Wednesday, November 8, 2017
This article 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 article 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.
Notes: This article was first presented at the Columbia Law School Faculty Workshop on December 5, 2013, and then revised for presentation at the Harvard Law School Criminal Justice Roundtable on May 2, 2014.