Classical criminal law focuses on the individual, and proposes to determine criminal liability only after a deliberate process that examines issues related to responsibility and harm; insists on strict rules of criminal process; and requires a high standard of proof—beyond a reasonable doubt. Lon Fuller elaborates on the nature of adjudication, exploring its form and its functions, and insists that adjudication is not an appropriate form of decision making that deals with “polycentric” issues. Malcolm Feeley (The Adversary System) explores the nature of the adversary system, and why its proponents think that at adversarial trial is so effective at eventually getting at the truth.
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But the fact of the matter is that in most adversarial systems, very few—a tiny number—cases are resolved through adversarial trials. About half of all cases brought before the court are dropped outright by the prosecutor or dismissed by the judge, and those which remain are often disposed of by pleas of guilty, often to reduced charges.
The materials we read for the course reveal that this is not a new phenomenon, but an ages old practice (thought it may have become more pronounced in recent years). This has led some to conclude that the criminal process is not really based on adversarial adjudication, but is a regulatory process, concerned not so much with determining individual guilt or innocence, as it is with managing compliance—the management of the risk of dangerous activity—in the society as a whole. Thus, it is more like enforcing standards for the regulation of air pollution, or safety standards in industry, than it resembles classical criminal law.
Some of the materials we read in the course point in this direction. Others do not.
Your task is to discuss the readings (or some of them—as many as you need to make a complete argument) to explore this issue. In particular, you should address the question:
Is the Anglo-American (including Israeli) criminal process still a distinctively criminal process, or has it abandoned all concern with criminal liability in the classical sense, and replaced it with a regulatory process of some sort, either of the kind Braithwaite advocates of in the form of risk analysis? Do you agree: Yes? No? Partially?
Pick an answer and explain in no more than four and a half pages (1100 words). Draw on any or all of the readings assigned in this course. No need to go beyond them.
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