Law, Justice, and Society:

A Sociolegal Introduction
Chapter 3
Making Law

Making Law
Code of Hammurabi
First known written legal code
Eye for an eye philosophy

Roman Law
Influenced by Babylonian legal principles

The Twelve Tables (450 BCE)

First entirely secular written legal code
Criminal law began to change focus from just resolving
disputes to seeing offenses as against society as a whole

Making Law
The Common Law
Norman conquest of England (1066) brought
feudal law to England basis for common law
By Henry II (1154-1189) a body of law was
developed and applied commonly through
England
Common law system well developed in England
by Thirteenth century

Making Law
The Common Law (cont.)
Ranulf de Glanvill: Wrote Treatise on the
Laws and Customs of the Realm of
England- detailed transition to adherence to
formal legal rules
Henry de Bracton: On the Laws and
Customs of England- Furthered the
commonality of common law

Making Law
The Common Law (Cont.)
William Blackstone: Laws were creations of
God, waiting to be discovered by reason
Commentaries on the Laws of England: had
influence on philosophy of Founding Fathers
and Declaration of Independence

Making Law
The Common Law (cont.)
Judge-made law
Judges justified decision by referencing
Custom
Tradition
History
Prior judicial decisions

Developed concepts of stare decisis and precedent

Making Law
Precedent and Stare Decisis
Under common law, every final decision by a court creates
a precedent
Precedent governs the court issuing the decision a well as
any lower courts
This system was brought from England to colonial America
In the United States, precedent is binding only on those
courts within the jurisdiction of the court issuing the
opinion

Making Law
Precedent and Stare Decisis (cont.)
Stare decisis means let the decision stand (Black
2001)
If there is a prior decision on a legal issue germane
to a current case the court will be guided by that
prior decision
This is the principle behind establishing precedent
Assures predictability for similar cases

Making Law
Precedent and Stare Decisis (cont.)
Not every decision a court makes becomes precedent
Ratio decidendi are legal pronouncements from courts that
become precedent
Rationale used by courts to arrive at their decisions
the reason for the decision

Obiter dicta are nonlegal statements or arguments used to

support ratio decidendi; do not become precedent
things said by the way

Making Law
Precedent and Stare Decisis (cont.)
Precedent is not necessarily unchangeable
Judge-made law may be overruled by an act of the
legislature
The precedent issuing court may overrule its prior
decision
A higher court may reverse a lower courts
decision

Making Law
Precedent and Stare Decisis (cont.)
A court may also distinguish one case from
another precedent setting case on grounds that the
details may be slightly different

Making Law
Sources of Law
Judge-made law (common law)
Legislative law
Constitution
Statutes
Ordinances
Administrative regulations

Other sources of appropriate conduct

Religion and ethics

Making Law
Legislative Law
Legislative enactments (bills) are statutes
Collections of statutes are codes
Includes both civil and criminal law
Criminal law referred to as the penal code

Administrative regulations
Have the force of law
Issued by agencies of the executive branch or created
through legislatively delegated powers

Making Law
Legislative Law (cont.)
Statutes are frequently written broadly
Administrative agencies are given the task of
filling in the blanks. Why written so
ambiguously?
1.
2.

Difficult to define something involving human

conduct
Political implications and the need for compromise

Making Law
The Sources and Types of Law
Constitution
(Constitutional Law)

Legislative Statutes
(Statutory Law)

Executive Agency
Rules
and Decisions
(Administrative Law)

Judicial Cases
(Common Law)

Making Law
Sources of Individual Rights
Those rights which are possessed by the
individual and which protect him or her from
others as well as from the federal government
Federal and state constitutions
Case law
Court rules
Legislation

Making Law
Sources of Individual RightsConstitution
Articles of Confederation formed in 1871
Federal government powerless
Lacked authority to tax
Lacked authority to raise an army
Lacked authority to force states to comply with any
mandates
12 of 13 states met in Philadelphia in 1787 to replace the
Articles of Confederation

Making Law
Sources of Individual RightsConstitution (cont.)
Result was formation of the U.S. Constitution
Created a strong central government
Because of this, the Constitution was mostly concerned
with establishing the federal governments powers and
limitations
Protection from very few individual rights:
Habeas corpus
Bills of attainder
Ex post facto laws

Making Law
Sources of Individual RightsConstitution (cont.)
Several states demanded more individual rights
protection before ratifying Constitution
Result was the Bill of Rights (James Madison)
Ratified in 1791

Making Law
Sources of Individual RightsBill of Rights
First 8 amendments set out 23 individual rights
Protections against government action
Only in the twentieth century were these rights
applied to state governments

Making Law
First Amendment
Congress shall make no law respecting an
establishment of religion, or
prohibiting the free exercise thereof;
or abridging the freedom of speech, or
of the press; or the right of the people
peaceably to assemble, and to petition
the Government for a redress of
grievances.

Making Law
First Amendment (cont.)
Freedom of Religion
1.
2.

Government shall not establish a religion

Government shall not interfere with individuals
religious practices

Essentially: government can neither promote nor

destroy religion

Making Law
First Amendment (cont.)
Freedom of Religion (cont.)
Establishment Clause: wall of separation between
church and state (Everson v. Board of Education 1974)
Government can be involved in religion if:
1.
2.
3.

Statute must have secular purpose

Primary purpose of the statute must be neither pro nor anti
religion
The statute must not foster excessive government entanglement
with religion (Lemon v. Kurtzman 1971)

Making Law
First Amendment (cont.)
Freedom of Speech
Right to say things which anger others (including hate
speech)
Includes verbal, written, and certain physical acts (a.k.a.
symbolic speech or expressive conduct)
Signs
Picketing
Burning of the American flag

Making Law
First Amendment (cont.)
Freedom of Speech (cont.)
Government can regulate obscenity
Government can regulate speech likely to
provoke violence
Commercial speech may be regulated more than
political speech

Making Law
Second Amendment
A well-regulated Militia, being necessary
to the security of a free State,the right
of the people to keep and bear Arms,
shall not be infringed.

Making Law
Second Amendment (cont.)
Intended to protect private citizens and groups of
citizens (militias) to protect themselves from
oppression by the federal government

Making Law
Third Amendment
No Soldier shall, in time of peace be
quartered in any house, without the
consent of the Owner, nor in time of
war, but in a manner to be prescribed
by law.

Making Law
Fourth Amendment
The right of the people to be secure in their
persons, houses, papers, and effects,
against unreasonable searches and seizures,
shall not be violated, and no Warrants
shall issue, but upon probable cause,
supported by Oath or affirmation, and
particularly describing the place to be
searched, and the persons or things to be
seized.

Making Law
Fourth Amendment (cont.)

Stands most directly between the individual and the

police
In response to British practice of general warrants
Fourth Amendment was an effort to limit the ability of
police to interfere in private citizens lives
Required a reasonable amount of evidence (probable cause)

Does not preclude all searches and seizures, only those

which are unreasonable:
Begs the question: what is reasonable?

Making Law
Fifth Amendment
No person shall be held to answer for a capital, or
otherwise infamous crime,unless presentment or
indictment of a Grand Jury, except in cases arising
in the land or naval forces, or in the Militia, when in
actual service in time of War or public danger; nor
shall any person be subject for the same offence to
be twice put in jeopardy of life or limb; nor shall be
compelled in any criminal
case to be a witness against himself, nor be
deprived of life, liberty, or property, without due
process of law; nor shall private property be taken
for public use, without just compensation.

Making Law
Fifth Amendment (cont.)
Rights associated with criminal trials, includes:
Indictment by grand jury
Freedom from double jeopardy
Right to due process and just compensation
Privilege against self-incrimination

Making Law
Fifth Amendment (cont.)
Grand jury
A group of citizens who listen to a case
presented by a prosecutor
This is done in order to determine whether there
is sufficient evidence to try the defendant
Used to protect individuals from being tried
without some proof of guilt

Making Law
Fifth Amendment (cont.)
Grand Jury (cont.)
Issue indictments
A document formally charging a defendant with a
crime

This right does not apply to state trials

Hurtado v. California (1884)
May use a prosecutorial Information
Several states require Grand Jury indictments

Making Law
Fifth Amendment (cont.)
Double Jeopardy
Means that a jurisdiction may not:
1.
2.
3.

Prosecute someone again for the same crime after the

person has been acquitted
Prosecute someone again for the same crime after the
person has been convicted
Punish someone twice for the same offense

Making Law
Fifth Amendment (cont.)
Double Jeopardy (cont.)
Does not mean that:
1.
2.
3.

A state may not try someone again if the first trial

ends in a mistrial or a hung jury
A state cannot retry someone if their conviction was
overturned on appeal
A person cannot be tried under the doctrine of dual
sovereignty

Making Law
Fifth Amendment (cont.)
Self-incrimination (protection from compelled
testimonial communications)
A defendant can refuse to speak to police about
charged crime
Can refuse to speak at trial
Prosecution cannot comment on defendants
refusal to speak (Griffin v. California 1965)
Does not include
Blood samples, fingerprints, or line-up presence

Making Law
Fifth Amendment (cont.)
Due Process of Law
State must follow certain procedures
Designed to protect individual rights
Whenever the deprivation of liberty or property
is in question

Making Law
Fifth Amendment (cont.)
The Taking Clause
Eminent domain the seizing of private
property for public use
Kelo v. City of New London (2005)

Making Law
Sixth Amendment
In all criminal prosecutions, the accused shall
enjoy the right to a speedy and public trial,
by an impartial jury of the State and district
wherein the crime shall have been committed,
which district shall have been previously
ascertained by law, and to be informed of the
nature and cause of the accusation; to be
confronted with the witnesses against him; to
have compulsory process for obtaining
witnesses in his favor, and to have the
Assistance of Counsel for his defence.

Making Law
Sixth Amendment (cont.)
Associated with criminal trial, and includes:
Right to a speedy trial
Right to a public trial
Right to a trial by an impartial jury
Right to a notice of charges against oneself
Right to representation by counsel
Right to confront witnesses against oneself

Making Law
Sixth Amendment (cont.)
Right to a Speedy Trial
Defendant must be brought to trial without
unnecessary delay (Barker v. Wingo 1972)
Speedy is determined on an ad hoc balancing
basis, in which the conduct of the prosecution and
that of the defendant are weighed
Speedy Trial Act of 1974 set the time limit at 100
days for federal cases, with significant wiggle
room

Making Law
Sixth Amendment (cont.)
Right to a public trial and right to a notice of charges
Originated in traditional Anglo-Saxon mistrust of
government secrecy
Right to a public trial means that defendants can
have public attend the trial if they wish
The right to notice of charges means that
prosecution must tell the defendant prior to trial
what they are accused of so they can prepare
defense

Making Law
Sixth Amendment (cont.)
Right to trial by an impartial jury
The jury must be selected from the community
in which the crime occurred
Among individuals who are not predisposed as
to the guilt or innocence of the defendant

Making Law
Sixth Amendment (cont.)
Assistance of Counsel
At any proceeding deemed to be a critical stage
preliminary hearing
arraignment
trial
appeal

Indigent persons must be provided a lawyer at

states expense (possible incarceration 6mos+)
Includes the right to effective counsel

Making Law
Seventh Amendment

In Suits at common law, where the

value in controversy shall exceed
twenty dollars, the right of trial by
jury shall be preserved, and no fact
tried by a jury, shall be otherwise
re-examined in any Court of the
United States, than according
to the rules of the common law.

Making Law
Eighth Amendment

Excessive bail shall not be required,

nor excessive fines imposed, nor
cruel and unusual punishments
inflicted.

Making Law
Eighth Amendment (cont.)
Excessive bail
No right to bail
Bail must not be set higher than necessary to
ensure the presence of the defendant at trial
(Stack v. Boyle 1951)
Persons considered a threat to society can be
denied bail (United States v. Salerno 1987)

Making Law
Eighth Amendment (cont.)
Cruel and Unusual Punishment
Prohibits torture
Prohibits punishment disproportionate to the
offense
Does not prohibit death penalty

Making Law
Ninth Amendment

The enumeration in the Constitution,

of certain rights, shall not be
construed to deny or disparage
others retained by the people.

Making Law
Ninth Amendment (cont.)
Codifies the concept of natural law/rights
Includes such things at the right to privacy
(Griswold v. Connecticut 1965)

Making Law
Tenth Amendment

The powers not delegated to the

United States by the Constitution,
nor prohibited by it to the States,
are reserved to the States
respectively, or to the people.

Making Law
Other Amendments
Reconstruction Amendments
Passed shortly after Civil War
intended to protect the recently freed slaves from
abuse
Thirteenth, Fourteenth, and Fifteenth Amendents
Now used to protect all citizens from state
actions which impinge on constitutional rights

Making Law
Thirteenth Amendment

Neither slavery nor involuntary

servitude, except as a punishment
for crime whereof the party shall
have been duly convicted, shallbexist
within the United States, or any
place subject to their jurisdiction.
Congress shall have power to enforce
this article by appropriate legislation.

Making Law
Thirteenth Amendment (cont.)
Prohibits slavery
Used since to uphold civil rights legislation
Outlaws badges of slavery or practices
intended to keep blacks at lower social and
economic levels than whites

Making Law
Fourteenth Amendment
All persons born or naturalized in the United
States, and subject to the jurisdiction thereof,
are citizens of the United States and of the
State wherein they reside. No State shall
make or enforce any law which shall abridge
the privileges or immunities of citizens of the
United States; nor shall any State deprive any
person
of life, liberty, or property,
without due process of law; nor deny to any
person within its jurisdiction the equal
protection of the laws.

Making Law
Fourteenth Amendment (cont.)
Forbids states from mistreating citizens
States cannot deny citizens due process of law or
equal protection
Due process clause: incorporates many of the
provisions of the Bill of Rights, making them
applicable to states
Equal protection clause: bans states from making
arbitrary and unreasonable distinctions between
people

Making Law
Fourteenth Amendment (cont.)
Suspect Classification
Based sans reason or on race or gender
Race and gender are suspect classifications
Age is not a suspect classification if:
state can demonstrate an interest in the health
and safety of minors
and there is no history of invidious
discrimiation against minors

Making Law
Standard of Review
Not all rights enjoy equal privilege
Fundamental rights are essential to the concept
of ordered liberty (Palko v. Connecticut 1937)
Depending on whether or not a suspect
classification or fundamental right is involved,
rights are also treated differently
Only race and religion are consistently
considered suspect classifications (Tribe 1988)

Making Law
Standard of Review (cont.)
Strict scrutiny review means that states may not
enact laws that abridge a fundamental right
unless:
1. It has a compelling interest in doing so
2. The law is narrowly tailored so that the right
is not abridged more than necessary
Strict scrutiny looks at the purpose and effect of
the law rather than merely accepting legislative
claims of validity

Making Law
Standard of Review (cont.)
Intermediate scrutiny: Quasi-suspect
classifications such as gender and legitimacy
Rational basis test: used when there is no
fundamental right or suspect classification in
question
It states that laws can be passed that impact a
right or class so long as there is rationale behind
doing so

Making Law
Strict Scrutiny Test: Is the law necessary
to achieve compelling governmental
purpose? Burden on government
Fundamental Right Involved (privacy,
travel, voting, First Amendment)
Suspect Class Involved (race, religion,
national origin)

Making Law
Intermediate Scrutiny Test: Is the law
substantially related to an important
government purpose? Burden on
government
Quasi-Suspect Class Involved (gender,
legitimacy)

Making Law
Rational Basis Test: Is the law rationally
related to a legitimate government purpose?
Burden on laws challenger
No Suspect or Quasi-Suspect Class and no
Fundamental Right Involved

Making Law
Incorporation of the Bill of Rights (Fourteenth)
Barron v. Baltimore 1833 stated that the Bill of
Rights applied only to federal government
1868, passage of Fourteenth Amendment to
protect recently freed slaves from Southern
abuse
privileges and immunities, due process, and equal
protection clauses protected inviduals from state
governments
originally applied only to freed slaves

Making Law
Incorporation of the Bill of Rights (Fourteenth)
(cont.)
During latter half of nineteenth century, courts
used incorporation to preclude state economic
regulation
During the twentieth century, courts began using
the fourteenth amendment to protect individuals

Making Law
Incorporation
Incorporation refers to the interpretation of the
due process clause of the Fourteenth
Amendment in such a way as to prohibit states
from abridging certain civil rights
Four schools of thought:
total incorporation
total incorporation plus
Fundamental rights/ordered liberty
selective incorporation

Making Law
Total Incorporation
The entire Bill of Rights is applicable to state
governments
Not very popular position
*Justice Hugo Black

Making Law
Total Incorporation Plus
The entire Bill of Rights and unspecified rights
are all applicable to state governments
The Bill of Rights, when examined together,
create other individual rights
*Justice William Douglas

Making Law
Fundamental Rights/Ordered Liberty
No necessary relationship between the due
process clause of fourteenth amendment and the
Bill of Rights
Due process clause has an independent meaning
which prohibits states from violating rights
Justices must consider the totality of
circumstances in each case in order to determine
what rights are fundamental
*Justice Felix Frankfurter

Making Law
Selective Incorporation
Most prominent in the courts
Combines aspects of total incorporation and
fundamental rights
Favors a peacemeal, gradual, and selective
method of incorporation
Has led to virtually every right in the Bill of
Rights being incorporated into the due process
clause except the rights to grand jury
indictments and protection of excessive bail
*Justice William Brennan

Making Law
Summary of Incorporation Theories
Total Incorporation Total Incorporation Plus
Intent: To make all
provisions of the
Bill of Rights
applicable to the
states
Justification: Due
process clause of
the 14th
Amendment

Intent: To protect rights

enumerated in the Bill of
Rights plus certain
unenumerated rights

Selective
Incorporation

Intent: To
incorporate
provisions of the Bill
of Rights in a careful
and discriminative
Justification: The totality way
of the rights in the Bill of Justification: Only
fundamental rights
Rights created a
should be
penumbra over the law
incorporated; nonfundamental rights
should be a state
concern

Making Law
Judicial Review
The power of the court to examine a law and
determine its constitutionality
Not specifically mentioned in the Constitution
It is judge-made law - the result of Marbury v.
Madison (1803)

Making Law
The Process of Amending the Constitution
Only way to change the constitution or overrule a
Supreme Court decision
Two ways:
2/3 of both houses must pass a resolution calling for an
amendment, and then this amendment must be ratified
by 3/4 of all states within seven years
2/3 of the states must call for a convention at which an
amendment is proposed
All 27 amendments have been passed via the first
process

Making Law
The Process of Amending the Constitution
Eleventh AmendmentIn response to Chisholm v.
Georgia (1793)the Supreme Courts first constitutional
decision
At issue was whether or not the State of Georgia was subject to the
jurisdiction of the United States Supreme Court