law justice and society
Terms in this set (107)
What is law as defined by Walsh and Hemmens?
A written body of general rules of conduct applicable to all members of a defined community, society, or culture which emanate from a governing authority and which are enforced by its agents by the imposition of penalties for their violation.
What is culture?
The totality of learned socially transmitted behaviors, ideas, values, customs, artifacts, and technology of groups of people living in a common society
What are the six primary elements of a culture?
ideas that we have about how the world operates and what is true and false
beliefs are often supported by...
Normative standards shared by a culture about what is good and bad, correct and incorrect, moral and immoral, normal and deviant
action component of a value or belief
social behavior is consistent with those values and beliefs
norms with a serious moral connotation
less serious norms/ morals
what is positive law
laws that arise from a society's social norms. Discouraged behavior eventually becomes illegal
examines law in a cultural context by condisering the cultural sources of law as it is without passing moral judgements.
Law is law and should be followed even if it is offensive to moral sensibilities.
universal set of moral standards.
standing above and placing limits on natural law, because it is what law ought to be.
Judge law according the cultural context.
All laws and standards are relative
concrete physical signs that "stand for" and signify abstractions that range from the mundane/specific to very meaningful
evoke feelings, such as a nation's flag
the totality of the knowledge and techniques a people employ to create the material objects of their sustenance and comfort.
Leads to more complex relationships in society.
New laws made to keep up with technology
a vast repository of information about culture.
Need law to be written
represents critical information that maintains and transmits culture across the generations
what is the Code of Hammurabi
one of the oldest known written codes of law.
Which concept of justice was included in the Code Of Hammurabi?
Lex talionis eye for eye tooth for tooth.
Priesthood enforces--- middleman
Codes appealed to the gods
Theory of forms(ideas). Humans need wisdom to approach justice and order.
People should conform to universal principals/forms to determine rightful conduct.
Treatise of government: state is superior to the individual. Law is needed bc without it, there would be no restraint on imperfect human behavior.
Even if law isnt perfect, it is needed
State of nature is inferior because it lacks law (not bc it is brutish).
state of nature has natural laws based on moral obligations.
Men enter a social contract because they want community.
social contract protects liberties, but gov. punished, not the subjects.
People can reconstitute government (revolutions in history)
Legal philosopher argued that individuals would choose equal liberties and opportunities for everyone if they chose behind a veil of ignorance
Compare and contrast the consensus and conflict perspectives on law.
consensus basically emphasize how society is structured to maintain stability and its viewed as a network of in institutions but the conflict perspective consider society to be composed of individuals and groups with diff interest
emphasize how society is structured to maintain stability and its viewed as a network of in institutions
consider society to be composed of individuals and groups with diff interest.
Even if legal process is the same for everyone, their outcomes can be different becuase of differing soceoeconomic status
Equated law with justice and favored an egalitarian system (rulers subject to law)
goal = greater good, people should be rewarded for acting justly and punished for acting unjustly
treat equals equally and unequals unequally.
NO natural law/justice.
state of nature=warlike.
Social contract protects subjects from state of nature, in exchange they give their freedoms to an absolute/opressive soverign.
requires rational, predictable law.
People face external pressures (actions and threats)
threats involve force
threats carried out by agents of the state
types of rationalization
Weber's 4 methods of decision making
decision made by nonlegal individual on a case by case bias that are made subjectively (religion, emotion, political)
decision made on a case by case bias that are made based on a consistent set of principals
American technological laws
a request made to the court asking for something
Decision based on formal rules
rules are not based on logic (oaths, superstition, magic)
Decision based on formal rules and principals made by legal persons.
bound to rules
post industrial revolution
functionalist-- society consists of interdependent parts and relationships where people interact briefly to achieve specific goals.
weaker collective consciousness
what does the bill of rights guarantee
The Bill of Rights is the first 10 Amendments to the Constitution. ... It guarantees civil rights and liberties to the individual—like freedom of speech, press, and religion. It sets rules for due process of law and reserves all powers not delegated to the Federal Government to the people or the States.
stronger collective consciousness
norm violations are more serious
What is distributive justice?
the form of justice concerned with how a political entity such as a nation distributes its resources.
fairness of distribution= deserved, NOT needed.
What is retributive justice?
form of justice concerned with how society determines guilt or innocence (procedural restitutive justice)
AND how it goes about determining the proper/just sentences (substantive retributive justice).
procedural retributive justice
how a society determines guilt or innocence of an individual
rules a state as to follow when prosecuting someone. A state cannot deprive an individual of their liberty.
substantive retributive justice
how a society determines the sentence for someone who is deemed guilty
places limits on the actions of individuals by defining acts that are and are not permissible
How are judges chosen?
Federal nominated and approv by senate
state voted in by the people
study of law as it is PRACTICED not written.
Judges subjective interpretations impact legal decision making (law is not fully determined by legal realism)
review by the US Supreme Court of the constitutional validity of a legislative act.
What is natural law?
hypothesized universal set of moral standards.
Positive law should bring conform to what is just
evolutionary perspectives on natural law
explains the origins of law and justice with reference to the principals of evolutionary biology.
Natural law evolved to formalize our moral sensabilities.
transcendental perspectives on natural law
it emphasizes the primacy and superiority of the spiritual over the natural.
God given laws
declaration of independence, devine right of kings
justice can only be achieved through
when is law in accordance with justice
when it respects, cultivates, and protects the dignity of even the lowest members of society
Courts of Equity
decided based on fairness.
common law was too rigid, didnt have subjectivity
Definition of crime anchored in human nature
natural crimes are evil in themselves, manmade crimes are wrong because they have been made wrong by positive law (law that arises from social norms/what a society determines as right or wrong)
human made law arising from social norms; contrasted with natural law
How did natural law influence the United States?
a charter of liberties to which the English barons forced King John to give his assent
a document constituting a fundamental guarantee of rights and privileges
What is positive law?
laws that arise from the norms and customs of a given culture
What is a statute?
a written law passed by a legislative body.
rule of law
strict adherence to the rule of law assures that importance aspects of justice are integrated into legal systems
Rule of Four
At least four justices of the Supreme Court must vote to consider a case before it can be heard
What is common law?
laws created from usage , customs , and traditions
What is equity
a term derived from the Latin word for "just" and refers to remedies for wrongs that were not recognized
how did the "letrs of catche" influence the united states?
The Letres Of Cache influenced the United States to make the Bill of Rights
due process includes
To be secure in one's home, To confront one's accuser , To know charges against oneself,
To secure counsel ,To be tried by jury of one's peers ,To be free of excessive bail , To be free from cruel and unusual punishment
Indictment /grand jury
A formal charge by a grand jury
prosecutor files charges
citizen files charges
What are mala in se crimes
natural crimes that are evil in them self's
examples murder , rape , assault
What are mala prohibita crimes
only wrong because they were made wrong by the positive law
examples drugs, prostitution, gambling
Overview of Criminal Process
probable cause- arrest
booking at jail- administrative procedure
initial appearance- 1st court appearance- charged-rights-bail
preliminary hearing- trial date set if prob cause
arraignment- formal hearing- charges/ rights again/ enter plea
members from community
speak with possible jurors
prosecutor and defense can both remove
challenge for cause- remove for bias-valid reason
Peremptory challenge- no reason
what is the due process model? (packer)
System of procedure to hold the government to its principals "obstacle course".
Procedural justice that is due to all persons
Instructions for the agents of the state to assure that all people are treated equally.
- Numerous appeals allowed
- Evidence may be suppressed
- Police must obtain warrants and not interrogate suspects without counsel present
More concerned with integrity of legal process and legal guilt than with factual guilt
Brewer v Williams
area of authority-district in federal
type of court, family, civil, criminal
Who was Cesare Beccaria? How did he contribute to modern thinking about law?
He wrote "On Crime and Punishment"
wanted punishments to be more resonable and rational
- Advocated for both procedural and substantive justice
- Reformist who believed punishment should fit crime
- Against the death penalty
sir Edward coke
limited power of Parliament
series of written procedures for implementing substnatice criminal law (Father of due process)
What is the crime control model? (Packer)
- Emphasizes community protection from criminals
- Civil liberties can only have real meaning in safe, well- ordered society
- suppress criminal activity swiftly, efficiently, and with finality
Brown v Mississippi
Crime control model vs Due process
Crime control concenrned with apprihending suspect to lock people up worry about due process later
due process concerned with rights of people arrested- do everything properly-let guilty people go free than inno locked up
Was a judge-made law and it was law created by judges as they heard cases and settled disputes.
Influence of prior cases on current cases. Every final decision made by a court creates a precedent that governs that court as well as inferior courts.
Let the decision stand; decisions are based on precedents from previous cases
what are the sources of law
- Judge-made Law (Common Law)
- Legislative Law
* The Constitution
* Administrative regulations (3 Branches of Government)
- Other Sources of appropriate conduct
* Religion and ethics
What were the Articles of Confederation?
the first attempt at creating a unified United States.
How was the Constitution created? Discuss.
- The Constitution was created in 1787 when 12/13 states met up in Philadelphia to replace the Articles of Confederation and ended up with the United States Constitution. (Rhode Island decline to attend)
* Habeas Corpus: a document challenging the legality of a person's detention
* Prohibition on Ex Post Facto Law: legislation making prior conduct criminal
* Prohibition on Bills of Attainder: legislation imposing punishment without trial
Constitutional protection against unlawful imprisonment
facts proving that a crime has been committed; body of the victim in a murder case
What is the principle of federalism? Discuss.
It divided power between the central government and states.
* The word federalist was directed to supporters who believed in a strong centralized government
How can the Constitution be amended?
1. 2/3 of both houses must pass resolution calling for amendment
a. Must be ratified by ¾ of all states within 7 years
i. 2/3 of states must call for convention at which an amendment is proposed (Both houses of congress)
2. All 27 have been passed via the first process
What is the doctrine of incorporation?
a constitutional doctrine through which selected provisions of the Bill of Rights are made applicable to the states through the Due Process clause of the Fourteenth Amendment.
freedom of religion, speech, press; to assemble, to petition the Government for a redress of grievances"
keep and bear Arms
privileges and immunities, due process, equal protection.
States, rather than just the federal government, cant have laws that abridge the privileges of citizens
strict scrutiny test
is the law necessary to achieve compelling governmental purpose?
-fundamental right or suspect class involved
examples of fundamental rights
privacy, travel, voting, first amendment
examples of suspect class
race, religion, natural origin
intermediate scrutiny test
is the law substantially related to an important gov. purpose.
Quasi-suspect class involved (gender, legitimacy)
rational basis test
is the law rationally related to a legitimate gov purpose?
No class to right involved
substantive due process
legislatures cannot pass laws that infringe on the substantive rights such as free speech and privacy
Friswold, Roe, and Johnson
bill of rights applicable to the states.
due process=under all the provision of the bill of rights
total incorporation plus
includes all of the bill of rights and other unspecified rights.
individual rights in BoR protection from state action not bc BoR is applicable to the states, but because the laws are included in the concept of due process.
No relationship between due process and BoR. What constitutes a fundamental right is left to the justices
5 components of a crime
Mens Rea (intention)
union of criminal act and criminal intent
criminal act is the one that caused the harm
cause injury to another
not all rights are incorporated in the due process clause. bill of rights guides to the meaning of due process.
wolf v colorado
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