What is Law?

Different Approaches to the Study of Law

 Anthropological : understands the law by comparing laws across different cultures and societies. Are also interested in why crime rates vary in different countries.
Sociological : Within a specific society, how do subcultures, social control, and behavioral norms influence people's adherence to the law ? Sociologists sometimes define law as governmental social control.
Philosophical : What is the nature of justice ? What is the value and impact of law on a society ?

Psychological : Emphasizes understanding the roles people play within the legal system. Analyzes the police, the attorneys, the defendant, the jury, the judge, and the victims, and how the characteristics of each role contribute to the legal system. Can use the experimental method to determine cause and effect relationships in the area of jurisprudence.

Combined multidisciplinary approaches to legal study

Sociolegal Studies : Examines the law from a historical, economical, and sociological perspective.

Critical Legal Studies : Examines the law with the underlying assumption that laws are used as tools of oppression used to maintain control over minority groups.

Feminist Jurisprudence : Examines laws with the underlying assumption that the law is used to enforce masculine-based values and is biased against women.

Therapeutic Jurisprudence : Studies the effect that laws have on the people who come in contact with the justice system. It also evaluates these effects in terms of therapeutic value.

Four Dilemmas the Legal system Struggles with Conmstantly

1. Balancing the rights of the individual with the rights of society (or community)
Seat Belt Laws
Yelling "Fire" in a crowded theater
Inciting Racial Hatred or Bigotry
Criminal (racial) profiling

 Two opposing models of the criminal justice system

Due-Process Model : Emphasizes the rights of the individual and tries to protect citizens against abuses of power by the police and other law enforcement agencies.
Their motto might be "It is better to let ten guilty people go free than to lock up one innocent person"
The ACLU believes in the due process model.

Crime-Control Model : Aimed at protecting the larger community to ensure that criminals are dealt with harshly and immediately.
Their Motto might be "It is acceptable to trample on individual rights in order to protect the larger community from criminal behavior".
Politicians who want to be seen as "Tough on Crime"
Will generally favor the crime-control model.
Community policing is one aspect of the crime control model. (NYC over the past 6 years)
"Three-Strikes" Laws, pedophile reporting

2nd Dilemma : Equality before the law vs. discretion based on individual circumstances.
 Should there by (is there) equal time for equal crime ?
The Supreme Court of the U.S. has frequently mentioned a principle of proportionality which states that the punishment must fit the crime.
Remember that the U.S. constitution forbids "cruel and unusual punishment ".

  1. Helm vs. South Dakota : Supreme court heard the appeal of a man who was sentenced to life without parole for writing a $100 check which bounced. Court agreed 5-4 that this was "cruel and unusual".
1991 Harmelin vs. Michigan : Supreme court rules 5-4 that life without parole was an acceptable sentence for a first time offender found with 20 oz. of cocaine.

Judicial Discretion : Allows the judge to weigh mitigating circumstances when considering length/severity of a sentence.

However, mandatory sentencing guidelines have removed much judicial discretion from the federal level.

Sentencing Guidelines
Were designed to counteract sentencing disparity, i.e. criminals would be given widely varied sentences depending upon where the crime was committed and what judge heard the case.
Determinate Sentencing : When the offense determines what sentence a guilty person shall receive
Federal Sentencing Guidelines of 1987 : Determines a numerical value representing the severity of a crime. Sentence length is determined by this numerical value. This number goes up or down dependent of mitigating or aggravating circumstances.

Discretion still remains with the jury, however, through the principle of Jury nullification.
Jury Nullification : Because jury members can not be compelled to discuss their deliberations, they do not have to follow the law and can find people "not guilty" for any reason they see fit.

 3rd Dilemma : Do we want to uncover the truth, or make people feel good about the legal system ?
The British have an Inquisitorial System of Justice.
Although their verdicts are seen as more accurate (compared to U.S. verdicts), there is less satisfaction with the legal system than in the U.S.
The United States has an "Adverserial System of Justice".
Although our verdicts are seen as less accurate (compared to British verdicts), there is a greater perception of fairness of the U.S. legal system (compared to the British System).
In the U.S., both sides are more likely to reoprt that they feel they "got their day in court" and had a chance to present their side of the case.
"Victims Rights" is a recent movement (last 10 - 15 years) in the U.S. that helps to increase this perception of fairness.

 4th Dilemma : Science vs. the Law

Social Facts and Social Authority allow social scientists to play an important role as advisors in certain cases.
Lawyers, of course, do not always take data from social scientists as seriously as we would like them to.

Brown vs. Topeka Board of Education (1954) : 1st case where social science data was cited in the decision of the supreme court to end segregated educational facilities.
Thurgood Marshall (representing Brown) submitted documents showing 95 % of Social Scientists felt the doctrine of "Separate but Equal" established in Plessy vs. Ferguson (1896) had negative effects on the psyche and education of African Americans.

Lawyers sometimes have problems explaining "social facts" gathered by social scientists, particularly when the data comes from experiments which do not have a high level of "mundane realism"

Mundane realism : The degree to which the task or situation within a controlled experiment resembles its real world counterpart.

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