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Law, Justice, and Society: A Sociolegal Introduction


Law, Justice, and Society: A Sociolegal Introduction Chapter 3 Making Law Making Law Code of Hammurabi First known written legal code Eye for an eye philosophy Roman ... – PowerPoint PPT presentation

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Title: Law, Justice, and Society: A Sociolegal Introduction

Law, Justice, and Society A Sociolegal
  • Chapter 3
  • Making Law

Making Law
  • Code of Hammurabi
  • First known written legal code
  • Eye for an eye philosophy
  • Roman Law
  • Influenced by Babylonian legal principles
  • The Twelve Tables (450 BCE)
  • First entirely secular written legal code
  • Criminal law began to change focus from just
    resolving disputes to seeing offenses as against
    society as a whole

Making Law
The Common Law
  • Norman conquest of England (1066) brought feudal
    law to England basis for common law
  • By Henry II (1154-1189) a body of law was
    developed and applied commonly through England
  • Common law system well developed in England by
    Thirteenth century

Making Law
The Common Law (cont.)
  • Ranulf de Glanvill Wrote Treatise on the Laws
    and Customs of the Realm of England- detailed
    transition to adherence to formal legal rules
  • Henry de Bracton On the Laws and Customs of
    England- Furthered the commonality of common law

Making Law
The Common Law (Cont.)
  • William Blackstone Laws were creations of God,
    waiting to be discovered by reason
  • Commentaries on the Laws of England had
    influence on philosophy of Founding Fathers and
    Declaration of Independence

Making Law
The Common Law (cont.)
  • Judge-made law
  • Judges justified decision by referencing
  • Custom
  • Tradition
  • History
  • Prior judicial decisions
  • Developed concepts of stare decisis and precedent

Making Law
Precedent and Stare Decisis
  • Under common law, every final decision by a court
    creates a precedent
  • Precedent governs the court issuing the decision
    a well as any lower courts
  • This system was brought from England to colonial
  • In the United States, precedent is binding only
    on those courts within the jurisdiction of the
    court issuing the opinion

Making Law
Precedent and Stare Decisis (cont.)
  • Stare decisis means let the decision stand
    (Black 2001)
  • If there is a prior decision on a legal issue
    germane to a current case the court will be
    guided by that prior decision
  • This is the principle behind establishing
  • Assures predictability for similar cases

Making Law
Precedent and Stare Decisis (cont.)
  • Not every decision a court makes becomes
  • Ratio decidendi are legal pronouncements from
    courts that become precedent
  • Rationale used by courts to arrive at their
  • the reason for the decision
  • Obiter dicta are nonlegal statements or arguments
    used to support ratio decidendi do not become
  • things said by the way

Making Law
Precedent and Stare Decisis (cont.)
  • Precedent is not necessarily unchangeable
  • Judge-made law may be overruled by an act of the
  • The precedent issuing court may overrule its
    prior decision
  • A higher court may reverse a lower courts

Making Law
Precedent and Stare Decisis (cont.)
  • A court may also distinguish one case from
    another precedent setting case on grounds that
    the details may be slightly different

Making Law
Sources of Law
  • Judge-made law (common law)
  • Legislative law
  • Constitution
  • Statutes
  • Ordinances
  • Administrative regulations
  • Other sources of appropriate conduct
  • Religion and ethics

Making Law
Legislative Law
  • Legislative enactments (bills) are statutes
  • Collections of statutes are codes
  • Includes both civil and criminal law
  • Criminal law referred to as the penal code
  • Administrative regulations
  • Have the force of law
  • Issued by agencies of the executive branch or
    created through legislatively delegated powers

Making Law
Legislative Law (cont.)
  • Statutes are frequently written broadly
  • Administrative agencies are given the task of
    filling in the blanks. Why written so
  • Difficult to define something involving human
  • Political implications and the need for

Making Law
The Sources and Types of Law
Constitution (Constitutional Law)
Legislative Statutes (Statutory Law)
Executive Agency Rules and Decisions (Administra
tive Law)
Judicial Cases (Common Law)
Making Law
Sources of Individual Rights
  • Those rights which are possessed by the
    individual and which protect him or her from
    others as well as from the federal government
  • Federal and state constitutions
  • Case law
  • Court rules
  • Legislation

Making Law
Sources of Individual RightsConstitution
  • Articles of Confederation formed in 1871
  • Federal government powerless
  • Lacked authority to tax
  • Lacked authority to raise an army
  • Lacked authority to force states to comply with
    any mandates
  • 12 of 13 states met in Philadelphia in 1787 to
    replace the Articles of Confederation

Making Law
Sources of Individual RightsConstitution (cont.)
  • Result was formation of the U.S. Constitution
  • Created a strong central government
  • Because of this, the Constitution was mostly
    concerned with establishing the federal
    governments powers and limitations
  • Protection from very few individual rights
  • Habeas corpus
  • Bills of attainder
  • Ex post facto laws

Making Law
Sources of Individual RightsConstitution (cont.)
  • Several states demanded more individual rights
    protection before ratifying Constitution
  • Result was the Bill of Rights (James Madison)
  • Ratified in 1791

Making Law
Sources of Individual RightsBill of Rights
  • First 8 amendments set out 23 individual rights
  • Protections against government action
  • Only in the twentieth century were these rights
    applied to state governments

Making Law
First Amendment
  • Congress shall make no law respecting an
    establishment of religion, or prohibiting the
    free exercise thereof or abridging the freedom
    of speech, or of the press or the right of the
    people peaceably to assemble, and to petition the
    Government for a redress of grievances.

Making Law
First Amendment (cont.)
  • Freedom of Religion
  • Government shall not establish a religion
  • Government shall not interfere with individuals
    religious practices
  • Essentially government can neither promote nor
    destroy religion

Making Law
First Amendment (cont.)
  • Freedom of Religion (cont.)
  • Establishment Clause wall of separation between
    church and state (Everson v. Board of Education
  • Government can be involved in religion if
  • Statute must have secular purpose
  • Primary purpose of the statute must be neither
    pro nor anti religion
  • The statute must not foster excessive government
    entanglement with religion (Lemon v. Kurtzman

Making Law
First Amendment (cont.)
  • Freedom of Speech
  • Right to say things which anger others (including
    hate speech)
  • Includes verbal, written, and certain physical
    acts (a.k.a. symbolic speech or expressive
  • Signs
  • Picketing
  • Burning of the American flag

Making Law
First Amendment (cont.)
  • Freedom of Speech (cont.)
  • Government can regulate obscenity
  • Government can regulate speech likely to provoke
  • Commercial speech may be regulated more than
    political speech

Making Law
Second Amendment
  • A well-regulated Militia, being necessary to the
    security of a free State,the right of the people
    to keep and bear Arms, shall not be infringed.

Making Law
Second Amendment (cont.)
  • Intended to protect private citizens and groups
    of citizens (militias) to protect themselves from
    oppression by the federal government

Making Law
Third Amendment
  • No Soldier shall, in time of peace be quartered
    in any house, without the consent of the Owner,
    nor in time of war, but in a manner to be
    prescribed by law.

Making Law
Fourth Amendment
  • The right of the people to be secure in their
    persons, houses, papers, and effects, against
    unreasonable searches and seizures, shall not be
    violated, and no Warrants
  • shall issue, but upon probable cause, supported
    by Oath or affirmation, and particularly
    describing the place to be searched, and the
    persons or things to be seized.

Making Law
Fourth Amendment (cont.)
  • Stands most directly between the individual and
    the police
  • In response to British practice of general
  • Fourth Amendment was an effort to limit the
    ability of police to interfere in private
    citizens lives
  • Required a reasonable amount of evidence
    (probable cause)
  • Does not preclude all searches and seizures, only
    those which are unreasonable
  • Begs the question what is reasonable?

Making Law
Fifth Amendment
  • No person shall be held to answer for a capital,
    or otherwise infamous crime,unless presentment
    or indictment of a Grand Jury, except in cases
    arising in the land or naval forces, or in the
    Militia, when in actual service in time of War or
    public danger nor shall any person be subject
    for the same offence to be twice put in jeopardy
    of life or limb nor shall be compelled in any
  • case to be a witness against himself, nor be
    deprived of life, liberty, or property, without
    due process of law nor shall private property be
    taken for public use, without just compensation.

Making Law
Fifth Amendment (cont.)
  • Rights associated with criminal trials, includes
  • Indictment by grand jury
  • Freedom from double jeopardy
  • Right to due process and just compensation
  • Privilege against self-incrimination

Making Law
Fifth Amendment (cont.)
  • Grand jury
  • A group of citizens who listen to a case
    presented by a prosecutor
  • This is done in order to determine whether there
    is sufficient evidence to try the defendant
  • Used to protect individuals from being tried
    without some proof of guilt

Making Law
Fifth Amendment (cont.)
  • Grand Jury (cont.)
  • Issue indictments
  • A document formally charging a defendant with a
  • This right does not apply to state trials
  • Hurtado v. California (1884)
  • May use a prosecutorial Information
  • Several states require Grand Jury indictments

Making Law
Fifth Amendment (cont.)
  • Double Jeopardy
  • Means that a jurisdiction may not
  • Prosecute someone again for the same crime after
    the person has been acquitted
  • Prosecute someone again for the same crime after
    the person has been convicted
  • Punish someone twice for the same offense

Making Law
Fifth Amendment (cont.)
  • Double Jeopardy (cont.)
  • Does not mean that
  • A state may not try someone again if the first
    trial ends in a mistrial or a hung jury
  • A state cannot retry someone if their conviction
    was overturned on appeal
  • A person cannot be tried under the doctrine of
    dual sovereignty

Making Law
Fifth Amendment (cont.)
  • Self-incrimination (protection from compelled
    testimonial communications)
  • A defendant can refuse to speak to police about
    charged crime
  • Can refuse to speak at trial
  • Prosecution cannot comment on defendants refusal
    to speak (Griffin v. California 1965)
  • Does not include
  • Blood samples, fingerprints, or line-up presence

Making Law
Fifth Amendment (cont.)
  • Due Process of Law
  • State must follow certain procedures
  • Designed to protect individual rights
  • Whenever the deprivation of liberty or property
    is in question

Making Law
Fifth Amendment (cont.)
  • The Taking Clause
  • Eminent domain the seizing of private property
    for public use
  • Kelo v. City of New London (2005)

Making Law
Sixth Amendment
  • In all criminal prosecutions, the accused shall
    enjoy the right to a speedy and public trial, by
    an impartial jury of the State and district
    wherein the crime shall have been committed,
    which district shall have been previously
    ascertained by law, and to be informed of the
    nature and cause of the accusation to be
    confronted with the witnesses against him to
    have compulsory process for obtaining witnesses
    in his favor, and to have the Assistance of
    Counsel for his defence.

Making Law
Sixth Amendment (cont.)
  • Associated with criminal trial, and includes
  • Right to a speedy trial
  • Right to a public trial
  • Right to a trial by an impartial jury
  • Right to a notice of charges against oneself
  • Right to representation by counsel
  • Right to confront witnesses against oneself

Making Law
Sixth Amendment (cont.)
  • Right to a Speedy Trial
  • Defendant must be brought to trial without
    unnecessary delay (Barker v. Wingo 1972)
  • Speedy is determined on an ad hoc balancing
    basis, in which the conduct of the prosecution
    and that of the defendant are weighed
  • Speedy Trial Act of 1974 set the time limit at
    100 days for federal cases, with significant
    wiggle room

Making Law
Sixth Amendment (cont.)
  • Right to a public trial and right to a notice of
  • Originated in traditional Anglo-Saxon mistrust of
    government secrecy
  • Right to a public trial means that defendants can
    have public attend the trial if they wish
  • The right to notice of charges means that
    prosecution must tell the defendant prior to
    trial what they are accused of so they can
    prepare defense

Making Law
Sixth Amendment (cont.)
  • Right to trial by an impartial jury
  • The jury must be selected from the community in
    which the crime occurred
  • Among individuals who are not predisposed as to
    the guilt or innocence of the defendant

Making Law
Sixth Amendment (cont.)
  • Assistance of Counsel
  • At any proceeding deemed to be a critical stage
  • preliminary hearing
  • arraignment
  • trial
  • appeal
  • Indigent persons must be provided a lawyer at
    states expense (possible incarceration 6mos)
  • Includes the right to effective counsel

Making Law
Seventh Amendment
  • In Suits at common law, where the value in
    controversy shall exceed twenty dollars, the
    right of trial by jury shall be preserved, and no
    fact tried by a jury, shall be otherwise
    re-examined in any Court of the United States,
    than according
  • to the rules of the common law.

Making Law
Eighth Amendment
  • Excessive bail shall not be required, nor
    excessive fines imposed, nor cruel and unusual
    punishments inflicted.

Making Law
Eighth Amendment (cont.)
  • Excessive bail
  • No right to bail
  • Bail must not be set higher than necessary to
    ensure the presence of the defendant at trial
    (Stack v. Boyle 1951)
  • Persons considered a threat to society can be
    denied bail (United States v. Salerno 1987)

Making Law
Eighth Amendment (cont.)
  • Cruel and Unusual Punishment
  • Prohibits torture
  • Prohibits punishment disproportionate to the
  • Does not prohibit death penalty

Making Law
Ninth Amendment
  • The enumeration in the Constitution, of certain
    rights, shall not be construed to deny or
    disparage others retained by the people.

Making Law
Ninth Amendment (cont.)
  • Codifies the concept of natural law/rights
  • Includes such things at the right to privacy
    (Griswold v. Connecticut 1965)

Making Law
Tenth Amendment
  • The powers not delegated to the United States by
    the Constitution, nor prohibited by it to the
    States, are reserved to the States respectively,
    or to the people.

Making Law
Other Amendments
  • Reconstruction Amendments
  • Passed shortly after Civil War
  • intended to protect the recently freed slaves
    from abuse
  • Thirteenth, Fourteenth, and Fifteenth Amendents
  • Now used to protect all citizens from state
    actions which impinge on constitutional rights

Making Law
Thirteenth Amendment
  • Neither slavery nor involuntary servitude, except
    as a punishment for crime whereof the party shall
    have been duly convicted, shallbexist within the
    United States, or any place subject to their
    jurisdiction. Congress shall have power to
    enforce this article by appropriate legislation.

Making Law
Thirteenth Amendment (cont.)
  • Prohibits slavery
  • Used since to uphold civil rights legislation
  • Outlaws badges of slavery or practices intended
    to keep blacks at lower social and economic
    levels than whites

Making Law
Fourteenth Amendment
  • All persons born or naturalized in the United
    States, and subject to the jurisdiction thereof,
    are citizens of the United States and of the
    State wherein they reside. No State shall make or
    enforce any law which shall abridge the
    privileges or immunities of citizens of the
    United States nor shall any State deprive any
    person of life, liberty, or property, without
    due process of law nor deny to any person within
    its jurisdiction the equal protection of the

Making Law
Fourteenth Amendment (cont.)
  • Forbids states from mistreating citizens
  • States cannot deny citizens due process of law or
    equal protection
  • Due process clause incorporates many of the
    provisions of the Bill of Rights, making them
    applicable to states
  • Equal protection clause bans states from making
    arbitrary and unreasonable distinctions between

Making Law
Fourteenth Amendment (cont.)
  • Suspect Classification
  • Based sans reason or on race or gender
  • Race and gender are suspect classifications
  • Age is not a suspect classification if
  • state can demonstrate an interest in the health
    and safety of minors
  • and there is no history of invidious
    discrimiation against minors

Making Law
Standard of Review
  • Not all rights enjoy equal privilege
  • Fundamental rights are essential to the concept
    of ordered liberty (Palko v. Connecticut 1937)
  • Depending on whether or not a suspect
    classification or fundamental right is involved,
    rights are also treated differently
  • Only race and religion are consistently
    considered suspect classifications (Tribe 1988)

Making Law
Standard of Review (cont.)
  • Strict scrutiny review means that states may not
    enact laws that abridge a fundamental right
  • 1. It has a compelling interest in doing so
  • 2. The law is narrowly tailored so that the
    right is not abridged more than necessary
  • Strict scrutiny looks at the purpose and effect
    of the law rather than merely accepting
    legislative claims of validity

Making Law
Standard of Review (cont.)
  • Intermediate scrutiny Quasi-suspect
    classifications such as gender and legitimacy
  • Rational basis test used when there is no
    fundamental right or suspect classification in
  • It states that laws can be passed that impact a
    right or class so long as there is rationale
    behind doing so

Making Law
  • Strict Scrutiny Test Is the law necessary to
    achieve compelling governmental purpose? Burden
    on government
  • Fundamental Right Involved (privacy, travel,
    voting, First Amendment)
  • Suspect Class Involved (race, religion, national

Making Law
  • Intermediate Scrutiny Test Is the law
    substantially related to an important government
    purpose? Burden on government
  • Quasi-Suspect Class Involved (gender, legitimacy)

Making Law
  • Rational Basis Test Is the law rationally
    related to a legitimate government purpose?
    Burden on laws challenger
  • No Suspect or Quasi-Suspect Class and no
    Fundamental Right Involved

Making Law
Incorporation of the Bill of Rights (Fourteenth)
  • Barron v. Baltimore 1833 stated that the Bill of
    Rights applied only to federal government
  • 1868, passage of Fourteenth Amendment to protect
    recently freed slaves from Southern abuse
  • privileges and immunities, due process, and equal
    protection clauses protected inviduals from state
  • originally applied only to freed slaves

Making Law
Incorporation of the Bill of Rights (Fourteenth)
  • During latter half of nineteenth century, courts
    used incorporation to preclude state economic
  • During the twentieth century, courts began using
    the fourteenth amendment to protect individuals

Making Law
  • Incorporation refers to the interpretation of the
    due process clause of the Fourteenth Amendment in
    such a way as to prohibit states from abridging
    certain civil rights
  • Four schools of thought
  • total incorporation
  • total incorporation plus
  • Fundamental rights/ordered liberty
  • selective incorporation

Making Law
Total Incorporation
  • The entire Bill of Rights is applicable to state
  • Not very popular position
  • Justice Hugo Black

Making Law
Total Incorporation Plus
  • The entire Bill of Rights and unspecified rights
    are all applicable to state governments
  • The Bill of Rights, when examined together,
    create other individual rights
  • Justice William Douglas

Making Law
Fundamental Rights/Ordered Liberty
  • No necessary relationship between the due process
    clause of fourteenth amendment and the Bill of
  • Due process clause has an independent meaning
    which prohibits states from violating rights
  • Justices must consider the totality of
    circumstances in each case in order to determine
    what rights are fundamental
  • Justice Felix Frankfurter

Making Law
Selective Incorporation
  • Most prominent in the courts
  • Combines aspects of total incorporation and
    fundamental rights
  • Favors a peacemeal, gradual, and selective method
    of incorporation
  • Has led to virtually every right in the Bill of
    Rights being incorporated into the due process
    clause except the rights to grand jury
    indictments and protection of excessive bail
  • Justice William Brennan

Making Law
Summary of Incorporation Theories
Making Law
Judicial Review
  • The power of the court to examine a law and
    determine its constitutionality
  • Not specifically mentioned in the Constitution
  • It is judge-made law - the result of Marbury v.
    Madison (1803)

Making Law
The Process of Amending the Constitution
  • Only way to change the constitution or overrule a
    Supreme Court decision
  • Two ways
  • 2/3 of both houses must pass a resolution calling
    for an amendment, and then this amendment must be
    ratified by 3/4 of all states within seven years
  • 2/3 of the states must call for a convention at
    which an amendment is proposed
  • All 27 amendments have been passed via the first

Making Law
The Process of Amending the Constitution
  • Eleventh AmendmentIn response to Chisholm v.
    Georgia (1793)the Supreme Courts first
    constitutional decision
  • At issue was whether or not the State of Georgia
    was subject to the jurisdiction of the United
    States Supreme Court