Crime Talk and Law Talk

Abstract

The great challenge of writing legal history is defining the task. Law relates to everything, so the legal historian can wind up writing the history of politics, class conflict, intellectual trends, and so forth-all the things needed to put law in its proper context. The risk is that the law gets lost and all that remains is the context. On the other hand, law without context is sterile-a big reason why law schools have had such an appetite for other disciplines. So the job of doing legal history is, in great part, deciding where the connection between law and is strongest, what the something else is, and how much law had to do with it. That job is especially hard when it comes to the law of crime and punishment, for three things are true both of present-day America and of most of America's past: (1) there is a lot of crime; (2) there is also a lot of law enforcement; and (3) the law seems not to have much effect on either one. The greatest strength of Lawrence Friedman's interesting book is that he gets this central point right. The difficulty is that law's seeming irrelevance makes Friedman's project a hard one to define. Friedman's subject is the history of the American criminal justice systemthe history of the legal system that surrounds crime, both by defining it (as in the elements of the crime of burglary, or the decision to criminalize drug use), and by defining the ways the government can fight it (as in the requirement that police get a warrant before searching a house, or the rule requiring probable cause in order to make an arrest). That sounds like one should expect a tour of the legal doctrine and its evolution over the past three centuries. There is some of that in this book, but not much. Friedman gives barely a nod to the codification movement of the mid-nineteenth century, or the Model Penal Code's reform of most state criminal codes in the 1960s, or the sweeping changes in police interrogation law during the twentieth century. In any history of the legal doctrines that relate to crime, these developments would be a big deal. Friedman does not make them a big deal, because he correctly perceives that they do not have much to do with the