Week Three, Law and Society

Assignments for Week 3:

I. Sign up this week with another student in the course for the term paper. Each paper will be written by two students, and you’re responsible for the contributions of both students.

II. Read Chapter 2 in your Samaha textbook, and Lecture 2 below.  The quiz will cover both reading assignments.  

III. Cases in class this week:

            Chapter 3, State v. Burrell

            Chapter 4, State v. Stark

            Chapter 4, State v. Jantzi

            Chapter 11, Flores-Figueroa v. U.S. (We will use California State Law)

Lecture 2, The Logic of Law


1.  Human beings have always attempted to control other human beings, and control is a central concept of sociology.  Social control is accomplished by normative, utilitarian, and coercive means.  The normative approach attempts to obtain compliance with the law by encouraging a belief in the rules of the social order; the utilitarian approach offers some practical rewards for compliance; the coercive approach threatens or uses force to achieve compliance.  Churches rely primarily on the normative; businesses rely primarily on the utilitarian; and prisons rely primarily on the coercive.  However, most social institutions rely upon some mixture of these approaches, which is also true for legal institutions.

The Levels of Law 

1.  The law operates on several levels in the United States.  One such level is universal law.  Some laws are taken to be divine in origin, and all human beings are urged to honor them; this is sometimes referred to as "natural law."  The Golden Rule, "Do unto others as you would have them do unto you," is an example.  The Ten Commandments are also regarded as universal laws. 

2.  Another level is international law, which has become increasingly important in recent years and is in the process of evolving.  For the future, it is expected that international law will become an ever-larger presence in the world.  It is likely that an effective permanent international criminal court will be established.  Another form of international law is regional law, which is also transforming.  The states that compose the continent of Europe collectively can be called a region.  At the end of the 20th century, the formation of a European Union and establishment of the European Court of Justice in Luxembourg and the European Court of Human Rights in Strasbourg has given rise to an evolving “Eurolaw.”  At the onset of the 21st century, European law was increasingly taking precedence over national law on such matters as human rights, the environment, trade, and working conditions.

3.  In the United States, a confederation of states exists, and federal or national law has had a considerably more limited role, since state laws and municipal laws also regulate behavior.  During the 20th century, the scope of federal law in the United States has expanded.  Federal law covers crimes such as treason, attacks on federal officials, bank robbery, kidnapping, and crimes on federal property.  It also covers disputes between states or between citizens of different states; and regulation of a wide range of activities, from interstate commerce to environmental pollution.  Federal law tends to be more significant in the realm of corporate activity and white-collar crime than in the realm of conventional crime, and in disputes between corporations than in disputes between individual parties.

4.  In the United States, the principal formal legal order is state law.  In some cases, both state and federal law apply (for example, a business fraud violates state common law, and violates federal anti-racketeering law).  State law in America typically covers such matters as homicide, burglary, rape, arson, auto theft, larceny, etc., and in civil law, it covers disputes between citizens of the state.  Variations between laws of states exist due to the different histories of the states.  For example, law in the State of Louisiana for a long time retained elements of traditional French law, as a reflection of a state's origins and heritage.  Another example is in Western states, with their broad expanses and low density of people, having traditionally permitted higher vehicle speed limits than congested Eastern states.  

5.  Local law addresses minor matters, such as jaywalking and littering, but it also deals with some consequential matters, such as zoning.  It is on the local level that one is most likely to find idiosyncratic laws.  A single influential member of the local council may be able to get a particular personal obsession made into local law.

6.  At an even smaller level is organizational law.  One of the features of contemporary society is participation in formal organizations, and all organizations have rules.  In the case of military organizations, there is widespread recognition of the existence of military law and a military system of justice.

Legal Reasoning 

1.  Because one of the defining attributes of modern law is its commitment to rationality, it follows that legal decision-making will be based on logical reasoning.  Reasoning by analogy of finding connections between cases, and by deduction from rules in identifying conclusions that follow from valid premises have been identified as two basic forms of legal reasoning.  In American law, there is an expectation that a legal decision will be accompanied by a justification for the decision, and this justification is one of the most fascinating parts of reading about a legal case.

2.  It follows from this view of legal reasoning that there is a single correct answer to a legal case, and if the appropriate legal principles are applied in an accurate way to a particular case, the appropriate decision will be produced.  However, two judges looking at the same case may arrive at opposite conclusions, and no case has a single inevitable outcome.  You will find this often in the dissenting opinions of judges in the appellate courts.

Judicial Restraint

1.  Judicial restraint is regarded as a conservative judicial philosophy.  In this view, the court is the least democratic branch of government and should defer to the elected representatives in the legislative branch.  Justices should avoid making new law and should restrict themselves to narrow questions that may arise in cases brought before them. 

2.  On constitutional questions, adherents of judicial restraint favor the position that a judge should not interpret or apply a constitutional provision in a manner that goes beyond the original intent of the Framers or the specific language of the provision.  The conservative approach is also known as "strict constructionism," and it refers to the position that the application of a law or constitutional provision should not go beyond the literal meaning of the wording of the law.  Most of the time, the ideas of judicial restraint and strict constructionism are used to advance a conservative cause; they are easily discarded when conservatives wish to advance their agenda by changing the law.

Judicial Activism

The belief here is that it is wholly appropriate for justices to declare law in accordance with the perceived needs of the times.  Historically, conservatives have tended to interpret legal doctrine quite flexibly when it has suited their purposes -- for example, to extend more power to the executive branch, the police, and employers.  Liberals have tended to read the Constitution quite strictly when an amendment is in line with their beliefs -- for example, the First Amendment stipulation that Congress shall make no law restricting freedom of speech.


Law in the Western tradition is linked with a process of reasoning.  Legal reasoning combines objective and subjective dimensions, insofar as judges are strongly constrained by traditions and peer pressures from within the legal system, but also are responding to external influences and to changes in society.                                       

© Karen Donahue 2017