Chapter 6: Erosion of Natural Law, and Moral Absolutism versus Moral Relativism

As we have already seen, the Platonic notion of a permanent ideal behind the flux of the corporeal was transformed by the Christian Church, through the philosophy of Aristotle, to the reign of absolute authority. The final authority was the Word of God, interpreted for the common person by the Church authorities. Bound up in the monotheistic mold of Christianity was the notion that the moral code applies absolutely to all men in all times. The problem was that the interpretation of that absolute code changed. For each age the most recent authoritative statement of that code prevailed. Moral absolutists recognized that moral ideas and customs differed from place to place, from time to time. But the differences were differences in opinion about the moral code, which did not change the absolute standard of the moral code itself.

However, the utilitarians, realists, positivists and pragmatists attacked the notion that there was an absolute moral law, or that even if it existed we could know its commands with any certainty. The Sophists of ancient Greece held that moral codes are merely conventions, tied to place and time. In such a view, there are no objective standards of morality, but rather, what a people commonly accept as moral conduct is in fact moral conduct within their system. This view has become known as Moral Relativism.

The logical absurdity of the extreme view of Moral Relativism, which rejects all objective standards of morality and reduces morality to accepted practice, is noted by W.T. Stace in his book The Concept of Morals, published in 1937. The necessary conclusion from that view, he says, is

that cannibalism is right for people who believe in it, that human sacrifice is right for those races who practice it, and that burning widows alive was right for Hindus until the British stepped in and compelled the Hindus to behave immorally by allowing their widows to remain alive. …

Absolutists say the variety of moral standards in time and place occurs because of ignorance of the truth; relativists say it demonstrates that there is no objective, absolute moral standard. That mere variability does not disprove the existence of an objective moral standard is again demonstrated by Stace:

And if the various different opinions which men have held about the shape of the earth do not prove that it has no one real shape, neither do the various opinions which they have held about morality prove that there is no one true morality.

To equate “morally right” with mere habit or custom is to deny the possibility of becoming in any culture, and it is to make absolute the state of the culture at that moment. On the other hand, to recognize the possibility of becoming in any culture, to recognize its fundamental relatedness to events outside itself, even to nature, universal yet diverse in its manifestations, is to recognize a distinction from which sight one can work to bring custom and habit in concurrence with what is morally right. It is in the potentialities of existence, not in the static points of observation, that vital truth is to be found.

Legal philosophy has mirrored this general philosophical conflict of absolute morality vs. relativism. In its extreme positions the conflict is expressed in the natural law view that no written law has authority which is not consonant with natural law, and at the other end of the scale the positivist view that there are no standards outside the written law, and what the written law prescribes or proscribes moral action.

Positive Law versus Natural Law

In the jurisprudence of America and England, the classical natural law proponent was Blackstone who wrote in his Commentaries that the laws of God are superior to the positive law, and that laws which contradict natural law have no validity. According to Blackstone, the validity of the positive law is tested by their divine origin: if the laws forsake their divine origin they lose their validity. Apparently, Blackstone believed the initiated could know that divine origin with sufficient certainty to act upon it. Plato established a precedent for this view when he wrote in Laws that “enactments, so far as they are not for the common interest of the whole community, are no true laws.” Blackstone merely substituted the nebulous test of divine origin for Plato’s test of the common interest.

Frank and Realism

In American jurisprudence Blackstone’s certain judgment was formally attacked by Realism. The period of Realism roughly coincided with the New Deal. Its proponent was Jerome Frank, and its primary expression was his book Law and the Modern Mind. Influenced by the developing sciences of sociology and psychology, Frank was interested in the reasons behind judicial decisions. He attacked the “basic myth” that the law can be entirely known, entirely predictable. He cited a popular challenge to that myth, expressed in Gay’s couplets:

I know you lawyers can, with ease,
Twist words and meanings as you please;
That language, by your skill made pliant,
Will bend to favor every client.

Frank described the source of this basic, pervading myth:

humankind’s perpetual, pervading desire for certainty. It derives from the infant’s reliance upon the parent, omnipotent so far as the child knows, which is never discarded as the child grows into adulthood. That phenomenon is operative in the predominant view of religion as clear authority, as well as in the view of the law as certain rule. “The Law inevitably becomes a partial substitute for the Father-as-Infallible-Judge.” But the application of the law is a rational process, and it is subject to the points of view of the judge which possess inherent biases.

The popular view of the law is that legislatures make the law, and judges simply interpret it and apply it to the factual circumstances presented. But that view ignores a very large traditional body of law, built up over time and therefore revered, known as the common law. The common law had grown up over the centuries through court decisions concerning basic human transactions, most generally concerning areas that became classified in the law as torts (wrongful conduct in human interactions, intentional and negligent) and contracts (agreements made). These had developed before modern legislatures and empowered administrative bodies had become the social architects they are today, controlling some of the finest details of social life.

The common law fills the gaps, even today, in the legislative fabric, although legislatures have increasingly stepped in, to provide for areas previously established by the courts. But it nonetheless continues today as judges fashion remedies to correct law violations, most notably affirmative action and the exclusionary rule in criminal law.

But the classical distinction that legislatures make the law and judges merely interpret it does not address the effect that a judicial remedy fashioned in a particular case has upon the future meaning of the law applied. That is how the common law comes into being, even today.

This myth of the certain authority of the law is destructive. It fails to recognize the vitality of life by imposing upon that vital process its confining and restricting demands; it fails to recognize the becoming of the world and the vitality of legal principles applied to the real world; it fails to participate in the dance of life.

Frank addressed this same principle when he noted that not all fictions are invalid. Rather, because man’s experience is contingent and indirect, run through the filter of bodily sense organs and organized for storing in the brain, the vitality of life cannot be captured with a mere equation of idea with actuality; it can only be achieved by thinking in models which Frank calls “valid fictions.” For example, he says, mathematics finds it is useful to employ the fiction of a circle as a polygon, and medicine finds it useful to employ the fiction of the completely healthy man.

The mark of civilized man is his capacity for sustained valid “as if” thinking. But when the “as if” character is lost, and it is treated as an equation, as a truism, then a falsehood is generated, an impediment to honest thought and communication.

It is through conscious “as if” thinking that the ideal is joined to the concrete. Valid “as if” thinking is not a pure abstraction. It is not an idealism divorced from, and above, the world. Lange in History of Materialism had noted,

Abstraction was the Jacob’s ladder by which the philosopher ascended to certainty. The further he was from the facts, the nearer he thought himself to the truth.

For Frank valid “as if” thinking was necessary because, like it or not, the judge is not an automaton, and society is not static. The judge that believes that he has no prejudices is self-deceiving and flirts with despotism. But Frank believed that to recognize the existence of prejudice was the beginning of wisdom. Perfection is a fool’s dream. Judges must respond to the vitality of the law, and they must legitimately recognize their part in that vitality and engage in it.

Although Law and the Modern Mind does not mention natural law, Frank notes in a later preface his reliance upon natural law:

But, as some Roman Catholics have read into it an implied criticism of the Scholastic (Thomistic) version of Natural Law, I want now to say this: I do not understand how any decent man today can refuse to adopt, as the basis of modern civilization, the fundamental principles of Natural Law, relative to human conduct, as stated by Thomas Aquinas. There are, he said, some primary principles, such as seek the common good, avoid harm to others, render to each his own; there are also a few second principles, such as not to kill, not to steal, to return goods held in trust.

Frank says that natural law aims at justice, and at moderate certainty in the man-made rules. However, to be practically meaningful, judicial justice must be justice, not merely in the abstract, but also in the concrete. In the trial setting that can happen only when the natural law operates on the subconscious of the judge, on the discretion of the judge, and not some other biases which may draw the judge away from those principles. To recognize in self such prejudices and biases, is the part of wisdom. It is only in recognizing prejudice that it and its effects can be controlled.

Our points of view will affect our subconscious, and our values will do the same. The subconscious has an important part in human thinking and activity. But we can choose, to a great extent, those subconscious forces. We can do so by becoming so well grounded in fundamental principles of law, social and psychological science, and morality, that their force remains after consciousness recedes. It will continue to bubble to the surface of consciousness and activity.

Austin and Hart: Moderate Positivists

A proponent of positive law, John Austin, responded to Blackstone in his book, The Province of Jurisprudence Determined (1954): “a law without an obligation is a contradiction in terms.” For Austin the law was the command of the sovereign. Without rejecting notions of natural law, Austin stated his objection to Blackstone’s pronouncement:

If the laws of God are certain, the motives which they hold out to disobey any human command which is at variance with them are paramount to all others. But the laws of God are not always certain. All divines, at least all reasonable divines, admit that no scheme of duties perfectly complete and unambiguous was ever imparted to us by revelation.

To preach that positive law which is contrary to one’s notion of divine law is not the law and need not be obeyed, Austin said, “is to preach anarchy hostile and perilous as much to wise and benign rule as to stupid and galling tyranny.”

Austin agreed with Blackstone that the positive law ought to conform with natural law, but he noted that the commands of natural law are not so clearly established. In the meantime, we have the positive law which is clearly established, in its positive form, if not in all its applications.

Another mid-century positivist, Hart, purported in Concept of Law to define the aims and limits of a positive law theory. Whereas former positive law proponents limited their view of the law to its final written expression, Hart offered what he called an internal point of view which concerned the intention of the law and could take into account “social rules.” Under his theory, there are two kinds of rules: primary rules and secondary rules. Primary rules are the final form of the positive law which is printed in statute books, ordinances, and regulations and rules. Secondary rules establish the procedure for the making of new rules, i.e. rules of passing legislation and conducting court.

The fundamental secondary rule is the “rule of recognition” which states that only those primary rules that arise through obedience to the secondary rules are to be recognized as valid. Primary rules that are valid have the potential force of coercion behind them. Austin analogized this coercive power of the sovereign to a gunman who commanded habitual obedience. For Hart that coercion was more a social coercion insofar as the law was a system of “social rules,” and it took the form of the gunman only in its extreme form.

Recognizing the limitations of a legislature in foreseeing all possible applications of a proposed law, Hart utilized his “internal view” to develop a distinction in law application between “mechanical jurisprudence,” or the direct application of rules to clear instances, and “penumbral” cases, where its application is not so clear. In the penumbral cases ambiguities of application were to be resolved by reference to the “intent” of the legislation as expressed in the legislative process, hence the “internal view.” The penumbral cases were to be decided, not by the dictates of natural law as they might be uniquely revealed to the individual judge, nor by the whim or prejudices of the individual judge, but with reference to the legislative process, the record of which is itself positive and objectively discoverable.

The validity and the force of the printed law is not determined by its moral value, but by its mere existence in positive form. Therefore, Hart points out, the issue of “what is the law” has nothing to do with “what ought to be the law.” That is not a rejection of natural law, but it recognizes a vital distinction between the issue for the law maker of what ought to be the law and that for the citizen and the judiciary of what is the law. It was a necessary distinction.

Frank and Hart Compared: Room for Agreement

Whereas Frank focused upon the subjective intent of the judge and the psychology of fact and law determination, Hart looked to the mechanics of legislation, including, in penumbral cases, the subjective intent of the legislator. Whereas Frank would have emphasized the need for judges whose subconscious and conscious were fixed on moral precepts and operating responsibly in the discretionary areas of the law, Hart, Austin and the other positive law proponents emphasized the separation of law and morality. Whereas the natural law operates in the discretionary functions of a judge, according to Frank, Hart held that positive law regulates the social activities of a complex, variegated society, and is not susceptible to determination by nebulous notions of natural law, but by compliance with the secondary rules of its making.

Frank recognized the power of the subconscious as the judge listens to the evidence and fashions the judgment or the remedy, and by that recognition to discipline and guide it. That is the human element of decision-making that remains vital today. Hart’s contribution to positive law was to expand the view of it to include values, purposes, and policies shown in the process of making the law.

Whereas Frank considered the discretionary area of the judicial function where values and purposes operate, Hart considered the positive form of the law: that which was right there in the legislative product and record, to be read by all. Whereas Frank recognized the inevitable operation of values, purposes and policies in the subconscious of the judge and sought to guide and refine those through self-understanding by the judge and training the judge in life-affirming, justice-making values and principles, Hart would have the judge look to the record of the legislative process concerning values, principles and purposes which guided the forming of the law and from that base to project the law into its future to circumstances which the lawmaker did not foresee in detail, but recognized in principle.

Frank and Hart were viewing different aspects of the judicial process, and although their emphases differed, their principles as applied to the sphere of their interest need not conflict. Frank was interested in the discretionary aspects of judicial decision making, and Hart was interested in limiting that discretion by an inquiry into “what is the law.”

Frank said the judge is not in a straightjacket, there is no such thing as mechanical jurisprudence. So long as judges make decisions, the human element will enter, and that human element ought to be recognized and examined, and it ought to respond affirmatively to the conditions of life and its becoming. Hart would admit that judges are not straight jacketed, but he would assert that they must not look to their private values, but by recognizing the function of the subconscious and its prejudices, the judge could be freed from private notions of justice to find the applicable policies and values in objective legislative history.

Frank is simply saying that a judge’s subconscious will effect his or her decision by its acquired point of view and values. By self-examination invalid points of view and values can be corrected; and through insight, education and practice new ones, valid ones, can be acquired. Again, Hart and Frank need not conflict. Hart simply says that the judge must look to the lawmaking process for those values and policies, and not personal preference.

For this country, the ultimate law is the Declaration of Independence and the Constitution. They provide all the basic purposes, values, and perspectives that justice requires. The subconscious can be trained, and ought to be trained, in the fundamental principles upon which our system of government was founded. Those principles have vitality, and their applications are fathomless.

Professor John Snowden, University of Nebraska Law School, fondly quoted a medieval philosopher, “The law is a hollow vessel; fathomless; inexhaustible in its uses.” That is the vitality of the law, and that vitality is grounded in the natural law and given structure by the positive law.

Legalism versus moral rules

This takes us to another set of poles in the view of the law: views on how the law operates, or how it ought to operate. One emphasizes rule, and the other discretion. In China there was within the same society a dynamic dance between two opposing principles: that of the legalists, “Fa”, who emphasized the operation of rules and that of the Confucionists, “La”, who saw the law as a flexible set of moral rules and customs. “La” asked, “How will people know honor when rules of law are written on the cauldrons?” Professor John Snowden illustrates these principles by translating them into modern commands: should the law be “Drive no faster than 55?” or should it be “Drive safely?”

Western society chose to err on the side of rules. Aristotle’s philosophy of the law, arising from a Greek idealism which was immutable and untainted by earthly expressions of those principles, was that it was certain and authoritarian. It was the Aristotelian view which later Christians adopted as principles for their philosophical and theological development. In the late Middle Ages it developed into Scholasticism, rules logically extended until they had little concrete embodiment – thinking which led to the horrors of the Inquisition.

Out of this formalism developed the case law method in the latter part of the Nineteenth Century. Legal formalism used legal analysis to find the law in the mass of inherited judicial decisions. The premise was that judicial decisions found the law “out there,” much as the authority of the Bible is taken by fundamentalists as the Word of God, when properly understood. The tool for finding and applying the given law was, as in scholasticism, reason. Through syllogistic reasoning the found law was applied to the facts, thus yielding the result. There was a process of chiseling out from the body of extant law that which is already the law but not yet revealed except through deductive reasoning. This was the basis of the case method, and in legal research it developed to a new level in the 1920’s with the publication of the Restatements of Law.

The social response to the human costs of the depression moved the law away from formalism to the view of the law as a social service. Contributing to that movement Legal Realism developed the view of the judicial decision as a social event yielding a result out of the psychological milieu. Decisions, in the Legal Realism view, are not a matter of mere syllogistic reasoning, but an art which enters into the becoming of society. Legal Realism became allied with a healthy Pragmatism which said that the premises are not had from the start from which formalism dictates the result, rather, the premises gradually emerge from the milieu of accumulated experience. It was a dynamic process, but its dynamism offered little certainty for lawyers who were hired to predict outcomes in business or estate planning. The purposive reasoning of Hart softened the formal aspects of the positive law to include values and purposes, but he limited the sources of those values and purposes to the process of law-making.

In the latter part of the Twentieth Century, there appears to be greater fragmentation of jurisprudence, and increasing skepticism of moral principles apart from the black letter of the law. There are still to be found natural law proponents, such as Perry’s “Morality and Politics” based upon a moral theory of “individual flourishing,” but natural law’s broad social influence is lost, it appears. “Critical Legal Studies,” of which Hutchinson is a proponent, notes the indeterminacy of the law. For them property rights rule: “We created them, we can change them.” It is influenced by Marxism, and it seeks to distribute property rights on the notion of fair distribution of property.

One popularly applied principle is “Moral Relativism,” that suggests that we may have some knowledge of moral principles, but that knowledge consists more of “webs of understanding” than precisely stated principles. For Moral Relativists there are ranges of acceptable alternatives. Those acceptable alternatives will not be known unless we engage in the dialectical process of their development. Whereas this view seeks to preserve the dynamic application of moral principles to concrete circumstances, its popularized form is “That may be good for you, but it is not for me,” and there any further discussion and examination of moral principles ends. In such a private notion of justice, the power to assert the law is determinative of which standard shall prevail.

One of the more disturbing aspects of modern jurisprudence is the practical reign of “Economic Analysis of Law.” This system, proposed by Posner, is merely utilitarianism revisited and redefined in economic terms, which is the new good, the new utility. Posner says that when the law runs out, it is not legislative history which defines the principles to control the case, but rather political advocacy for economic gain. Posner reexamines the history of decision-making to reveal that his theory is a long-established operative principle in American jurisprudence. In all tough cases, the decision was made on the basis of economic progress, he says.

Posner may be right, at least for the broad flow of American jurisprudence. It certainly operated in the Dred Scott case. Perhaps we have lost faith in the dynamic principles of our founding fathers. But I believe that out of the milieu of decisions governed by notions of economic progress and economic self-interest there still emerges from time to time little gems of brilliant reliance upon those dynamic principles of the founding fathers which guide us to real progress, not just economic advantage to those vested with political power or of those who can now, through PACs and political donations, purchase that power. Abraham Lincoln was such a gem; Earl Warren was another.

Sentencing: Perfunctory or a Dynamic Social Tool?

There is an area of legal practice which has not received much intellectual interest, but in which the judge has great discretion and in which there is great potential for social change. It is an area that ought to receive great study, but where I believe legitimate study has been inhibited because of the difficulty in subjecting that practice of law to objective examination. That is in the matter of sentencing.

The courts have traditionally recognized as valid various purposes of sentencing, focusing generally upon either the individual or society. Within each area of focus are accepted policies, which, when carried to their logical extremes, may be mutually antagonistic. The law recognizes various purposes in sentencing the individual: retribution, just desserts, deterrence, and rehabilitation and social catharsis. While the legitimacy of each area has been recognized, there has developed little jurisprudential, social, or behavioral inquiry or research to explore the limits of each, the circumstances in which each may be valid or invalid, or their interrelationships.

a. Defendant-Focused Sentencing

Viewed individually, the element of retribution is based upon the principle of an eye for an eye, a tooth for a tooth, or getting even. A jail sentence or a fine can be viewed as retributive, but it need not be so limited. On the one side, a society which is outraged at the rending of the social fabric by an criminal act demands its pound of flesh. On the other side is the self-serving defendant and his lawyer who, with a burst of disinterested enlightenment, notes that no amount of punishment will undo the harm thoughtlessly done. It is generally recognized that getting the ounce of flesh does little to advance the state of society, but a sentence imposed by one judge in retribution, in the hands of a caring judge can be transformed, without substantive change, into a positive sentence which invites change and healing of the scars, simply in the manner of delivery or its packaging.

Legal Moralism is the primary ground for the notion of “just desserts,” or “doing justice.” The moral order requires that a wrong be corrected. It is not a matter of getting even, or of retribution, which is the evening of the score on a personal level. Rather, the adjustment has more to do with a notion of rebalancing the scale of justice. It is a means of returning the scale of things to an equilibrium so that one can say, “He paid his debt, the matter is over.” In such a view, wrongs untended and uncorrected tend to pile up until the moral order of society is unbalanced and sick. Equilibrium and health of the individual and of society require that wrongs not go uncorrected.

Deterrence works on the behavioralistic principle that if an action is effectively coupled with a personally painful result, the action can be deterred. In this area, unfortunately there are few psychological studies available to aid judges in fashioning a sentence which will effectively deter further law violations. Unfortunately, as will later be discussed, deterrence is seldom given much consideration by a sentencing judge until such time as the judge’s fuse of patience has run out and repetitive minor law violations have escalated into major, socially disruptive acts.

Rehabilitation is perhaps the broadest aspect of individual sentencing, since it can make use of many different methods of correcting behavior. Essentially it is behavioralistic in view, but whereas deterrence focuses on the negative association of the act with punishment, rehabilitation may also approach the problem from the view of reinforcing law-abiding behavior. Unfortunately, there are also few legitimate sociological or psychological studies addressing the effectiveness of rehabilitative tools or methods. For must judges “You’re on probation,” if it has anything to do with rehabilitation, is an equation with rehabilitation, and little more thought is given to the conditions of probation which will be most effective in bringing about law-abiding, socially productive behavior. But most frequently, “You’re on probation” is not even associated with rehabilitation, for which it was intended. Rather, it is used as a tool to lessen the penalty and to give the offender another chance. But another chance disconnected from accountability yields irresponsibility.

Rehabilitation is another area in which much research is needed, and, as Frank proposed, judges need in-depth education. Mere legal training for those called to be social and behavioral architects is simply inadequate.

Another aspect of individual sentencing which has not been well explored is the aspect of accountability. As noted above, the same sentence can be given in different ways, and with differing effects, depending upon its manner of delivery. For example, community service could be merely getting the ounce of flesh, or it could be returning something good for the wrong that was done, or it could be deterrence individually and socially, or it could be socially cathartic, or it could be a matter of being accountable for the wrongs done for purposes of rehabilitation, or it could be a combination of these. What we do know in the most successful drug and alcohol treatment program, Alcoholics Anonymous, is that until one is held accountable for the full range and extent of one’s destructive actions, one will not change. It is akin to the utilitarian notion that the costs must exceed the benefits if punishment is to be effective.

The operation of accountability in a judicial setting has not been effectively explored. Nor do judges have adequate training in sociology or psychology to effectively function in this area. Seminars are not sufficient for such purposes. The training must be of much greater breadth and depth to inculcate that learning and the values associated with it into the subconscious as well as the conscious.

The very inadequacy of judicial training to meet the demands of sentencing lends to the view by the judiciary of the futility of any real efforts for change and it leads to a perfunctory approach to sentencing. With that perfunctory approach judges give criminal offenders the wrong notion that their violations, although they carry some cost, will be tolerated. Such sentencing is akin to a luxury tax – no big deal, it just has to be paid for the privilege. With perfunctory sentencing the costs of criminal activity do not escalate sufficiently to confront the defendant early with the costs that reasonably will exceed the benefits.

Defendants who find the low costs acceptable relative to the benefits that behavior gives them, rely upon the continuing tolerance of society expressed in the perfunctory sentence until anti-social habits are developed and themselves escalate to a socially intolerable level. At that point the judge looks at the extensive record, blames the defendant for failing to “get the message,” and “throws the book” at the defendant with a long-term jail sentence. The problem is that the message to that point was “Society doesn’t care enough to do something about your criminal behavior.” If society really believed criminal behavior is unacceptable, it would do something to demonstrate its demand for change and do it early in the criminal history of an individual.

Studies show that our prisons are filled with persons who have a long history of criminal records. Why not tailor sentences to the circumstances, including the circumstances of early recidivism, and give lower sentences of imprisonment or other accountability earlier in the history of the offensive behavior, escalating with each further criminal activity, so that the offender is given a clear message that society will not tolerate continuing offenses? With such a clear message, the offender has an real opportunity to change his or her patterns of behavior.

b. Society-Based Sentencing

In the social function of sentencing, the areas generally recognized are social catharsis, deterrence, and protection of society. Social catharsis is a recognized principle of sentencing, i.e., that the outrage of society demands expression and release by seeing justice done, or even by seeing retribution. Seldom does the judge recognize the effect of the sentence upon social consciousness, except for the extraordinary case where members of the community are present in court to hold the judge accountable, or the news media has focused attention on the case.

Likewise, social deterrence, to be effective, requires a thorough knowledge of social psychology. It remains another unexplored area in sentencing, other than the selective notion that “If I give an extreme sentence the word will get out that I do not tolerate this behavior.” But social deterrence need not be so dramatic. Social deterrence can be accomplished in small, accumulated degrees, by a general tone of sentencing which develops over time. It is most effective when there are consistent policies that the judge will follow, even in hard cases. Those policies can have some breadth to allow for consideration of the particular needs of the individual sentenced; they do not have to be straight jackets.

Protection of society by incarceration of the offender is the final social purpose of sentencing. But it is never fully adequate as a purpose of sentencing unless an effective life-time prison sentence is imposed; or, if a judge considers unlawful behavior to be predominantly a function of male hormones of aggression, then if a prison sentence is to be effective it must be effective until the hormones subside and with it the aggression. This is the least satisfactory of the purposes of sentencing in the average case. In such cases, it frequently is used to rationalize what is in fact retributive justice.


What is missing in modern jurisprudence is a view of the dynamic relationship of the individual in society: a balance between freedom and responsibility. I The problem of justice in practice is perhaps best described by the phrase from The Sound of Music concerning the nuns’ inability to control Maria: “how do you hold a moon beam in your hand?”


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