Lawyers, Technology and the Criminal Courts
| Date | 01 December 1978 |
| Published date | 01 December 1978 |
| Author | Roman Tomasic |
| DOI | 10.1177/000486587801100404 |
AUST &NZ JOURNAL OF CRIMINOLOGY (December 1978) 11
(219-232)
219
LAWYERS, TECHNOLOGY
AND
THE
CRIMINAL COURTS
Roman
Tomasic"
Introduction
The
emergence
of
technological society has
had,
and
is continuing to have,
some quite alarming influences upon
our
criminal justice system. Most
criminologists have
remained
curiously silent, or uncritical,
when
faced
with
what
can only be
described
as
one
of
the
most
important
recent
changes
affecting judicial ethics
and
standards
of
justice.
Criminologists have
not
been
alone in
appearing
to sanction increasingly
pervasive
attempts
at
controlling those
who
have
had
the misfortune to pass
through the criminal courts. Lawyers, magistrates, judges, social workers,
probation officers
and
psychiatrists have all
engaged
in a conspiracy
of
silence
which has facilitated adecline in the
importance
of justice asasocial goal
and
the increasing
importance
of social control
and
consensus as a feature of
our
legal system.
One
of the
most
salient indicators of this
trend
has
been
the growing resort to
instrumental expedients
or
technological rationality as means
of
helping to solve
increasingly complex social problems.
There
is a danger
that
these means will
become
ends in themselves. In this
paper
I will argue that this
trend
or
way
of
thinking has served to
prevent
any
fundamental reassessment
of
the
role
of
our
criminal justice system, in the false belief
that
science (or its
hand
maidens, high
priests
and
prophets) will somehow find
means
of dealing with many
of
the
insoluble problems
that
this system
now
faces, without unduly disturbing
the
new
power
structures
that
have
emerged
to
shore
up a legal system
that
is failing
to
come
to terms with the problems of a
rapidly
changing society.
Since the early 1960's lawyers have increasingly
come
to realize
that
both
they
and
the laws they manipulate are poorly
adapted
to
cope
with the
demands
that
technology is placing upon the legal system. Furthermore,
there
is a growing
awareness that neither the law
nor
the
legal
system
are
as stable
and
predictable
as most lawyers
tend
to believe. (Samek, 1976: 558) With the recognition
that
the
operation of the law is contingent upon
the
behaviour of the various actors
who
contribute to legal
problem
solving activity, it has
become
obvious
that
lawyers
may
well
be
increasingly irrelevant in the handling of complex social problems.
One
commentator
has attributed this to the fact that "Law
and
Lawyers are in a
pre-Darwinian stage,
perhaps
even in a pre-Newtonian
and
pre-Copernican
stage" (Miller, 1967: 602). Lawyers have
been
so engrossed in the illusion
that
the
law is the
cement
of
society that
they
have
perpetuated
a
bankrupt
legal
morality which is ill-suited to the needs
of
our
time. It has
been
argued
that
the
instrumental rationality of science needs to
be
transcended
by
asensitivity
among
legal decision .makers which would facilitate
the
evolution
of
values
• MA LLB, Senior Research Officer, Law Foundation of New South Wales.
To continue reading
Request your trial