THE

MAJESTY OF THE

LAW

by Albert B. Gerber

Aside from courts, the leading source of legal opinion in the United States comes from an organization known as The American Law Institute. The Institute was established in the 30's by a group of judges, law professors and others who felt that our law was becoming too cumbersome and should be codified. As a result the group published a series of books entitled "Restatements." There is, for

example, a Restatement of Contracts, a Restatement of Torts and many others. In the criminal law field we could not really have a restatement because the bulk of criminal law is not based upon precedent and theory, but is based upon specific laws enacted by state legislatures. Therefore, in this field the American Law Institute decided to promulgate a most unusual document-a Model Penal Code.

This was especially unusual because the suggestion with respect to statutes had up to this point come from another organization known as the State Commissioners on State Laws. These are representatives of each of the states who get together and make suggested uniform laws. For example, there is a Uniform Sales Act, a Uniform Negotiable Instruments Law,

etc.

However, and despite the fact that the field of criminal law was one which, by custom, was really the province of another group, that august body, the American Law Institute de-

one

cided that the subject was too important not to be codified in some fashion by the leading minds in the country.

Homosexuality as a Crime

This legal body, full of knowledge and talent, began in the 50's to study the subject of how to promulgate laws to govern crime. One thorny task with which it wrestled was the homosexual act as a crime. However, as it emerged the Institute had little difficulty because the bulk of the members of the Institute came to an interesting agreement on philosophy and criminal law. This philosophy was as follows: no private acts between two or more consenting adults shall be regarded as a crime unless it involves severe bodily harm. Thus, ordinary fornication between adult men and women, frequently criminal under our customary statutes, was not to be made a crime. In the same way, and as a natural concomitant of the basic philosophy, sexual acts privately performed by two males or two females would not constitute crimes any longer.

The Theory Well Accepted Although basically the theory was somewhat revolutionary, when promulgated it hardly made a ripple in legal circles. The first tentative and preliminary report of the American Law Institute on this subject was greeted without any real criticism. One of the best protagonists of this theory is Professor Louis Henkin, Professor of International Law and Diplomacy at Columbia University. This brilliant writer's theory is that sin and morals are not the business of government. In a sparkling and lively article entitled "Morals and the Constitution" this writer says, "It is time to begin to examine-if only in order to justify-the right of constitutional government to legislate morality which has no secular, utilitarian, or social purpose." This, of course, is the negative side and the professor also points

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