Review by Mary Katherine Ascik

In The Tyranny of Good Intentions, Paul Craig Roberts and Lawrence M. Stratton give a brief history of the American understanding of law. They argue that the rule of law is in jeopardy in the United States because of the erosion of what Roberts and Stratton refer to as "the rights of Englishmen."

Roberts and Stratton argue that the Founding Fathers, like the English jurist William Blackstone, viewed law as the people's defense against arbitrary government power. Certain principles - namely, "due process, no crime without intent, habeas corpus, no self-incrimination, no ex post facto laws, the right to counsel, [and] the right to confront one's accusers" - flow from this understanding of law and provide the people with their most important safeguard against "predatory actions of government." The Founding Fathers, following Blackstone, incorporated these principles into Article I Section 9 of the Constitution and into the 4th, 5th, and 6th amendments.

Unfortunately, Roberts and Stratton argue, the Founders' Blackstonian understanding of law has been supplanted by a conflicting conception of law - that of Jeremy Bentham. The purpose of law, according to Bentham, was to promote "'the greatest happiness for the greatest number.'" If the rights of an individual were intrusive, "it was permissible for the government to trample the individual in the name of a 'greater good.'" Bentham's understanding of law has replaced that of the Founders, placing Americans' liberties in danger from the increasingly arbitrary actions of government.

Responsibility for this erosion lies with both liberals and conservatives. "In recent decades," Roberts and Stratton note, "both conservatives and liberals have cut swaths through the law as they pursued drug dealers, S&L crooks, environmental polluters, Wall Street inside traders, child abusers, and other undesirables." In fact, "with the exception of Benthamite ideology, the greatest damage to justice has been done by the unintended consequences of the conservatives' war on crime."

Roberts and Stratton advance numerous examples of the erosion of justice that has resulted from the abrogation of the rights of Englishmen. This includes the passage of ex post facto law in the case of Superfund and the seizure of property without due process under the Comprehensive Forfeiture Act of 1984. Chapter VI contains an intriguing discussion of the problems with plea-bargaining. The two authors acknowledge that it lets criminals off too easily. However, Roberts and Stratton argue that the real problem is its tendency "to corrupt the prosecutorial function by severing it from the discovery of truth."

On the whole, they argue persuasively that American liberties are in jeopardy. Unfortunately, however, their credibility is sometimes damaged by their tendency to generalize. While it is certainly true that prosecutorial and police corruption exists, the justice system is not populated solely by "evil people," as the authors sometimes suggest. They have a sound understanding of the Founders' conception of law. That said, Roberts and Stratton ignore the fact that this conception was rooted in the Founders' belief in natural rights and natural law. Roberts and Strattons' characterization of the Declaration of Independence as "an affirmation of their [the colonists] rights as Englishmen" is at best inadequate given the document's striking statement on the "Laws of Nature and of Nature's God."

Despite its faults, however, The Tyranny of Good Intentions points to real problems that exist within our system of justice. Consequently, Roberts and Stratton's arguments are worthy of serious consideration.

Mary Katherine Ascik graduated from the University of Dallas in 2003 with a B.A. in political philosophy.

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