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50 B.U. L. Rev. 150 (1970)
On the Function of Criminal Law in Riot Control

handle is hein.journals/bulr50 and id is 810 raw text is: ON THE FUNCTION OF CRIMINAL LAW IN RIOT CONTROL* JOSEPH GOLDSTEIN What can and should be the function of the criminal law in the control and regulation of riots? That is the question on which this essay will focus. It covers a relatively small, though complex, segment of a much larger problem in law-reaching the underlying causes of riots. That problem is of continuing concern to all agencies of decision in law-legislative, execu- tive, and judicial. Any response therefore to the narrowly posed legislative question must ultimately be evaluated in the context of answers to such questions as: What are the underlying causes of riots? What are the func- tions of riots? How can riots be tolerated or prevented without sacrificing values fundamental to a democratic society? For purposes of long-range public and private planning in child care, education, employment, housing, technology, welfare, armed forces recruitment, and civil rights-to identify a few potentially relevant areas of decision-are there meaningful distinc- tions to be made between, for example, planned and spontaneous riots, between led and apparently leaderless riots, between riots with and without visible goals, or between riots by or against blacks, veterans, students, police, labor or any other group? Changing this quizzical stance somewhat, lawmakers might develop a series of questions starting with: What are the underlying causes of com- passion, of affection, of generosity, of cooperation, and of love which have come to characterize the work and the feeling of a very significant, not al- ways articulate, segment of each younger generation on its, hopefully non- violent, way to power? All of these questions-questions to which much in psychoanalytic theory should prove relevant to decision-makers in law1- * This Article originally appeared in 24 The Psychoanalytic Study of the Child 463 (1969). The Boston University Law Review thanks The Psychoanalytic Study of the Child and the publisher, International Universities Press, for their kind permission to reprint the Article. 00 Professor of Law, Yale University; A.B., Dartmouth College, 1943; Ph.D., London School of Economics, 1950; LL.B., Yale University, 1952. 1 See generally, e.g., Report of the National Advisory Commission on Civil Disorders (1968). See especially, e.g., E. Erikson, Growth and Crisis of the Healthy Personality, in Identity and the Life Cycle (1959); A. Freud, Aggression in Relation to Emotional Development, in 4 The Writings of Anna Freud 489-97 (1968); A. Mitscherlich, Society Without the Father: A Contribution to Social Psychology (1969); Wangh, National Socialism and the Genocide of the Jews, 45 Int. J. Psa. 386 (1964), which are directly relevant to the design of long-range programs for reaching some of the underlying causes of mob violence through, for example, legislation concerned with education, housing, employment, welfare, and technology. To take another example outside the ambit of this essay see S. Freud, Group Psychology and the Analysis of the Ego, in 18 Standard Edition 67 (1955), on the law's potential for creating group safety valves through official holidays designed to release pent-up, re- pressed feelings. In all renunciations and limitations imposed upon the ego a periodical infringement of the prohibition is the rule: this indeed is shown by the institution of festivals, which in origin are nothing less nor more than excesses provided by law and which owe their cheerful character to the release which they bring. The Saturnalia of

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