LS 308 Unit 2 Assignment

LS 308

When evaluating the current state of the legal system, several factors must be taken into consideration. These factors include: assumptions of law, functions, dysfunctions, and the definitions of law. Depending on how one views these factors, helps shape their views on the state of the legal system. In this assignment, these factors will be examined and discussed, along with how they shape our opinion of the judicial system.

ASSUMPTIONS OF LAW

Assumption of law is the shared belief between law and social scholars that helps them have a better understanding of how the field is defined. While there are four major points of the assumption of law, the most important would be that the legal system is not autonomous. This means that the legal system is affected by many different variables, such as culture and politics. (Barkan, 2009) From the perspective of the public, this could be the safest assumption to make about the legal system, because it has the most influence. Having the knowledge that the legal system changes according to society helps the public have a better understanding of what influences the decisions being made in the judicial system. Without having this assumption, it would be a consensus that the legal system does not change and stay updated to society’s beliefs. A great example of this assumption would be the changes that were seen in the 1960’s regarding civil rights. Since the legal system is not autonomous, it adapted to these needs and produced legislation that made it a crime to discriminate against a certain group of people. This country would most certainly not be the same if this assumption was not true. Another thing that this assumption provides is that people feel like their beliefs are valued. This influences their opinion on the legal system by letting them know that they do matter.

FUNCTIONS AND DYSFUNCTIONS

One thing that most individuals can agree on about the legal system is that it is not perfect by any means. To have a better understand why this could be the popular opinion, one must understand the functions and dysfunctions of the legal system. There are numerous functions and dysfunctions that could change an individual’s opinion on this subject. Two of the biggest and most important functions of the legal system are the social control function and the preservation of individual freedom. According to Barkan, social control is the structure that helps maintain social order. (2009) Without this function of the law, this country would be a lawless land, like the old west days. The structure of this function helps prevent this because it provides rules and punishment for those who disobey. While this function’s main purpose is to keep society in order, it also provides guidelines in which we live under every day. Even though there will always be crimes being committed by criminals, the average person knowing that there are consequences for such actions, is more likely to obey the law.

The other function that will be discussed is the preservation of individual freedom. This function is unique to the United States because of the freedom that is given to every individual. These rights to individual freedom are persevered through fundamentals rights that located in the Constitution and the Bill of Rights. Also, in upholding theses guaranteed rights, the Supreme Court has decided, in many cases, that these shall not be infringed upon by anybody, especially the federal government. Another key element of this function is the development of the term rule of law. “More formally means that no one in a democracy, no matter how wealthy or powerful the individual may be, is above the law.” (Barkan, 2009) This function helps shape the opinion of the legal system because it allows individuals to know that they will be safe from legal repercussions if they are acting within their individual rights. The First Amendment right to freedom of speech is a great example of this. One might be a bit more apprehensive to share their views or opinions if they are unaware of this right.

While these functions are positive highlights of the legal system, there are also some dysfunctions that can really hinder individuals as well. The two of these that will be discussed are that it may create inequality and that it may complicate issues rather than help. (Barkan, 2009) The first of these is something that is more prevalent today than it has ever been and is one of the biggest factors in society’s opinion of the legal system. One reason this is the case is because of how the legal system works and how money influences everything. Many have the opinion that if an individual is wealthy and of a certain social class, that they are given benefits, as opposed to those who are considered to live in poverty. An example of this is how the bail system works in the legal proceedings. Also, this shown in the attorneys representing the defendant. An attorney who charges a significant amount of money for legal representation is going to have an upper hand over a public defender.

The other dysfunction that will be discussed is that the legal system may complicate issues rather than help. While there are many functions of the law that are established to help the situation, these can also turn the situation into one where more harm than good is done. Also, when examining this dysfunction, it is important to view it outside the courthouse as well. This means considering the rules and regulations that are set by agencies or legislation. A good bit of these could be viewed as obstacles one may encounter when trying to achieve their goals. (Barkan, 2009) A good example of this would be rules that are enforced by the Environmental Protection Agency. The opinion of those not affected by these rules may be positive, but to those that are affected, it may be negative, because of the impact it has on their respective business.

DEFINITIONS OF LAW

While all of this before mentioned information is important in evaluating the legal system, how one defines law is as equally important. Two of these will be discussed and those are Austin’s definition that law is the “command of a sovereign” and Black’s view that law is “governmental social control.” (Barkan, 2009) If one was to define the law according to Austin, they would believe that there was nothing outside of the command of the nation they resided in. While this definition was influential, it also came with some criticism, this being based on three main points. These are that this definition limits the power of a democracy, that the sovereignty is not subject to its own laws, and it fails to recognize that these commands can be unfair and unjust. This definition of law could be impactful on one’s opinion because it could limit an individual’s personal rights.

Black’s definition of law, that it is “governmental social control,” is like Austin’s definition in that what is considered law and what is rules. Under Black’s view laws are rules that have been enforced by the federal government and rules that have not been enforced are not laws. This definition would help shape one’s opinion because of this view. They may not committee crimes, per say, but they would not obey the rules that are considered customs.

References

Barkan, E. S. (2009) Law and Society an Introduction. Retrieved from https://purdueuniversityglobal.vitalsource.com/#/books/9781269325561/cfi/6/2!/4/2@0:12.5