Procedure, Ceremony and Rhetoric: The Minimization of Ideological Conflict in Deviance Control 56 Boston University Law Review 1976

56 B.U. L. Rev. 266 (1976)
Procedure, Ceremony and Rhetoric: The Minimization of Ideological Conflict in Deviance Control

handle is hein.journals/bulr56 and id is 278 raw text is: PROCEDURE, CEREMONY AND RHETORIC:
THE MINIMIZATION OF IDEOLOGICAL
CONFLICT IN DEVIANCE CONTROL
STANLEY INGBER*
I. INTRODUCTION
The functioning of law at times of crisis, times when the basic ideology'
of society is being questioned, has long fascinated both the minds of legal
scholars2 and the conscience of the general public.3 To remain viable, law
must be both an avenue for change for those dissatisfied with the present
social order and a guarantor of stability for those supportive of that order
and demanding fulfillment of legitimate planning interests. Consequently,
law develops and functions in a constant state of tension.
Such tension, when uncontrolled, can disrupt the functioning of a
society. When a radical conflict develops between that which law has done
in the past and that which some demand it do in the future, or between
the duty society insists its members fulfill and the rights or principles
some members demand society respect, the value ties that hold a society
together can be torn. The ensuing social trauma can stymie all attempts at
harmonious progress; social chaos could result.
Great fiction, such as Sophocles' Antigone4 and Melville's Billy Budd,5 has
been written about the human tragedy that may take place when the
conflict between state authority and individual conscience seems irrecon-
* Visiting Associate Professor of Law, Boston University, and Associate Professor of Law,
University of Florida. B.A., Brooklyn College, 1969; J.D., Yale University, 1972.
' Any society, at a given time and place, will adhere to a set of culturally accepted criteria
by which it determines value, status and worth. I have referred to these factors elsewhere as
merit goods. Ingber, A Dialectic: The Fulfillment and Decrease of Passion in Criminal
Law, 28 Rutgers L. Rev. 861, 871 (1975). The amalgam of these merit goods, their hierarchy
of importance and the system by which they are distributed within a society constitute the
ideology of that society.
2 See, e.g., M. Bassiouni, The Law of Dissent and Riots (1971); W. Douglas, Points of
Rebellion (1970); A. Fortas, Concerning Dissent and Civil Disobedience (1968); W. Gol-
decke, Change and the Law (1969); Dror, Law and Social Change, 33 Tul. L. Rev. 787
(1959).
3 See, e.g., H. Arendt, Crisis of the Republic (1972); T. Ball, Civil Disobedience and Civil
Deviance (1973); J. Miller, Crisis in Freedom (1952); H. Thoreau, Walden, and Civil
Disobedience (0. Thomas ed. 1966); L. Tolstoy, Tolstoy's Writings on Civil Disobedience
and Non-Violence (A. Maude et al. transl. 1967); E. Zashin, Civil Disobedience and Democ-
racy (1972).
4 Among the plethora of writings concerning Antigone's dilemma in choosing between
her responsibility to the state and her responsibility to her dead brothers see t. Bowra,
Sophoclean Tragedy 63 (1944); Introduction to Sophocles, The Theban Plays 13-14 (E.
Watling transl. 1947); A. Waldock, Sophocles the Dramatist 104-42 (1951); C. Whitman,
Sophocles: A Study of Heroic Humanism 81-99 (1951); T. Woolsey, The Antigone of
Sophocles (1859); Heidegger, The Ode on Man in Sophocles' Antigone, in T. Woodard,
Sophocles: A Collection of Critical Essays 86 (1966); Segal, Sophocles' Praise of Man and the
Conflicts of the Antigone, in T. Woodard, supra at 62.
1 For an excellent discussion of Billy Budd, a work that portrays law and society as being in
fundamental opposition to natural man, see Reich, The Tragedy of Justice in Billy Budd, 56
Yale Rev. 368 (1967).

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