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(Original PDF) Law, Justice, and Society A Sociolegal Introduction 4th Edition
(Original PDF) Law, Justice, and Society A Sociolegal Introduction 4th Edition
pr eface xix
Ch a p t er 3 MAKING LAW 57
a ppendi x es 419
glossa ry 437
index 469
vii
pr eface xix
ix
Ch a p t er 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
glossa ry 437
index 469
Law, Justice, and Society: A Sociolegal Introduction (fourth edition) is a text designed for
use in courses such as Law and Justice, Introduction to Law, and Sociology of Law.
Several aspects of this text are not found in competitive texts. Many texts are written
by authors with recognized expertise in only one or two of the areas covered, which
results in very good chapters in those areas but also produces chapters that may con-
tain errors and misunderstandings. This text is a collaborative effort that draws on
the expertise of scholars with extensive track records in publishing, teaching, and
actual field practice in the topics covered.
Law per se can be a dry topic when approached from a law school perspective.
After all, law schools are in the business of turning out professionals who know how
to navigate treacherous legal waters on behalf of their clients. This book is not a law
book but rather a book about law for students wanting to learn the relationship of law
to justice and to society. Law school classes focus on the law almost exclusively; our
goal is to place the law in its social context. It is a book about how law as a social in-
stitution fits into and shapes other institutions. Most students who take a course such
as Law and Justice or Sociology of Law have no intention of going to law school and
just want to know the relationship of law to their own disciplines and to themselves
as citizens, as well as the functions of law in their society. We are all potential wit-
nesses, jurors, victims, or even offenders.
This fourth edition has been thoroughly updated in all respects. As usual, we
have benefitted greatly from users and reviewers of this book and have incorporated
most of the material they suggested to us. We have incorporated the truly monumen-
tal Supreme Court decisions leading to the nationwide legalization of gay marriage
in Chapter 7. We have also noted that this has led to a conflict of rights with small
business owners who object to having to facilitate gay weddings on religious grounds.
This clash of gay rights and religious liberty will be with us for some time, so we
have an extensive section on it in Chapter 10. Perhaps the biggest improvement in the
Fourth Edition is the inclusion of additional visual material. One of our reviewers
opined that the text needs to be broken up more with photos and graphs illustrating
the points made in the text. I think you will agree that this has resulted in a more
visually attractive and student-friendly text.
Chapters 1 and 2 introduce the idea of law and justice. These chapters discuss the
philosophy, history, and sociology of law. We even take a look at how some evolution-
ary biologists have viewed the law and its origin in nature, as opposed to the view
that it is purely a social construction. We ask in these chapters what law and justice
is, where it comes from, how it has been conceived in the past, and what its function
xix
in society is. Readers will come away from these chapters realizing that few things in
modern life are more important than the law.
Chapters 3 through 8 introduce the various aspects of modern American law and
justice. Chapter 3 focuses on the process of making law and describes the Bill of
Rights. Chapter 4 focuses on the federal and state court systems and the processes
that occur within them. Chapter 5 examines criminal law, major crimes, and legal
defenses. Chapter 6 looks at criminal procedure, such as the right to an attorney and
the exclusionary rule. Chapter 7 covers various aspects of civil and administrative
law, such as torts, family law, contract law, and white-collar crime. Chapter 8 focuses
on the juvenile justice system.
Chapters 9 through 11 are more sociological and historical in orientation, focus-
ing on how law affects the processes of social change and social control. Chapter 10
concerns the limits of law as a social control mechanism and explores some so-called
vice crimes and the law’s differing approach to them across time and place. Chapter 11
explores how the law has been involved in momentous changes in the United States
from before the American Revolution to the present day, with special emphasis on
the role of the Supreme Court. We also examine the special role of the law in making
society possible by its role in social control and the role of social movements in the
process of social change.
Chapter 12 takes on a topic sorely lacking in competitive texts—women and the
law. Its author, Dr. Mary K. Stohr, is a major figure in feminist criminal justice circles.
She has had criminal justice field experience as a correctional officer and counselor
and has served as an expert witness in court cases dealing with women’s issues.
Chapter 13 provides an overview of the law as it has been applied to racial mi-
norities in the United States from the earliest days of white settlement to the present.
It documents the fight against slavery and the Indian fight to maintain cultural
independence as well as touching on the Asian and Hispanic experience in the
United States. As far as we are aware, this is the only law and society text that devotes
a whole chapter to this important topic.
Chapter 14 focuses on comparative law. We learn far more about our own system
of law if we know a little about other systems. The chapter looks at law in bands and
tribes and in the four major legal traditions in the world today: common, civil, Islamic,
and socialist. Students tend to become particularly interested in the practices of non–
common law systems.
We hope that at the conclusion of a course based on this book students will have
achieved the following primary objectives.
1. An appreciation of the role of law in society. Law is arguably the most im-
portant of all human inventions, based as it is on our innate sense of fairness,
decency, and concern for a peaceable and orderly existence. We have tried to
provide you with a “feel” for what law means and where it has come from
(both in evolutionary and cultural terms). Readers will come to a deeper un-
derstanding of the legal system as a basic social institution and of its relation-
ship to other institutions, such as the family, the economy, and government,
and to social control and social change. The limits of the law in trying to
prevent change and to police private morality are also discussed.
We would first of all like to thank Executive Editor Steve Helba. Steve’s commit-
ment to the project and tremendous enthusiasm is greatly appreciated (as is his
trips to the hinterlands to see his authors “in action”). Our fourth edition copy-
editor, Kari Lucke, spotted every errant comma, dangling participle, and missing
reference in the manuscript, for which we are truly thankful, and production
editor Amy Gehl made sure everything went quickly and smoothly thereafter.
Thank you one and all.
We are also most grateful for the many reviewers who spent considerable time
providing us with the benefit of their expertise as the text was revised. Attempting
to please so many individuals is a trying task, but one that is ultimately satisfying,
and one that undoubtedly made the book better than it would otherwise have been.
These expert legal scholars include:
We also thank Marianne Hudson for helping with the test bank and for devel-
oping the excellent PowerPoint presentation that accompanies this text. Thanks
especially to Michael Bogner of Chadron State College, who supplied Figures 1.1,
3.1, 3.2, and 6.2.
Finally, Anthony Walsh would like to acknowledge his most wonderful and
lovely wife, Grace Jean, for her love and support during this and all the other projects
that have taken him away from her. She is a real treasure, the pleasantest of persons,
candy for his eye, and the center of his universe.
xxiii
Craig Hemmens would like to acknowledge the love and support of his wife and
colleague, Mary Stohr, and his stepdaughter, Emily Stohr-Gillmore. He would also
like to thank his former departmental colleague and once and future friend and co-
author, Tony Walsh, for encouraging him to avoid the trap of always thinking like a
lawyer. Last, thanks to all the students who have listened and (hopefully) learned
about the role of law in a just society.
After his retirement from his official position, Sir John lived little
more than seven years, dividing his time between Morocco and
Europe, returning, as has been said, for the winter to his beloved
‘Ravensrock,’ enjoying his sport to the end, and at intervals jotting
down his ‘Scraps from my Note-book’ as a slight record of his life. ‘I
feel,’ he says, referring to the appearance of some of his stories in
Murray’s Magazine, ‘like a dwarf amongst tall men. Never mind. If
my relatives and friends are pleased and amused, I shall continue to
unwind the skein of my life till I reach my infancy.’ Among the last of
the notes made by Sir John in his ‘Note-book’ was the following,
which may be appropriately introduced at the close of this sketch of
his career.
Cadiz, 225.
Campbell, Colonel, 28.
Canning, Lady, 47, 66.
Canning, Sir Stratford, 47, 58, 66; appointed Ambassador at Constantinople,
49; his method of conducting business, 49; letter from Sir J. D. Hay on the
state of affairs in Tangier, 68-71.
Carstensen, Mr., 142, 223.
Cartwright, Mr., 66.
Castelar, Señor, 207.
Cattle-lifting in Morocco, 193.
Ceuta, its advantages over Gibraltar, 234.
Chapman, Mrs., anecdote of Sir J. D. Hay, 164.