Decriminalization of Breach of the Peace Statutes: A Nonpenal Approach to Order Maintenance
![handle is hein.journals/tulr46 and id is 405 raw text is: TULANE
LAW REVIEW
VOLUME 46 FEBRUARY 1972 NUMBER 3
DECRIMINALIZATION OF BREACH OF THE PEACE
STATUTES: A NONPENAL APPROACH TO ORDER
MAINTENANCE*
ROBERT FORCE**
One of the most antique, well-worn, ambiguous, and yet con-
venient, common law terms is breach of the peace. A search for
its meaning is a complex and difficult business. In the end, one
is tempted to adapt Justice Stewart's expression in referring
to hard core pornography and apply it to breach of the peace:
I shall not today attempt further to define the kinds of
[behavior] . . . I understand to be embraced within that
shorthand description; and perhaps I could never succeed
in intelligibly doing so. But I know it when I see it .... 1
Breach of the peace has a popular2 as well as a legal defini-
tion, and even in legal parlance its meaning may vary depending
on the context in which it is used. In law the term has at least
four different, although sometimes overlapping, usages. Histori-
cally, at common law the concept of the King's peace dis-
tinguished public from private wrongs.3 Furthermore, when the
* This article was made possible by a grant from the Center for Studies in
Criminal Justice, the Law School, University of Chicago, and represents part
of a report on misdemeanor arrests to be made to the Center. All opinions and
proposals expressed herein represent the views of the author and should not
in any manner be attributed to the Center.
The author wishes to thank Milton Lorenz, a second-year student at the
Tulane University School of Law, for his assistance, especially in the prepara-
tion of Appendix B, and Frank Alan, Esq., of Washington, D.C., for his assis-
tance with the data contained in the section of the article entitled Order
Maintenance.
** Professor of Law, Tulane University School of Law.
I Jacobellis v. State, 378 U.S. 194, 197 (1964) (concurring opinion).
2 Disorderly conduct; disturbing the public peace. Webster's International
Dictionary, Unabridged 328 (2d ed. 1958).
3 Pollock, The King's Peace, 1 L.Q. Rev. 37, 37-50 (1885).](ViewImageLocal?handle=hein.journals/tulr46&div=22&collection=&method=preview&ext=.png&size=3)
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Decriminalization of Breach of the Peace Statutes: A Nonpenal Approach to Order Maintenance
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