Dissent as Part of the System : QUESTIONING AUTHORITY Justice and Criminal Law <i> by David L. Bazelon (Alfred A. Knopf: $19.95; 352 pp.) </i>

Here is a man of brilliant intellect who has resisted, in his judicial career and in this book, the luxury of pure cerebration. He agrees with Justice Oliver Wendell Holmes that the heart of our law is not logic but experience. But Judge David L. Bazelon is no seat-of-the-pants seeker of convenient or whimsical answers to complex questions. This book demonstrates his mastery of a perilous task: balancing society’s real need for security and order against the right of the accused to a fair trial and just punishment. The author points out compellingly that in their fear of violent crime in the streets and threats to life and property, many citizens are beguiled by simplistic “law and order” solutions. Shibboleths such as “Swift and Sure Punishment” disguise the true dilemmas of criminal justice: Why crime? And what can we do about it?

Bazelon, a distinguished veteran jurist has for decades played a major role on the U.S. Court of Appeals for the District of Columbia--itself a distinguished court.

He has been on the cutting edge of legal thought and philosophy particularly in the criminal justice field. His opinions, as exemplified by the seminal Durham case on diminished capacity, have not only shaped the law but have provoked lawyers, judges, police, professors, and legislators to think more deeply about law, justice and society. This book reveals how the problems are posed and how judges do and should address them. Bazelon shares not only his methodology and scholarship but also his reasoned views about the sources of crime, the nature of justice and the efficacy of punishment.

Bazelon is both revered and reviled in the legal and law enforcement community. He holds strong views that often run counter to popular whim or myth. Underlying his ideas is a profound concern for the human condition.

In a time when some judges, judicial scholars and writers proclaim themselves privy to and guardians of the “original intent” of the framers of the U.S. Constitution, Bazelon dismisses these claims with contempt. He quotes Justice William Brennan who characterizes the “original intent” theory as “arrogance cloaked as humility” or “facile historicism.” The author asks, “How can we know what the framers would have thought about the risks and benefits of nuclear power plants?”

Bazelon tells us that as a civilized nation, we must recognize the root causes of crime and deal with them. He writes: “Nobody questions that street criminals typically come from the bottom of the socioeconomic ladder. Unemployment leads to higher arrest rates. Current get-tough programs are aimed at offenders who come from an underclass of brutal social and economic deprivation.

“The circumstances that lead some of these people to crime are no mystery. They are born into families struggling to survive--if they have families at all. They are raised in deteriorating, overcrowded housing. They lack adequate nutrition and health care. They are subjected to prejudice and educated in unresponsive schools. They are denied the sense of order, purpose, and self-esteem that makes law-abiding citizens. With nothing to preserve and nothing to lose, they turn to crime for economic survival, a sense of excitement and accomplishment, and an outlet for frustration, desperation, and rage.”

Bazelon stresses that proliferating prisons and lengthy sentences alone will not stop crime.

Because the Judge does not permit himself facile answers, this is not an easy book. It challenges one’s preconceptions and requires the reader to keep an open mind.

Bazelon does not preach doctrine or dogma. He suggests that judges, while properly deciding only the narrow legal issues before the court, should, in their opinions and extrajudicial writing and especially in dissents, draw attention to related concerns and broader considerations.

He is the first to assert that he does not have all the answers--urging that dialogue and intellectual intercourse are vital to meaningful growth of the law.

He instructs us that “One way for a judge to encourage fuller understanding of issues is to dissent from majority opinions with which he disagrees. By challenging the court’s reasoning or result, dissenters force the majority to consider carefully, to weigh other evidence and interpretations. Sometimes a dissenter or the reasoning in a written dissenting opinion convinces a later majority in a similar case, and the first decision is overturned.”

Bazelon dissents from cant, from stultifying orthodoxy, from inflexible ideology. He would concur with Justice Benjamin N. Cardozo who wrote: “The dissenter does not hear the hooting throng or howling mob. His eyes are on the eternities.”