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 LAW, JUSTICE,
AND SOCIETY

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00-Walsh-FM.indd 2 23/01/16 9:58 AM
 LAW, JUSTICE,
AND SOCIETY
A SOCIOLEGAL INTRODUCTION

Fourth Edition

Anthony Walsh
Boise State University

Craig Hemmens
Washington State University

New York Oxford

OX F OR D U N I V E R S I T Y PR E S S

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 Oxford University Press, Inc., publishes works that further Oxford University’s
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electronic, mechanical, photocopying, recording, or otherwise,
without the prior permission of Oxford University Press.

Library of Congress Cataloging-in-Publication Data

Names: Walsh, Anthony, 1941- author. | Hemmens, Craig, author.

Title: Law, justice, and society : a sociolegal introduction / Anthony Walsh,
Boise State University; Craig Hemmens, Washington State University.
Description: Fourth edition. | New York: Oxford University Press, 2016.
Identifiers: LCCN 2015049374 (print) | LCCN 2015050025 (ebook) | ISBN
9780190272753 (alk. paper) | ISBN 9780190610418 (eBook)
Subjects: LCSH: Law--Social aspects--United States. | Justice, Administration
of--United States. | Sociological jurisprudence. | LCGFT: Textbooks.
Classification: LCC KF386 .W325 2016 (print) | LCC KF386 (ebook) | DDC
340/.115--dc23
LC record available at http://lccn.loc.gov/2015049374

Printing number: 9 8 7 6 5 4 3 2 1

Printed in the United States of America

on acid-free paper

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 Dedicated to my drop-dead gorgeous wife, Grace; my sons, Robert
and Michael, my stepdaughters Heidi and Kasey; my grandchildren
Robbie, Ryan, Mikey, Randy, Christopher, Ashlyn, Morgan, Stevie,
Vivien, and Frankie; and my great grandchildren, Kaelyn, Logan,
Keagan, Caleb, Lucas, and Brayden. I should not forget the spouses that
made this all possible: Patricia, Dianna, Sharon, Karen, Collette,
Marcus, Michael, Amy, Jenna, and Mary Beth. –A.W.

Dedicated to Mary, Emily, Sera, Amber, and Max,

and to all my students—C. H.

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 “What is hateful to you, do not to your fellow man.
This is the law: all the rest is commentary.”
Talmud, Shabbat 31a.

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 BRIEF CONTENTS

pr eface xix

ack now ledgmen ts xxiii

Ch a p t er 1 LAW: ITS FUNCTION AND PUR POSE 1

Ch a p t er 2 JUSTICE AND THE LAW 28

Ch a p t er 3 MAKING LAW 57

Ch a p t er 4 FEDER AL AND STATE COURTS 87

Ch a p t er 5 CR IME AND CR IMINAL LAW 111

Ch a p t er 6 CR IMINAL PROCEDURE 134

Ch a p t er 7 CIVIL AND ADMINISTR ATIVE LAW 162

Ch a p t er 8 JUVENILE JUSTICE 196

Ch a p t er 9 THE LAW AND SOCIAL CONTROL 223

Ch a p t er 10 THE LIMITS OF SOCIAL CONTROL: POLICING VICE 253

Ch a p t er 11 LAW, SOCIAL CHANGE, AND THE CLASS STRUGGLE 290

Ch a p t er 12 WOMEN AND THE LAW (by Mary K. Stohr) 324

Ch a p t er 13 R ACIAL MINOR ITIES AND THE LAW 352

Ch a p t er 14 COMPAR ATIVE LAW: LAW IN OTHER CULTURES 386

a ppendi x es 419

glossa ry 437

table of cases 461

photo cr edi ts 468

index 469

vii

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00-Walsh-FM.indd 8 23/01/16 9:58 AM
 DETAILED CONTENTS

pr eface xix

ack now ledgmen ts xxiii

Ch a p t er 1 LAW: ITS FUNCTION AND PUR POSE 1

Introduction 2
What Is Law? 3
The Six Primary Characteristics of Culture
and Their Relationship to Law 3
1. Beliefs 4
2. Values 4
3. Norms 5
4. Symbols 7
5. Technology 8
6. Language 9
The Code of Hammurabi 10
Early Thinkers About Law 11
Plato 11
Aristotle 12
Thomas Hobbes 13
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
Ch a p t er 2 JUSTICE AND THE LAW 28
Introduction 29
What Is Justice? 29
Distributive Justice 29
Retributive Justice 31

ix

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 x Detailed Contents

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

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

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 Detailed Contents xi

The Process of Amending the Constitution 82

Summary 83
Discussion Questions 84
References 84
Cases Cited 85

Ch a p t er 4 FEDER AL 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

Ch a p t er 5 CR IME AND CR IMINAL 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

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 xii Detailed Contents

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

Ch a p t er 6 CR IMINAL 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

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 Detailed Contents xiii

Ch a p t er 7 CIVIL AND ADMINISTR ATIVE 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

Ch a p t er 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

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 xiv Detailed Contents

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

Ch a p t er 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

Ch a p t er 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

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 Detailed Contents xv

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

Ch a p t er 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

Ch a p t er 12 WOMEN AND THE LAW (by Mary K. Stohr) 324

Introduction 325
Feminist Legal Theory 325

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 xvi Detailed Contents

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

Ch a p t er 13 R ACIAL MINOR ITIES 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

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 Detailed Contents xvii

How Far Have We Come? 377

Summary 379
Discussion Questions 381
References 381
Cases Cited 384

Ch a p t er 14 COMPAR ATIVE 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

a ppendi x a Consti t u tion of t h e Un i t ed Stat es of A mer ica 419

a ppendi x b St uden t-Fr iendly Legal Websi t es 435

glossa ry 437

table of cases 461

photo cr edi ts 468

index 469

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00-Walsh-FM.indd 18 23/01/16 9:58 AM
 PREFACE

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

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 xxPreface

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.

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 Preface xxi

2. A basic understanding of the courts, law-making, and criminal substantive

and procedural law. This book is an introduction to learning about law rather
than learning law. Learning law is the process of becoming educated and so-
cialized into the legal profession, whereas learning about law is the process of
becoming an informed citizen. The student is given enough detail about the
basics of law that every educated adult should know for participation in a
democracy. This detail is provided with as little legal jargon as possible.
3. An appreciation of the concept of the rule of law. The rule of law has been
called the most important of all legal concepts. It is imperative that citizens of
democracies know what it is, how it has evolved, and the mechanisms in
place to ensure its survival. Imbedded in this rule is the relatively modern
notion of due process, which involves procedural rules (the legal “dos and
don’ts”) that must be followed by criminal justice officials to ensure fairness
and impartiality in the processing of criminal cases. The evolution of the
once-absurd idea of due process is a fascinating story going back as far as the
Magna Carta in 1215.
4. An understanding of comparative law. Understanding how other cultures
view and implement law is one of the most interesting features of the study
of law. It has been said that if you know only your own culture, you don’t
know your own culture. The process of understanding almost anything nec-
essarily involves comparison and contrast. The law in the United States has
English common law as its foundation. The most prevalent form of law in the
world today is civil, or code, law, which differs in many interesting ways from
the common law. However, it differs considerably less from the common law
than do Islamic and socialist legal systems.
5. Knowledge of the law’s treatment of minorities and minors. Racial/ethnic
minorities, women, and minors have been excluded from full constitutional
protection and historically have been treated in very different ways than have
white male adults. This unequal treatment has often been sanctioned and
even encouraged by the law. These specialized chapters document how the
law has evolved to come to view unequal treatment as morally wrong and
how it has gone about rectifying its earlier mistakes.

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00-Walsh-FM.indd 22 23/01/16 9:58 AM
 ACKNOWLEDGMENTS

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:

Michael Bogner, Chadron State College

Cary Federman, Montclair State University
Laura Hatcher, Southern Illinois University
Lenore Molee, Montclair State University
Robert W. Peetz, Midland College
Godpower O. Okereke, Texas A&M University at Texarkana
John Riley, University of Alaska
Nilsa Santiago, John Jay College of Criminal Justice
and several anonymous reviewers.

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

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 xxivAcknowledgments

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.

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 CHAPTER 1

LAW: ITS FUNCTION

AND PURPOSE

T he bomb blast sent Jawad Sabah flying from his seat in Ali’s tea shop in
Baghdad. Jawad went there daily to seek the solace of relatives and
friends following the gang rape and murder of his wife, Abeer, by a marauding
militia gang six months earlier. He picked himself up dusty but uninjured,
saw the flame-engulfed bus, and cried soulfully at the futility and wicked-
ness of the world around him. Jawad wasn’t thrilled with life under the
brutal dictatorship of Saddam Hussein, but at least Baghdad was relatively
safe, and he could drink his tea undisturbed. He remembered the jubilation
he felt after the Americans overthrew Hussein in 2003 and his brutal police
force melted from the scene. He also remembered the foreboding as looting
and vengeance killings began to openly occur as Iraq plunged ever deeper
into chaos. What law remained in Baghdad was imposed by the “infidel”
Americans or by ineffectual and openly corrupt Iraqi police officers, neither
of which could be considered legitimate by those whose behavior they were
charged with regulating.
The Unites States’ attempt to impose democracy on a country whose
values, norms, and customs are at odds with it has not worked out well. The
violence peaked in 2006 as Shiites and Sunnis continued to blow each other
up, although things significantly improved after the troop surge of 2007. The
American military finally withdrew from Iraq on December 15, 2011, ending
an action that left thousands of American servicemen and many more thou-
sands of Iraqis dead or wounded. Since the withdrawal of American forces,
violence has again escalated across the country, and the Islamic State (IS) terror-
ist group is tearing it apart.
If Iraq is to become a viable state, it must afford its people security, stabil-
ity, and personal safety; these are the things that law is supposed to provide.
The Iraqi Constitution is reasonably democratic for that area of the world,
but, as with all law, it is just a set of flat statements on paper without the will
of human actors to give it life. For the law to be more than words on paper
it needs the respect and even the awe of all individuals affected by its

01-Walsh-Chap01.indd 1 23/01/16 11:45 AM

 2 Law, Justice, and Society: A Sociolegal Introduction

constraints and obligations. It requires assurances that the police and judicial
processes will be open to scrutiny and will provide equal protections for all
citizens. Without such things, government loses its credibility, the economy
languishes, organized crime flourishes, vigilantism emerges, and innocent
people like Jawad are victimized. This chapter explores the cultural under-
pinnings and functions of law, describes how ancient philosophers and early
sociologists have viewed it, and introduces the idea of natural law.

INTRODUCTION
When most people think of law, images of the uniformed police officer or of the
pomp and circumstance surrounding the criminal courts tend to dominate. If we
ponder a little longer, we may conjure up images and smells of large, dusty books full
of sterile rules and a multitude of archaic Latin terms and phrases and conclude that
law is a pretty dull subject. Nothing could be further from the truth! Few topics are
broader in scope than the law, and none is more important to social life, as Jawad
Sabah would doubtless agree. For better or for worse, law insinuates itself into every
aspect of social life, governing the relationship between person and person; between
institution and institution; and between persons, institutions, and the state; we are
all potential victims, witnesses, jurors, and even offenders. The point is that law is a
social institution and to study it is to gain valuable understanding of one’s society—
its heritage, its values, and its day-to-day functioning.
Law has always been considered of the utmost importance in American life. The
excerpt from Abraham Lincoln’s Lyceum Address, given in 1838 when he was only
28 years old makes this abundantly clear:
Let reverence for the laws, be breathed by every American mother, to the
lisping babe, that prattles on her lap—let it be taught in schools, in semi-
naries, and in colleges; let it be written in Primers, spelling books, and in
Almanacs;—let it be preached from the pulpit, proclaimed in legislative
halls, and enforced in courts of justice. And, in short, let it become the
political religion of the nation; and let the old and the young, the rich and
the poor, the grave and the gay, of all sexes and tongues, and colors and
conditions, sacrifice unceasingly upon its altars. (Basler, 2007, p. 6)
Law justly promulgated and justly applied is the bedrock of individual liberty
and social progress. Former legal counsel for the British government Phillip Allott
(2001) augmented Lincoln’s awe of the law when he wrote:
In the making of the human world, nothing has been more important
than what we call law. Law is the intermediary between human power
and human ideas. Law transforms our national power into social power,
transforms our self-interest into social interest, and transforms social
interest into self-interest. (p. 19)
Allott is saying that law is a mechanism by which diverse individual and com-
munity interests become as close to being the same thing as possible. Law has been a

01-Walsh-Chap01.indd 2 23/01/16 11:45 AM

 Law: Its Function and Purpose 3

study of endless fascination and the subject of endless debate for generations of phi-
losophers and social scientists—let us join them.

WHAT IS LAW?
What is this thing called law of which Allott is so enamored? The question is a simple
one with a variety of complex answers. The question also usually leads to others, such
as “Where did it come from?” “How did it originate?” “What is it based on?” “Whom
does it serve—everyone, or just those with the influence to get laws enacted and
enforced?” The next two chapters attempt to answer these questions from a number
of different perspectives. But let us first try to define law. The seventeenth-century
English philosopher Thomas Hobbes (1952) defined law as “just a statute, command-
ing those things which are honest, and forbidding the contrary” (chap. 26.1). But law
is much more than an aggregate of statutes that multiply promiscuously and then
sometimes are sloughed off; “it is crucially the art and technique of applying these
heterogeneous [statutes and] norms in the administration of justice” (Murphy, 2006,
p. 106). We could provide other definitions that various thinkers have given us, but we
spare readers that and offer our own definition: Law is 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. This definition would not be acceptable to everyone. Nevertheless,
it is offered as a working definition so that we may proceed with our endeavor.
Our definition is appropriate for all modern systems of law, but it does not com-
pletely fit preliterate societies, since by definition such societies do not possess writ-
ing, nor do they typically employ agents to enforce rules of conduct. However, law as
a system of proscribed and prescribed behavior is certainly not unique to highly
developed societies with written statutes and a formal system of law enforcement.
All groups of people living together in organized groups have at least some type of
rudimentary rules for governing conduct. They would not last very long as orga-
nized groups if they did not, for law is at the center of all organized social life. Indeed,
the word law itself has come to us from a variety of Latin and Nordic words meaning
“to bind” (people together). People “bound together” share a common culture, and
all cultures share certain core elements. Our first task is to see how these common
elements are related to law.

THE SIX PRIMARY CHARACTERISTICS OF CULTURE

AND THEIR RELATIONSHIP TO LAW
Culture is the totality of learned socially transmitted behaviors, ideas, values, cus-
toms, artifacts, and technology of groups of people living in a common society. It is
the transmission of all sorts of information from generation to generation by non­
genetic means. All cultures possess six primary elements: beliefs, values, norms,
symbols, technology, and language. These elements represent critical information
that maintains and transmits culture across the generations. Without a general

01-Walsh-Chap01.indd 3 23/01/16 11:45 AM

 4 Law, Justice, and Society: A Sociolegal Introduction

consensus about the nature of a shared culture in terms of the six primary elements,
the socialization process would be a difficult task indeed. All of these elements are
related to one another and, most centrally for our purposes, to the law. Let us take
these elements one by one and see how they are related to the law.

1. Beliefs
Beliefs are ideas that we have about how the world operates and what is true and
false. Beliefs may be about phenomena that are tangible and observable and things
that are not. Information that is observable or verifiable may be derived from scien-
tific experimentation or some other type of experience. For example, although we can
scientifically demonstrate that the earth is round and that it rotates around the sun,
most people in Christopher Columbus’s day were convinced that it was flat and that
the sun rotated around the earth. However, scientists knew that the world was round
long before Columbus’s voyage; the Greek mathematician Eratosthenes had calcu-
lated its circumference with remarkable accuracy more than 1,000 years earlier. In
those days, knowledge and news, and hence beliefs, traveled slowly.
Cultures also communicate shared beliefs about intangible, nonobservable phe-
nomena such as religious and philosophical beliefs relating to “ultimate” questions
such as “Who am I?” “What is the purpose of life?” “Where will I go when I die?”
and “How can I lead a just and good life?” These questions are not amenable to sci-
entific answers, but they have been answered to the satisfaction of millions by reli-
gious, spiritual, and philosophical systems of belief that are even more important to
understanding culture and law than are beliefs that are open to verification or falsi-
fication. They are more important because they are at the core of human concerns
and meaning and because they appease the uncomfortable irritation of doubt.
Laws are often enacted to support our most deeply held beliefs, and as beliefs
change over time, so do the laws that support them. When the established doctrine of
the Roman Catholic Church was that the earth was the center of the universe and that
the sun revolved around it, astronomers who held contrary beliefs were labeled her-
etics and were in danger of severe punishment or even death if they made their beliefs
public (one of the reasons beliefs traveled slowly back then). Similarly, when slavery
was permissible in the United States, laws were made to protect the “property rights”
of slave owners. Now that we have ceased to believe in prescientific astronomical no-
tions or in slavery, laws regarding heresy or property rights over human beings no
longer exist in Western societies. Laws against heresy, however, continue to exist in
many Islamic societies, and there are remnants of legally sanctioned slavery still ex-
isting in some African countries. The point is that if enough people believe something
is real, the consequences are often real regardless of the empirical validity of the belief.
Witches do not exist (at least not in the stereotypical, broom-flying, spell-casting,
potion-making sense), but this empirical truth was of no comfort to the thousands of
women legally burned over the centuries because people believed witches did exist.

2. Values
Values refer to normative standards shared by the culture about what is good and
bad, correct and incorrect, moral and immoral, normal and deviant. Values are more

01-Walsh-Chap01.indd 4 23/01/16 11:45 AM

Another random document with
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7 Oct
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13 Feb
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2 April
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2 April
359 Wuas M
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2 April
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2 April
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7 May
902 William C
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7 June
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2 June
1794 White I
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2 June
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13 June
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2496 Wilson A Cav 8 June
- 26
2 July
2764 Winningham J 64
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8 July
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4 July
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7 July
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8 July
3189 Webb D Cav
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21 Winchester J D “
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2 Aug
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Ward John, - Aug
4869
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2 April
22 Whitby R B
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2 April
33 Weese W
I 23
1 July
3297 Weir I Cav
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2 July
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10 July
3319 Wolf A
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3 July
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3615 Willis James StG - July
 - 20
2 July
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12 July
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7 July
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2 Aug
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7 Aug
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13 Sept
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7 Sept
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7 Aug
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13 Sept
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9 Sept
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6 Sept
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11 Oct
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7 Oct
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7 Oct
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3 Oct
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7 Oct
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11 Nov
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7 Nov
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6 Feb
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4 Feb
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13 Mch
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7 Sept
8190 White J, S’t Cav 64
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6 Aug
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5 April
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VERMONT.
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11 Oct
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1 Oct
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1 Nov
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2 June
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2 July
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16 July
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1 July
4173 Bailey S P Cav
H 28
9 July
4200 Beadle H H
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1 Aug
4509 Bucker James
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1 Aug
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6 Aug
4954 Bently M W
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8 Aug
5671 Bacom A M
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11 Aug
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6349 Benson A
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4 Aug
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11 Sept
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8029 Beady Wm 9 Sept
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9 Oct
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