Law, Justice, and Society: A Sociolegal Introduction

An accessible and lively introduction to the field, Law, Justice, and Society: A Sociolegal Introduction, Fifth Edition, explores the relationship between legal systems and other social institutions using a distinctive sociological point of view. Anthony Walsh and Craig Hemmens provide detailed discussions of the various ways in which law impacts people based on race, class, gender, and age while also introducing students to the origins of the law, the history and development of the American legal system, the sociology of law, court structure, and the difference between civil and criminal law.

Anthony Walsh is a Professor in the Department of Criminal Justice at Boise State University.

Craig Hemmens is a Professor in the Department of Criminal Justice and Criminology at Washington State University.

Preface
Acknowledgments

Chapter 1 LAW: Its Function and Purpose
Introduction
What Is Law?
The Six Primary Characteristics of Culture and Their Relationship to Law
1. Beliefs
2. Values
3. Norms
4. Symbols
5. Technology
6. Language
The Code of Hammurabi
Early Thinkers About Law
Plato
Aristotle
Thomas Hobbes
John Locke 14
John Rawls 15
Sociological Perspectives of Law 16
Max Weber 17
Émile Durkheim 19
Two Opposing Perspectives: Consensus and Conflict 21
The Consensus Perspective 22
The Conflict Perspective 22
Summary 24
Discussion Questions 26
References 26
Chapter 2 JUSTICE AND THE LAW 28
Introduction 29
What Is Justice? 29
Distributive Justice 29
Retributive Justice 31
Problems with Aristotle's Definition of Justice 34
Legal Realism 35
Where Does Justice Come From? Two Perspectives of
Law and Justice as Natural 37
The Transcendental Natural Law Perspective 38
The Evolutionary Perspective 40
What Is the Relationship of Law to Justice? 42
Equity 43
An Example of an Equity Decision 44
Garofalo and Natural Crime 45
The Rule of Law 46
Justice Evolving: Cesare Beccaria and Reform 48
Herbert Packer's Models of Criminal Justice 49
The Crime Control Model 50
The Due Process Model 50
An Illustration of the Models in Action 51
Summary 52
Discussion Questions 54
References 54
Cases Cited 56
Chapter 3 MAKING LAW 57
Introduction 57
Common Law 58
Precedent and Stare Decisis 59
Sources of Law 61
Sources of Individual Rights 62
The Constitution 63
The Bill of Rights 64
First Amendment 64
Second Amendment 66
Third Amendment 67
Fourth Amendment 67
Fifth Amendment 68
Sixth Amendment 70
Seventh Amendment 72
Eighth Amendment 72
Ninth Amendment 72
Tenth Amendment 73
Other Amendments 73
Thirteenth Amendment 74
Fourteenth Amendment 74
Standard of Review 75
Incorporation of the Bill of Rights in the
Fourteenth Amendment 77
Judicial Review 80
Marbury v. Madison 81
The Process of Amending the Constitution 82
Summary 83
Discussion Questions 84
References 84
Cases Cited 85
Chapter 4 FEDERAL AND STATE COURTS 87
Introduction 88
Jurisdiction 89
The Federal Courts 90
District Courts 91
Courts of Appeals 93
Supreme Court 94
The State Courts 96
Overview of the Criminal Process 98
The Jury and Its Selection 100
Jury Selection 101
The Trial 102
Sentencing 103
Appeals 103
Court Actors 104
Judges 104
Prosecutors 106
Defense Attorneys 107
The Legal Profession 107
Summary 108
Discussion Questions 109
References 110
Cases Cited 110
Chapter 5 CRIME AND CRIMINAL LAW 111
Introduction 111
What Is Crime? 112
Sources of Criminal Law 114
Limitations on Criminal Law 114
Elements of Criminal Liability 116
Common Elements of Criminal Offenses 116
Liability Without Fault 119
Inchoate Crimes 119
Attempt 119
Solicitation 120
Conspiracy 120
Parties to Crime 120
Defenses to Criminal Liability 121
Justification Defenses 121
Excuse Defenses 122
Procedural Defenses: Entrapment 124
Crimes Against the Person 125
Murder 125
Forcible Rape 127
Aggravated Assault 127
Robbery 128
Crimes Against Property 128
Arson 129
Burglary 129
Larceny/Theft 130
Crimes Against Public Order and Morality 131
Summary 131
Discussion Questions 132
References 133
Cases Cited 133
Chapter 6 CRIMINAL PROCEDURE 134
Introduction 135
Purpose of Criminal Procedure Law 135
Sources of Criminal Procedure Law 136
Search and Seizure Law and the Fourth Amendment 136
The Warrant and Reasonableness Clauses 137
Probable Cause 137
Arrest 137
When an Officer May Arrest 138
Manner of Arrest 138
Types of Seizures 138
Searches 140
Reasonable Expectation of Privacy 140
Exceptions to the Search Warrant Requirement 141
Right to the Assistance of Counsel 146
Right to Counsel During Interrogations and Pretrial Identification Procedures 147
Custody 148
Interrogation 148
Circumstances in Which Miranda Is Not Required 148
Extension and Application of the Miranda Warnings 149
Pretrial Identification Procedures 150
The Confrontation of Witnesses Clause 150
The Right to Compulsory Process Clause 151
The Exclusionary Rule 152
Advancing Toward the Exclusionary Rule 152
Curtailing the Exclusionary Rule 154
Summary 157
Discussion Questions 158
References 158
Cases Cited 159
Chapter 7 CIVIL AND ADMINISTRATIVE LAW 162
Introduction 163
Differentiating Criminal and Civil Law 163
Tort Law 166
Tort Categories 168
Defenses to Liability 169
Tort Reform 170
Property Law 171
Interests in Real Property 172
Interests in Personal Property 173
Contract Law 173
Elements of a Valid Contract 174
Family Law 175
Who May Marry Whom? 176
The Supreme Court and the Right to Marry 176
The Road to Same-Sex Marriage 177
Common Law Marriage 179
Divorce and Annulment 180
Dividing Property, Child Custody, and Spousal Support 180
Administrative Law 181
Origins and Growth of Administrative Agencies 181
Legislative Function of Administrative Agencies 183
Investigatory and Enforcement Function
of Administrative Agencies 183
Judicial Function of Administrative Agencies 183
Administrative Law and Corporate Crime 184
Recent Responses to Corporate Crime 185
Environmental Law 188
The Development of Environmental Laws and Regulations 188
Enforcement of Environmental Laws 189
Environmental Crime 190
Summary 192
Discussion Questions 193
References 193
Cases Cited 195
Chapter 8 JUVENILE JUSTICE 196
Introduction 196
What Is Juvenile Delinquency? 197
The Extent of Delinquency 197
Developmental Factors and Juvenile Delinquency 199
History and Philosophy of Juvenile Justice 200
Institutional Control 201
Childhood in the United States 202
The Child Savers 204
The Beginning of the Juvenile Courts 204
Juvenile Waiver to Criminal Court 206
Extending Due Process to Juveniles 207
Kent v. United States 208
In re Gault 209
In re Winship 210
McKeiver v. Pennsylvania 210
Breed v. Jones 211
Schall v. Martin 211
Graham v. Florida 212
Miller v. Alabama 212
The Juvenile Death Penalty 212
Eroding the Distinction Between Adult
and Juvenile Court Systems 215
Restorative Justice 216
Summary 218
Discussion Questions 219
References 220
Cases Cited 222
Chapter 9 THE LAW AND SOCIAL CONTROL 223
Introduction 224
What Is Social Control? 224
A Typology of Social Control 224
The Law as a Social Control Mechanism 226
Punishment and Deterrence 226
Other Philosophies of Punishment 229
Black's Styles of Social Control 230
Social Control and the Criminal Justice System 232
Is the United States Soft on Crime? 232
Plea Bargaining 234
The Death Penalty Debate 235
Arguments Against the Death Penalty 237
Arguments Favoring the Death Penalty 238
The Law and Social Control of Political Dissent 240
Therapeutic Social Control: Law and Psychiatry 244
"No Taxation Without Representation!":
A Case of Judicial Social Control 246
Summary 248
Discussion Questions 249
References 250
Cases Cited 252
Chapter 10 THE LIMITS OF SOCIAL CONTROL: POLICING VICE 253
Introduction 254
What Is a Vice Crime? 254
Homosexuality and Sodomy 257
The Law and Gay Rights Versus Religious Liberty 259
The Concept of "Compelling Government Interest" 260
Can the Rights of Both Gays and Religious Dissenters
Be Protected? 263
Prostitution and Commercialized Vice 266
Should Prostitution Be Decriminalized/Legalized? 268
Pornography/Obscenity 270
Abortion 273
Alcohol and Illicit Drugs 278
Taming the Beast in the Bottle 279
Illicit Drugs 280
The Future of Drug Regulation 282
Summary 283
Discussion Questions 285
References 285
Cases Cited 289
Chapter 11 LAW, SOCIAL CHANGE, AND THE CLASS
STRUGGLE 290
Introduction 291
What Is Social Change? 291
The Law as a Cause of Social Change 292
Social Movements, the Law, and Social Change 293
British Law and the American Revolution 295
Law and Social Engineering in the Former USSR 297
The US Supreme Court and Social Change 299
Dynamic and Constrained Views of the
Supreme Court's Power 299
The Legitimacy Basis of the Court's Power 300
Justice Anthony Kennedy: The Most Powerful
Man in the United States? 302
Interpreting the Constitution: Strict Construction
or Living Document? 303
The Supreme Court and the Class Struggle 305
The Fourteenth Amendment and Business Interests 307
Social Justice, Equality, and Freedom: A Debate 311
The Argument for Social Justice 312
The Argument Against Social Justice 313
The Supreme Court's Role in Inducing Social Change 315
Bringing the Country Together Through Case Law 315
The Activism of the Warren and Burger Courts 317
Summary 318
Discussion Questions 320
References 320
Cases Cited 323
Chapter 12 WOMEN AND THE LAW (by Mary K. Stohr) 324
Introduction 325
Feminist Legal Theory 325
Women and Law in History: The Birth of Misogyny
and Other Triumphs 326
The Relative Value of Citizens: The Struggle
for Women's Suffrage 329
Woman as Human and Person 333
Rape and Other Misogynous Atrocities 333
Women's Work and Other Legal Matters 335
The UNCEFDW and the Equal Rights Amendment 337
Domestic Violence 338
Women's Representation in the Legal Profession 340
The Bias Studies 344
Law, Equality, and Justice 345
Building Understanding 346
Summary 347
Discussion Questions 348
References 348
Cases Cited 351
Chapter 13 RACIAL MINORITIES AND THE LAW 352
Introduction 353
African Americans 353
Slavery and the Law 353
The Amistad Case 355
The Dred Scott Case 356
Emancipation and the Reconstruction Period 357
The Emergence of Jim Crow Laws 358
Segregation, Disenfranchisement, and the Plessy
and Williams Cases 359
Lynching and Black Protest 361
"We Shall Overcome" 361
Congressional Activity 363
The Cold War and International Pressure 363
American Indians 364
The Early Years 364
The Marshall Trilogy: Defining Indian Status 365
The Period of Removal and Physical Genocide 366
The Assimilation Period and Cultural Genocide 368
The Beginning of the End of Cultural Genocide
(With a Few Backward Steps) 369
Asian Americans 370
Hispanics 372
The Mexican-American War and the Treaty
of Guadalupe Hidalgo 372
Push and Pull: Invitation and Exile 374
Segregation, Jury Representation, and Voting Rights 375
How Far Have We Come? 377
Summary 379
Discussion Questions 381
References 381
Cases Cited 384
Chapter 14 COMPARATIVE LAW: LAW IN OTHER CULTURES 386
Introduction 387
Law in Preliterate Bands and Tribes 387
Law in the Modern World: The Four Traditions 390
Common Law 391
Civil Law 393
Socialist Law 400
Islamic Law 405
The Four Traditions and the Rule of Law 411
The Convergence of Systems 413
Summary 415
Discussion Questions 416
References 416
appendix a?Constitution of the United States of America 419
appendix b?Student-Friendly Legal Websites 435
glossary 437
table of cases 461
photo credits 468
index 469