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The common law tradition solves these problems along the dimension of time. By such principles as stare decisis, the common law functions as a chain to connect the individual inquiries and a pool to absorb different judicial opinions and convert them into balanced principles. The rules embodied in case law can be comprehended in their contexts, the genealogical description of facts, rules and the relationship between them provide both information and limitation to the decision-makers.
However, in the domain of criminal adjudication, the major source of law is statutes, which are enacted by the legislature. In comparing to common law, statutes bring forwards a lot of new problems and dilemmas, which include:
1. The rules articulated in statutes are abstract and vague. As Calabresi has pointed out “Vagueness in crucial statutory terms or in legislative history will frequently be a prerequisite to obtaining approval from all the groups that could block enactment.”
2. Statutes always reflect some kind of ambitious regulatory projects undertaken by the administrative agencies, a lot of which conflict with the principles of deliberate democracy, such as “combating drug-dealers” or gun control. Should the courts defer to the regulatory statutes which too often depart from the liberal republican understanding of individual freedom by “interpreting” them? This dilemma is concentrated in some complex cases and encountered by courts. Thus, the enterprise of interpretation always includes political choices.
3. Judicial application of the criminal code doesn’t only deal with the text, but also come down to the institutional interaction between different branches of government as well as between government and the general public. In doing this work, courts are not playing their traditional role as independent arbiters; they are at the core of disputes themselves. If they choose to misread or ignore the statutory terms contrary to their judicial logic, they will be blamed as pursuing judicial activism; if they show obedience to such terms, they will be scolded as losing their traditional role as independent rights-keeper. The problem of legitimacy always obsesses the courts in a regulatory state.
Kent wants to find a good answer for these problems. To him, an effective theory of criminal process must be based on a right understanding on the interaction or dialogue between various actors in this field. Furthermore, he recognized that criminal justice should not be embedded in a single framework of justification, namely, retributive justice. There exists another source of legitimacy for criminal process—restorative justice. Based on these insights, he built up his two victim-oriented models. While the “Punitive Model of Victims’ Rights” has inherited a lot of elements from Packer’s Criminal Control Model, it embodies some new elements which differs itself from Packer’s model. At first, “there is much less deference to legislators, police, and prosecutors in the punitive model than in the crime-control model. Petitions, advocacy, and private members bills may be used to jump-start the legislative process. Police and prosecutors may find their work subject to critical scrutiny not only from the accused, but from victims and their representatives.” Under the pressures from victims and their groups, the regulatory agencies have to restrain from their pursuit for efficiency: “Plea bargaining, despite its centrality in the crime-control model, is suspect because it does not include victims or meet their expectations.” Secondly, although both crime-control model and punitive model of victims’ rights oppose due-process claims because they divert attention from factual guilt and allow the criminal to go free, they do this for different reasons. The punitive model, according to Kent, “counter due-process claims by putting forward the argument that victims and groups of potential victims have rights which deserve respect.” Finally, the punitive model challenges the idea of victimless crime by pointing out the actual victims of such crimes.
These developments, as embodied in the punitive model of victims’ rights, are promoted by victimization studies and victims’ rights movements. They are absorbed into the process of criminal adjudication as “background norms”. However, they are still relied on the crime-control function of the regulatory agencies to realize their claims. The real alternative is the non-punitive model of victims’ rights.
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