Visibility, accountability and discourse as essential to democracy: the underlying theme of Alan Dershowitz's writing and teaching

Albany Law Review, Summer, 2008 by Alan M. Dershowitz

I have been writing about the law and justice for half a century. My first published law review piece appeared in 1960 as a student note in the Yale Law Journal. (1) Since that time, I have published nearly thirty books and hundreds of articles covering a wide range of legal, philosophical, historical, psychological, biblical, military, educational, and political issues. Until I listened to the excellent papers presented at this conference on my work, I had never realized--at least on a conscious level--that a single, underlying theme, with multiple variations, runs through nearly all of my writings. As a response to those papers, I will seek to articulate that theme, show how it pervades my writing and teaching, identify some of its roots in the teachings of my own mentors, try to defend its fundamental correctness, and point to several weaknesses and limitations that remain to be considered before I complete my life's work.

The theme is not obvious, and no single speaker at the conference identified it fully, though most touched on elements of it. It is not obvious because, on the surface, it is difficult to see one single-colored thread running through a tapestry that appears to weave together so many different subjects. After all, I have written, inter alia, about the crimes of attempt and conspiracy; the commitment of the mentally ill; the defense of insanity and other legal excuses and justifications, such as "necessity," "self-defense," and "provocation"; sentencing and plea bargains; corporate and group crime; legal codification; freedom of speech; pornography; search and seizure; wiretapping; entrapment; coercive interrogation and torture; bail and preventive detention; the causes of terrorism; preemptive and preventive wars and other anticipatory measures; affirmative action; the Israeli-Arab conflict; freedom of and from religion; biblical interpretation; the sources of rights and morality; the Declaration of Independence; Jefferson's views regarding religion, speech, and terrorism; judicial selection; legal ethics; and the appropriate criteria for interpreting the Constitution.

I. THE OVERT TEXTUAL MESSAGE OF MOST OF MY WRITING

One theme that has been common to many, but not all, of my writings has been the prevention of harmful conduct, as contrasted with the after-the-fact punishment of completed crimes. My first published note began by adumbrating this issue:

   Legal folklore includes the notions that the criminal process is
   invoked only against acts which cause demonstrable injury, and that
   sanctions are applied in rough proportion to the actual harm
   inflicted upon society. But concern for the safety of society often
   provokes use of the criminal law to protect its citizens from
   potentially dangerous behavior patterns. Thus, when some harmful
   acts indicate a propensity in the actor to cause even greater harm,
   the criminal law frequently measures the sanction to be imposed,
   not merely by the actual injury done, but also by the potential
   injury implicit in the actor's conduct. Simple assault and assault
   with intent to kill may produce the same quantum of injury, but the
   sentence prescribed for the latter offense is more severe, probably
   because it includes consideration of the propensity to kill. This
   concern for potentially dangerous behavior has led to the
   imposition of criminal sanctions for certain acts which result in
   no injury at all--so-called inchoate crimes. The law of "attempts"
   is one category of such crimes. When a person attempts to commit a
   crime such as murder, but fails for some reason to achieve his
   intended result, he may be guilty of an attempt. Because injury is
   not an essential element of a criminal attempt, the only rational
   function of the law of attempts must be the identification of
   individuals whose overt behavior manifests dangerous criminal
   propensities. (2)

This theme of prevention has been reflected in much of my work, culminating in my 2006 book Preemption: A Knife That Cuts Both Ways, which proposes the articulation of a new jurisprudence for what I call the "preventive state" that is in the process of emerging in response, most particularly, to the threat of non-deterable suicide terrorism. I began that book with the following description:

   The democratic world is experiencing a fundamental shift in its
   approach to controlling harmful conduct. We are moving away from
   our traditional reliance on deterrent and reactive approaches and
   toward more preventive and proactive approaches. This shift has
   enormous implications for civil liberties, human rights, criminal
   justice, national security, foreign policy, and international
   law--implications that are not being sufficiently considered. It is
   a conceptual shift in emphasis from a theory of deterrence to a
   theory of prevention, a shift that carries enormous implications
   for the actions a society may take to control dangerous human
   behavior, ranging from targeted killings of terrorists, to
   preemptive attacks against nuclear and other weapons of mass
   destruction, to preventive warfare, to proactive crime prevention
   techniques (stings, informers, wiretaps), to psychiatric or
   chemical methods of preventing sexual predation, to racial, ethnic,
   or other forms of profiling, to inoculation or quarantine for
   infectious diseases (whether transmitted "naturally" or by
   "weaponization"), to prior restraints on dangerous or offensive
   speech, to the use of torture (or other extraordinary measures) as
   a means of gathering intelligence deemed necessary to prevent
   imminent acts of terrorism. (3)