Teaching Sociology of Law
Gary T. Marx | Back to Main Page
Professor Emeritus M.I.T
Note: The final exam below may be of interest to colleagues. Because life and the issues we study are so serious, we need to find ways to better enjoy what we do. Elsewhere, I have argued for the importance of having fun as one of 37 moral mandates for aspiring social scientists. Rather than the drudgery often associated with generating and grading exams, I found a way to enjoy that process by asking students in a beginning law and society class to evaluate an outrageous speech supposedly given at a law school graduation. For the first time in three decades of teaching, the students who had done their work thanked me for the final. Rather than directly asking about the course material, I asked students to critique a speech containing ideas that the course sought to disabuse them of, or at least have them critically reflect upon. This follows the logic of IQ test questions which ask, "what's wrong with this picture?" In writing the largely satirical final exam shown below, I began by listing the erroneous or debatable pop-culture ideas students often bring to class as fact. These ideas are received from television, film, talk shows and even many high school civics classes. As a teacher the challenge is to engage these beliefs with respect to their empirical, theoretical, logical, cross-cultural and moral adequacy, while also noting the complexity, value conflicts and ambiguity that may surround them. To be effective satire can't be too far from reality. I thus sprinkled the speech with material that was supported by readings and lectures.
The following speech was given by Alexandra Hamilton IV to the graduating class of the Jaw Bones Law School. Critically and comprehensively assess this speech in light of the course materials indicating where and why you agree, or disagree and how, if at all you would qualify or extend it. Judge it by reference to its' logic, empirical support and consistency with values you hold. Any thoughtful student could obviously write about this. Your response must be informed by reference to theorists, empirical research and comparative materials encountered in the course.
The law and its marble institutions are a majestic edifice that serves as the cornerstone of any society. The thin black and blue lines of the courts and police are all that stand between order and chaos. In American society the law emanates from tried and true principles which characterize civilized societies everywhere. The law represents the natural moral order of human beings as it is rooted in religion, biology and the hard lessons of historical evolution. Lincoln captured this well when he noted that "we hold these truths to be self-evident". The 10 Commandments are for all people and all time.
The law as we know it today represents a social contract. As Hobbes so clearly showed, individuals come together to form a society in order to be protected from each other. In so doing they agree to be subject to the law for the greater protection it offers. The law receives its legitimacy from being a consensual form rooted in modern rationality and transcending the will of the individual. This separates it from the traditional authority of pre-industrial and colonized societies. It is democratic in serving the best interests of the majority ("the greatest good for the greatest number"), while also protecting the rights of minorities. Our law hallows the most basic right in any society -the protection of private property and all that entails. As the problems of contemporary Chinese society suggest, economic and political liberty are inseparable. As both Karl Marx and the law and economics approach have found, the best criterion (both normatively and scientifically) by which to approach judicial decisions is the maximization of economic growth.
Our system is the fairest and most just the world has ever seen. Compare it to the unfairness of European systems in which the full weight of the state is directed against the powerless individual, or the feudal period when there were no rights at all. In emphasizing procedural justice we create respect for the law among its' subjects and its' enforcers and we insure that there will be substantive justice as well. The American system guarantees all men their day in court and the right to confront and challenge their accusers and the evidence. The warrant system requires that a strong evidentiary case be made before a judge, in order to cross sacred personal boundaries through searches, wire tapping and arrest. The Constitution guarantees the right to privacy. The Miranda ruling guarantees that any confession will be fairly and accurately obtained. If a person can't afford a lawyer the state will provide one. The discovery rule prevents the government from presenting surprise witnesses and hidden evidence. The lowliest of us has the right to bring a case against the most powerful (including the government and multi-national corporations) and to challenge their case against us. Our system of public judicial proceedings, along with the election of many judicial officials, brings maximum accountability. New information technologies applied to the judicial system such as public video and audio records of judicial activities and the televising of court proceedings enhance this.
The right to a trial by jury means that individuals will be fairly judged by their peers rather than a socially and culturally distant judge. To be sure, laws are not always perfect, but our system offers numerous means (e.g., through legislation, appeals or defenses such as necessity and entrapment, the exclusionary rule, integrity tests, executive clemency) for the identification and correction of mistakes. In addition technology is on our side — the polygraph and DNA make the truth available to all.
The law is like an elaborate mathematical problem in which, beginning with the basic assumptions and clarity of mind, it is possible to logically deduce the correct answer. Our system is fluid and dynamic, based as it is on reverence for the eternal principles of natural law and the precedents gifted us by earlier judges. If the law is to meet its promise and be legitimate we must adopt a strict constructionist view in which the intention of the legislators and/or the precedents of the common law are carefully read, not read into, or worse ignored, by judges seeking a new role as legislators. Any other view opens the gates to the snake farm of political interests in which mere power and mass attitudes, momentarily impassioned by the demagogic sophistry of lawyers and social movement leaders, are determinative. Unfortunately, some lawyers take advantage of procedural protections, free speech, the mass media and theatrics to undermine our justice system and cast doubt on the facts. Some seem to be in favor of the criminal, rather than justice. I am more than a little embarrassed by the several meanings of the term criminal attorney. However with fair-minded lawyers who are on the side of the law and who are held to a professional code of ethics and with careful investigative work by neutral professional police and inspectors, the facts will speak for themselves.
We must never permit fuzzy thinking and sentimentality to cloud our judgment and to dilute institutional goals. Of course compassion, mercy and helping people have their place in the family and church, but the first goal of the justice system must be justice tempered with efficiency.
To fairly enforce the law and insure equality there must be uniformity. That means that the creeping (or in recent decades galloping) discretion seen in the judicial system at all levels (and the related blind faith in authorities to decide what to do) must be stopped. Judicial behavior must be determined by clearly stated, rigidly applied rules. And there can be no exceptions! Only through the elimination of plea bargaining, the creation of more mandatory arrest and sentencing rules, and limits on liability can we insure legal equality. A justice system with discretion is a moral and empirical oxymoron and serves to undermine the central characteristic and contribution of modern bureaucracy —standardized procedures for treating cases equally, regardless of who or what they involve.
Questionable relations between police and informers, regulators and regulated industries, and above all guards and prisoners must never be tolerated. Anything less than full enforcement of the law brings discrimination (a justifiably destabilizing influence). To shy away from "zero tolerance policies" for the short term expediency of avoiding conflict, comes with a terrible long-term price. A little bit of corruption can no more remain a constant than can mountain snow dislodged by an earthquake fail to generate a thundering avalanche.
It is a simple law of social physics, if we want more justice and fewer violations, we need more and more aggressive law enforcement! That is why I advocate a doubling of the resources of our investigative and correctional agencies over the next decade. The proportion of funding for neutral and unbiased technologies must be significantly increased. In this time of fiscal restraint we must save money by becoming more efficient. We can do this by creating a more rationalized, professionalized and bureaucratically organized justice system. The private sector and the military must serve as models for this.
If we are to balance the scales of justice and have equality there must be greater attention to prevention. Law enforcement must more actively seek out infractions, rather than always responding after the fact or waiting for what citizens volunteer to report. This is particularly the case for white collar offenders who are unintentionally shielded by our current system.
The law educates by example. Strong sanctions applied with celerity, certainty and vigorous cercaria 1. after an infraction are effective. The enhanced enforcement I advocate must receive wide spread publicity regarding the dangers of wrong doing and the pain of punishment. We must sell respect for the law with the same mass media techniques that sell cigarettes. I advocate televising state executions for that purpose. We need more video-cam websites revealing the inside of prisons. The certainty of punishment, particularly to the extent that it involves harsh punishment and the isolation of male peasants (sic!) [editors note: the transcriber erred, the speaker said malfeasants] from civil society, strengthens the resolve of the law-abiding and serves to deter those who may have initially strayed.
- This non-existent word takes off from the legal term certiorari and was put in to see if any students would take the time to try to look up and question the term. A few always do, and not surprisingly, usually also do very well on the exam.
Gary T. Marx, Professor Emeritus from M.I.T., is an ambulant and ebullient scholar having most recently taught at the University of Washington, UC-Berkeley, and Northwestern. One of the advantages of being itinerant is that you never have to re-write the final – at least until you post it on the internet.
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