Wolitz on Wechsler, the Legal Process, and the Model Penal Code

David Wolitz, University of Tennessee College of Law, has posted Herbert Wechsler, Legal Process, and the Jurisprudential Roots of the Model Penal Code, which is forthcoming in the Tulsa Law Review:

Herbert Wechsler (CLS)

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.