about the idea of representation. And it is accompanied by skepticism or conviction about the sources of power to control representatives. The demand is frequently that representatives have a more abiding identity—through race, craft, sex, age or income—with the group represented. Disclosure laws, open meetings, increased standing to participate at all levels and dislike of neutrality suggest a variety of questions as to what is happening to the professions of representation and to the theory of delegation central to our government. In a somewhat harrowing way this new approach questions the idea of the good citizen or at least of public citizenship as separate from the manifestation solely of self-interest. It is an old debate, of course—one which interested Rousseau—and I do not know whether this new emphasis should be taken in its own terms or rather as a reaction to the breakdown of so many supportive institutions, a consequence also of the size and mobility of the population, and the effect of the communications media. These items, along with the ramifications of the international order, are in any event matters which we cannot forget.
The importance of special representation as an aspect of power has naturally grown as this has been seen as the way to share, through governmental intervention, in increasing resources made possible through an economy of abundance. Either the recognition that resources are limited, with choices to be made, or the proliferation of overlapping interests may save us, as the Federalist Papers hoped, from the worst forms of factionalism. Yet at the center of many demands for special powers and recognition is the insistence that the goal is equality. The concept is ambiguous, limited and, perhaps inevitably, in its use contradictory. The traditional constitutional problems of preventing discrimination, requiring affirmative action, denying or requiring that individuals be treated as members of groups are well known. They press for definition and guidance and this no doubt will come. Since society can be divided many ways, and population patterns will change, one can try to anticipate which groups in the future may gain additional protection. But for long-term basic governmental policy, the frequent suggestions for a new bill of rights, requiring a minimum standard of the requirements for everyone, seem to me to pose interesting issues. The reason for the interest, I hasten to add, is because I think this is descriptive of the direction in which in fact we have been going. The large-scale federal intervention directly and indirectly at all levels and through local governments is largely for this purpose. We have travelled an enormous way from the time when only a most limited number of items were considered within the governmental power or appropriate for direct governmental action. Yet the proposals for a new charter seem to signify that this new direction has not worked sufficiently well....
Excerpted from Restoring Justice by JACK FULLER. Copyright © 2013 by The University of Chicago. Excerpted by permission of The University of Chicago Press.
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