Herbert Wechsler, Legal Process, and the Jurisprudential Roots of the Model Penal Code

56 Pages Posted: 11 Apr 2016 Last revised: 17 Aug 2016

See all articles by David Wolitz

David Wolitz

University of the District of Columbia David A. Clarke School of Law

Date Written: April 4, 2016

Abstract

Herbert Wechsler shepherded the Model Penal Code to completion during the same decade (1952-1962) in which he wrote many of the canonical texts of Legal Process jurisprudence. Yet the connection between Wechsler’s work in criminal law and his Legal Process philosophy has received relatively little scholarly attention. In fact, as this article details, Wechsler’s approach to criminal law reform reflected all the core themes of Legal Process theory and accounts for both the Code’s overall structure and many of its doctrinal innovations.

Seeing the Model Penal Code as a product of Legal Process jurisprudence helps clear away significant misconceptions about the Model Penal Code and also recasts conventional understandings of Legal Process theory itself. Though the Model Penal Code has been caricatured as overly ambitious, thoroughly utilitarian, and technocratic-elitist, the Code actually represented the modest aims, value pluralism, and democratic commitments of Wechsler and the Legal Process School. Wechsler was committed to producing both a principled rationalization of criminal law and a prudent piece of social legislation. The healthy tension in the Code between principle and prudence — the two watchwords of Legal Process theory — account for the Code’s unparalleled impact on American criminal law.

Keywords: Legal Process, Model Penal Code, Herbert Wechsler, Legal Realism, Henry Hart, Social Science and Law

Suggested Citation

Wolitz, David, Herbert Wechsler, Legal Process, and the Jurisprudential Roots of the Model Penal Code (April 4, 2016). Tulsa Law Review, Forthcoming, University of Tennessee Legal Studies Research Paper No. 296, Available at SSRN: https://ssrn.com/abstract=2760006

David Wolitz (Contact Author)

University of the District of Columbia David A. Clarke School of Law ( email )

4200 Connecticut Ave. NW
Washington, DC 20003
United States

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