Chapter 2 - Social Control, Comparative Courts, and the Development of the U.S. Judicial System

Abstract

All societies must create and maintain solidarity or social order, which is a society’s ability to operate in predictable patterns. Social order depends the control of the population. Social control is any concerted effort or social process that constrains and directs the conduct of people by inducing conformity and preventing non-conformity. Norms are cultural rules that constrain our behavior and guide us toward particular behavior. Primitive societies relied entirely on informal social control and had no government, police, courts, or prisons. Traditional authority and informal social control preserve norms through informal sanctions, or responses to a violation of a norm by people with no particular legal authority to regulate that behavior. Empires introduced written laws, formal social control, and formal sanctions. Formal social control depends on formal sanctions, or responses to a violation of a codified rule by an agent of an official organization designated to enforce that rule. This was the beginning of social order achieved through state power. The modern nation-state is important to the development of the court system because of the degree to which law regulated the conduct of people and governments. New laws increased the number of justifications for the government to punish. The legal system of the nation-state increasingly became an apparatus of power and domination. Common law emanates from judges and from early English systems. It is still partially practiced in many of England’s former colonies. The distinguishing elements of common-law courts are judicial law and precedent. Civil-law systems remain true to laws based on codes written by governing bodies. Religion-based court systems add a religious component to the elements of common-law precedent and civil-law statutes. American Indian tribal courts rely on oral traditions. These courts try to mediate reconciliation between offenders and victims. Early U.S. politicians turned to the courts to balance the protection of rights and maintenance of social control. They adjudicated accusations of wrongdoing and issued punishments for people who violated laws, but also forced the agents of the state to follow procedural rules. The U.S. court system is grounded in four constitutional provisions: Article III, Article IV, Article VI, and the Tenth Amendment. Article III created the federal courts as an independent branch of the government and broadly outlined their jurisdiction and limitations. Article IV, Article VI, and the Tenth Amendment gave powers to states and described their relationship with the federal government. Explain why the Industrial Revolution led to significant changes in the U.S. courts. The Industrial Revolution shifted the United States from agriculture to manufacturing. This economic shift required more workers and a greater concentration of workers to operate the factories. The pressure these changes placed on urban criminal courts generated growth in urban state courts and federal courts. Analyze bureaucratization and professionalization and explain how they altered the U.S. courts. The bureaucracy, an organization designed for efficiency, became the fundamental system of social organization for the criminal justice system. Bureaucratization is the process of a system becoming more bureaucratic. To maintain this standardization, bureaucracies rely on professionalization, or the professional training and certification of workers. Professionalization eventually eliminated self-taught lawyers and judges. Receiving professional training and working within a bureaucracy creates greater standardization in decision-making and legal actions. The due-process revolution from the 1950s to the early 1970s rapidly expanded due-process protection for protestors, criminal defendants, minorities, and others. In most cases, individual rights were protected from the state’s power.