Civil Procedure | Criminal Law | Law | Legal Profession
Columbia Center for Contemporary Critical Thought
This draft analyzes the birth and emergence of the idea of the “criminal justice system” in the 1960s and the fundamentally transformative effect that the idea of a “system” has had in the area of criminal law and criminal procedure. The manuscript develops a critique of the systems analytic approach to legal and policy decision making. It then discusses how that critique relates to the broader area of public policy and contemporary cost-benefit analysis.
The draft identifies what it calls “the systems fallacy” or the central problem with approaching policy questions from a systems analytic approach: namely, the hidden normative dimension of the choice of scope of the metaphorical system. It argues that the systems analytic approach flips the proper relationship between method and substance, or to be more exact, between policy making and politics. Instead of the decision-making method serving to further the preferences of society, the decisional procedure silently imposes values on society.
Bernard E. Harcourt,
The Influence of Systems Analysis on Criminal Law and Procedure: A Critique of a Style of Judicial Decision-Making,
Columbia Public Law Research Paper No. 14-562
Available at: https://scholarship.law.columbia.edu/faculty_scholarship/2060