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GEORGE P. FLETCHER
us circa 1958 was of a student revolt against the so-called parietal rules, essentially
rules about having girls in your room. The rules are a thing of the past, as are the
Communist governments that generated so many of these legal stories. Under the
outdated principle in loco parentis [in place of parents], university administrations
tried students for vague charges with no due process. The sanction of expulsion
can destroy a student’s career. As noted, however, the situation of student justice
may be taking a turn for the positive.
The third major case in Hungary during this period was an abstract
constitutional review of the death penalty, another leftover from the Communist
period. Although the U.S. still maintains the death penalty, it was taboo in
Western Europe and therefore the issue for the Hungarian democrats was whether
they would abolish the penalty in order to appear more Western. There was little
doubt about the outcome but the case was interesting because Hungary had
adopted the German principle of abstract constitutional review. By comparison,
an American case requires standing, namely someone who is actually affected
by the death penalty. The danger of abstract review is that these decisions can
be purely symbolic: Would Hungary appear more Western or not? (Of course,
‘Western’ does not include the many American states that maintain and actually
use the death penalty.)
In the hearing on the death penalty, which I attended, the court called
several ‘expert’ witnesses. The idea that there could be an expert witness on a
philosophical and empirical issue like capital punishment is in itself significant.
There are essentially two approaches to the issue, one philosophical based on the
Kantian theory of retribution and the other empirical based on the Benthamite
principle of deterrence. No expert can decide which of these schools to follow
and even if he could, there would be counter-arguments within the school itself.
In the international community, run by practical people, no one would argue for
retribution, regardless of the type of penalty. But deterrence too is problematic.
It can lead to obvious unjust sanctions like a year in jail for jay-walking, and
even if the sanction did have a deterrent effect, we could not calculate the costs
and benefits of expending these resources for a minor objective. The problem
for deterrence is the timeline as well as communication of the sanction to
the public. Perhaps repeated sanctions for jay-walking might be effective but
there is no reason not simply to lie about the sanctions and tell the public that
these sanctions are being imposed (and of course, make up even more serious
sanctions).
The most interesting expert in the Hungarian capital punishment debate was
Andras Sajé, an academic who often teaches at the Cardozo Law School in New
York. He lent some academic respectability to what was otherwise a political
decision designed to impress the West. The court came back after lunch and
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