Individual Rights vis-à-vis Social Order
Individual rights pertain to the liberties and freedoms embraced in the human rights of every person. These rights are validated, confirmed and guaranteed by the Bill of Rights and the Constitutional amendments. These rights include the freedom to practice (or not) religion, freedom of speech, freedom of the press, freedom of assembly, freedom of petition, right against self-incrimination, right against self-incrimination, right to due process, and other rights granted in criminal proceedings (US Constitution). In democracies, such as the United States, individual rights play a significant role in society. Social order, on the other hand, refers to the system of organization in place that allows a community to live under a safe environment and in an orderly manner. While individual rights underscore respect for every person as a human being, social order takes into consideration the common welfare. The goal of social order is the common welfare, which is achieved by informal and formal sanctions. Informal sanctions are those enforced through the institutions of society, such as the family, the school and religion. Thus, taking another person’s property without authority from its owner is bad and immoral. On the other hand, formal sanctions are rules established by society that must be obeyed; otherwise, the violator is punished. Such sanctions are enforced through laws. Thus, stealing another person’s things without permission is punishable under the law on theft.
The divergent goals of these two sides necessarily imply conflict at some point. Individual rights are necessarily self-centered, while social order can potentially impinge on individual rights. This conflict creates a tension in the American legal system because it is compelled to undertake a delicate balancing act and fully weigh each side. It must then decide which side – individual right, on one hand, and common welfare, on the other - must be given eminence in each and every case. In some cases, individual freedoms must be limited and regulated to prevent injury and harm to society as a whole. For example, after the 9 /11 attacks, the government imposed increased restrictions in airports that tended to impinge on civil liberties, such as increased security screening and prohibition against certain items during travel (Atkins 2011, p. 13). However, giving too much importance to social order at the expense of individual rights may border on tyranny and erode the confidence repose by the people on the government. Imposing too much order for its own sake is said to result in disorder because it necessarily results in the shift away from democratic ideals and into the territory of a police state (Gaines & Kappeler 2011, p. 3).
One form of social control is gossip, which is an informal type of social control. Gossip acts as an informal control because it serves as a verbal cue that can pressure, and thus, influence, the behavior of a person who is the subject of the gossip or a potential subject of gossip. The First Amendment ensures that gossip will not be or cannot be outlawed. This Amendment states:
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.
The relevant provision in the above Amendment that that serves as protection to the social control of gossip is the freedom of speech clause. This clause offers the most protection to the social control of gossip because it guarantees that it will continue to be tolerated unless it falls within the scope of defamation. Under the law, defamation, which may be oral or written, is the dissemination of false statements of facts about a person that causes damage to that person. The three elements of the crime, therefore, are false statement of facts, publication, whether in writing or orally, and damage (Siegel 2008, p. 98). In other words, so long as the disseminated information is true and not a lie, it cannot fall within the scope of defamation. Gossip can escape from the defamation law, if the disseminated information is true and not malicious.
The freedom of speech under the First Amendment does not only serve as an instrument to secure the freedoms and liberties of individuals, but it also provides a framework that facilitates government and citizen interaction. The reason for this is that this freedom guarantees that the citizens are at liberty to express their opinions, not only whether the behavior or conduct of other individuals, natural or corporate, are socially acceptable, but whether the government is properly doing its job. In this sense, freedom of speech provides a means for the government to know and understand public opinion and, provide redress for its mistakes as well as correct policies that are erroneous. Freedom of speech, thus, benefits not only individuals, but the government in the long run, because it limits the potential of uprising or unrest.
Effectuating Social Change through Judicial Activism
Emerging legal theories are promoting for a more dynamic role of the law in effectuating changes within society. Under these theories, the courts are seen as catalyst to such changes that requires them to diverge from their usual role in accordance to the principle of classical jurisprudence and partially impinged into the function of the legislature. Classical jurisprudence abides by the “strict interpretation and application of the law” (Champion et al, 2012, p. 20), but these new perspectives endorse the incorporation of a more active role for the courts that responds to changing times and their realities. Sociological jurisprudence, for example, wants the courts to help establish social or public policies that are reflective of current social conditions. On the other hand, the perspective of legal realism subscribes to the idea “that law should be the means to a social end” (Champion et al, 2012, p. 30), while critical legal studies believe that the law should be characterized by subjectivity, rather than objectivity. It should also cease to exist for the purpose of preserving power relations in society, a direction that starts by changing the way law students are being taught in school from skill-centric approach to a theoretical and analytical one.
The aforementioned legal perspectives, therefore, promote judicial activism – a term that refers to the practice of courts to issue decisions that go beyond strict application of laws and into making laws in responding to issues they are deliberating. Judicial activism has helped shaped American society by instituting changes and social policies that were not widely accepted. History has shown that judicial activism instituted changes and helped shaped American society in the areas of civil rights, individual rights protection, political fairness and public morality. Judicial activism is strongly associated with the Warren Court that was in office from 1954 to 1969, headed by Chief Justice Earl Warren. The case of Brown v. Board of Education, 347 U.S. 483 (1954), which was decided by the Court ended segregation in the country when it held that state laws that mandated segregation of the black and white races in public places are unconstitutional. The case overturned the concept of ‘separate but equal’ established in the earlier case of Plessy v. Ferguson, 163 U.S. 537 (1896). Eight years later, the Court departed from a 1946 ruling that precluded federal courts from interfering with the apportionment of electoral districts by states by ordering proportionality in such apportionment to ensure equality in the counting of votes. This was in the case of Baker v. Carr, 369 U.S. 186 (1962). The Warren Court also upheld personal privacy for the first time in another landmark case. In Grimwald v. Connecticut 381 U.S. 479 (1965), it held that couples have the right to buy and use contraceptives if they want. Last but not the least, Miranda v. Arizona 384 U.S. 436 (1966) established the so-called Miranda warning – a set of questions that must be posed to a person under custodial investigation to make the statements made by that person during questioning admissible during trial (Chapman 2010, pp. 599-600).
As can be seen from the foregoing discussion, the Warren Court had, through judicial activism, helped forged changes in society. By responding to the changing times and realities, the Court elevated and modernized American society into a strong democracy that it is today.
Importance of Substantive and Procedural Law
Substantive and procedural laws are the broad categorization of laws. Both these laws co-exist and are important to each other’s existence and enforcement. Substantive law refers to the body of law that “creates, defines, and regulates rights” (Walston-Dunham 2008, p. 153). Thus, the rights and freedoms embodied in the Constitution, state laws, and local laws, as well as the provisions that limit the government’s power are examples of substantive law. These laws guide the conduct of individuals and society, in general, or those that distinguish between right and wrong embraced in this type of law. Procedural law is differentiated from substantive law by its nature and application. Thus, while substantive is concerned with the rights of persons, procedural law deals with processes, in particular, the processes with which substantive rights are enforced. An example of this is the procedure followed in presenting evidence during trial, rules followed in civil or criminal procedure and rules followed when cases are appealed. Procedural law refers to the body of law that establishes the manner with which rights are enforced or violation of rights is redressed (Walston-Dunham 2008, p. 153).
Both substantive and procedural laws are important in upholding individual rights and social order in several ways. First, substantive law can give clarity and certainty to the legal system by defining and establishing individual rights clearly and concretely. Such clarity generates certainty and a sense of quieting with respect to the extent and limit of one’s rights vis-à-vis other people and the government. For example, the Bill of Rights guarantees the right to be secure in one’s person, house and effects against unreasonable search and seizure. This right creates a sense of security against unwarranted disturbances from the outside world and in general, creates social order. Thus, a person understands that he or she cannot intrude into the property or home of another without the owner’s authority, and neither can the other person intrude into the sanctity of his home without his authority. In short, it establishes a person’s place within society vis-à-vis others.
Secondly, procedural law must enforce individual rights consistently, which in turn, can promote social order. By enforcing individual rights, procedural law strengthens and validates individual rights. This further fortifies the sense of order in society because of the stability it creates. For example, the Bill of Rights guarantees the presumption of innocence to those who are accused. This right must be clearly reinforced by criminal procedural law, which is initiated when a person under custodial investigation must be informed of his rights by reciting to him the Miranda warning. The Miranda warning reinforces the right of presumption of innocence because a person taken into custody goes through due process that enables him/her to mount a defense to disprove the charges leveled against his/her person. The overall effect of such processes is the strengthening of social order because of the stability and peace it engenders.
Thirdly, both substantive and procedural laws can further strengthen the adversarial system - a key feature in a democratic judicial system - and sustain the delicate balance between respecting individual rights and maintaining order in the court system. Thus, while substantive law establishes that murder is a felony and the guilty party must be punished by imprisonment or death, in some jurisdictions, the state can do so only after it has brought a case against the suspect in court and present evidence of such guilt with proof beyond reasonable doubt. Procedural law requires also that the accused is given the opportunity to present contrary evidence that disproves those presented by the state. This set-up ensures fairness and justice and generates social order. Both substantive and procedural laws are, therefore, important to bring about this state of balance that fosters confidence in the country’s judicial system.
Criminal, Civil and Administrative Law
Criminal, civil and administrative laws are major classification of law. Civil law is rooted in old Roman law, and refers to the type of law applied in the settlement of conflicts between private citizens. It is differentiated from common law in that it is codified and is, thus, reduced to writing. It is triggered when a private party brings an action against another private party, natural or juridical. In civil cases, the losing party or party found to be at fault is usually assessed damages in monetary figures. To prove a case in civil law, the burden of proof is preponderance of evidence – or the weight of evidence that can make a reasonable person conclude that the respondent has likely committed the act complained of. Criminal law, on the other hand, refers to the type of law that is concerned with the overall goal of peace and order in the community. This body of law establishes the acts and conduct that are prohibited because they disrupt social order. Since peace and order is the primary obligation of the state, it is deemed the injured party when such laws are breached and is, thus, the plaintiff in criminal cases. Unlike in a civil case, the penalty in criminal case may include deprivation of liberty, which is the reason why the burden of proof required in such a case is proof beyond reasonable doubt. Finally, administrative law is a body of rules and regulations developed and implemented by the various administrative agencies. It may refer to internal administrative law, in which case, it governs only the internal workings of administrative agencies. It can also refer to external administrative law, which regulates and controls the various activities in various aspects of human activities. The regulatory powers of governmental agencies are, however, limited and must be within the confines of the relevant Constitutional provisions (Rabin et al pp. 639-640). In the US, more than fifty regulatory bodies have the power to issue rules and orders that regulate human conduct. The Food and Drug Administration or FDA, for example, issues regulations on the manufacture of food and drug and subject these to approval or disapproval (Champion et al, 2012, p. 19).
The intersection of criminal law and administrative law or civil law and administrative process in the litigation process can engender complexity. An intersection between administrative law and criminal law occurs when the administrative process is triggered by a complaint and the complained act also constitutes a crime. The jurisdiction and scope of the administrative body is different from that of the criminal courts. Administrative proceedings are not criminal in nature even if it results in disciplinary action because the goal is to protect the public and not to punish the violator. Thus, many of the rules found in criminal procedure are not applicable in an administrative hearing. An example of this is the burden of proof, which in criminal proceedings must be proof beyond reasonable doubt, but in administrative cases is simply convincing evidence or preponderance of evidence. Although there is no bar to a simultaneous holding of proceedings, an administrative action is generally abated pending the results in the criminal case if both cases stem from the same acts (Silver v. McCamey (1955) 221 F.2d 873 [95 App.D.C. 318]).
All the foregoing three types of law can strengthen individual rights and social order. First, these laws must clearly establish conduct and behavior that are injurious and disrupting to society and, therefore, punishable by either monetary award or deprivation of liberty, license or authority, whatever the case may be. The effect of clear criminal, civil and administrative laws is sustained and strengthened individual rights from harmful conduct of others. This generates peace and stability in the system, which are important in the maintenance of social order. Second, these laws must evolve with the needs of the times. They must be dynamic rather than static and take into account the realities of the times. A law that no longer serves its purpose is a bad law and, therefore, needs to be overturned. Responsive and up-to-date laws validate individual rights because they give the protection needed by individuals. A society satisfied by the protection extended by law is easier to govern, which promotes social order.
The Three Functions of Law
Law plays a very important role in modern civilization. All its three major functions, namely, social control, dispute resolution, and social change, are all geared towards the maintenance of stability of society and the community. Social control refers to the ability of law to regulate the behavior of the members of society. Dispute resolution, on the other hand, means that law can be used to settle differences or conflicts arising between members of society. Lastly, social change implies that law plays a role in altering behavior or practices of people.
Law fosters individual rights and at the same time social order because while it reaffirms the fundamental rights and civil liberties of every person, it also curbs the excesses in the exercise of those rights at the same time. For example, the law guarantees that every person shall enjoy freedom of speech. This freedom has been the subject of many cases in which the US Supreme Court has consistently upheld its supremacy. However, the unfettered exercise of that freedom can also harm the public and sow chaos within the community. Thus, the law steps in to control the exercise of such freedom to prevent harm and injury to others. Thus, when a person sows unnecessary panic by shouting “fire!” in a crowded public place where none exists, he can be penalized under the inducing panic law of a state (US Legal 2014).
Role of Social Control in the Development of Modern American Law
Law is essentially an instrument of social control. Even Plato saw it as a primary form of social control, and Sir William Blackstone defined law as “a rule of civil conduct prescribed by the supreme power in a state, commanding what is right, and prohibiting what is wrong” (cited Gaines and Miller 2011, p. 99). Modern American law does not diverge from this. The roots of modern American law can be traced back to rules imposed by ancient societies to establish social order. An example of this is the Code of Hammurabi, the first written law traceable to the Babylonian reign of King Hammurabi in 1792-1750. The Code established the retribution principle of law where crimes were punished as a means to seek reprisal for the wrong done. The retributive aspect of the law is still evident in modern American law although other principles have also seeped in. The Mosaic Code – an Israelite ancient law – where God agreed to protect the people in return for the latter’s promise to follow the Ten Commandments is also reflected in modern American law as can be seen primarily in the Criminal Code, which punishes m murder, theft, adultery and perjury. The Code of Justinian, which inspired English common law, was established in the 6th century by the Roman Empire greatly influenced modern American law. The Code, which prescribed social conduct, had, in fact, influenced many justice system of the world (Gaines and Miller 2011, p. 99). All of the above-mentioned codes and laws were established and created so that those in powers can maintain control over the subjects as well impose order in society. The modern American law, which is underpinned and influenced by these laws, therefore, developed with social control as an underlying factor.
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