DeWitt S. Dykes Jr.
• African Americans and the Criminal Justice System
The attitude toward the legal treatment of African Americans before 1883 was one of ambivalence. An understanding of the treatment of African Americans during the period must begin in 1787 with the adoption of the U.S. Constitution. In addition, the U.S. Supreme Court’s treatment of African Americans during this period must be viewed in the context of the history and of the events that gave shape to it.
The United States began in 1776 with a declaration of universal equality. But that promise did not include people of color. The ringing testimony to equality in the Declaration of Independence had its limits. In short, America began with a contradiction that centered on race. The constitutional debates of the 1780s highlighted the nation’s contradictory, confusing positions on race questions. The country was founded on the principle of individual liberty, but that liberty did not extend to the African slaves and their progeny. The leading questions of the era were: Should the slaves be counted for purposes of representation? Should Congress be empowered to prohibit slavery and the slave trade? Should an escaped slave be “free” to live among the rest of society?
From its beginning, the United States was mired in a debate over the question of slavery. Southerners wanted slaves counted towards representation in the U.S. House of Representatives, while still insisting that slaves were property. This contradiction led to a compromise in which slaves counted as three-fifths of a person for representational purposes. However, this compromise indicated that the slavery issue would would not easily recede.
Even though the institution of human slavery vexed members of the Constitutional Convention, not once was the word itself used in the document submitted for ratification. The contradiction between the equality espoused by the Constitution and the reality of slavery that the Constitution tolerated would tear the country apart less than 100 years later.
The original Constitution also forbade the new federal government from abolishing the slave trade or otherwise affecting matters of race before the year 1808. Runaway slaves were referred to as “person[s] held to service or labour in one state ... escaping into another ....” This fugitive-slave clause (Article 4, section 2) sought to ensure that the slaveowners’ escaped “property,” would be returned when found. The purpose of these provisions was to ensure the political superiority of white Americans over the African slaves and their progeny. At the time of the Constitution’s framing, African slaves and their descendants were politically inferior to white people.
Even though the framers of the Constitution recognized the peculiar dilemma of racial discrimination, they decided that they could postpone a decision on the “race question.” The idea that matters of racial justice and racial equality could be put off was established. With conflicting constitutional antecedents, the Supreme Court has been enormously conflicted on racial matters. The Court takes its cases as it finds them, and cases on race have never been easily or calmly settled.
THE EARLY DAYS: PRIGG V. PENNSYLVANIA
Before the 1800s the Court had very few opportunities to render a decision directly on the question of slavery because it was an accepted institution and feature of American life. The law clearly recognized slaves as property and therefore subject to regulation as other real property might be. This regulation was often justified by citing the fugitive-slave clause of the Constitution. One of the few pre-Civil War cases to address the slavery question and state regulatory powers was Prigg v. Pennsylvania (41 US [16 Peters] 539, 1842).
Pennsylvania had enacted a statute prohibiting any person from removing blacks from the state by force or violence with the intention of detaining them as slaves. The Court explained that the fugitive-slave clause “contemplates the existence of a positive, unqualified right on the part of the owner of the slave, which no state law or regulation can in any way qualify, regulate, control, or restrain.” The statute was declared invalid with respect to an escaped slave because, in the words of the Court, “any state law which interrupts, limits, delays, or postpones the right of the owner to the immediate possession of the slave, and the immediate command of his service and labor, operates pro tanto, a discharge of the slave there-from.” The Court further held that the clause implicitly vested Congress with the power to assist owners in securing the return of escaped slaves, that Congress had exercised that power by enacting the Fugitive Slave Act of 1793, that this national power was exclusive, and that any state laws regulating the means by which slaves were to be delivered up were unconstitutional.
Prigg announced no landmark policy. It simply affirmed the social and political realities of its time. During the period 1790 to 1883, however, two major cases involving African Americans and the issues of race did reach the Supreme Court: Dred Scott v. Sandford (60 US [19 Howard] 393, 1857) and The Civil Rights Cases (109 US 18, 1883)—along with the relatively minor case Strauder v. West Virginia (100 US [10 Otto] 303, 1880). As a whole, they revealed the abiding ambivalence that consistently has characterized American race relations.
DRED SCOTT V. SANDFORD
The 1800s were consumed with sectional strife, primarily strife about race. In 1856 Dred Scott was decided. The case would be an impetus toward civil war. Few cases in American judicial history have achieved as much notoriety as Dred Scott. The case continues to symbolize the marginal status that African Americans have often held in the nation’s social and political order.
Dred Scott was the slave of a U.S. Army surgeon, John Emerson of Missouri. In 1834, Scott traveled with Emerson to live in Illinois, where slavery was prohibited. They later lived in the Wisconsin Territory, where slavery was prohibited by the Missouri Compromise. In 1838, Scott returned to Missouri with Emerson. Emerson later died there in 1843, and three years later Scott sued Emerson’s widow for his freedom.
Scott’s claim was based on the argument that his former residence in a free state and a free territory, made him a free man. A Missouri state circuit court ruled in Scott’s favor, but the Missouri Supreme Court later reversed that decision. Meanwhile, Scott had become legally regarded as the property of John F. A. Sandford of New York. Because Sandford did not live in Missouri, Scott’s lawyers were able to transfer the case to a federal court. The lower federal court ruled against Scott, and his lawyers appealed to the U.S. Supreme Court. By a 7–2 vote, the Supreme Court ruled that Scott could not bring a suit in federal court. The
decision was announced on March 6, 1857, two days after the inauguration of President James Buchanan. The Dred Scott decision declared that no African American, whether free or slave, could claim U.S. citizenship. It also held that Congress could not prohibit slavery in the U.S. territories. In his opinion, Chief Justice Roger Brooke Taney wrote that African Americans had “no rights which any white man was bound to respect.”
This decision—only the second in the nation’s history in which the Supreme Court declared an act of Congress unconstitutional—was a clear victory for the political interests that supported slavery. Southerners long had argued that neither Congress nor the territorial legislature had the power to exclude slavery from a territory. Only a state could exclude slavery, they maintained.
The ruling also aroused anger and resentment in the North and other parts of the country and launched the nation further along the course to civil war. It influenced the introduction and the adoption of the Fourteenth Amendment to the Constitution in 1868, which explicitly overruled Dred Scott, extended citizenship to former slaves, and sought to give them full civil rights.
Each justice in the majority wrote a separate opinion. Chief Justice Taney’s opinion, however, is most often cited because of its far-reaching implications for sectional crisis and for the view of the rights of African Americans that it announced. Speaking for the majority, Chief Justice Taney declared that Scott was not entitled to rights such as the right to vote or to sue in a federal court, because, as an African American, he was not a citizen of the United States. The Court did not dismiss the case after ruling on Scott’s citizenship. Because there was a growing national desire for a ruling on the constitutionality of such laws as the Missouri Compromise of 1820, the Taney Court seized the opportunity to express its views on both congressional power and the legal status of African Americans.
The Missouri Compromise had forbidden slavery in that part of the Louisiana Territory north of the latitude 36° 30′, except for Missouri. Instead of dismissing the suit, the Court discussed this issue as a part of its decision in Dred Scott. By the same 7–2 margin, it ruled that the Missouri Compromise, which had been repealed in 1854, was unconstitutional. Taney argued that because slaves were property, Congress could not forbid slavery in territories without violating a slaveowner’s right to own property under the Fifth Amendment. As for Scott’s temporary residence in the free state of Illinois, the majority ruled that Scott then had still been subject to Missouri law. Dred Scott was sold shortly afterward, and his new owner gave him his freedom two months after the decision.
The Dred Scott decision energized the newly created Republican Party, which had been formed to curb the expansion of slavery into the Western territories. The decision forced Democrat Stephen A. Douglas, an advocate of popular sovereignty to devise a system that would enable settlers to ban slavery in their jurisdictions. President Buchanan, the South, and a majority of the Supreme Court had hoped that the decision would end the anti-slavery agitation that consumed the country. Instead, the decision increased antislavery sentiment in the North, strengthened the Republican Party, and fed the sectional antagonisms that finally exploded into war in 1861.
STRAUDER V. WEST VIRGINIA AND THE CIVIL RIGHTS CASES
Between the time of the Civil War and the Civil Rights Cases, the only case to protect the rights of African Americans was Strauder v. West Virginia (1880). West Virginia permitted only “white male persons who are 21 years of age” to serve on juries in the state. This, of course, meant that it was impossible for African Americans to serve on a jury. The Supreme Court invalidated this provision as a violation of the Fourteenth Amendment’s guarantee of equal protection.
The Civil War, caused in part by Justice Taney’s decision in Dred Scott that Congress could not bar slavery in the territories, actually resulted in the destruction of slavery. Moreover, the war created a completely new balance of power between the national and the state governments. Federalism, unlike it had been understood prior to the Civil War, now would function with a totally new calculus in which the federal government was the dominant power.
The years following the Civil War produced the Thirteenth, Fourteenth, and Fifteenth Amendments to the Constitution. Their purposes were to emancipate and empower the former slaves. These three amendments are compelling evidence of the relationship between the federal and state governments. The text of the Fourteenth Amendment, overturning Dred Scott, emphasized the significance of this new relationship and the new power realignments.
U.S. citizenship was redefined as being protected by the national constitution, not as a byproduct of state citizenship. State citizenship was subordinate to national citizenship. Augmented by Congress’s enforcement powers, these amendments were the constitutional foundations that supported Reconstruction. A principal legislative result of this period was the passage of the Civil Rights Act of 1875. According to the statute, its purpose was “to protect all citizens in their civil and legal rights.” Even though couched in general terms, the statute was designed to aid recently emancipated slaves.
The 1870s became unique years for testing race relations in the United States. During this period there were no state laws requiring the separation of the races in places of public accommodation. Practices in particular establishments or particular jurisdictions were matters of local custom, individual choice, or personal preference. An earlier statute, the Civil Rights Act of 1866, and the ratification of the Fourteenth Amendment in 1868 had spawned cases throughout the country including suits for denying sleeper accommodations to African Americans on a Washington-to-New York train, for refusing to sell theater tickets to African Americans in Boston, for restricting African Americans to front platforms in Baltimore streetcars, and for barring African American women from the waiting rooms and parlor cars of railroads in Virginia, Illinois, and California. There also had been massive resistance on the part of whites to the social integration of the races.
Faced with these challenges, the Republican-controlled Congress enacted the Civil Rights Act of 1875. It invalidated all racially motivated interference with individuals’ use of “the accommodations, advantages, facilities, and privileges of inns, public conveyances and theatres” (109 US 9–10). In short, the statute sought to provide legislative specificity to the constitutional norms embodied in the Fourteenth Amendment.
The Civil Rights Cases decision resulted from the consolidation of several cases, including United States v. Singleton, United States v. Nichols, United States v. Ryan, United States v. Hamilton, and Robinson v. Memphis & Charleston Railroad. Five of the cases were criminal prosecutions that directly challenged the constitutionality of the 1875 statute. United States v. Singleton, involved the refusal of Samuel Singleton, doorkeeper of New York’s Grand Opera House, to honor the tickets of William R. Davis Jr. and his fiancée.
On November 22, 1879, the pair had attempted to see a matinee performance of Victor Hugo’s Ruy Blas. Davis, the business agent of the African American newspaper The Progressive-American, was obviously African American. His fiancée, however, had a light complexion and purchased the tickets earlier. When the couple returned for the performance, they were denied entrance because of Singleton’s race.
Stanley involved the refusal of hotelier, Murray Stanley, to serve a meal to Bird Gee, an African American in his Kansas hotel. Nichols involved the refusal of the Nichols House in Jefferson City, Missouri, to accept an African American as a guest. In Ryan, the doorkeeper at Maguire’s Theater in San Francisco denied an African American man entry to the dress circle at the theater. In Hamilton, the conductor of the Nashville, Chattanooga & St. Louis Railroad denied an African American access to the ladies’ car. Instead, she was relegated to a smoking car.
The sixth case Robinson v. Memphis & Charleston Railroad was not a criminal case. It involved travel on the Memphis & Charleston Railroad by a young African American woman, Mrs. Sallie Robinson, and her nephew, Joseph C. Robinson. Mr. Robinson was described as a young African American “of light complexion, light hair, and light blue eyes.” The train’s conductor attempted forcibly to refuse the two passengers entry to the first-class parlor car for which they had purchased tickets. The conductor mistook the pair for a white man and his paramour. The railroad conceded the constitutionality of the 1875 statute, but argued that it did not apply to the conductor’s actions. The trial judge ruled that motive was dispositive under the act. Thus, if the conductor believed Mrs. Robinson to be a prostitute, whether reasonable or not in that assumption, the exclusion was not based on race and the railroad was not liable. The jury found for the railroad and the Robinsons appealed.
The United States, represented before the Supreme Court by Solicitor General Samuel F. Phillips, argued that the act should be upheld in every case. In addition, the government’s brief discussed the history of American race relations and the genesis of the Civil War amendments and their statutory descendants. The government stressed particularly the importance of equal access to public accommodations. The solicitor general emphasized that this act was one of several enacted by “a Congress led by men who had fought in the Civil War and had framed the war amendments.” Implicit in the solicitor general’s position was the idea that Congress understood, as clearly as anyone could, that it was not sufficient to outlaw slavery and to declare equal protection to be the law of the land. Specific statutory protection was necessary to ensure that every vestige of slavery and every reminder of its stigma were eliminated from public life.
The government’s arguments, however, did not persuade the Court. It announced its decision on October 15, 1883. The Court ruled 8–1 against the United States. Justice Bradley wrote the opinion of the Court, which asserted two conclusions: the Fourteenth Amendment is prohibitory upon the states only, and the Thirteenth Amendment relates only to slavery and involuntary servitude.
Bradley maintained that the Fourteenth Amendment operated only as a prohibition and restriction against the states. Because the Civil Rights Act of 1875 sought to outlaw acts of private individuals, shopkeepers, and other businesses, it violated the constitution. This “state action” doctrine holds that because the government was not the actor in these cases, the Fourteenth Amendment did not empower Congress to outlaw these practices. Also, Bradley’s opinion held that, while Congress was empowered by the Thirteenth Amendment to eliminate slavery and all its vestiges, the denial of access to accommodations in commercial establishments, public conveyances, and public amusements was not a “badge or incident of slavery.” The opinion halted the progress of civil rights and limited the ability of the federal government, acting through Congress, to eliminate and eradicate racial discrimination for almost 90 years.
Justice John Marshall Harlan dissented. At the time, Harlan was the Court’s only Southerner and a former slaveholder. Although he had been a bitter critic of the Civil War Amendments during the 1860s, he had undergone a transformation. His dissent was not announced on the day of the majority’s decision and may not have been written until November. In it, he said that the grounds for the majority’s assertions were “too narrow and artificial” and that the majority refused to embrace both “the substance and the spirit” of the Civil Rights Act. “It is not the words of the law but the internal sense of it that makes the law. The letter of the law is the body; the sense and reason of the law is the soul.” And, in Justice Harlan’s view, the purpose of the act “was to prevent race [emphasis in original] discrimination.” The majority, as Harlan developed the dissent, betrayed this purpose “by a subtle and ingenious verbal criticism.”
Neither the majority of the Supreme Court nor the nation it represented cared to do much else to promote the civil rights of its new African American citizens. Harlan’s dissent in the Civil Rights Cases forecasted his more famous one in Plessy v. Ferguson, as the decision in the Civil Rights Cases led to the black codes, Jim Crow laws, and other examples of de jure (by law) segregation that came to define American race relations.
The Civil Rights Cases revealed the nation’s ambivalence on the questions of race. On one hand, Congress had sought to guarantee the rights of the recently freed slaves by proposing constitutional amendments that were ultimately ratified. Congress went further and augmented the constitutional guarantees with additional legislative protections and safeguards. The Supreme Court, however, frustrated these constitutional and legislative initiatives with a constricted reading of the Thirteenth and the Fourteenth Amendments.
Criminal justice in the United States consists of three major components, law enforcement, judicial and legal
services, and corrections. Since the 1970s, African Americans have assumed significant leadership roles in both law enforcement and correctional services as evidenced by the rising number of African American judges, prosecutors, and defense attorneys. However, since 1970, the employment of African Americans as judges and prosecutors has not increased at the rate that gives African Americans working in the system a formidable presence.
As the largest arm of the criminal justice system, police are the most visible criminal justice servants. As the first point of contact for persons entering the system, officers make discretionary, often quasi-judicial decisions as to whether an arrest should be made when an offense is alleged to have occurred. Law enforcers have been organized and empowered to support the interest of those with means to shape law, a factor that had significant bearing on the prior relationship African Americans had with the police.
Just as any other community, African Americans look to law enforcement for protection from an criminal elements present in their midst. However, until the recent integration of many urban police departments, law enforcement officers were used as agents of segregation and fear in many areas. This legacy still causes problems in African American relations with the police.
JUDICIAL AND LEGAL SERVICES AND THE CORRECTIONAL SYSTEM
In the 1990s, a serious debate on the merits of sentencing and capital punishment arose. Statistics showed that African Americans are likely to receive stiffer penalties for killing whites than whites receive for killing African Americans. This is also true in the administration of the death penalty, which disproportionately is used against African Americans who kill whites. In 1987, the Supreme Court took up the issue in McKleskey v. Kemp, and ruled that statistics could not be used to prove the death penalty was being administered in a discriminatory manner. The Court required more evidence and evinced a fear that if they had ruled the other way, that all African Americans on death row would come forward with claims. The issue did not die, however, as in 1999, Illinois announced a moratorium on executions to study the issue.
“THE TRIAL OF THE CENTURY”
On June 12, 1994, a brutal, double-murder led to one of the most sensational criminal trials of the twentieth century. Nicole Brown Simpson, former wife of African American football legend O. J. Simpson, was brutally slain outside her house along with her friend Ron Goldman. Almost immediately, evidence pointed to O. J. Simpson as the primary suspect. The subsequent, year-long trial was aired on television, allowing viewers to witness the entire spectacle almost as if it were a soap opera.
Prosecutors Marcia Clark and Christopher Darden, an African American, portrayed Simpson as a jealous husband who had been locked in a pattern of domestic abuse. The murder of a spouse by a habitual abuser is common, they argued, and the prosecutors used this as the motive. Simpson’s “Dream Team” of defense attorneys focused on an alleged police conspiracy based on race. Simpson was found not guilty in October 1995. Ultimately, the case had little to do with the actual murders. Broadcasting & Cable magazine reported that “the verdict . . . broke all previous TV viewing records, with over 150 million people tuning in.”
Rather than addressing the crime, the proceedings brought the ugly underbelly of the country’s prejudices, fears, and values to light. Polls showed that most whites thought Simpson was guilty, while blacks were divided on the verdict. Many African Americans viewed Simpson as another African American man caught in a judicial system enforced by the bigoted Los Angeles Police Department. The trial was the first in which overwhelming DNA evidence was not persuasive to a jury, as the defense attorneys alleged it had been rendered useless by police errors. The impression that Simpson had purchased his freedom with his high-priced lawyers grew in the years following the trial. Following the verdict, the Brown and Goldman families won a wrongful death civil suit against Simpson, forcing him to sell most of his assets. Simpson became a recluse, innocent in the eyes of the court, but guilty in the eyes of many.
THE CASE OF MUMIA ABU-JAMAL
Though not as big a newsmaker as the O.J. Simpson spectacle, the case of outspoken journalist and former
Black Panther Mumia Abu-Jamal caused quite a ripple in the legal system during the mid-1990s. During an altercation between a Philadelphia police officer and Jamal’s brother, Jamal claims to have interceded in order to keep his brother from being beaten. Though details are sketchy and contested, the aftermath of the fray left Jamal wounded by a bullet from the officer’s gun and the officer dead. Arrested and convicted of murder, Jamal was sentenced to death in 1982.
Groups of national and international supporters advocated for Jamal’s release, alleging that aspects of Jamal’s case were improperly handled in regards to the U.S. Constitution and correct legal procedure. Many believe Jamal was framed by the Philadelphia police who wanted to keep the blunt and forthright reporter from exposing evidence of corruption within the law enforcement agency.
In December 2001, U.S. District Judge William Yohn invalidated the death sentence. Citing several problems, including the jury instructions, Judge Yohn denied Abu-Jamal’s request for a new trial but indicated that he was entitled to a new sentencing hearing.
Less than 4 percent of all judges are African American. Nonetheless, the amazing fact is that despite a complete lack of legal rights as slaves, African Americans made their first in-roads toward civil rights via the court system. In separate incidents, escaped slave Elizabeth Freeman, New England slave Lucy Prince, and Southern slave Dred Scott, all battled racial barriers with courage and dignity.
African Americans did not enter the courts just as parties to actions, they also participated in the system in professional capacities. In 1844, Macon Allen became the first African American admitted to a state bar. Charlotte Ray later became the first African American woman to gain the same distinction. Other pioneering women followed, including Ellen Craft, Francis Watkins Harper, Laetitia Rowley, Maria Stewart, Mary Church Terrell, and Ida B. Wells-Barnett. John S. Rock became the first African American lawyer to argue a case before the Supreme Court in 1865. In 1873, Mifflin Gibbs became the first African American municipal judge. Though he only served a single term, his reputation for fairness was legendary, and he was named U.S. consul to Madagascar in 1897. Jonathan Jasper Wright was elected to the South Carolina State Supreme Court in 1870. In 1937, President Franklin D. Roosevelt appointed William H. Hastie to the Territorial Court of the Virgin Islands, making him the first African American federal district court judge. In 1939, Hastie was succeeded by Herman E. Moore, another African American. Jane Matilda Bolin became the first African American female judge when she was appointed Judge of Domestic Relations for the City of New York. In 1945, President Harry Truman appointed Irvin C. Mollison to the U.S. Customs Court (now the U.S. Court of International Trade), thus making him the first African American lifetime appointee to a federal court.
Nominated by the U.S. president and confirmed through Senate hearings, federal judgeships are lifetime appointments. Of the roughly 1,000 active federal judges—including U.S. district courts, U.S. circuit courts, U.S. courts of appeals, and the Supreme Court—by 2002 about 80 were African American. Still, African Americans have received appointments since the early 1960s, beginning with James B. Parsons, who was nominated by President John F. Kennedy to sit on the bench of the U.S. District Court for the Northern District of Illinois in 1961. At that time, the lack of federal African American judges was noticeable. Kennedy appointed Wade Hampton McCree Jr. to the U.S. District Court for the Eastern District of Michigan in 1961, and Thurgood Marshall to the Second Circuit Court of Appeals in 1962. In five years, Marshall would go on to become the first African American appointed to the U.S. Supreme Court.
President Lyndon B. Johnson followed Kennedy’s lead, nominating 11 African Americans to federal benches. Among them were A. Leon Higginbotham Jr.—Johnson’s first appointee—and Constance Baker Motley. As a member of the U.S. District Court for the Southern District of New York, Motley became the first African American woman to hold a federal judgeship in 1966. The next female appointee did not come for 12 years, when Mary Johnson Lowe was appointed by President Jimmy Carter to the same district court. Carter also chose Amalya Lyle Kearse, in 1979, to become the first African American woman on the U.S. Court of Appeals. She was seated in the same venue in which Thurgood Marshall began his judicial career. Overall, Carter appointed 37 African Americans in four years.
Republican presidents have had the poorest record of nominating African Americans to the federal courts. Richard Nixon only nominated six, and Gerald Ford three, over the combined eight years of their presidential terms. Lyndon Johnson nominated more in half the time. Ronald Reagan only appointed seven African Americans to federal
courts in eight years. His successor, President George H. W. Bush, appointed 13 in four years, including U.S. Supreme Court Justice Clarence Thomas. In contrast, Democrat Bill Clinton appointed 63 African Americans to federal courts by August 2000. He tried to appoint more, but the Republican-controlled Senate would not hold hearings or approve many of his judicial nominations, creating numerous vacancies. However, Clinton did help integrate the U.S. Court of Appeals for the Fourth Circuit. After the Senate refused to consider four nominations he made to this court, Clinton nominated an African American lawyer, Roger Gregory, as a “recess appointment” in December 2000. Since the Senate had ended its business for the year, Gregory served through most of 2001 without Senate approval. The maneuver pressured the administration of President George W. Bush to renominate Gregory in May 2001. When Democrats took control of the Senate that spring, the Senate approved Gregory, who became the first African American lifetime federal judge on the Fourth Circuit Court of Appeals.
Thurgood Marshall, a graduate of Lincoln University and Howard University Law School, was admitted to the Maryland Bar in 1933. He later joined the National Association for the Advancement of Colored People (NAACP) as assistant to special counsel Charles Hamilton Houston. In 1938 Marshall succeeded Houston as special counsel, and in 1950, he became director of the NAACP Legal Defense and Educational Fund (LDF). While working for the NAACP and the LDF, Marshall played a major role in some of the Supreme Court’s most important cases, including Smith v. Allwright (1944), Morgan v. Commonwealth of Virginia (1946), Shelley v. Kraemer (1948), Sweatt v. Painter (1950), and Brown v. Board of Education of Topeka, Kansas. Between 1938 and 1961, Marshall argued 32 cases before the U.S. Supreme Court, winning 29.
In 1961, Marshall became the second African American to serve on the U.S. Circuit Court of Appeals, when President John F. Kennedy named Marshall to fill a vacancy. In 1965, President Lyndon B. Johnson appointed Marshall to the post of U.S. solicitor general. With the retirement of Associate Justice Tom Campbell Clark in 1967, Marshall was nominated to fill the vacancy on the high court. Marshall’s nomination was met with objections from Southern senators. Nevertheless, he was confirmed, becoming the first African American justice on the U.S. Supreme Court. While on the Court, Marshall served as a supporter of affirmative action, free speech, and the rights of workers. He wrote few famous decisions, but his dissenting opinions in such cases as Milliken v. Bradley (1974), and Regents of the University of California v. Bakke (1978), are famous.
On June 27, 1991, Justice Marshall announced his plan to retire after 24 years on the U.S. Supreme Court. On July 1, President George H. W. Bush announced that he had chosen Clarence Thomas, a conservative African American appellate court judge, to fill the vacancy created by Marshall. Previously, in 1981, President Ronald Reagan had appointed Clarence Thomas, a graduate of a Holy Cross College and Yale University Law School, to head the civil rights division of the Department of Education. A year later, Thomas was appointed to head the Equal Employment Opportunity Commission. In 1990 Thomas was appointed by President H. W. Bush to fill a vacancy on the U.S. Court of Appeals for the District of Columbia.
In a flurry of controversy, Clarence Thomas was appointed an associate justice of the U.S. Supreme Court in 1991, after being nominated by President George H. W. Bush. Besides Thomas’s relative youth and judicial inexperience, his nomination hearings were marred by the accusations from Anita Hill that she had suffered from sexual harassment while under his employ at the Equal Employment Opportunity Commission (EEOC).
The nation, as well as the Senate, seemed divided by Hill’s shocking testimony. Thomas denied the allegations and had many of his former co-workers testify for him. After the confirmation votes were counted, Thomas was nominated by the narrow margin of 52–48.
EMANCIPATION ACT (APRIL 1862)
(ch.54, 12 state. 376) This law, enacted April 16, 1862, abolished slavery in the District of Columbia.
EMANCIPATION ACT (JUNE 1862)
(ch. 111, 12 Stat. 432) This act, abolishing slavery in all other territories of the United States, was enacted June 19, 1862.
AMENDMENT THIRTEEN TO THE U.S. CONSTITUTION (1865)
This Amendment, abolishing slavery and involuntary servitude in all of the United States, was ratified December 16, 1865.
CIVIL RIGHTS ACT (1866)
(ch. 31, 14 Stat. 27) This act was enacted April 9, 1866, to provide all citizens, especially recently freed slaves, with basic civil rights, including the right to make and enforce contracts, to bring suits in court, to purchase and sell real and personal property, and to enjoy security of person and property.
AMENDMENT FOURTEEN TO THE U.S. CONSTITUTION (1868)
This Amendment defined U.S. and state citizenship, and provided all citizens with the privileges and immunities of citizenship; the right to life, liberty, and property; and equal protection under the law. It was ratified July 20, 1868.
AMENDMENT FIFTEEN TO THE U.S. CONSTITUTION (1870)
This Amendment prohibited using race, color, or previous condition of servitude to deny anyone the right to vote. It was ratified March 30, 1870.
CIVIL RIGHTS ACT (1870)
(ch. 114, 16 Stat. 140) This statute was enacted May 31, 1870, to carry out the provisions of the Fifteenth Amendment. It established penalties for violations of the provisions of the Amendment.
CIVIL RIGHTS ACT (1871)
(ch. 99, 16 Stat. 433) This law was enacted February 28, 1871, to further define the protections established in the Fifteenth Amendment.
CIVIL RIGHTS ACT (APRIL 1871)
(ch. 22, 17 Stat. 13) This law was enacted April 20, 1871, to further outline the protections provided for by the Fourteenth Amendment. It provided for the vindication of crimes committed under the act in federal court.
CIVIL RIGHTS ACT (1875)
(ch. 114, 18 Stat. 335) This act was designed to provide all citizens with equal access to public places. Ruling in 1883 in a set of cases known as the Civil Rights Cases, the U.S. Supreme Court invalidated the act.
CIVIL RIGHTS ACT OF 1957
(Pub.L. No. 85–315, 71 Stat. 634) This act created the Commission on Civil Rights and empowered it to investigate allegations of deprivation of a U.S. citizen’s right to vote, to appraise laws and policies of the federal government with respect to equal protection of the law, and to submit a report to the president and to Congress within two years.
CIVIL RIGHTS ACT OF 1960
(Pub.L. No. 86–449, 74 Stat. 86) This law guaranteed the provision of criminal penalties in the event a suspect crosses state lines to avoid legal process for the actual or attempted bombing or burning of any vehicle or building, and provided penalties for persons who obstructed or interfered with any order of a federal court.
CIVIL RIGHTS ACT OF 1964
(Pub.L. No. 88–352, 78 Stat. 241) This act prohibited discrimination in the use of public accommodations whose operations involve interstate commerce and provided enforcement measures to ensure equal access to public facilities. It also prohibited racial discrimination in any program receiving federal aid and discrimination on the basis of race, color, religion, sex, or national origin in most areas of employment. It authorized the U.S. attorney general to use lawsuits to desegregate schools and public facilities.
AMENDMENT TWENTY-FOUR TO THE U.S. CONSTITUTION (1964)
This Amendment prohibited the use of a poll tax or any other tax—a common method to keep poorer people, especially African Americans, from voting—as a requirement for voting. It was ratified January 23, 1964.
VOTING RIGHTS ACT OF 1965
(Pub.L. No. 89–110, 79 Stat. 437) The Voting Rights Act of 1965 struck down requirements such as literacy and knowledge tests and poll tax payments which had been used to restrict African American participation in voting, and provided for federal registrars to register voters should state registrars refuse to do so. It further stipulated that registered voters cannot be prohibited from voting.
CIVIL RIGHTS ACT OF 1968
(Pub.L. No. 90–284, 82 Stat. 73) This act provided for open housing by prohibiting discrimination based on race, color, religion, or national origin.
EQUAL EMPLOYMENT OPPORTUNITY ACT OF 1972
(Pub.L. No. 92–261, 86 Stat. 103) This act provided the Equal Employment Opportunity Commission (established by the Civil Rights Act of 1964) with the authority to issue judicially enforceable cease and desist orders in cases involving discriminatory employment practices.
PUBLIC WORKS EMPLOYMENT ACT OF 1977
(Pub.L. No. 95–28, 91 Stat. 116, Title I) The statute provided that 10 percent of funds expended as a result of federal grants be earmarked for minority business enterprises.
VOTING RIGHTS ACT OF 1965 AMENDMENT
(Pub.L. No. 97–205, 96 Stat. 131 (1982)) This Amendment was a congressional response to the Supreme Court’s ruling in City of Mobile, Alabama v. Wiley L. Bolden that required proof of discriminatory intent in voting rights cases. Section 2 of the Voting Rights Act prohibited any voting practice or procedure “imposed or applied by any state or political subdivision in a manner which results in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color.”
CIVIL RIGHTS COMMISSION ACT OF 1983
(Pub.L. No. 98–183, 87 Stat. 1301) This act created an eight-member bipartisan commission with four members appointed by the president, and two by the Senate and House respectively. The commissioners are appointed to four- or six-year terms and can be fired only for neglect of duty or malfeasance in office. The statute was enacted after President Ronald Reagan attempted to fire commissioners who did not express his views on civil rights. The act extended the life of the Civil Rights Commission Authorization Act of 1978, which had been scheduled to expire in 1983.
CIVIL RIGHTS RESTORATION ACT OF 1988
(Pub.L. No. 100–259, 102 Stat. 31) The U.S. Supreme Court ruled in 1984 in Grove City College v. Bell that not all programs and activities of an institution were covered by Title IX of the Education amendments of 1972 (Public Law 89–10, 79 Stat. 27) and that discrimination can be barred only in programs that directly receive federal funds. The act amended portions of the Civil Rights Act of 1964 and refined the definition of programs and activities that were covered by the Civil Rights Act and other legislation. Specifically the amendment addressed Title IX of the Education Amendments of 1972, which prohibits discrimination in educational programs receiving federal financial assistance.
FAIR HOUSING AMENDMENTS ACT OF 1988
(Pub.L. No. 100–430, 102 Stat 1619) The Fair Housing Amendments Act of 1988 strengthened laws that resulted from passage of the Fair Housing Act of 1968. The act of 1988 gave the Department of Housing and Urban Development (HUD) the authority to issue discrimination charges, allowed administrative law justices the ability to review housing discrimination cases, and removed the $1,000 limit on punitive damages that a victim of discrimination may receive.
CIVIL RIGHTS ACT OF 1991
(Pub.L. 102–166, 105 Stat. 1071) This act was designed to provide additional remedies to deter harassment and intentional discrimination in the workplace, to provide guidelines for the adjudication of cases arising under Title VII of the Civil Rights Act of 1964, and to expand the scope of civil rights legislation weakened by Supreme Court decisions, particularly the Court’s ruling in Wards Cove Packing Co. v. Atonio, 490 US 642 (1989).
GLASS CEILING ACT OF 1991
(Pub.L. 102–166, 105 Stat. 1081) This law was designed to establish a means for studying and addressing the underrepresentation of women and minorities at management and decision making levels in the workforce.
ACCESS TO THE POLLS
UNITED STATES V. REESE
[92 U.S. 214 (1876)] Prior to the Fifteenth Amendment, states regulated all details of state and local elections—they prescribed the qualifications of voters and the manner in which those desiring to vote at an election should make their qualifications known to the election officers. Thus, the Fifteenth Amendment changed the past practice and provided rules not prescribed by state law. However, the Court restricted the scope of the Fifteenth Amendment and the ability of Congress to enforce it by not punishing election officials who unlawfully interfered with, and prevented the free exercise of, the elective franchise.
The federal government indicted two Kentucky election inspectors for refusing to receive and count the vote of an African American citizen. The Supreme Court held that Congress had not yet provided “appropriate legislation”’ for the punishment of the offense charged under any sections of the Fifteenth Amendment.
GUINN V. UNITED STATES
[238 U.S. 347 (1915)] In 1910, an amendment to the constitution of Oklahoma restricted voting rights by providing that no illiterate person could be registered. A “grandfather clause,” however, granted an exemption for persons who resided in a foreign country prior to January 1, 1866, and had been eligible to register prior to that date, or had a lineal ancestor who was eligible to vote at that time. Since no African Americans were eligible to vote in Oklahoma prior to 1866, the law disenfranchised all African Americans.
The U.S. Supreme Court ruled that the grandfather clause was invalid in Oklahoma or in any other state.
NIXON V. HERNDON
[273 U.S. 536 (1927)] Dr. L. A. Nixon, an African American, was refused the right to vote in a primary election because of a state statute that prohibited African Americans from participating in Democratic Party primaries in Texas. Nixon filed suit against the election officials and his case ultimately reached the U.S. Supreme Court. Justice Oliver Wendell Holmes wrote, “It is too clear for extended argument that color cannot be made the basis of a statutory classification affecting the right set up in this case.” As a result, the Texas statute was declared unconstitutional.
NIXON V. CONDON
[286 U.S. 73 (1932)] As a result of the U.S. Supreme Court ruling in Nixon v. Herndon, the Texas legislature passed a new statute. This statute empowered the state Democratic executive committee to set up its own rules regarding primary elections. The party promptly adopted a resolution stipulating that only white Democrats be allowed to participate in primaries. Dr. Nixon again filed suit, and his right to vote was again upheld by the U.S. Supreme Court.
LANE V. WILSON
[307 U.S. 268 (1939)] In an attempt to restrict voter registration, the Oklahoma legislature stated that all Oklahomans who were already registered would remain qualified voters and that all others would have to register within 12 days (from April 30 to May 11, 1916) or be forever barred from the polls. In 1934, I. W. Lane, an African American, was refused registration on the basis of this statute. The U.S. Supreme Court declared that the statute was in conflict with the Fifteenth Amendment to the U.S. Constitution and was unconstitutional.
SMITH V. ALLWRIGHT
[321 U.S. 649 (1944)] The Texas State Democratic Party, during its convention in 1932, limited the right of membership to white electors. As a result, nonwhites were unable to participate in a Democratic Party primary. In Grovey v. Townsend (295 US 45), the Supreme Court had upheld this limitation because it was made by the party in convention, not by a party executive committee. In Smithv. Allwright, the Court overruled Grovey, stating, “[T]he United States is a constitutional democracy. Its organic law grants to all citizens a right to participate in the choice of elected officials without restriction by any state because of race.” The Court noted that a political party makes its selection of candidates as an agency of the state. Therefore, it cannot exclude participation based on race and remain consistent with the Fifteenth Amendment.
GOMILLION V. LIGHTFOOT
[364 U.S. 339 (1960)] African American citizens challenged an Alabama statute that redefined the boundaries of the city of Tuskegee. The statute altered the shape of Tuskegee and placed all but four of Tuskegee’s 400 African American voters outside of the city limits, while not displacing a single white voter. The Court struck down the statute as a violation of the Fifteenth Amendment.
BAKER V. CARR
[369 U.S. 186 (1962)] Baker v. Carr was brought to the Supreme Court by electors in several counties of Tennessee. The electors asserted that the 1901 legislative reap-portionment statute was unconstitutional because the numbers of voters in the various districts had changed substantially since 1901. The plaintiffs requested that the Supreme Court either direct a reapportionment by mathematical application of the same formula to the 1960 Census, or instruct the state to hold direct at-large elections. The state district court had dismissed the case on the grounds that it was a political question and did not fall within the protection of the Fourteenth Amendment. The U.S. Supreme Court ruled that the case involved a basic constitutional right rather than a political question and thereby was in the jurisdiction of the U.S. district court and federal courts in general. In later cases, such as Gray v. Sanders, 372 U.S. 368 (1963), and Reynolds v. Sims, 377 U.S. 533 (1964), the U.S. Supreme Court explained the standards to be applied to voting districts in each state give reasonably equal representation, resulting in a principle popularly referred to as “one man, one vote.”
SOUTH CAROLINA V. KATZENBACH
[383 U.S. 301 (1966)] The Voting Rights Act of 1965 was designed to eliminate racial discrimination in voting, which had influenced the electoral process for nearly a century. The act abolished literacy tests, waived accumulated poll taxes, and allotted the U.S. attorney general vast discretionary powers over regions suspected of discriminatory legislation and practices against African American voters.
South Carolina’s petition asserted that the Voting Rights Act encroached on state sovereignty, thus violating the U.S. Constitution. The Supreme Court dismissed the petition because section 1 of the Fifteenth Amendment to the Constitution says, “The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any state on account of race, color, or previous condition of servitude.”
ALLEN V. STATE BOARD OF ELECTIONS
[393 U.S. 110 (1969)] The Supreme Court emphasized that subtle as well as obvious state regulations, “which have the effect of denying citizens their right to vote because of their race,” are prohibited. The Court confirmed that Section 5 of the Voting Rights Act covered a variety of practices other than voter registration.
GEORGIA V. UNITED STATES
[411 U.S. 526 (1973)] This case confirmed the propriety of the Voting Rights Act of 1965, which forbids states with a history of racial discrimination (e.g., Alabama, Georgia, Louisiana, Mississippi, North Carolina, South Carolina and Virginia) from implementing any change in voting practices and procedures without first submitting the proposed plan to the U.S. attorney general for approval.
WHITE V. REGESTER
[412 U.S. 755 (1973)] The Supreme Court struck down a Texas multimember districting scheme that was used to prevent African Americans from being elected to public office. The Court upheld a finding that even though there was no evidence that African Americans faced official obstacles to registration, voting, or running for office, they had been excluded from effective participation in the political process in violation of the Equal Protection Clause of the Constitution.
CITY OF MOBILE, ALABAMA V. WILEY L. BOLDEN
[446 U.S. 55 (1980)] A class action suit was filed in the U.S. District Court for the Southern District of Alabama on behalf of African American citizens in Mobile. The suit alleged that the city’s practice of electing commissioners at large by a majority vote unfairly diluted the voting strength of African Americans in violation of the Fourteenth Amendment and the Fifteenth Amendment. The district court ruled that the constitutional rights of Mobile’s African American citizens had been violated and entered a judgment in their favor. The court also ruled that Mobile’s city commissioners be replaced by a municipal government consisting of a mayor and a city council composed of persons selected from single member districts. The lower court decision was upheld.
THORNBURG V. GINGLES
[478 U.S. 30 (1986)] Thornburg v. Gingles was the Supreme Court’s first decision interpreting the provisions of the 1982 amendments to section 2 of the Voting Rights Act. The amendments prohibited voting schemes that result in a denial or abridgement of the right to vote due to race or color. In this decision, the Court ruled that the redistricting plan adopted by the North Carolina legislature—which unintentionally led to racially polarized voting by whites and diluted African Americans voting strength—was in violation of the Voting Rights Act. The Voting Rights Act prohibits neutral voting requirements that have a discriminatory effect, as well as those that are intentionally discriminatory.
SHAW V. RENO
[509 U.S. 630 (1993)] The Court ruled that using race as a principle of drawing the boundaries of a voting district solely to increase the number of minority voters is a violation of the Equal Protection Clause.
MILLER V. JOHNSON
[115 S.Ct. 2475 (1995)] The Court ruled that a congressional district purposely drawn to contain a majority of African American voters is a violation of the Equal Protection Clause.
HUNT V. CROMARTIE
[532 U.S. 234 (2001)] The Supreme Court ruled that evidence that race was a conscious factor in drawing the boundaries of a Congressional district does not automatically make the results unconstitutional if other permissible political reasons were dominant motivating factors. Evidence as to motivation must be presented in court to make a determination of permissibility.
MISSOURI EX REL. LLOYD GAINES V. CANADA
[305 U.S. 339 (1938)] Gaines v. Canada was brought before the Supreme Court by Lloyd Lionel Gaines, an African American who had been refused admission to the School of Law of the State University of Missouri. Gaines contended that the University of Missouri’s actions were a violation of his rights under the Fourteenth Amendment of the U.S. Constitution.
The University of Missouri defended its action by maintaining that Lincoln University, a predominantly African American institution, would eventually establish its own law school. The Supreme Court of Missouri dismissed Gaines’s petition and upheld the university’s decision to reject his application. The U.S. Supreme Court, however, reversed this decision, maintaining that
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the State of Missouri was obliged to provide equal facilities for African Americans or, in the absence of such facilities, to admit them to the existing facility.
SIPUEL V. BOARD OF REGENTS OF THE UNIVERSITY OF OKLAHOMA
[332 U.S. 631 (1948)] Ada Lois Sipuel, an African American, was denied admission to the law school of the University of Oklahoma in 1948. Sipuel and the NAACP filed a petition in Oklahoma requesting an order directing her admission. The petition was denied on the grounds that the Gaines decision did not require a state with segregation laws to admit an African American student to its white schools. In addition, the Oklahoma court maintained that the state itself was not obligated to set up a separate school unless first requested to do so by African Americans desiring a legal education. The court’s decision was affirmed by the Supreme Court of Oklahoma. The U.S. Supreme Court, however, reversed this decision, and held that the state was required to provide African Americans with equal educational opportunities.
SWEATT V. PAINTER
[339 U.S. 629 (1950)] Heman Marion Sweatt was refused admission to the University of Texas Law School on the grounds that substantially equivalent facilities were already available in another Texas State law school open only to African American students. The U.S. Supreme Court ruled that Sweatt be admitted to the University of Texas Law School. Chief Justice Fred M. Vinson wrote that “in terms of number of the faculty, variety of courses and opportunity for specialization, size of the student body, scope of the library, availability of law review and similar activities, the University of Texas Law School is superior” to those in the state law school for African Americans. Therefore, the refusal to admit Sweatt to the University of Texas Law School was unconstitutional.
MCLAURIN V. OKLAHOMA STATE REGENTS FOR HIGHER EDUCATION
[339 U.S. 637 (1950)] After having been admitted to the University of Oklahoma, G. W. McLaurin, an African American, was required by school officials to occupy a special seat in each classroom and a segregated table in both the library and the cafeteria because of his race. The U.S. Supreme Court declared unanimously that African American students must receive the same treatment at the hands of the state as other students and could not be segregated.
GRAY V. UNIVERSITY OF TENNESSEE
[342 U.S. 517 (1952)] This case resulted from the refusal of a U.S. district court to force the University of Tennessee to admit African American students. The lone judge to whom the matter was then referred ruled that the African American students were entitled to admission, but did not order the university to enforce this ruling. The Supreme Court was asked to refer the case back to the district court for further proceedings. Pending this appeal, however, one of the students seeking admission was enrolled at the University of Tennessee. Since the Court found no suggestion that persons “similarly situated would not be afforded similar treatment,” the case was dismissed as moot.
BROWN V. BOARD OF EDUCATION OF TOPEKA, KANSAS
[347 U.S. 483 (1954)] This case involved the practice of denying African American children equal access to state public schools due to state laws requiring or permitting racial segregation. The U.S. Supreme Court unanimously held that segregation deprived the children of equal protection under the Fourteenth Amendment to the U.S. Constitution. The “separate but equal” doctrine of Plessy v. Ferguson was overturned. After reargument a year later, the case was remanded (along with its four companion cases) to the district court, which was instructed to enter necessary orders to ensure the admission of all parties to public schools on a racially nondiscriminatory basis.
HAWKINS V. BOARD OF CONTROL
[347 U.S. 971 (1954)] This case resulted from a ruling of the Florida Supreme Court that denied an African American the right to enter the University of Florida Law School on the grounds that he had failed to show that a separate law school for African Americans was not substantively equal to the University of Florida Law School. The U.S. Supreme Court vacated the judgment and remanded the case to the Florida Supreme Court for a decision in light of the ruling in Brown v. Board of Education of Topeka, Kansas, which overruled the separate but equal doctrine.
After two years, the Florida Supreme Court continued to deny Hawkins the right to enter the University of Florida. Also, it had appointed a commissioner to determine if there was a time in the future that Hawkins could be admitted “without causing public mischief.” However, the Supreme Court ruled that Hawkins should be admitted to the school promptly, since there was no palpable reason for further delay.
TUREAD V. BOARD OF SUPERVISORS
[347 U.S. 971 (1954)] This case was the result of a provisional injunction requiring the admittance of African Americans to Louisiana State University. The state court of appeals reversed this action, declaring that it required the decision of a district court of three judges. The U.S. Supreme Court vacated this judgment and remanded the case for consideration, in light of Brown v. Board of Education of Topeka, Kansas.
FRAZIER V. UNIVERSITY OF NORTH CAROLINA
[350 U.S. 979 (1956)] The U.S. Supreme Court affirmed a district court judgment that African Americans may not be excluded from institutions of higher learning because of their race or color.
COOPER V. AARON
[358 U.S. 1 (1958)] The impact of Brown v. Board of Education of Topeka, Kansas was very slight until the Justice Department began to initiate its own desegregation lawsuits. Arkansas state officials passed state laws contrary to the Fourteenth Amendment holdings in Brown I and Brown II that forbid states to use their governmental powers to bar children on racial grounds from attending schools where there is state participation through any arrangement, management, funds, or property. The cases also ordered the states to immediately cease and desist from desegregation practices immediately.
In Cooper, the U.S. attorney general filed a petition on behalf of the U.S. government to enjoin the governor of Arkansas and officers of the National Guard from preventing the admittance of nine African American children into Central High School in September 1957 in Little Rock. A law was passed relieving school children from compulsory attendance at racially mixed schools. The Supreme Court declared that the Fourteenth Amendment outlined in the Brown case was the supreme law of the land and could not be nullified by state legislators, executive or judicial officers, or evasive schemes for segregation.
LEE V. MACON COUNTY BOARD OF EDUCATION
[389 U.S. 25 (1967)] The U.S. Supreme Court affirmed a lower court decision ordering the desegregation of Alabama’s school districts and declared state school grants to white students attending segregated private schools unconstitutional.
ALEXANDER V. HOLMES COUNTY BOARD OF EDUCATION
[396 US 19 (1969)] The U.S. Supreme Court ordered all 33 school districts in Mississippi to desegregate. The Department of Health, Education and Welfare (HEW) had asked that the districts be granted more time to desegregate. This was the first time HEW had sought a delay in integration, but the Court ordered that integration proceed immediately.
NORTH CAROLINA STATE BOARD OF EDUCATION V. SWANN
[402 U.S. 43 (1971)] and
SWANN V. CHARLOTTE MECKLENBURG BOARD OF EDUCATION
[402 U.S. 1 (1971)] In these two cases the U.S. Supreme Court affirmed the use of busing and faculty transfers to overcome the effects of dual school systems—segregated school systems resulting from residential patterns. Writing the decision, Chief Justice Warren E. Burger noted that “bus transportation has long been a part of all public educational systems and it is unlikely that a truly effective remedy could be devised without continued reliance upon it.” The Court declared that segregation resulted from past misconduct and affirmed the lower court’s order that the school board transfer students by bus to achieve a racial mix at each school. The ruling, however, left local district judges the authority to decide whether a desegregation plan was constitutionally adequate.
WRIGHT V. CITY OF EMPORIA
[402 U.S. 43 (1971)] and
COTTON V. SCOTLAND NECK BOARD OF EDUCATION
[407 U.S. 485 (1972)] The Supreme Court held that two towns with heavy concentrations of white students could not secede from a largely African American county school system and form its own school district in an attempt to frustrate integration.
RICHMOND, VIRGINIA, SCHOOL BOARD V. STATE BOARD OF EDUCATION
[412 U.S. 92 (1973)] In a 4–4 vote, the Supreme Court declined to reinstate an order to integrate the predominantly African American schools in Richmond with those of two white suburbs. Integrationists expressed concern that permitting de facto segregation to stand in this manner would hinder corrective action in other metropolitan areas, perpetuate “neighborhood” one-race schools, and lessen the extent of integration in unitary school systems.
MILLIKEN V. BRADLEY
[418 U.S. 717 (1974)] After failing to reach a decision in Richmond School Board, the full Court reached a decision outlawing inter-district remedies to end segregation in schools. The school system of Detroit had become heavily African American due to white flight to the suburbs. Fearing that Brown v. Board of Education of Topeka, Kansas would be crippled, the district court ordered busing between the districts of Detroit and its white suburbs.
However, the Court overturned this decision as there was no evidence that the suburbs had contributed to the segregation. Integrationists attacked this decision as the end of Brown.
RUNYON V. MCCRARY
[427 U.S. 160 (1976)] In a unanimous decision, the Court held that the Constitution places no value on discrimination, and that even though private discrimination was not socially desired by the members of the Court, it may be characterized legally as a form of exercising the freedom of association protected by the First Amendment. The Civil Rights Act of 1866 prohibited racial discrimination in the making and enforcing of contracts, however, argued the families of two African American children who were denied admission to private schools in Virginia. The children’s parents sought to enter into a contractual relationship with the private schools on an equal basis to white and nonwhite students.
REGENTS OF THE UNIVERSITY OF CALIFORNIA V. BAKKE
[438 U.S. 265 (1978)] Allan Bakke, a white male who had been denied admission to the University of California Medical School at Davis for two consecutive years, charged that the university’s minority quota system—under which only disadvantaged members of certain minority races were considered for 16 of the 100 places in each year’s class—denied him equal protection.
The trial court declared that the school could not take race into account in making the admissions decision and held that the challenged admissions program violated the federal and state constitutions and Title VI of the 1964 Civil Rights Act. The university appealed. The Supreme Court ruled that Bakke had been illegally discriminated against and that numerical quotas based on race were unconstitutional, but held that “the State has a substantial interest that legitimately may be served by a properly devised admission program involving the competitive consideration of race and ethnic origin.”
BOB JONES UNIVERSITY V. IRS
[461 U.S. 574 (1983)] Contrary to long-standing IRS policy, the Reagan administration sought to extend tax-exempt status to schools that discriminate on the basis of race. The U.S. Supreme Court recognized the inability of the Justice Department to argue the case fairly, and requested that former Secretary of Transportation William T. Coleman present the argument. The Supreme Court rebuffed the Justice Department’s arguments and unanimously agreed with Coleman’s position that the IRS could deny tax-exempt status to racially discriminatory schools.
ALLEN V. WRIGHT
[488 U.S. 737 (1984)] Parents of African American children instituted a nationwide lawsuit claiming that the Internal Revenue Service’s failure to deny tax-exempt status to racially discriminatory private schools constituted federal financial aid to racially segregated institutions and diminished the ability of their children to receive an adequate education. The U.S. Supreme Court refused to hear the case on the grounds that the plaintiffs did not have “standing” because they failed to show that the injury suffered was “fairly traceable” or caused by the conduct of the IRS. In addition the Court maintained that the remedy was “speculative” since there was no evidence that the withdrawal of tax-exempt status would cause schools to end their racially discriminatory practices.
OKLAHOMA CITY BOARD OF EDUCATION V. DOWELL
[498 U.S. 237 (1991)] The Court ruled that when a school district petitioned to end a desegregation order, the petition could be approved if the district has been in good faith compliance with the order from the beginning and if remnants of past discrimination have been eliminated to the degree possible in the situation.
UNITED STATES V. FORDICE
[505 U.S. 717 (1992)] The Court ruled that when a state higher education system continues to use educational practices that were started to keep the races segregated and that perpetuate segregation, the practices violate the equal protection guarantee if they can be ended without significantly changing the quality of the education offered.
JENKINS V. MISSOURI
[115 S.Ct. 2038 (1995)] The Court ruled that a federal district court erred in ordering increased salaries for school system employees as part of a program to motivate attendance by non-minority students living outside the district in an effort to increase desegregation.
GRIGGS V. DUKE POWER CO.
[401 U.S. 424 (1971)] African American employees challenged their employer’s requirement of a high school diploma or passing of intelligence tests as a condition of employment. African Americans were employed only in the labor department where the highest paying jobs paid less than the lowest jobs in the other departments. When the company abandoned its policy restricting blacks to labor in 1965, completion of high school and median scores on two aptitude tests were required to transfer from labor to another department.
The Supreme Court found the objective of Congress in Title III was to achieve equality of employment opportunities and remove barriers that have operated in the past. Under the Act, practices, procedures, or tests neutral on their face and even neutral in their intent cannot be maintained if they operate to “freeze” the status quo of prior discrimination. The employment practice must be related to job performance.
It was determined that neither the high school diploma nor the intelligence tests were demonstrably related to successful job performance. Good intent or absence of discriminatory intent does not redeem employment procedures and practices. The employment policies had a discriminatory effect toward African American employees and were struck down.
ALBEMARLE PAPER CO. V. MOODY
[422 U.S. 405 (1975)] African American employees of a paper mill in Roanoke Rapids, North Carolina, successfully challenged the company’s use of written tests that allegedly measured numerical and verbal intelligence. Based upon the standards enunciated in Griggs v. Duke Power Co., the U.S. Supreme Court determined that the tests were discriminatory because they were not jobrelated and did not predict success on the job. The Court held that the plaintiffs were entitled to “complete justice” and necessary relief that would “make them whole.” The Court awarded the African American employees back pay and made it clear that back pay should rarely be denied once there has been a showing of discrimination. The Court also stated that back pay cannot be denied simply because the employer acted in good faith or did not intend to discriminate.
HAZELWOOD SCHOOL DISTRICT V. UNITED STATES
[433 U.S. 299 (1977)] Several African American teachers seeking jobs in suburban St. Louis, Missouri, offered statistical data indicating they had been denied employment opportunities. The plaintiffs attempted to prove their case by showing that the percentage of African American students was greater than the percentage of African American teachers in the school district.
Although the U.S. Supreme Court affirmed that “statistics can be an important source of proof in employment discrimination cases,” it rejected the plaintiffs’ statistical evidence and called it irrelevant. The Court concluded that relevant statistical data would be the percentage of qualified African American teachers in the relevant geographical area compared with the percentage of African Americans in Hazelwood’s teaching staff.
TEAMSTERS V. UNITED STATES
[431 U.S. 324 (1977)] In enforcing the Civil Rights Act of 1964, the Supreme Court held that victims of past union discrimination were entitled to retroactive seniority benefits. The Supreme Court required proof of “intent to discriminate,” however, in order to establish that a given seniority system is illegal. Subsequent cases in lower federal courts during the late 1970s entitled discrimination victims to retroactive back pay in addition to retroactive seniority benefits.
LOUIS SWINT AND WILLIE JOHNSON V. PULLMAN STANDARD AND THE UNITED STEELWORKERS OF AMERICA
[72 L.Ed. 66 (1982)] African American employees of Pullman Standard brought a lawsuit against Pullman Standard and the United Steelworkers of America. The lawsuit alleged that Title VII of the Civil Rights Act of 1964 was violated by a seniority system. In its decision, the district court ruled “that the difference in terms, conditions or privileges of employment resulting from the seniority system are not the result of an intention to discriminate because of race or color” and held that the system satisfied the requirements of section 703(h) of the Civil Rights Act. This decision was later reversed by the Fifth Circuit Court of Appeals, which stated, “[B]ecause we find the differences in the terms, conditions and standards of employment for black workers and white workers at Pullman Standard resulted from an intent to discriminate because of race, we hold that the system is not legally valid under Section 703(h) of Title VII U.S.C. 2000e-2(h).”
WATSON V. FORT WORTH BANK AND TRUST
[108 U.S. 2777 (1987)] Clara Watson, an African American woman, alleged that she was repeatedly denied promotion to supervisory positions which were awarded to white employees with equivalent or lesser experience. The bank contended that its promotion decisions were based on various subjective criteria including experience, previous supervisory experience, and the ability to get along with others.
The U.S. Supreme Court held that Watson did not have to prove intentional discrimination. The Court concluded that subjective, facially neutral selection devices that disadvantage African Americans in much the same way as objective criteria (e.g., written tests) are unlawful.
PATTERSON V. MCLEAN CREDIT UNION
[491 U.S. 164 (1989)] An African American female was employed as a teller and file coordinator for ten years until she was laid-off. She alleged that she had been harassed, denied promotion to accounting clerk, and later discharged because of her race. She filed suit asserting violations of section 1981 of the Civil Rights Act.
Racial harassment relating to conditions of employment are not actionable under section 1981, which provides, “All persons . . . shall have the same right to make and enforce contracts . . . as any white citizen,” because that provision does not apply to conduct that occurs after the formation of a contract including the breach of the contract’s terms and enforcement thereof. Rather, the harassment asserted by the petitioner is past formation conduct of the employer and, therefore, actionable only under Title VII of the Civil Rights Act of 1964.
WARDS COVE PACKING CO. V. ATONIO
[490 U.S. 642 (1989)] This case was brought by a class of non-white salmon cannery workers who alleged that their employer’s hiring and promotion practices were responsible for the workforce’s racial stratification. There were two types of jobs: unskilled cannery jobs, which were filled predominately by non-whites; and non-cannery jobs, mostly classified as skilled positions, which paid more and were held by whites. Statistics were used to show a high percentage of non-whites in cannery jobs and a low percentage in non-cannery positions.
The Supreme Court found that the cannery work-force did not reflect the pool of qualified job applicants or the qualified labor force population. An employer’s selection methods or employment practices cannot be said to have a disparate impact on non-whites if the absence of minorities holding such skilled jobs reflects a dearth of qualified non-white applicants. A mere showing that non-whites are underrepresented in the non-cannery jobs will not suffice for a Title VII violation.
MARTIN V. WILKS
[490 U.S. 755 (1989)] In an attempt to remedy past racial discrimination in hiring and promotion practices, the City of Birmingham and its fire department consented to hiring African Americans as firefighters as part of a settlement. White firefighters subsequently challenged the city, alleging that because of their race they were denied promotions in favor of less qualified African Americans in violation of Title VII. Promotion decisions were made on the basis of race in reliance on the consent decree. The Court held that a voluntary settlement between one group of employees and their employer cannot possibly settle the conflicting claims of another group of employees who do not join in the agreement. This settlement would result in persons being deprived of their legal rights in a proceeding to which they were not a party.
JURY SELECTION AND SERVICE
NEAL V. DELAWARE
[103 U.S. 370 (1880)] The jury commissioner’s conduct was found in violation of the U.S. Constitution when an African American criminal defendant proved that African Americans were excluded from the jury based on their race. Every citizen is afforded the right to equal protection of the laws, including that of juror selection, when jurors will pass judgment upon a defendant’s life, liberty, or property. The exclusion of members of the defendant’s race is unconstitutional.
STRAUDER V. WEST VIRGINIA
[100 U.S. 303 (1880)] The Supreme Court overturned the conviction of an African American criminal defendant due to racial discrimination in the selection of jurors. West Virginia passed a state law that prohibited African American men from eligibility to serve as members of a grand jury or a petit jury in the state. The law denied equal protection of the laws to a citizen.
VIRGINIA V. RIVES
[100 U.S. 313 (1880)] The petitioners asserted that African Americans had never been allowed to serve as jurors in their county in any case where an African American man was involved. Virginia had no formalized or specific statute restricting African American jurors from certain trials. It was held that a mixed jury in a particular case is not essential to the equal protection of the laws and that the right is not given by any state or federal statute.
HOLLINS V. OKLAHOMA
[295 U.S. 394 (1935)] Hollins, an African American, was charged with rape and convicted at a trial held in the basement of the jail. Three days before the scheduled execution, the NAACP secured a stay of execution. Later the Supreme Court of Oklahoma reversed his conviction.
The U.S. Supreme Court—in a memorandum opinion—affirmed the principle that the conviction of an African American by a jury from which all African Americans had been excluded was a denial of the equal protection clause of the Fourteenth Amendment to the U.S. Constitution.
HALE V. COMMONWEALTH OF KENTUCKY
[303 U.S. 613 (1938)] In 1936, Joe Hale, an African American, was charged with murder in McCracken County, Kentucky. Hale moved to set aside the indictment on the grounds that the jury commissioners had systematically excluded African Americans from jury lists. Hale established that one out of every six residents of the county was African American, and that at least 70 African Americans out of a total of 6,700 persons qualified for jury duty. Still, there had not been an African American on jury duty between 1906 and 1936. Hale’s conviction and death sentence were upheld by the Court of Appeals of Kentucky, but both were struck down by the Supreme Court on the grounds that he had been denied equal protection of the law.
PATTON V. MISSISSIPPI
[332 U.S. 463 (1947)] This case involved Eddie Patton, an African American who was convicted of the murder of a white man in Mississippi. At his trial and as part of his appeal, Patton alleged that all qualified African Americans had been systematically excluded from jury service solely because of race. The state maintained that since jury service was limited by statute to qualified voters and since few African Americans were qualified to vote, such a procedure was valid in the eyes of the law. The Supreme Court, however, reversed Patton’s conviction on the grounds that such a jury plan, resulting in the almost automatic elimination of African Americans from jury service, constituted an infringement on Patton’s rights under the Fourteenth Amendment.
SHEPHERD V. FLORIDA
[341 U.S. 50 (1951)] The Supreme Court reversed the convictions of a Florida state court involving African American defendants solely on the grounds that the method of selecting the grand jury discriminated against African Americans.
TURNER V. FOUCHE
[396 U.S. 346 (1970)] The Court affirmed the right of defendants to bring an action in federal court to end discrimination in jury selection.
CASTANEDA V. PARTIDA
[430 U.S. 482 (1977)] The Supreme Court upheld the use of statistical evidence demonstrating that Mexican Americans had been systematically excluded from jury selection, and that such discrimination on the basis of race or color violated the Equal Protection Clause of the Fourteenth Amendment. The principle established in this case, that statistical evidence can be used to prove intentional discrimination, has been used in later cases involving employment, housing, voting, and education.
BATSON V. KENTUCKY
[476 U.S. 79 (1986)] Justice Lewis F. Powell, writing for the majority, held that the prosecution in a criminal case may not use its peremptory challenges—challenges to an individual juror for which no cause need be stated—to exclude African American jurors in a case involving an African American defendant.
TURNER V. MURRAY
[106 US 1683 (1986)] The Supreme Court expanded the right of African American defendants in capital cases to question potential white jurors to uncover their racial prejudices and biases.
HALL V. DECUIR
[95 U.S. 485 (1878)] This case involved an unsuccessful attempt of the Louisiana legislature to prohibit segregation in any form of transportation in the state. The statute was attacked as an interference with interstate commerce because it imposed a direct burden and control over common carriers when entering the state. The statute was declared unconstitutional because it required common carriers to transport African American passengers in Louisiana in the same cabin with white passengers.
CIVIL RIGHTS CASES
[332 U.S. 46, 784; 333 U.S. 831; 334 U.S. 834; 378 U.S. 226 (1883)] This group of civil rights cases was heard before the Supreme Court in an effort to determine the constitutionality of the Civil Rights Act of 1875, the first piece of national legislation that attempted to guarantee people of all races “full and equal enjoyment” of all public accommodations including inns, public conveyances, theaters, and other places of amusement. The Court ruled, however, that the act was unconstitutional inasmuch as it did not spring directly from the Thirteenth and Fourteenth Amendments to the Constitution. In the view of the Court, the Thirteenth Amendment was concerned exclusively with the narrow confines of slavery and involuntary servitude. The Fourteenth Amendment did not empower Congress to enact direct legislation to counteract the effect of state laws or policies. The ruling essentially deprived African Americans of the very protections that the three postwar “freedom amendments” were designed to provide.
PLESSY V. FERGUSON
[163 U.S. 537 (1896)] Homer Plessy, an African American, was assigned to the wrong coach on a train traveling within Louisiana. Plessy was arrested for being in the wrong coach. He challenged the 1890 state statute that provided for “separate but equal” railway carriages for whites and blacks.
In the majority opinion of the Supreme Court, “separate but equal” accommodations for African Americans constituted a “reasonable” use of state police power. Furthermore, the Court said that the Fourteenth Amendment “could not have been intended to abolish distinctions based on color, or to enforce social . . . equality or a co-mingling of the two races upon terms unsatisfactory to either.”
MORGAN V. COMMONWEALTH OF VIRGINIA
[328 U.S. 373 (1946)] Irene Morgan, an African American, refused to move to the rear seat of a Greyhound bus in which she was traveling from Virginia to Washington, DC. She was convicted in Virginia for violating a state statute requiring segregation of the races on all public vehicles.
NAACP attorneys carried the case through the Virginia courts and on to the U.S. Supreme Court, where it was decided that the Virginia statute could not apply to interstate passengers or motor vehicles engaged in such traffic.
BOB-LO V. MICHIGAN
[333 U.S. 28 (1948)] The operator of a line of passenger ships used to transport patrons from Detroit to an island amusement park was convicted of violating the Michigan Civil Rights Act for refusing passage to an African American. The Supreme Court upheld the application of the Michigan Civil Rights Act.
RICE V. ARNOLD
[340 U.S. 848 (1950)] This case involved the successful attempt to abolish segregation on a Miami, Florida, golf course owned and operated by the city. The U.S. Supreme Court overturned the judgment of the Florida Supreme Court, which had authorized the segregated use of the course.
DISTRICT OF COLUMBIA V. JOHN R. THOMPSON
[346 U.S. 100 (1952)] The Supreme Court unanimously held that a restaurant owner had violated federal law by discriminating against and refusing service to patrons on the basis of race.
MUIR V. LOUISVILLE PARK THEATRICAL ASSOCIATION
[347 U.S. 971 (1954)] In 1954, several African Americans were refused admission to an amphitheater located in a Louisville city park. The park was leased and operated by a privately owned group not affiliated in any way with the city. The Kentucky Court of Appeals found no evidence of unlawful discrimination, but the U.S. Supreme Court overturned this judgment and remanded the case for consideration in the light of the prevailing legal climate as articulated in Brown v. Board of Education of Topeka, Kansas.
MAYOR AND CITY COUNCIL OF BALTIMORE V. DAWSON
[350 U.S. 377 (1955)] The Supreme Court affirmed a judgment that the enforcement of racial segregation in public beaches and bathhouses maintained by public authorities is unconstitutional.
HOLMES V. ATLANTA
[350 U.S. 859 (1955)] This case involved a suit brought by African Americans to integrate a city-owned and operated golf course in Atlanta, Georgia. The segregated arrangements were deemed constitutionally acceptable by a lower court, but that order was overturned by the U.S. Supreme Court and the case was remanded to the district court with directions to enter a decree for the plaintiffs in conformity with Mayor and City Council of Baltimore v. Dawson.
FLEMMING V. SOUTH CAROLINA ELECTRIC
[351 U.S. 901 (1956)] This case involved a suit brought by an African American passenger against a bus company for damages due to the bus driver’s having required her to change seats in accordance with South Carolina’s segregation law. The trial judge dismissed the case on the grounds that the statute in question was valid, but the court of appeals reversed this decision, holding that the “separate but equal” doctrine was no longer valid. The Supreme Court upheld the court of appeals decision.
GAYLE V. BROWDER
[352 U.S. 114 (1956)] This case challenged the constitutionality of state statutes and ordinances in Montgomery, Alabama, which required the segregation of whites and blacks on public buses. These statutes were declared unconstitutional by the decision of a three-judge federal district court. The Supreme Court affirmed.
KATZENBACH V. MCCLUNG
[379 U.S. 802 (1964)] and
HEART OF ATLANTA V. UNITED STATES
[379 U.S. 803 (1964)] The U.S. attorney general sued Ollie’s Barbecue Restaurant in Birmingham, Alabama, for its refusal to serve African Americans in its dining accommodations, a direct violation of the anti-discriminatory public accommodations clause of the 1964 Civil Rights Act. The U.S. District Court for the Northern District of Alabama, held that the Civil Rights Act could not be applied under the Fourteenth Amendment to the U.S. Constitution, as there was no “demonstrable connection” between food purchased in interstate commerce and sold in a restaurant that would affect commerce. The U.S. Supreme Court, however, held that “the Civil Rights Act of 1964, as here applied, [is] plainly appropriate in the resolution of what [Congress has] found to be a national commercial problem of the first magnitude.”
The Heart of Atlanta case dealt with a Georgia motel that solicited patronage in national advertising and had several out-of-state residents as guests from time to time. The motel had already instituted the practice of refusing to rent rooms to African Americans prior to the passage of the 1964 Civil Rights Act and continued this practice afterward. The motel owner filed suit, maintaining that the Act violated his rights under both the Fifth Amendment and the Thirteenth Amendment. The United States countered with the argument that the refusal to accept African Americans interfered with interstate travel, and that Congress, in voting to apply nondiscriminatory standards to interstate commerce, was not violating either amendment. The Supreme Court upheld the right of Congressional regulation, stating that the power of Congress was not confined to the regulation of commerce among the states. “It extends to those activities intrastate which so affect interstate commerce, or the exercise of the power of Congress over it, as to make regulation of them appropriate means to the attainment of a legitimate end.”
BELL V. MARYLAND
[378 U.S. 226 (1964)] The Supreme Court ordered a Maryland district court to reconsider its affirmation of a state court conviction of 12 African Americans for trespassing when they refused to leave a restaurant that refused to serve them entirely on the basis of their color.
EVANS V. NEWTON
[382 U.S. 296 (1966)] The Supreme Court ruled that the transfer of a city park in Macon, Georgia, from municipal ownership to a board of private trustees did not remove Macon’s obligations under the Fourteenth Amendment to guarantee equal rights to use the park by all citizens.
SHUTTLESWORTH V. BIRMINGHAM
[394 U.S. 147 (1969)] The Supreme Court invalidated Birmingham’s Parade-Permit Law, which had been used in 1963 to harass participants in an Easter March organized by Dr. Martin Luther King Jr.
NEW YORK STATE CLUB ASSOCIATION V. CITY OF NEW YORK
[108 S.Ct. 2225 (1988)] In a unanimous decision, the Supreme Court upheld the constitutionality of a New York City ordinance that forbids private clubs from discriminating against women and minorities.
LOVING V. VIRGINIA
[388 U.S. 1 (1967)] This case nullified anti-miscegenation laws. It concerned a white man and an African American woman, residents of Virginia, who married in Washington, DC. Virginia indicted and convicted them of violating its laws against racial intermarriage when the couple returned to Virginia and attempted to reside there, but released them when the couple agreed not to reside in the state for 25 years. The Lovings, however, decided to challenge the agreement and the law. Their appeal was rejected by the Virginia courts but upheld by the U.S. Supreme Court, which ruled the Virginia law unconstitutional. Soon thereafter, federal district courts in other states which forbade intermarriage ordered local officials to issue marriage licenses to interracial couples applying for them.
REQUIREMENTS FOR LEGISLATIVE MEMBERSHIP
POWELL V. MCCORMACK
[395 U.S. 486 (1969)] According to the Constitution, only three basic factors govern eligibility to serve as a legislator in the U.S. House of Representatives: a minimum age requirement, the possession of U.S. citizenship, and the fulfillment of the state’s residency requirement. When U.S. Representative Adam Clayton Powell Jr. was excluded from the 90th Congress on the grounds that he had misused public funds and defied the courts of his home state, he filed suit in federal court in an attempt to force the House of Representatives to review only the necessary credentials for membership.
The district court dismissed the first petition on the grounds that it lacked jurisdiction. By the time the case was heard before the U.S. Supreme Court, the 90th Congress had adjourned. Powell, however, was reelected and finally seated in the 91st Congress, a gesture that did not settle the case or render it moot. The legal point on which the case hinged involved the distinction between “expulsion” and “exclusion.” Despite the more than two-thirds majority required for expulsion, the Court ruled that the intent of the House was to “exclude,” not to “expel.” The Court summation stated flatly that “the House was without power to exclude him from its membership.”
RIGHT OF SALE AND RESTRICTIVE COVENANTS
BUCHANAN V. WARLEY
[245 U.S. 60 (1917)] The plaintiff brought an action for the performance of a sale of real estate in Louisville, Kentucky. The purchaser, Warley, an African American, maintained that he would be unable to occupy the land since it was located within what was defined by a Louisville ordinance as a white block. The ordinance prohibited whites from living in black districts, and vice versa. Buchanan alleged that the ordinance was in conflict with the Fourteenth Amendment to the U.S. Constitution. The U.S. Supreme Court maintained that the ordinance was unconstitutional.
SHELLEY V. KRAEMER
[334 U.S. 1 (1948) and
HURD V. HODGE
[334 U.S. 26 (1948)] In 1945 an African American family, the Shelleys, received a warranty deed to a parcel of land that was subject to a restrictive covenant barring its sale to African Americans. A lawsuit was subsequently brought in the Circuit Court of St. Louis seeking to divest the Shelleys of the title to the land. The Supreme Court of Missouri directed the trial court to strip the petitioners of their warranty deed. The U.S. Supreme Court reversed this decision, maintaining that restrictive covenants, though valid contracts, could not be enforced by state courts. In Hurd v. Hodge, involving a similar set of circumstances, federal courts were similarly prohibited from enforcing racially-restrictive covenants.
REITMAN V. MULKEY
[387 U.S. 369 (1967)] In 1964, California voters passed a referendum granting “absolute discretion” to real estate owners in the sale and rental of real property. Lincoln Mulkey filed suit against property owners in Orange County to challenge the validity of the referendum. Mulkey’s arguments failed in the lower courts but were accepted by the California Supreme Court on the grounds that the California referendum violated the Fourteenth Amendment of the U.S. Constitution. The U.S. Supreme Court upheld the decision.
JONES V. ALFRED H. MAYER, CO.
[392 U.S. 409 (1968)] Joseph Lee Jones, an African American, alleged that his race was the sole reason that a real estate agent refused to sell him a home. The Supreme Court held that 42 U.S.C. 1982, a federal statute created during the Reconstruction era to eliminate the vestiges of slavery, prohibits all racial discrimination, public and private, in the sale or rental of property.
TRAFFICANTE V. METROPOLITAN LIFE INSURANCE
[409 U.S. 205 (1972)] The U.S. Supreme Court ruled that a complaint of racial discrimination in housing may be brought by parties who have not themselves been refused accommodation but who, as members of the same housing unit, allege injury by discriminatory housing practices. The suit had been filed by a black and a white resident of a housing development in San Francisco who contended that the owner of the development was depriving plaintiffs of the right to live in a racially integrated community.
SENTENCING AND INCARCERATION
MCKLESKEY V. KEMP
[481 U.S. 279 (1987)] Warren McKleskey, a 38-year-old African American man accused of killing a police officer while robbing a furniture store, was sentenced to death by the state of Georgia. In support of his claim that the sentence violated his constitutional rights, McKleskey introduced a sophisticated statistical study that analyzed more than 2,000 murder cases in Georgia. The study demonstrated that there was a disparity in the imposition of capital punishment based on the race of the victim, as well as the race of the defendant.
Defendants charged with killing white persons received the death penalty in 11 percent of the cases, but defendants charged with killing African Americans received the death penalty in only 1 percent of the cases. The study further showed that prosecutors asked for the death penalty in 70 percent of the cases involving black defendants and white victims, and only 19 percent of the cases involving white defendants and African American victims. In sum, the analysis revealed that African Americans who killed whites were 4.3 times more likely to receive a death sentence.
The Supreme Court acknowledged that it had accepted statistics as proof of intent to discriminate in employment, housing, and voting cases. The Court rejected, however, McKleskey’s claim that the death penalty in Georgia was applied in a racially discriminatory manner. The Court’s reasoning was that although McKleskey showed the existence of racial discrimination in sentencing, he failed to prove that “racial considerations played a part in his sentence.” Finally, Justice Powell expressed concern that acceptance of McKleskey’s argument would open the flood-gates of litigation by African American defendants seeking to introduce statistical evidence to demonstrate that race affected the outcome of their case.
PRIGG V. PENNSYLVANIA
[16 Peters 539 (1842)] After Edward Prigg, a professional slave catcher, captured Margaret Morgan, an escaped slave residing in Pennsylvania, Prigg was tried and convicted under an 1826 Pennsylvania anti-kidnapping statute. Hearing the case, the Supreme Court ruled that the Pennsylvania law was unconstitutional on the grounds that the statute interfered with Congress’s power under Art. IV, sec. 2 of the Constitution.
STRADER V. GRAHAM
[10 Howard 82 (1850)] In 1841, three slaves owned by Christopher Graham of Kentucky, boarded a steamboat owned by Jacob Strader and traveled to Cincinnati. They ultimately escaped to freedom in Canada. Graham sued Strader for the value of the slaves and the expenses incurred while trying to recover them. Graham won the case. Strader appealed, though, claiming that the slaves had become free under Ohio law and provisions of the Northwest Ordinance. The Supreme Court ruled unanimously that each state had the right to determine the status of slaves within its jurisdiction, that the status of these slaves was to be determined by the state of Kentucky, and that the Northwest Ordinance was no longer in force, since those territories had become states.
DRED SCOTT V. SANDFORD
[19 Howard 393 (1857)] In 1835, Dred Scott became the property of John Emerson, a U.S. Army doctor, in the slave state of Missouri. From there, he was taken into the free state of Illinois and later to the free territory of Wisconsin. In 1847, Scott initiated suit in the circuit court of St. Louis County, arguing that he should be given his freedom by virtue of having resided on free soil. After nine years, his case came before the U.S. Supreme Court.
In delivering his opinion, Chief Justice Roger Brooke Taney declared that, by virtue of both the Declaration of Independence and the Constitution, African Americans could not be regarded as citizens of the United States. Moreover, the Court could not deprive slaveholders of their right to take slaves into any part of the Union. In effect, therefore, the Missouri Compromise, as well as other antislavery legislation, was declared to be unconstitutional.
ABLEMAN V. BOOTH
[21 Howard 506 (1859)] Abolitionist Sherman Booth was held in a state jail for violating the federal fugitive slave laws by helping a slave escape to freedom. Booth secured a writ of habeas corpus from a state judge who declared the federal laws unconstitutional; the Wisconsin Supreme Court affirmed. The U.S. Supreme Court unanimously upheld Congress’s fugitive slave law and all its provisions, ruling that the state court had stepped beyond its sphere of authority. Although the Wisconsin government was deemed sovereign within its territorial limits, it was limited and restricted by the U.S. Constitution. Booth’s conviction was upheld.
STATE AND LOCAL AFFIRMATIVE ACTION REQUIREMENTS
UNITED STEELWORKERS OF AMERICA V. BRIAN WEBER
[433 U.S. 193 (1979)] The United Steelworkers of America and Kaiser Aluminum Company entered into a collective bargaining agreement including a voluntary affirmative action plan designed to eliminate conspicuous racial imbalances in Kaiser’s almost exclusively white skilled workforce. The plant in Gramercy, Louisiana, agreed to reserve 50 percent of the openings in the skilled job training programs for African Americans until the percentage of black skilled workers was equal to the percentage of blacks in the local labor force. Brian Weber, a white production worker, who was turned down for the training program although he had more seniority than many accepted blacks, sued the United Steelworkers of America, claiming that the affirmative action program discriminated against whites.
The Supreme Court limited the issue to the narrow question of whether Title VII prohibited private employers and unions from establishing voluntary affirmative action plans. In a 5–2 decision, the Court upheld the affirmative action plan and established three factors to determine the validity of racial preference. The Court approved the plan because it was designed to break down Kaiser’s historic patterns of racial segregation, it did not unnecessarily diminish the rights of white employees since it did not require the firing of white employees, and it was a temporary measure not intended to maintain racial balance but simply to eliminate an imbalance.
FULLILOVE V. KLUTZNIK
[448 U.S. 448 (1980)] The Supreme Court upheld a provision of the Public Works Employment Act of 1977 that required a 10 percent set-aside of federal funds for minority business enterprises on local public works projects. The provision had been challenged as a violation of the Equal Protection Clause of the Fourteenth Amendment.
FIREFIGHTERS LOCAL UNION NO. 1784 V. STOTTS
[467 U.S. 561 (1984)] In May 1981, for the first time in its history, the city of Memphis announced layoffs of city employees due to a projected budget deficit. The layoffs, which also affected the fire department, were to be made based on a citywide seniority system that had been adopted in 1973. Carl Stotts, an African American fire-fighter, sued to stop the layoffs, claiming that since blacks had been hired pursuant to the affirmative action provisions of a 1980 court decree, they would be laid off in far greater numbers than their white coworkers. In a 6–3 decision, the Court held that since the 1980 court decree did not say that African Americans had special protection during a layoff, the layoffs had to be made according to the 1973 seniority system.
WYGANT V. JACKSON BOARD OF EDUCATION
[476 U.S. 267 (1986)] The U.S. Supreme Court dealt a blow to affirmative action in this case involving a public school system’s affirmative action plan. The record reflected that the first African American school teacher was not hired in Jackson, Michigan, until 1953. By 1969, only 3.9 percent of the teachers were African American although 15.2 percent of the students were African American. In response, the school board developed an affirmative action plan that protected African American faculty members during layoffs.
Although the U.S. Supreme Court had approved affirmative action plans in prior cases, it rejected the Jackson plan. The Court found that the goal of the plan—to remedy societal discrimination and afford positive role models to African American students—was nebulous and not sufficiently compelling.
LOCAL NO. 93, INTERNATIONAL ASSOCIATION OF FIREFIGHTERS V. CITY OF CLEVELAND
[106 S.Ct. 3063 (1986)] The city of Cleveland, Ohio, which had a long history of racial discrimination, negotiated a consent decree with black firefighters who had filed a lawsuit alleging that they had been unlawfully denied jobs and promotions. The decree included an affirmative action plan with numerical goals for promotion of blacks to the position of supervisor. In response to the union’s challenge on behalf of white firefighters, the Supreme Court ruled that the lower courts had broad discretion to approve decrees in which employers settle discrimination suits by agreeing to preferential promotions of blacks, in spite of the objections of white employees.
LOCAL 28, SHEET METAL WORKERS INTERNATIONAL ASSOCIATION V. EEOC
[106 S.Ct. 3019 (1986)] After finding that the all-white union had discriminated against African Americans and Hispanics seeking to enter the sheet metal trades for more than a decade, the trial court ordered the union to establish a 29 percent non-white membership goal. The court also ruled that the union would have to pay substantial fines if the union failed to meet the goals. After the union failed to reach the goal, the court found the union in contempt and established a new goal of 29.3 percent. The union challenged the court’s order.
The Supreme Court upheld the affirmative action goal in light of the union’s “persistent or egregious discrimination” and to eliminate “lingering effects of pervasive discrimination.” This was the first time the Court expressly approved the use of race conscious relief to African Americans and Hispanics who were not identified victims of discrimination.
UNITED STATES V. PARADISE
[480 U.S. 149 (1987)] This case originated in 1972 when the NAACP sued the Alabama Department of Highways because of its long-standing history of racially discriminating employment practices. More than 11 years later, after the department had failed to hire or promote African Americans, the trial court ordered the promotion of one black trooper for every white. The U.S. attorney general challenged the constitutionality of the plan. The U.S. Supreme Court upheld the use of strict racial quotas and found that the plan was “narrowly tailored to serve the compelling government interest” of remedying “egregious” past discrimination against African Americans.
JOHNSON V. TRANSPORTATION AGENCY, SANTA CLARA COUNTY, CALIFORNIA
[480 U.S. 616 (1987)] The U.S. Supreme Court held that the state transportation agency’s voluntary affirmative action plan, under which a female had been promoted to the position of road dispatcher over a male, was consistent with Title VII of the Civil Rights Act of 1964. The Court held that an employer does not have to admit or prove that it has discriminated in order to justify efforts designed to achieve a more racially balanced work-force. The employer only needs to demonstrate that there is a “conspicuous . . . imbalance in traditionally segregated job categories.”
CITY OF RICHMOND V. J. A. CROSON CO.
[109 S.Ct. 706 (1989)] The Court upheld a court of appeals decision that Richmond’s Minority Business Utilization Plan was not sufficiently narrowly tailored to remedy past discrimination in the construction industry. The plan allowed minorities a fixed 30 percent quota of the public contracts based solely on their race.
ADARAND CONSTRUCTORS, INC. V. PEÑA
[115 S.Ct. 2097 (1995)] The Court ruled that affirmative action programs of the federal government that award construction contracts can only be acceptable if they show a compelling interest for the program and the program is narrowly tailored to accomplish this interest.
(To locate biographical profiles more readily, please consult the index at the back of the book.)
CLIFFORD L. ALEXANDER JR. (1933– ) Attorney, Federal Government Official
Clifford Leopold Alexander Jr. was born in New York City on September 21, 1933. Alexander went to Harvard and earned his B.A. in 1955, graduating cum laude. He attended Yale Law School and, in 1958, earned his LL.B. He then became the assistant district attorney of New York County from 1959 to 1961. He was the executive director of the Hamilton Grange Neighborhood Conservation district in Manhattanville from 1961 to 1962. In 1963, he became a staff member of the National Security Council.
Alexander was hired by President Lyndon Johnson as his deputy special assistant in 1964, and quickly rose to become the president’s deputy special counsel. He became chairman of the Equal Employment Opportunity Commission in 1967, where he was accused of bullying reluctant employers into complying with federal guidelines for minority employment. In 1969, he left the position.
From 1969 to 1976, Alexander worked for several different law firms. He also became a Harvard overseer. At Harvard, he was involved in working with craft unions to improve minority employment opportunities.
President Jimmy Carter appointed Alexander secretary of the Department of the Army, the first African American to serve in that position. Alexander won the Outstanding Civilian Service Award from the Department of the Army in 1980. Since 1981, Alexander has been president of Alexander Associates, Inc., and served as a consultant on minority hiring practices to Major League Baseball. In the early 1990s, Alexander served as the District of Columbia’s chief negotiator in hammering out a deal to build a new stadium for the National Football League’s Washington Redskins.
In addition, Alexander has had his own television program Black on White, has been director of several Dreyfus money funds, has served on the board of directors for the Mexican-American Legal Defense and Educational Fund, and has taught at Howard University.
JOYCE LONDON ALEXANDER (1949– ) Judge
Joyce London Alexander was born in Cambridge, Massachusetts, in 1949. She graduated in 1969 from Howard University after studying there on a scholarship from the NAACP. She worked for U.S. Representative and Speaker of the House, Tip O’Neill (D-Mass.), and then graduated in 1972 from the New England School of Law.
She practiced law for several public foundations and worked as an assistant professor at Tufts University before being appointed to a U.S. district court as a magistrate. In 1996, she was named chief judge, becoming the first African American so honored.
Alexander is known for her activities in the legal community. She has held various positions for the National Bar Association and has founded several educational programs for her peers. In 2002, she served as General Counsel for the Massachusetts Board of Higher Education and as a legal editor for WBZ-TV in addition to remaining an assistant professor at Tufts.
VIOLETTE ANDERSON (1882–1937) Judge, Attorney
Violette Neatley Anderson was born on July 16, 1882, in London, England. Her family moved to the United States, where she attended North Division High School in Chicago, Illinois, from 1895 to 1899. She then attended the Chicago Athenaeum in 1903, the Chicago Seminar of Sciences from 1912 to 1915, and Chicago Law School from 1917 to 1920, where she earned her LL.B. in 1920, the same year that she wed Albert E. Johnson.
Anderson worked as a court reporter from 1905 to 1920, which sparked her interest in law. She began a private practice in 1920, becoming the first African American woman to practice law in the U.S. District Court, Eastern Division. From 1922 to 1923, she served as the first female city prosecutor in Chicago.
After five years of practice before the high court of Illinois, Anderson was admitted to practice for the U.S. Supreme Court, becoming the first African American woman to obtain this post. Her admission became a precedent for other African American women.
Anderson also belonged to the Federal Colored Women’s Clubs, was the first vice president of the Cook County Bar Association, president of Friendly Big Sisters League of Chicago, and secretary of the Idlewild Lot Owners Association. In addition, she was a member of the executive board of the Chicago Council of Social Agencies. She died on December 24, 1937.
DEBORAH A. BATTS (1947– ) Judge
The first openly lesbian federal judge, Batts was confirmed in 1994 to the U.S. District Court for the Southern District of New York. A graduate of Radcliffe and the Harvard Law School, Batts clerked for a federal judge before joining Cravath, Swaine & Moore, where she worked as a litigator for six years. Next she served as assistant U.S. attorney in New York for five years before accepting a teaching post at Fordham University in 1994.
A supporter of equal rights for gays and lesbians, Batts is known to be an independent thinker unafraid to speak her mind. She was drawn to the legal field after experiencing the political turmoil of the 1960s. She was initially recommended for a federal judgeship during the Bush administration but did not receive a nomination. U.S. Senator Daniel Moynihan recommended her a second time when President Bill Clinton assumed office. Clinton’s nomination of Batts was confirmed by the Senate with no challenges on May 6, 1994.
DERRICK ALBERT BELL JR. (1930– ) Attorney, Educator
Derrick Albert Bell Jr. was born in Pittsburgh, Pennsylvania, on November 6, 1930. He attended Duquesne University and received his LL.B. from the University of Pittsburgh Law School. He married Jewel A. Hairston and the couple has three children. Bell is a member of the bar in Washington, DC, Pennsylvania, New York, California; the U.S. Supreme
Court; the U.S. Courts of Appeals for the Fourth, Fifth, Sixth, Eighth, and Tenth Circuits; and several federal district courts. Bell has written several important books on the law including Race, Racism and American Law, (3rd ed., 1992), and And We Are Not Saved:The Elusive Quest for Racial Justice (1987). Bell also served as editor of Desegregation Dialogue, Searching for Remedies Under Brown.
After graduating from law school, Bell worked for the U.S. Department of Justice from 1957 to 1959, the Pittsburgh Branch of the NAACP as executive secretary from 1959 to 1960, and for the NAACP Legal Defense and Educational Fund as staff attorney from 1960 to 1966. In 1966 he was made deputy assistant to the secretary for civil rights for the Department of Health, Education and Welfare. He also served for a year as the director of the Western Center on Law and Poverty.
Bell began as a lecturer on law at Harvard Law School in 1969, became a professor in 1971, and left in 1980 to be dean of the University of Oregon Law School for five years. After spending one year teaching at Stanford University, he returned to Harvard Law School in 1986. Four years later, Bell took an unpaid extended leave from his teaching duties at Harvard in protest over the institution’s lack of a tenured black woman professor. Bell was formally removed from his position in 1992. His book-length works include: Faces at the Bottom of the Well: The Permanence of Racism (1992), Confronting Authority: Reflections of an Ardent Protester (1994), Gospel Choirs: Psalms of Survival in an Alien Land Called Home (1996), Afrolantica Legacies (1998), Ethical Ambition: Living for a Life of Meaning and Worth (2003), and Silent Covenants: “Brown v. Board of Education” and the Unfulfilled Hopes for Racial Reform (2004).
JANE MATILDA BOLIN (1908–2007) Judge, Attorney
At the age of 31, Jane Matilda Bolin was honored by being chosen to be the first African American female judge in the United States. She presided over the Domestic Relations Court of the City of New York (subsequently called the Family Court of the State of New York) for 40 years. Her first ten-year appointment came from Mayor Fiorello La Guardia in 1939. She was appointed to three more successive ten-year terms by mayors William O’Dwyer, Robert F. Wagner Jr., and John Lindsay. After her fourth term, however, Bolin reached the mandatory retirement age.
Bolin was born on April 11, 1908, in Poughkeepsie, New York, her father was the first African American graduate of Williams College. Bolin attended Wellesley College and Yale University School of Law, where she received her LL.B. in 1931. She worked with her father until she passed the New York State Bar examination and then practiced in Poughkeepsie before moving to New York City to practice law with her husband, Ralph E. Mizelle.
In 1937, Bolin was appointed assistant corporation counsel for New York City, a post that she held until she received her appointment to the Domestic Relations Court. Outside of her career, Bolin has taken an active role in the Wiltwyck School for Boys, the Child Welfare League of America, the Neighborhood Children’s Center, and the local and national NAACP. She has also traveled extensively and met several heads of state in Africa. Her friends included Eleanor Roosevelt, educator Mary McLeod Bethune, and Judge Waties Waring, who ruled in the first public school desegregation case. Bolin has received honorary degrees from Morgan State University, Western College for Women, Tuskegee Institute, Hampton University, and Williams College.
After her retirement, Bolin became a volunteer reading teacher for the New York City public schools. She received an appointment to the Regents Review Committee of the New York State Board of Regents, which holds hearings involving professional discipline of more than 32 professions. Bolin was honored for her distinguished service by the corporation counsel’s office on May 17, 1993. She died in New York City in early 2007.
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JOHNNIE COCHRAN (1937–2005) Attorney
Born in Shreveport, Louisiana on October 2, 1937, Johnnie L. Cochran Jr. grew up in Los Angeles. He received a
B.A. in 1959 from the University of California. After finishing his law studies at the Loyola Marymount University School of Law in 1963, he passed the California bar exam. Cochran began his law career as prosecutor in the criminal division of the deputy city attorney’s office in Los Angeles. In 1965, he left that post to join criminal lawyer Gerald Lenoir in private practice. He then created the firm of Cochran, Atkins & Evans.
During his first stint in private practice, Cochran established himself by defending high-profile African American clients, such as the family of Leonard Dead-wyler, a young man shot to death by police while driving his pregnant wife to the hospital, and Geronimo Pratt, a former Black Panther charged with murder. Cochran lost both cases, but he demonstrated how such cases could garner media attention and foment action among the African American community.
Cochran returned to the Los Angeles County district attorney’s office in 1978. After two years as a prosecutor, he returned to private practice in 1980. Shortly thereafter, Cochran won a settlement for the family of Ron Settles, who had been strangled by police officers, though his death was originally identified as a suicide.
Cochran’s victories increased, and he began representing celebrities such as pop singer Michael Jackson and actor Todd Bridges. Beginning in the summer of 1994, Cochran served as one of the team of defense lawyers for O. J. Simpson, accused of murdering his ex-wife Nicole Brown Simpson and her friend Ronald Goldman. Cochran wore down the prosecution by challenging evidence and concentrating on racially prejudiced officers. Cochran’s racially charged closing arguments alleged the police framed O. J. Simpson for murder. In response, the jury acquitted Simpson on all counts.
Following the Simpson case—described in the media as “The Trial of the Century”—Cochran became one of the best known lawyers in the country and was offered a million-dollar advance for his memoirs. Cochran has served as an adjunct professor at both the Los Angeles School of Law and the Loyola University School of Law. He served as chairman of the Rules Committee of the Democratic National Convention in 1984. In 1995, he was awarded the Trumpet Award by the Turner Broadcasting System.
Beginning in 1997, Cochran took part in a daily show for “Court TV.” He left the show in 1999 to create “The Cochran Firm,” one of the largest personal injury law firms in America, and in 2002 announced that he was organizing yet another firm to look into the possibility of reparations for the descendants of former slaves.
Cochran died on March 29, 2005.
WILLIAM T. COLEMAN (1920– ) Civil Rights Activist, Cabinet Officer
William T. Coleman was born in Philadelphia, Pennsylvania on July 7, 1920. Coleman graduated summa cum laude in 1941 from the University of Pennsylvania. His law studies at Harvard University were interrupted by World War II, but he returned to the school after the war and, in 1946, received his LL.B., graduating first in his class. He was also the first African American to serve on the editorial board of the Harvard Law Review.
In 1948, Coleman became the first African American to clerk for a Supreme Court Justice, when he clerked for Justice Felix Frankfurter. In the mid-1950s, Coleman joined the Philadelphia firm of Dilworth, Paxon, Kalish, Levy & Green. By the mid-1960s, he had become a partner in the firm. In 1959, Coleman served on an employment commission for President Dwight D. Eisenhower, and served Presidents John F. Kennedy, Lyndon B. Johnson, and Richard M. Nixon.
Coleman played an important role in many landmark civil rights cases. He coauthored the brief presented to the court in the 1954 case of Brown v. Board of Education of Topeka, Kansas and served as cocounsel on McLaughlin v. Florida (1964), which established the constitutionality of interracial marriages. In 1971, he was elected president of the NAACP Legal Defense and Educational Fund.
In 1975, President Gerald Ford appointed Coleman as the secretary of transportation. Coleman reorganized the department and issued a statement of the depart-ment’s goals. President Ford’s defeat in the 1976 election ended his reign at the department. Coleman returned to private practice in Washington, D.C. In 1995, President Bill Clinton presented him with the Presidential Medal of Freedom.
GEORGE CROCKETT JR. (1909–1997) Attorney, Judge, Legislator, Civil Rights Activist
Born in Jacksonville, Florida, on August 10, 1909, George William Crockett Jr. began working when he was 12 and graduated from Morehouse College in 1931. After traveling north to Michigan to pursue a law degree, Crockett returned to his hometown and opened a law practice. In 1939, his accomplishments as a lawyer and community activist led him to be chosen as the first African American attorney in the U.S. Department of Justice.
While in Washington, DC, Crockett distinguished himself as counsel for cases concerning the Fair Labor Standards Act, and in 1943, his work led to his appointment by President Franklin D. Roosevelt as an examiner with the Fair Employment Practices Committee. That same year, he was hired by the United Auto Workers in Detroit to serve as director of their Fair Employment Practices Office during a time of increased racial tensions in the city. In 1946, he went into private practice in Detroit in a firm that took on significant civil rights cases. Crockett once argued a case on behalf of accused Communists, which landed him in prison for four months for contempt of court.
Crockett became intensely involved in the civil rights struggle in the South during the 1960s, leaving Michigan for a time to direct the National Lawyers Guild’s civil rights effort, Project Mississippi. In 1966, he was elected to Detroit Recorder’s Court, a bench that handled the city’s criminal docket. In 1969, members of a leftist group who were meeting at an African American church were brought en masse into police custody after a shooting outside the church. Crockett went down to the station in the middle of the night and set up his own impromptu court, releasing most of the people charged on the basis of constitutional law. He was vilified by Detroit’s white establishment for his application of the Bill of Rights.
In 1980, two years after he had left the Recorder’s Court bench, Crockett was elected as a Democratic Congressional representative for a Michigan district that included part of Detroit. He served in Washington for the next decade, continuing to distinguish himself by speaking out on civil rights issues and even serving another stint in jail for participating in a demonstration against apartheid in South Africa. The legislator was also a vocal opponent of the Reagan administration’s policies in Central America, especially during his tenure as chair of the Foreign Affairs Subcommittee on the Western Hemisphere. After his retirement from politics in 1990, Crockett, founder of the National Bar Association Judicial Council, died in 1997.
DREW S. DAYS III (1941– ) Attorney, Educator
Days was born in Atlanta, Georgia, on August 29, 1941. He received his B.A. from Hamilton College in 1963 and continued his studies at the Yale Law School. During his free summer months, Days returned to Georgia to champion civil rights causes and represent the poor as an intern. After graduating in 1966 from law school near the top of his class, Days moved to Chicago to represent minorities in cases of housing discrimination in the city. Later, Days quit practicing law to work in Honduras for the U.S. Peace Corps.
Upon his return to the United States, Days worked in the Legal Defense and Educational Fund for the NAACP. At the same time, he served as an associate professor at Temple University in Philadelphia. In 1977, Days accepted a post as the first African American as the head of the Civil Rights Division of the U.S. Department of Justice. In 1980, Days left the government position to teach at Yale University.
In 1992, President Bill Clinton nominated Days to the position of solicitor general of the United States, the second leading position at the Justice Department. In this position, Days criticized poorly conceived or poorly managed minority assistance programs. In 1995, he argued before the Supreme Court to keep in place minority voting districts in the Deep South. Early in 1996, Days resigned his position at the Justice Department and once again returned to Yale Law School.
JEROME FARRIS (1930– ) Attorney, Judge
Judge Joseph Jerome Farris was born on March 4, 1930, in Birmingham, Alabama. He earned his B.S. degree from Morehouse College in 1951, and in 1952, joined the U.S. Army Signal Corps. He received a M.S.W. from Atlanta University in 1955 and received his J.D. from the University of Washington in 1958. Farris is married to Jean Shy and has two children.
Farris began his legal career in 1958 with the firm of Weyer, Schroeter, and Sterne. In 1959 he became a partner. He remained in private practice until 1969, when he became a Washington State Court of Appeals judge. Farris served as the chairman of the State Federal Judicial Council of Washington from 1983-1987. In addition, he served as president on the Washington State Jr. Chamber of Commerce from 1965-1966; a trustee with the Pacific Northwest Ballet from 1978-1983; and since 1985, as a regent of the University of Washington.
President Jimmy Carter nominated Farris to the Ninth Circuit Court of Appeals in July 1979. The nomination was confirmed by the Senate on September 26, 1979, and in March 1995, Farris assumed senior status.
Farris has been honored with the Clayton Frost Award from the Jaycees in 1966, received an honorary LL.D. from Morehouse College in 1978, and the Order of the Coif from the University of Washington Law School.
ARCHIBALD H. GRIMKé (1849–1930) Attorney, Writer, Activist, Diplomat
Archibald Henry Grimké was born on a plantation near Charleston, South Carolina, on August 17, 1849. His father, a white slaveowner, was a successful lawyer. His mother had been a family slave and served as the nurse for Henry Grimké’s first wife, Selena. Archibald was considered a slave at the time. He, along with his mother and siblings, were passed on to relatives after his father’s death. Grimké attended a special school during his youth. Grimké enrolled in a school directed by Frances Pillsbury and impressed the instructors there with his superior academic abilities. He completed undergraduate studies in only three years and obtained his master’s degree in 1872 from Lincoln University.
Grimké moved to Boston where he practiced law from 1875 to 1883. Beginning in 1885, he presided over the Women’s Suffrage Association of Massachusetts. In the early 1890s, Grimké wrote for Boston-area publications, before being appointed the American consul for Santo Domingo (now the Dominican Republic) for four years. He then assumed the presidential role for the Washington chapter of the NAACP while writing, lecturing, and presiding over the American Negro Academy. Grimké wrote several books including biographies of William Lloyd Garrison (1891) and Charles Sumner (1892), numerous essays, and speeches. He died on February 25, 1930.
WILLIAM H. HASTIE (1904–1976) Attorney, Judge, State Government Official
From 1949 to 1971, William Henry Hastie served as a U.S. Court of Appeals judge for the Third Circuit, the first African American man to hold a federal appellate court position. Hastie was born in Knoxville, Tennessee, November 17, 1904. He was the son of William Henry and Roberta Child Hastie. He received his A.B. from Amherst College in 1925, an LL.B.in 1930, and an S.J.D. in 1933 from Harvard University. He received honorary LL.D.s from many institutions including Rutgers University, Howard University, and Temple University. In 1943, he married Beryl Lockhart. The couple had three children.
Hastie was admitted to the bar in 1930 and was in private practice from 1930 to 1933. In 1933, he became assistant solicitor of the U.S. Department of the Interior, where he served until 1937. In 1937, he became a judge for the District Court of the Virgin Islands, leaving in 1939 to become dean of the Howard University School of Law. In 1942, he was the first civilian aide to the secretary of war. He was governor of the Virgin Islands between 1946 and 1949, before his subsequent position as a U.S. circuit court judge. Hastie was also a trustee of the Amherst College and a fellow of the American Academy of Arts and Sciences. Hastie died on April 14, 1976, in Philadelphia, Pennsylvania.
JOSEPH W. HATCHETT (1932– ) Attorney, Judge, Author
Judge Joseph Woodrow Hatchett was the first African American to be appointed to the highest court of a state since Reconstruction, the first African American to be elected to public office in a statewide election in the South, and the first African American to serve on a federal appellate court in the South.
Born in Clearwater, Florida, on September 17, 1932, Hatchett received his A.B. from Florida A&M University in 1954 and his J.D. from Howard University in 1959. He also has certification in his specialties—a Naval Justice School Certificate in 1973, an Appellate Judge Course in 1977, and an American Academy of Judicial Education Appellate Judge Course in 1978.
From 1959 to 1966, Hatchett was in private practice in Florida, where he also served as the contract consultant for the city of Daytona Beach. He became an assistant U.S. attorney in Jacksonville in 1966, then served as the first assistant of the U.S. Attorney for the Middle District of Florida. In 1971, he became the U.S. magistrate for the Middle District of Florida, and was a justice for the Florida State Supreme Court from 1975 to 1979. A nominee of President Jimmy Carter, Hatchett was a circuit judge for the Fifth Circuit U.S. Court of Appeals from 1979 until his transfer to the Eleventh Circuit on October 1, 1981. In 1996 he became chief judge of the court, serving in that capacity until his retirement on May 14, 1999.
Hatchett was honored with a Howard University Post Graduation Achievement Award in 1977, named Most Outstanding Citizen by the Broward County National Bar Association in 1976, received a Medallion for Human Relations from Bethune-Cookman in 1975, and has been awarded several honorary doctorates. He is the author of multiple publications in the field of law.
A. LEON HIGGINBOTHAM JR. (1928–1998) Judge, Author
Aloysius Leon Higginbotham Jr. was appointed in 1977 by President Jimmy Carter as a judge of the Third Circuit U.S. Court of Appeals and became the circuit’s chief judge before his retirement in 1993. He had served on the Federal Trade Commission—the first African American and the youngest person ever to hold the post of commissioner. Born in Trenton, New Jersey, on February 25, 1928, Higginbotham began as an engineering student at Purdue University, but later went to Antioch College to study liberal arts. He received his LL.B. in 1952 from Yale School of Law.
After graduation, he became an assistant district attorney in Philadelphia and later moved into private practice. He was sought out by Pennsylvania Governor David Lawrence to become a member of the Pennsylvania Human Rights Commission. Elected president of the Philadelphia chapter of the NAACP, Higginbotham later earned the honor of “One of the 10 Outstanding Young Men in America” by the U.S. Junior Chamber of Commerce. He was appointed a federal district judge in 1964, where he served until his appointment as a federal appellate judge in 1977. Higginbotham was also a lecturer at Harvard Law School and an adjunct professor at the University of Pennsylvania. In 1993, he was nominated for a position on the New York Times Co. board of directors.
In 1995, a retired Higginbotham levied criticism at Supreme Court Justice Clarence Thomas, whose judicial philosophy differed greatly from his own. While Higginbotham advocated social engineering through legislation, Thomas vigorously held that law should be colorblind. Higginbotham was criticized for what some saw as an unprovoked attack on a colleague.
Higginbotham was known for his writing. He authored more than 100 articles as well as an acclaimed book, In the Matter of Color: Race and the American Legal Process: The Colonial Period. He was also praised for his logic and language. In his esteemed career, he won more than 40 honorary degrees. Higginbotham was awarded the nation’s highest medal in 1995, when the Presidential Medal of Freedom was bestowed upon him by President Bill Clinton.
ANITA HILL (1956– ) Educator, Author, Lecturer
Born on July 30, 1956, in Morns, Oklahoma, Anita Faye Hill was a relatively unknown law professor at the University of Oklahoma until 1991. It was during the Senate confirmation hearings for eventual U.S. Supreme Court Justice Clarence Thomas that Hill became famous. She came forward with sexual harassment charges against Judge Thomas that shocked the nation. Television cameras and viewers watched as she poured out details of Thomas’s alleged wrongdoings, purportedly committed when both had worked for the Equal Employment Opportunity Commission. Hill claimed that Thomas repeatedly pressured her to date him, told her plots of pornographic movies, and bragged about his sexual exploits. When asked why she did not quit her job or report Thomas when the incidents occurred during the early 1980s, Hill answered that she feared she would not be able to get another job. Thomas told a conflicting story, and without corroborative evidence for either side, was confirmed by the Senate.
Following the hearings, Hill continued to be hounded by the press. Several books were written and a 76-minute documentary composed of testimony clips entitled Sex and Justice: The Highlights of the Anita Hill Clarence Thomas Hearings was released. Her experience with the hearings changed her life. She decided to take a year-long sabbatical in order to look at the possibility of founding an institute with the purpose of researching racism and sexism. Hill also made many speeches around the country.
Controversy did not escape her on campus. Several lawmakers made news when they requested that Hill be fired. However, the University of Oklahoma dean and other members of the faculty supported her. In 1993, a university professorship to be established in Hill’s name was proposed. Though the suggestion met much opposition, the endowed chair was approved two years later. The Anita Faye Hill Professorship, which was dropped in 1999 under renewed political pressure, provided a salary and money for research and travel expenses incurred in the study of women’s rights in the workplace.
On March 9, 1995, Hill announced her resignation from the university, but after taking an unpaid leave during which she intended to write, she resumed her teaching post in September of the same year. In 1997, Hill joined the faculty of Brandeis University as a professor of social policy, law, and women’s studies in the Heller School for Social Policy and Management.
Race, Gender, and Power in America, co-edited by Hill and Emma Coleman Jordan, was published in 1995. Hill’s second book, Speaking Truth to Power, came out in 1997.
CHARLES HAMILTON HOUSTON (1895–1950) Attorney, Educational Administrator
Charles Hamilton Houston was born in Washington, D.C., on September 3, 1895. After he finished high school at the age of 15, he attended Amherst College and earned his A.B. in 1915 as one of six valedictorians. He briefly taught English, then enlisted in the U.S. Army in 1917, and served in France and Germany. He attended Harvard Law School and became the first African American editor of the Harvard Law Review. He received his LL.B. in 1922, and was in the top five percent of his class. He also became the first African American to receive an S.J.D. in 1923 from Harvard University. Later that year he received a Sheldon Fellowship and studied civil law at the University of Madrid. In 1924, he was admitted to the Washington, D.C., bar association in 1924.
Houston was in private practice with his father from 1924 to 1950. Between 1929 and 1935, he was vice dean of the school of law at Howard University. He was special counsel to the NAACP from 1935 to 1940 and a member of the National Legal Aid Committee from 1940 to 1950. He served as the vice president for the American Council on Race Relations from 1944 to 1950, and was a member of the President’s Commission on Fair Employment Practices in 1944.
While with the NAACP, Houston teamed with the American Fund for Public Service to direct a program of legal action and education aimed at the elimination of segregation. Former student Thurgood Marshall served under Houston for several years. While in this position, Houston argued several cases before the U.S. Supreme Court including Missouri ex rel. Lloyd Gaines v. Canada. The court ruled that Missouri could not keep an African American from attending the white state law school because no such school existed for African Americans.
Historically, Houston’s major impact was in his strengthening of Howard University’s Law School, as well as his work in civil rights litigation. Many of the cases he argued were instrumental in setting precedents that were to be used in the historic Brown v. Board of Education of Topeka, Kansas and Bolling v. Sharpe cases that outlawed racial segregation. In addition, he was a columnist for The Afro-American.
Houston died April 22, 1950, of a heart ailment and was buried in Lincoln Memorial Cemetery. Five Supreme Court justices attended his funeral. He received a great deal of recognition after his death including the Spingarn Medal awarded by the NAACP.
NORMA HOLLOWAY JOHNSON (1932– ) Judge
Born in Lake Charles, Louisiana, Norma Holloway Johnson left Louisiana at the age of 14 to attend high school in Baltimore, Maryland. She was the valedictorian in 1955 at Miner Teacher’s College, and graduated in 1962 from the Georgetown Law Center while working as a teacher.
Johnson worked in the Justice Department until 1967, when she became chief of the juvenile division for the District of Columbia. In 1970, President Richard M. Nixon appointed her associate judge for the district’s superior court. In 1980, President Jimmy Carter nominated Johnson to fill a vacant seat on the U.S. Circuit Court for the District of Columbia. She was confirmed by the Senate on May 9, 1980. Johnson served as chief judge of the court from 1997 to 2001, and on June 18, 2001, assumed senior status. During her tenure, she rendered many high-profile decisions involving corruption and civil rights.
ELAINE R. JONES (1944– ) Attorney, Organization Executive, Civil Rights Activist
Jones was born on March 2, 1944, in Norfolk, Virginia. She earned a B.A. with honors in 1965 from Howard University, and became the first African American female law student admitted to the University of Virginia School of Law.
Jones received her law degree in 1970 and was offered a job with a prestigious Wall Street firm. She eventually turned down the job on Wall Street and went to work instead for the NAACP Legal Defense and Educational Fund (LDF). The LDF had argued more cases before the Supreme Court than any other organization except the U.S. Department of Justice.
In 1973, Jones became the managing attorney in the LDF’s New York City office. In the late 1970s, she helped set up and run the LDF’s new Washington, D.C., office. In 1988, Jones was promoted to deputy director-counsel of the LDF, making her second-in-command to the director, Julius Chambers. Jones used this higher profile position to challenge the administrations of Ronald Reagan and George H. W. Bush on their federal judicial appointments. She was an outspoken opponent of both Robert Bork in 1987 and Clarence Thomas in 1991.
Julius Chambers resigned from the LDF directorship in 1993, and the organization’s board unanimously chose Jones to succeed him. As president and director-counsel, Jones broadened the organization’s agenda to include more cases of environmental and health care discrimination. In addition to litigation, she is concerned with the group’s fund-raising efforts.
NATHANIEL R. JONES (1926– ) Judge, Civil Rights Activist
Born on May 13, 1926, in Youngstown, Ohio, Nathaniel Raphael Jones is a judge, attorney, and administrator. President Jimmy Carter appointed him to the Sixth Circuit Court of Appeals in Cincinnati, Ohio, on October 5, 1979, where he served until his retirement on March 30, 2002. Prior to that, he was general counsel for the NAACP from 1969 to 1979; executive director of the Fair Employment Practices Commission of the city of Youngstown, Ohio, from 1966 to 1969; in private practice; and a U.S. attorney for the Northern District of Ohio.
While with the NAACP, Judge Jones organized the attack against northern school segregation and also argued in the Supreme Court case Bradley v. Milliken. The Dayton and Columbus, Ohio, school desegregation cases heard before the Supreme Court were also organized by Jones. He has headed a three-man team that investigated grievances of African American servicemen in Germany and responded to the attacks against affirmative action. He was made deputy general counsel to the President’s Commission on Civil Disorders in 1967 and co-chairman of the Civilian Military Task Force on Military Justice in 1972.
Jones received a B.A. from Youngstown University in 1951, and an LL.B. in 1956. He has honorary degrees from Youngstown University and Syracuse University. In April 2002, Jones joined the law firm of Blank Rome as senior counsel.
STAR JONES (1962– ) Attorney
Star Jones was born Starlet Marie Jones in 1962 and grew up in Trenton, New Jersey. She shortened her name in 1979 upon entering American University. Jones took an active role in college and even served as a national officer of Alpha Kappa Alpha. After earning a law degree from the University of Houston, Jones went to work for the Kings County District Attorney’s office, whose jurisdiction included the crime-plagued New York City borough of Brooklyn. She served as a member of its prosecuting staff from 1986 until her promotion to senior assistant district attorney in 1991.
The year 1991 also landed Jones an invitation to appear on Court TV, a cable television network that broadcasts high-profile trials interjected with commentary from experts on the judicial system. The channel soon hired her to appear regularly in conjunction with the William Kennedy Smith rape trial in Florida. Jones’s performance earned her network attention.
NBC lured her away from her tough job at the Brooklyn D.A.’s office by offering her its legal correspondent slot. During the two years she appeared on the network, several notable trials attracted the attention of the American viewing public. Jones provided commentary as well as explanation of some of the more complex legal points involved on both the Today show and NBC Nightly News. The cases included the criminal trial of the Los Angeles police officers charged with beating motorist Rodney King and the rape trial of boxer Mike Tyson.
In 1994, Group W Communications offered Jones her own syndicated television show. Debuting that fall, Jones & Jury gave parties to pending “small claims” lawsuits a chance to resolve their disputes on television before a studio audience. Jones would then render the verdict. The show was cancelled in 1995.
The cancellation did not mean the end of Jones’s television career, as she became a co-host for the ABC daytime talk show The View from 1997 to 2006. Jones has been nominated for the Emmy award for Outstanding Talk Show Host for her continuing analysis and clarification of social and legal events. On November 13, 2004, Jones married banker Al Reynolds following considerable sustained publicity.
Jones has published two books, You Have to Stand for Something, or You’ll Fall for Anything (1998) and Shine: A Physical, Emotional, and Spiritual Journey to Finding Love (2006). In 2002 she launched a nonprofit foundation, The Starlet Fund, aimed at benefitting women and girls around the world. It was announced that Jones would take a position with Court TV as executive editor of daytime programming in mid-2007.
AMALYA LYLE KEARSE (1937– ) Judge
Judge Amalya Lyle Kearse was born June 11, 1937, in Vauxhall, New Jersey. She received her B.A. in 1959 from Wellesley College, and her J.D. in 1962 from the University of Michigan. Kearse was in private practice from 1962 to 1969 and worked as an adjunct lecturer for the New York University Law School from 1968 to 1969. On June 21, 1979, President Jimmy Carter appointed her to a judg-ship in the U.S. Court of Appeals for the Second Circuit.
Kearse has won the Jason L. Honigman Award for Outstanding Contribution to the Law Review Editorial Board. She has also served on the board of directors for the NAACP Legal Defense and Educational Fund as well as the National Urban League. She was appointed to the President’s Commission for the Selection of Judges and served between 1977 and 1978. She served on the executive committee for Civil Rights Under Law for nine years, has been a member of the American Law Institute since 1977, and has been a fellow in the American College of Trial Lawyers since 1979.
DAMON J. KEITH (1922– ) Judge, Attorney
Damon Jerome Keith was appointed to the U.S. district court by President Lyndon B. Johnson and served from 1967 to 1977. In 1977, he began service as a judge for the Sixth Circuit U.S. Court of Appeals in Cincinnati, Ohio. He assumed senior status in the court on May 1, 1995.
Born on July 4, 1922, in Detroit, Keith attended West Virginia State College and in 1943 received his A.B. Following graduation, he served in the army for three years. He returned to school to earn his LL.B. in 1949 from Howard University. In 1951, Keith took a job as an attorney for the Office of the Friend of the Court in Detroit and held that position from 1951 to 1955. He received an LL.M. from Wayne State University in 1956.
Keith worked for the Wayne County Board of Supervisors from 1958 to 1963 and went into private practice from 1964 to 1967 before being appointed a judge. He has been active in the Michigan Civil Rights Commission, a trustee in the Medical Corporation of Detroit, a member of the Citizen’s Advisory Committee on Equal Educational Opportunity, first vice president emeritus of the Detroit Chapter of the NAACP, a member of the management committee of the Detroit YMCA, a member of the Detroit Council of the Boy Scouts of America, a member of the Detroit Arts Commission, and vice president of the United Negro College Fund of Detroit. Keith is also a trustee of the Interlochen Arts Academy and the Cranbrook School.
Judge Keith has been honored with many accolades including being named among 100 Most Influential Black Americans by Ebony magazine, in 1971 and 1977. He received a citizen award from Michigan State University and was named a Spingarn Medalist in 1974. He has received honorary degrees from the University of Michigan, Howard University, Wayne State University, Michigan State University, and New York Law School.
WADE HAMPTON MCCREE JR. (1920–1987) Judge, Attorney
Wade Hampton McCree Jr. was solicitor general under President Jimmy Carter from 1977 to 1981. McCree had already led a distinguished career as a judge and lawyer by the time he reached that position. He died on August 30, 1987. McCree was born in Des Moines, Iowa, on July 3, 1920. He graduated in 1941 from Fisk University, earning his A.B. In 1944 he received his LL.B. from Harvard University. In 1948, he was admitted to the bar in Michigan.
McCree had a private law practice from 1948 to 1952. From 1952 to 1954 he was commissioner of the Michigan Workmen’s Compensation Commission. He was a circuit judge for Wayne County, Michigan, from 1954 until 1961. Then he was a judge for the U.S. District Court, Eastern District, in Michigan from 1961 to 1966. McCree had the honor of being the first African American federal judge in the state of Michigan. From 1966 to 1977 he served as a Sixth Circuit U.S. Court of Appeals judge. From 1981 until his death in 1987, he was a member of the faculty at the University of Michigan Law School. In 1984, the Wade H. McCree Jr. Professorship was established at the University of Michigan Law School, making it the first endowed chair at a major American law school to be named after an African American. McCree was honored with more than 30 honorary degrees in his lifetime including LL.D.s from Howard University, Harvard University, Boston University, Brandeis University, and Tuskegee Institute.
GABRIELLE KIRK MCDONALD (1942– ) Judge
McDonald was born on April 12, 1942, in St. Paul, Minnesota. She attended Hunter College and then, in 1966, graduated cum laude from the Howard University School of Law. McDonald worked for the NAACP until 1969 when she went into private practice in Houston, Texas, with her husband.
McDonald earned a reputation as one of the top litigators in the state and won several large settlements for her clients in civil rights cases. Her record attracted national attention and in 1979 President Jimmy Carter appointed her a federal district court judge. In 1988, she resigned from her position and went back into private practice. She also taught at several law schools.
In 1993, McDonald was the only U.S. citizen elected to the United Nations International War Crimes Tribunal for the former Yugoslavia at the Hague, Netherlands. She was reelected in 1997 and became the presiding judge of the tribunal, a position she held until her resignation on November 17, 1999. In 2001, McDonald was honored by the American Bar Association Commission on Women in the Profession with its Margaret Brent Women Lawyers of Achievement Award.
THEODORE MCMILLIAN (1919–2006) Judge, Educator
Born on January 28, 1919, in St. Louis, Missouri, Theodore McMillian received his B.S. in 1941 from Lincoln University and, in 1949, earned his LL.B. from St. Louis University Law School. He served in the Signal Corps from 1942 to 1946.
McMillian has been a lecturer at St. Louis University Law School as well as a faculty member of Webster College. He became a circuit judge for the State of Missouri and served as an assistant circuit attorney for St. Louis, Missouri, from 1953 to 1956. From 1972 to 1978, he was a judge with the Missouri Court of Appeals. He became a U.S. Circuit Court of Appeals judge for the Eighth Circuit on September 23, 1978.
Judge McMillian has been a member of the board of trustees for Blue Cross, and a member of the Danforth Foundation Advisory Council. He served on the Presidential Council of St. Louis University, and as a board chairman for Human Development Corporation between 1964 and 1977. He has also been a member of the National Legal Aid Advisory Board. He has been honored with an Alumni Merit Award from St. Louis University, an Award of Honor from the Lawyers Association in 1970, and a Man of the Year Award in 1970. He died on January 18, 2006, in St. Louis, Missouri.
CARMEL CARRINGTON MARR (1921– ) Attorney, Diplomat, State Government Official
Carmel Carrington Marr was born in Brooklyn on June 23, 1921, and received her B.A. in 1945 from Hunter College. She earned her J.D. from Columbia University Law School in 1948. As an experienced lawyer in international law, she was appointed by President Harry Truman to the position of legal advisor to the U.S. mission to the United Nations in 1953. She served that position until 1967, keeping in constant contact with missions from other parts of the world and serving on a number of key committees of the U.N. General Assembly.
Marr began her career in private practice from 1949 to 1953. After her position as legal advisor to the United Nations, she became the senior legal officer of the U.N. Secretariat from 1967 to 1968, and then left to become a member of the New York State Human Rights Appeal Board from 1968 to 1971. Between 1971 and 1986 she served as commissioner of the New York State Public Service Commission. She retired from that position, becoming an energy consultant from 1987 until 1990.
Marr was also the chairperson of the advisory council of the Gas Research Institute between 1979 and 1986, the chairperson of the U.S. Department of Transportation Technology Pipeline Safety Standards Commission from 1979 to 1985, and the chairperson of the National Association of Regulatory Utility Commissioners Gas Commission from 1984 to 1986. She became president of NARUC’s Great Lakes Conference of Public Utility Commission and was on the board of the National Arts Stabilization Fund.
Marr has been honored as an Outstanding Community Service by the Brooklyn Urban League and received accolades from the Gas Research Institute, New York State Public Service Commission, American Red Cross, National Council of Churches, and Mademoiselle magazine.
THURGOOD MARSHALL (1908–1993) Judge, Federal Government Official, Attorney, Civil Rights Activist
Thurgood Marshall’s long and illustrious career was capped by his 1967 nomination to the U.S. Supreme Court, where he became the first African American to hold the position of Supreme Court Justice. He retired on June 27, 1991. Marshall died at the age of 84 on January 24, 1993. He was laid in state in the Great Hall of the Supreme Court of the United States on the same bier where Abraham Lincoln once rested. More than 20,000 mourners paid their respects.
Born in Baltimore, Maryland, on July 2, 1908, Marshall earned a B.A. from Lincoln University and hoped to become a dentist. He changed his mind, and instead went to Howard University Law School where he graduated in 1933 at the top of his class. He immediately entered private practice in Baltimore. In 1936, Marshall began what was to be a long and fruitful career with the NAACP, starting as an assistant special counsel, and eventually becoming director-counsel of the Legal Defense and Educational Fund (LDF) until 1961. In 1938, as a national special counsel, he handled all cases involving the constitutional rights of African Americans. Then, in 1950, he was named director-counsel of the LDF.
In 1954, Marshall was the lead lawyer for the NAACP before the U.S. Supreme Court in Brown v. Board of Education of Topeka, Kansas. He also figured prominently in such important cases as Sweatt v. Painter and Smith v. Allwright. Of the 32 cases that he argued before the Supreme Court, Marshall won 29.
Marshall was also known for his lifelong support of rights for women. Constance Baker Motley commented that Marshall hired her for an NAACP counsel position when virtually every other employer had turned her down. He also encouraged her when he argued cases before the Supreme Court, and made certain he pointed out other African American women role models.
In 1961, Marshall became a federal circuit judge for the second circuit. In 1946, he was awarded the prestigious Spingarn Medal for his many achievements. He had over 20 honorary degrees to his credit including LL.D. honors in 1960 from the University of Liberia, in 1964 from the University of Michigan, and in 1968 from the University of Otago, in Dunedin, New Zealand. Marshall was also the representative for the White House Conference on Youth and Children, and a member of the National Bar Association. He was sent by President John F. Kennedy to be a personal representative to the independence ceremonies of Sierra Leone.
CONSTANCE BAKER MOTLEY (1921–2005) Federal Government Official, Judge, Civil Rights Activist, Attorney
Born on September 14, 1921, in New Haven, Connecticut, Constance Baker Motley became the first African American woman to become a federal judge. She was appointed in 1966 by President Lyndon B. Johnson to the U.S. District Court for Southern New York.
While still a law student at Columbia University, Motley began working with the NAACP Legal Defense and Educational Fund. In 1946, she was awarded her LL.B. and began to work full-time with the NAACP, eventually becoming an associate counsel. During her 20-year career with the organization, Motley had argued nine successful NAACP cases before the U.S. Supreme Court, and had participated in almost every important civil rights case that had passed through the courts since.
In 1964, Motley made a successful run for the New York State Senate. She became the first African American woman elected to that position. After only a year in the Senate, Motley ran for the position of Manhattan Borough President, emerging the victor by the unanimous final vote of the city council. She thus became the first woman to serve as a city borough president, and, therefore, also the first woman on the Board of Estimate.
Motley was appointed to the U.S. District Court in 1966. In 1982, she was named chief judge of the federal district court that covers Manhattan, the Bronx, and six counties north of New York City. In 1986 she was named senior U.S. district judge.
During her career, Motley received several awards for her contributions to the legal profession and for her role in the advancement of civil rights. She holds more than 20 honorary degrees from prestigious universities including Princeton and Howard. In 1993, Motley was inducted into the National Women’s Hall of Fame. She died on September 28, 2005.
ELEANOR NORTON. SEEPOLITICS CHAPTER.
CHARLES J. OGLETREE JR. (1952– ) Lawyer
Charles J. Ogletree Jr. was born on December 31, 1952, in Merced, California, and attended Stanford University. In 1974, he received his B.A. and followed it the next year with his M.A. While at Stanford he became involved with the Black Power Movement. He edited a Black Panther newspaper and traveled to Africa and Cuba.
His attendance at Angela Davis’s trial first attracted him to a career in the law.
Ogletree graduated in 1978 from Harvard Law School and went to work as a public defender in Washington, D.C. He established a reputation as a top trial lawyer and taught at American University and Antioch Law School. In 1985, while in private practice, Ogletree became a visiting professor at Harvard Law School and helped the school develop its trial advocacy workshops.
Ogletree served as Anita Hill’s attorney during her testimony before the U.S. Senate concerning the nomination of Clarence Thomas to the Supreme Court. In 1989, he became a full professor at Harvard, where he was named the Jesse Climenko Professor of Law in 1998.
BERNARD PARKS (1943– ) Police Chief
Bernard C. Parks was born in Beaumont, Texas, on December 7, 1943, but was raised in Los Angeles. After bouncing between jobs, Parks became a police officer in Los Angeles in 1965. Parks received his B.A. in 1973 from Pepperdine University and his M.A. in public administration in 1976 from the University of Southern California.
Parks steadily moved up the ladder at the Los Angeles Police Department. By 1988 he was the assistant police chief. The Los Angeles riots of 1992 forced incumbent police chief Darryl Gates from his position. Gates was accused by many of racism during his reign as police chief. An African American chief was picked to replace Gates.
The new chief, Willie Williams, clashed frequently with Parks. He demoted Parks in 1994. However, the City Council restored Parks’s salary. In 1996, Williams was removed as chief and the next year Parks became the head of the LAPD. Parks held the post until June 2002, retiring after he was denied a second five-year term by the Los Angeles Police Commission in April. During his tenure as chief, Parks attempted reform of the department, implementing changes meant to bring officers closer to their captains. During Parks’s term, though, the department was racked by the widely publicized Rampart scandal. The chief also suffered the loss of his grandaughter, Lori Gonzalez, in a gang-related shooting in June 2000.
Parks was elected to the Los Angeles City Council in 2003. His campaign for the position of mayor ended with a fourth-place finish in the 2005 primary election.
JAMES B. PARSONS (1911–1993) Judge
James Benton Parsons was born August 13, 1991, in Kansas City, Missouri. He graduated in 1934 from the James Milliken University and Conservatory of Music and began to teach at Lincoln University. He later taught in Greensboro, North Carolina, until he joined the U.S. Navy in 1942. After World War II, he received an M.A. in political science and a J.D. from the University of Chicago.
Parsons went into private practice and taught constitutional law at the John Marshall Law School. He served as assistant U.S. district attorney for nine years until he became a judge of the Cook County Superior Court. He was appointed a U.S. district court judge in 1961 by President John F. Kennedy. He became the first African American to sit as a federal judge in the continental United States. In 1975, Parsons was named chief judge of the court.
He retired in 1992 after many tributes from other African American judges. Parsons died on June 19, 1993, in Chicago.
SPOTTSWOOD ROBINSON (1916–1998) Attorney, Judge
Spottswood William Robinson III was born July 26, 1916, in Richmond, Virginia. He received his B.A. in 1936 from Virginia Union University and his LL.B. in 1939 from Howard University Law School. He graduated magna cum laude from Howard.
Robinson has had a long career in private and public practice. He was an attorney in Richmond until 1960. However, during that time he also taught at the Howard University Law School from 1945 until 1964. He was dean of the school of law from 1960 to 1964. Robinson gained notoriety during the period for his work with the NAACP. He worked alongside Thurgood Marshall for the Legal Defense and Educational Fund from 1948 to 1950. From 1951 to 1960 he was the regional counsel for the NAACP in the southeast.
In 1964, President Johnson appointed Robinson as a federal circuit court judge in Washington, D.C. In 1966, Robinson was promoted to the U.S. Court of Appeals for the District of Columbia Circuit. He also served on the U.S. Civil Rights Commission from 1961 to 1963.
Robinson died on October 11, 1998, in Richmond, Virginia.
GEORGE RUFFIN (1834–1886) Judge, Attorney, Civil Rights Activist
George L. Ruffin was born in Richmond, Virginia, in 1834, the first son of free African Americans. In 1853, the family moved to Boston. Ruffin graduated from Chapman Hall school and joined with the Republican Party. He moved for a short while to Liverpool, England, after becoming disillusioned by the Dred Scott decision. Returning to Boston, Ruffin worked as a barber. He wrote a review for the Anglo-African newspaper in 1863 and attended the National Negro Convention in 1864.
Ruffin also began to read law with a local firm. He graduated in 1869 from Harvard Law School, becoming the first African American to earn an LL.B. from Harvard and, perhaps, the first to graduate from a university law school in the United States. He joined the firm of Harvey Jewell, and then won a seat on the Massachusetts legislature in 1869, becoming the second African American to serve in that body.
Ruffin became known as an exceptional speaker and debater as he focused his attention to the problems in the South. In 1876 and 1877, he won election to the Boston Common Council. He presided over the Negro Convention of New Orleans in 1872. Frederick Douglass was a friend of Ruffin’s, and Ruffin was asked to contribute to the introduction to the 1881 revision of The Life and Times of Frederick Douglass. Ruffin was appointed in November 1883 as judge of a municipal court in Charlestown. He became the first African American judge in Massachusetts. In 1883, he was made consul resident for the Dominican Republic in Boston. Ruffin’s other activities included being named president of the Wendell Phillips Club of Boston, member and president of the Banneker Literary Club of Boston, and superintendent and officer of the Twelfth Baptist Church of Boston. Ruffin died of Bright’s disease on November 20, 1886.
KURT L. SCHMOKE. SEEPOLITICS CHAPTER.
DRED SCOTT. SEEAFRICANS IN AMERICA CHAPTER.
ROBERT H. TERRELL (1857–1925) Educator, Judge, Attorney
Robert H. Terrell was born in Charlottesville, Virginia, on November 27, 1857. He worked in a dining hall to pay for his classes at Harvard, where he graduated magna cum laude in 1884. He went to work in the Washington, D.C., public schools, and also attended Howard University Law School, earning his LL.B. in 1889 and his LL.M. in 1893. In 1889, he went to work as the chief clerk in the office of the auditor of the U.S. Treasury Department.
Terrell was involved in the private practice of law from 1892 to 1898, until he became a teacher, and later became principal at the M Street High School. He was elected to the Board of Trade in the 1890s. In 1901, he was appointed as a justice of the peace in Washington, D.C. Similar to many African Americans of his day, Terrell was torn between his strongly held civil rights beliefs and Booker T. Washington’s conservative ideas. Through Washington’s influence, Terrell was nominated by President William H. Taft for the position of judge of the Municipal Court of the District of Columbia in 1910. Despite racial protests in the Senate, Terrell signed the appointment and held the position until his death on December 20, 1925. Terrell suffered two strokes and battled asthma while on the court.
CLARENCE THOMAS (1948– ) Attorney, Supreme Court Justice
Thomas was born June 23, 1948, in Pin Point, Georgia. As a youth, Thomas lived with his maternal grandparents in Savannah. While his grandfather had little education, he was determined that Thomas would go to school and make something of himself. He attended various Catholic schools. He intended to enter the priesthood, but left when he encountered a racist seminarian.
Thomas earned his B.A. from Holy Cross College. He was accepted into Yale Law School in 1971 after Yale had adopted an affirmative action program. In 1974, he earned his J.D. After graduating, Thomas became an assistant attorney general for the state of Missouri. Thomas worked briefly at Monsanto Company in St. Louis, specializing in pesticide, fungicide, and rodenticide law. He also worked as a legal assistant for Senator John C. Danforth.
From 1981 to 1982, Thomas was an assistant secretary for civil rights with the Department of Education, then moved on to chair the Equal Employment Opportunity Commission (EEOC) until 1990. His time there was controversial, as he was not allied with either liberals or civil rights leaders, and he did not feel comfortable with the white conservative hierarchy.
After Robert H. Bork resigned his Circuit Court position because he had been rejected for a place on the U.S. Supreme Court, Thomas was appointed to the post. He served there until he was made a justice on the Supreme Court in 1991. Thomas’s nomination hearings were marred by accusations of sexual harassment levied against him by former EEOC employee Anita Hill.
Hill became a household name when she came forward with her allegations. The Senate was divided by Hill’s testimony. Though Thomas denied the charges and many of his former coworkers testified for him, the case became highly politicized. Thomas was nominated by a vote of 52–48, one of the closest margins in Supreme Court history.
Thomas has gone on to carve out a prominent role as one of the most conservative justices on the Court. Together with Justice Antonin Scalia, Thomas forms the right-wing backbone of the Court. In his tenure Thomas has presented strong opinions against affirmative action and desegregation. He also supports limiting the powers of the federal government. In 1992, Thomas was one of ten people to receive the Horatio Alger Award. However, he has consistently been criticized by African American lawyers and judges for his conservative stances. In 1998, he rebuffed his critics at a speech before the National Bar Association.
EVELYN WILLIAMS (c.1922– ) Attorney
Williams was born in North Carolina but grew up in Queens, New York, in a close-knit family. After graduating from Brooklyn College, she became a social worker for New York City. Shaken by the poverty she encountered and hoping to take a more active role in helping her community, Williams became a juvenile probation officer, but that also offered little satisfaction.
In the late 1950s, Williams graduated from law school as one of two African Americans in her class. By 1960, she was active in defending those accused of crimes who had little means for expensive legal representation. She also helped raise a niece who eventually became involved with the Black Liberation Army in the early 1970s.
For several years Williams—then working with the New York University Urban Affairs and Poverty Law Program—served as the attorney for her niece, Assata Shakur and her co-defendants against a series of legal charges involving a shootout with police. The case, which included the mysterious death of one of Williams’s fellow attorneys, was chronicled in her 1993 autobiography Inadmissable Evidence: The Story of the African-American Trial Lawyer Who Defended the Black Liberation Army.
Williams’s high-profile defense of Shakur would cost her in more ways than she had imagined. During the 1980s, Williams again entered private practice but became the target of an unsuccessful FBI sting operation. By 1989, she had joined the firm of Stevens, Hinds & White in New York City.
APPOINTED BY PRESIDENT FRANKLIN D. ROOSEVELT
1937: William H. Hastie* (District Court, Virgin Islands)
1939: Harnian E. Moore* (District Court, Virgin Islands)
APPOINTED BY PRESIDENT HARRY S. TRUMAN
1945: Irvin C. Mollison* (U.S. Customs Court)
1949: William H. Hastie* (Court of Appeals, Third Circuit)
1949: Harnian E. Moore (a)* (District Court, Virgin Islands)
APPOINTED BY PRESIDENT DWIGHT D. EISENHOWER
1957: Scovel Richardson* (U.S. Customs Court)
1958: Walter Gordon* (District Court, Virgin Islands)
APPOINTED BY PRESIDENT JOHN F. KENNEDY
1961: James B. Parsons* (Senior Judge, District Court, Illinois)
1961: Wade M. McCree* (District Court, Michigan)
1961: Thurgood Marshall* (Court of Appeals, Second Circuit)
APPOINTED BY PRESIDENT LYNDON B. JOHNSON
1964: Spottswood Robinson* (District Court, District of Columbia)
1964: A. Leon Higginbotham* (District Court, Pennsylvania)
1965: William B. Bryant* (Senior Judge, District Court, District of Columbia)
1966: Wade H. McCree* (Court of Appeals, Sixth Court)
1966: James L. Watson (U.S. Customs Court)
1966: Constance B. Motley* (Senior Judge, District Court, New York)
1966: Spottswood Robinson* (Senior Judge, Court of Appeals for the Federal Circuit)
1966: Aubrey E. Robinson* (Senior Judge, District Court, District of Columbia)
1967: Damon Keith** (District Court, Michigan)
1967: Thurgood Marshall* (Associate Justice, U.S. Supreme Court)
1967: Joseph C. Waddy* (District Court, District of Columbia)
APPOINTED BY PRESIDENT RICHARD M. NIXON
1969: Almeric Christian* (District Court, Virgin Islands)
1969: David W. Williams* (Senior Judge, District Court, California)
1969: Barrington D. Parker Sr.* (Senior Judge, District Court, District of Columbia)
1971: Lawrence W. Pierce** (District Court, New York)
1971: Clifford Scott Green (Senior Judge, District Court, Pennsylvania)
1972: Robert L. Carter (Senior Judge, District Court, New York)
1972: Robert M. Duncan** (Military Court of Appeals)
1974: Robert M. Duncan** (District Court, Ohio)
APPOINTED BY PRESIDENT GERALD R. FORD
1974: Henry Bramwell (Senior Judge, District Court, New York)
1976: George N. Leighton** (Senior Judge, District Court, Illinois)
1976: Matthew J. Perry** (Military Court of Appeals)
1976: Cecil F. Poole* (District Court, California)
APPOINTED BY PRESIDENT JIMMY CARTER
1978: Almeric Christian (a)* (Chief Judge, District Court, Virgin Islands)
1978: U.W. Clemon (Chief Judge, District Court, Alabama)
1978: Robert F. Collins** (District Court, Louisiana)
1978: Julian A. Cook Jr. (Senior Judge, District Court, Michigan)
1978: Damon J. Keith (Senior Judge, Court of Appeals, Sixth Circuit)
1978: A. Leon Higginbotham* (Senior Judge, Court of Appeals, Third Circuit)
1978: Mary Johnson Lowe* (Senior Judge, District Court, New York)
1978: Theodore McMillian* (Court of Appeals, Eighth Circuit)
1978: David S. Nelson* (Senior Judge, District Court, Massachusetts)
1978: Paul A. Simmons (Senior Judge, District Court, Pennsylvania)
1978: Jack E. Tanner* (Senior Judge, District Court, Washington)
1979: Harry T. Edwards (Court of Appeals for the Federal Circuit)
1979: J. Jerome Farris (Senior Judge, Court of Appeals, Ninth Circuit)
1979: Joseph W. Hatchett** (Court of Appeals, Eleventh Circuit)
1979: Terry J. Hatter (District Court, California)
1979: Joseph C. Howard* (Senior Judge, District Court, Maryland)
1979: Benjamin T. Gibson** (Senior Judge, District Court, Michigan)
1979: James T. Giles (District Court, Pennsylvania)
1979: Nathaniel R. Jones** (Senior Judge, Court of Appeals, Sixth Circuit)
1979: Amalya L. Kearse (Court of Appeals, Second Circuit)
1979: Gabrielle Kirk McDonald** (District Court, Texas)
1979: John Garrett Penn (Senior Judge, District Court, District of Columbia)
1979: Cecil F. Poole* (Senior Judge, Court of Appeals, Ninth Circuit)
1979: Matthew J. Perry (Senior Judge, District Court, South Carolina)
1979: Myron H. Thompson (District Court, Alabama)
1979: Anne E. Thompson (Senior Judge, District Court, New Jersey)
1979: Odell Horton* (Senior Judge, District Court, Tennessee)
1979: Anna Diggs Taylor (Senior Judge, District Court, Michigan)
1979: Horace T. Ward (Senior Judge, District Court, Georgia)
1979: Alcee L. Hastings*** (District Court, Florida)
1980: Clyde S. Cahill Jr. (Senior Judge, District Court, Missouri)
1980: Richard C. Erwin (Senior Judge, District Court, North Carolina)
1980: Thelton E. Henderson (Senior Judge, District Court, California)
1980: George Howard Jr. (District Court, Arkansas)
1980: Earl B. Gilliam* (Senior Judge, District Court, California)
1980: Norma Holloway Johnson (Senior Judge, District Court, District of Columbia)
1980: Consuela B. Marshall (Chief Judge, District Court, California)
1980: George White (Senior Judge, District Court, Ohio)
APPOINTED BY PRESIDENT RONALD REAGAN
1981: Lawrence W. Pierce** (Senior Judge, Court of Appeals, Second Circuit)
1982: Reginald Gibson (U.S. Court of Claims)
1984: John R. Hargrove* (Senior Judge, District Court, Maryland)
1984: Henry Wingate (District Court, Mississippi)
1985: Ann Williams** (District Court, Illinois)
1986: James Spencer (District Court, Virginia)
1987: Kenneth Hoyt (District Court, Texas)
1988: Herbert Hutton (District Court, Pennsylvania)
APPOINTED BY PRESIDENT GEORGE H. W. BUSH
1990: Clarence Thomas** (Court of Appeals for the Federal Circuit)
1990: James Ware (District Court, California)
1991: Saundra Brown Armstrong (District Court, California)
1991: Fernando J. Giatan (District Court, Missouri)
1991: Donald L. Graham (District Court, Florida)
1991: Sterling Johnson (District Court, New York)
1991: J. Curtis Joyner (District Court, Pennsylvania)
1991: Timothy K. Lewis** (District Court, Pennsylvania)
1991: Joe B. McDade (Chief Judge, District Court, Illinois)
1991: Clarence Thomas (Associate Justice, U.S. Supreme Court)
1992: Garland E. Burrell Jr. (District Court, California)
1992: Carol Jackson (District Court, Missouri)
1992: Timothy K. Lewis** (Court of Appeals, Third Circuit)
APPOINTED BY PRESIDENT BILL CLINTON
1993: Henry Lee Adams (District Court, Florida)
1993: Wilkie Ferguson (District Court, Florida)
1993: Raymond Jackson (District Court, Virginia)
1993: Gary Lancaster (District Court, Pennsylvania)
1993: Reginald Lindsay (District Court, Massachusetts)
1993: Charles Shaw (District Court, Missouri)
1994: Deborah Batts (District Court, New York)
1994: Franklin Burgess (District Court, Washington)
1994: James Beaty Jr. (District Court, North Carolina)
1994: David Coar (District Court, Illinois)
1994: Audrey Collins (District Court, California)
1994: Clarence Cooper (District Court, Georgia)
1994: Michael Davis (District Court, Minnesota)
1994: Raymond Finch (District Court, Virgin Islands)
1994: Vanessa Gilmore (District Court, Texas)
1994: A. Haggerty (District Court, Oregon)
1994: Denise Page Hood (District Court, Michigan)
1994: Napoleon Jones Jr. (District Court, California)
1994: Okla Jones II (District Court, Louisiana)
1994: Blanche Manning (District Court, Illinois)
1994: Theodore McKee (Court of Appeals, Third Circuit)
1994: Vicki Miles-LaGrange (District Court, Oklahoma)
1994: Solomon Oliver Jr. (District Court, Ohio)
1994: Barrington Parker Jr.** (District Court, New York)
1994: Judith Rogers (Court of Appeals for the Federal Circuit)
1994: W. Louis Sands (Chief Judge, District Court, Georgia)
1994: Carl Stewart (Court of Appeals, Fifth Circuit)
1994: Emmet Sullivan (District Court, District of Columbia)
1994: Alvin W. Thompson (District Court, Connecticut)
1994: William Walls (District Court, New Jersey)
1994: Alexander Williams (District Court, Maryland)
1995: R. Guy Cole (Court of Appeals, Sixth Circuit)
1995: Curtis Collier (District Court, Tennessee)
1995: Wiley Daniel (District Court, Colorado)
1995: Andre Davis (District Court, Maryland)
1995: Bernice B. Donald (District Court, Tennessee)
1996: Charles N. Clevert Jr. (District Court, Wisconsin)
1996: Joseph A. Greenaway Jr. (District Court, New Jersey)
1997: Eric L. Clay (Court of Appeals, Sixth Circuit)
1997: Algenon L. Marbley (District Court, Ohio)
1997: Martin J. Jenkins (District Court, California)
1997: Henry H. Kennedy Jr. (District Court, District of Columbia)
1998: Gregory Sleet (District Court, Delaware)
1998: Ivan L.R. Lemelle (District Court, Louisiana)
1998: Sam A. Lindsay (District Court, Texas)
1998: Johnnie B. Rawlinson (District Court, Nevada)
1998: Margaret Seymour (District Court, South Carolina)
1998: Richard Roberts (District Court, District of Columbia)
1998: Gerald Bruce Lee (District Court, Virginia)
1998: Lynn Bush (Court of Federal Claims)
1998: Stephan P. Mickle (District Court, Florida)
1998: Victoria Roberts (District Court, Michigan)
1998: Raner Collins (District Court, Arizona)
1998: Ralph Tyson (District Court, Louisiana)
1999: William J. Haynes Jr. (District Court, Tennessee)
1999: William Hibbler (District Court, Illinois)
1999: Ann Williams (Court of Appeals, Seventh Circuit)
1999: Charles R. Wilson (Court of Appeals, Eleventh Circuit)
2000: George B. Daniels (District Court, New York)
2000: Phyllis J. Hamilton (District Court, California)
2000: Laura Swain (District Court, New York)
2000: Petrese B. Tucker (District Court, Pennsylvania)
2001: Roger L. Gregory (Court of Appeals, Fourth Circuit)
APPOINTED BY PRESIDENT GEORGE W. BUSH
2001: Barrington Parker Jr. (Court of Appeals, Second Circuit)
2001: Julie A. Robinson (District Court, Kansas)
2001: Reggie B. Walton (District Court, District of Columbia)
2002: Percy Anderson (District Court, California)
2002: Legrome D. Davis (District Court, Pennsylvania) (a) Reappointment * Deceased ** No longer serving *** Impeached and removed from the court
|Prisoners Under Sentence of Death by Characteristic: 1980 to 1998|
[As of December 31. Excludes prisoners under sentence of death who remained within local correctional systems pending exhaustion of appellate not been committed to prison]
|1Revisions to the total number of prisoners were not carried to the characteristics except for race.|
2Includes persons married but separated, widows, widowers, and unknown.
3Includes prisoners on mandatory conditional release, work release, leave, AWOL, or bail. Covers 28 prisoners in 1990, 29 in 1991 and 1992, 33 in 1993 and 1995, 31 in 1994 and 1996, and 30 in 1997.
source: U.S. Bureau of Justice Statistics, Capital Punishment, annual.
|Black and other||270||882||935||978||1,016||1,067||1,152||1,252||1,332||1,409||1,464|
|Under 20 years||11||11||6||8||14||12||13||19||20||17||16||15|
|20 to 24 years||173||195||191||168||179||188||211||231||264||288||275||267|
|25 to 34 years||334||1,048||1,080||1,110||1,087||1,078||1,066||1,088||1,068||1,088||1,077||1,101|
|35 to 54 years||186||823||917||1,006||1,129||1,212||1,330||1,449||1,583||1,711||1,809||1,899|
|55 years and over||10||47||56||64||73||85||96||103||119||138||151||170|
|Years of school completed:|
|7 years or less||68||180||183||178||173||181||185||186||191||196||205||206|
|9 to 11 years||204||692||739||775||810||836||885||930||979||1,040||1,069||1,111|
|More than 12 years||43||180||192||209||222||232||244||255||272||282||288||297|
|Time elapsed since sentencing:|
|Less than 12 months||185||293||231||231||252||265||262||280||287||306||262||275|
|12 to 47 months||389||812||809||753||718||720||716||755||784||816||844||813|
|48 to 71 months||102||409||408||438||441||444||422||379||423||447||456||482|
|72 months and over||38||610||802||934||1,071||1,146||1,316||1,476||1,560||1,673||1,766||1,882|
|Legal status at arrest:|
|Not under sentence||384||1,207||1,301||1,345||1,415||1,476||1,562||1,662||1,764||1,881||1,957||2,029|
|Parole or probation3||115||545||585||578||615||702||754||800||866||894||880||877|
|Prison or escaped||45||93||94||128||102||101||102||103||110||112||116||127|
|Jail Inmates by Sex and Race: 1990 to 1999 |
Data are for midyear. Excludes Federal and state prisons or other correctional institutions; institutions exclusively for juveniles; state-operated jails in Alaska, Connecticut, Delaware, Hawaii, Rhode Island, and Vermont; and other facilities which retain persons for less than 48 hours. As of June 30. Data for 1993 based on National Jail Census; for other years, based on sample survey and subject to sampling variability]
|NA Not available.1 Includes American Indians, Alaska Natives, Asians, and Pacific Islanders.|
source: U.S. Bureau of Justice Statistics, through 1994, Jail Inmates, annual; beginning 1995, Prison and Jail Inmates at Midyear, annual.
The articles under this heading deal mainly with the study of law, and with the relationship between law and society, as do also Jurisprudence; Legal reasoning; Psychiatry, article On Forensic Psychiatry; Public law. The articles listed under Legal systemsdiscuss and compare the major modern systems. Other branches of the law are dealt with in Administrative law; Canon law; Criminal law; Conflict of laws; Constitutional law; International law; Military law. The creation of law and its relations with political institutions are discussed in Adjudication; Conflict of interests; Judicial process; Judiciary; Legislation; Political justice. Relevant to the development of modern jurisprudence are the biographiesof Austin; Blackstone; Brandeis; Cardozo; Coke; Duguit; Ehrlich; Frank; Glerke; Grotius; Hamilton, WaltoN H.; Hauriou; Holmes; Jellinek; Kantorowicz; Kelsen; Llewellyn; Maine; Maitland; Moore; John Bassett; Pound; Radbruch; Savigny; Schmitt; Vattel. For a discussion of law and related problems in preliterate societies seePolitical anthropology; Sanctions.
I. The Sociology of LawPhilip Selznick
II. The Legal SystemLeon H. Mayhew
III. The Legal ProfessionPhilippe Nonet and Jerome E. Carlin
IV. Law and Legal InstitutionsPaul Bohannan
The broad aim of legal sociology is the extension of knowledge regarding the foundations of a legal order, the pattern of legal change, and the contribution of law to the fulfillment of social needs and aspirations. The special interest of sociology in these matters rests on the basic assumption that law and legal institutions both affect and are affected by the social conditions that surround them.
Within sociology, the study of law touches a number of well-established areas of inquiry. In criminology attention is given to the changing character of penal law, the assumptions upon which it rests, and the social dynamics of law enforcement and corrections. The sociology of law shares with political sociology a concern for the nature of legitimate authority and social control, the social bases of constitutionalism, the evolution of civic rights, and the relation of public and private spheres.
The roots of legal sociology lie mainly in jurisprudence rather than in the autonomous work of sociologists. In legal theory a “sociological school” emerged out of the work of such jurists as Rudolf von Jhering, Oliver Wendell Holmes, Léon Duguit, Eugen Ehrlich, and Roscoe Pound, all of whom felt the need to look beyond the traditional confines of legal scholarship. The sociologists Émile Durkheim, Max Weber, E. A. Ross, and W. G. Sumner, among others, contributed to the development of a sociological orientation among students of jurisprudence, in some cases by direct influence on legal writers such as Duguit and Pound.
Four basic motifs have been prominent in the intellectual history of legal sociology: historicism, instrumentalism, antiformalism, and pluralism.
Historicism emphasizes the tracing of legal ideas and institutions to their historical roots; patterns of legal evolution are seen as unplanned outcomes of the play of social forces. Important illustrations of this approach are Henry Maine’s Ancient Law, Oliver Wendell Holmes’s Common Law, and the treatments of legal typologies and evolution in Émile Durkheim’s Division of Labor in Society (1893) and various writings by Max Weber (see especially 1922a). The historicist emphasis has had two implicit objectives. First, historical study is a way of identifying legal anachronisms, especially in the reasoning behind a received rule or concept. Second, the analysis of an underlying historical trend (e.g., Maine’s thesis regarding the movement of “progressive societies” from status to contract) can provide an illuminating context for the interpretation of contemporary issues.
The instrumentalist approach, associated with the names of Jeremy Bentham and Rudolf von Jhering, among nineteenth-century writers, as well as Roscoe Pound, calls for the assessment of law according to defined social purposes. It thus invites close study of what the law is and does in fact. The chief significance of instrumentalism is that it encourages the incorporation of social knowledge into law. For if laws are instruments, they must be open to interpretation and revision in the light of changing circumstances. Moreover, law is seen as having more than one function; not only is it a vehicle for maintaining public order and settling disputes, but it also facilitates voluntary transactions and arrangements, confers political legitimacy, promotes education and civic participation, and helps to define social aspirations.
Sociological jurisprudence has gained much of its vitality from attacks upon the “unrealistic” nature of legal rules and concepts. A jurisprudence that emphasizes the purity of law as a formal system is fallible on two counts. First, legal rules are necessarily abstract and general; there is always a considerable gap between a system of general rules and its implementation, if only because the rules are applied by human agencies that have their own interests and problems. Second, any view of the legal order as an isolated system wrongly detaches it from the environment in which it is implicated. Failure to take account of the historical and cultural forces impinging upon the law not only distorts reality but gives the legal order an excessive dignity, insulates it from criticism, and offers society inadequate leverage for change. In pressing its criticism of legal abstractions, the antiformalist approach leads readily to a derogation of the importance and effectiveness of legal norms.
While antiformalism is congenial to an instrumentalist assessment of the legal tradition, it is out of sympathy with the more narrowly utilitarian image of man as an isolated, goal-seeking actor guided by a hedonic calculus. Instead, it encour-ages a fuller awareness of the nonrational springs of action, of human dependency on social support, and of the emergence of social systems that have a viability of their own. The antiformalist theme is prominent in the work of Eugen Ehrlich and of the American legal realists, but almost every analyst of the social or psychological foundations of law has struck the same note, albeit with varying emphasis.
In the history of legal sociology, “pluralism” refers to the view that law is located “in society“—that is, beyond the official agencies of government. Sociological skepticism of state law has led some legal scholars, notably Ehrlich, to deny that law is solely or even mainly made by government. Ehrlich held that law is endemic in custom and social organization; it is in the actual regularities of group life that we find the “living law.” In context, this approach is more than an appeal to bring law into closer relation with social practice; it is an assertion that authoritative legal materials are to be found in the realities of group life. In other words, it questions the claim of the state to be the sole receptacle of legal authority.
The pluralist motif was further enhanced by the central place Ehrlich gave to the “inner order of associations” as a font of law; here his work recalls Otto von Gierke’s treatment of the law of associations. Gierke stressed the reality of the autonomous collectivity, and in doing so he criticized not only the atomistic view of society and legal order as based upon individual will but also the legal notion of the association as a juridical fiction. Related ideas are found in the writings of Maurice Hauriou, who sought a legal reality in “the institution”—that is, in the association or enterprise (private as well as public) that has its own established authority and appropriate procedures.
The sociological approach
These intellectual tendencies have helped open up the boundaries of the legal order. They have enlarged the relevance of nonlegal ideas and findings to law and legal reasoning. On the other hand, they have had the common outcome of downgrading formal legal systems as significant social realities. In an important sense, the sociological school has been anti-legal. It has sought to put law in its place by emphasizing the primacy of the social context and by seeking “the legal” outside of its conventional sphere. In so doing, the sociological perspective runs the risk of dissolving the concept of law into the broader concepts of social control and social order; the idea of a “living law,” encompassing all the regularities of group life, offers no touchstone for the distinctively legal. Whatever the merits of the sociological school in having called attention to the need for a more realistic jurisprudence, the failure to offer a theory of the distinctively legal has been its cardinal weakness.
The distinctively legal
According to Max Weber, the distinctively legal emerges when “there exists a ‘coercive apparatus’, i.e., that there are one or more persons whose special task it is to hold themselves ready to apply specially provided means of coercion (legal coercion) for the purpose of norm enforcement” ([1922a] 1954, p. 13). In other words, a legal norm is known by the probability that it will be enforced by a specialized staff. Thus Weber offers an operational definition of law that is meant to exclude all value judgments in the assessment of what is or is not law. Although he emphasizes coercion, Weber is careful to point out that the threat of physical force is not essential to legal action, for coercion may consist in the threat of public reprimand or boycott. Thus Weber’s definition does not limit law to the political community; it allows for “extrastate” law, such as ecclesiastical law or the law of any other corporate group that is binding on its own members.
Weber’s approach does have a certain rough utility, and it has the special virtue of being general enough to encourage the study of law in private associations. However, he offers no satisfactory theoretical ground for identifying the requirements of a legal order as he does. The availability of a specialized staff for the enforcement of norms may be highly correlated with the existence of a legal order and thus may serve as a reliable indicator of norms that have been selected for special treatment. However, it does not follow that this is what basically distinguishes legal from nonlegal norms and institutions.
An adequate theory of law must identify the distinctive work done by law in society, the special resources of law, and the characteristic mechanisms that law brings into play. In the quest for such a theory, little is gained from formulas that place coercive enforcement of norms at the center of legal experience. The key word in the discussion of law is authority, not coercion. The fundamental problems of juris-prudence stem from the puzzles and ambiguities associated with identifying the sources of authoritative rules, the authoritative application of rules, and the nature of authoritative change in existing rules.
Although the legal requirement of paying a tax certainly has some connection with the coercive consequences of refusal to pay, the character of the obligation is more decisive. A tax is illegal if it violates an authoritative order, and it is nonlegal if it lacks appropriate authority, regardless of whether the probability of coercion exists. Hence legality presumes the emergence of authoritative norms whose status as such is “guaranteed” by evidence of other, consensually validated, rules.
H. L. A. Hart has argued that, in stepping “from the pre-legal to the legal world,” a society develops special rules for curing the defects of a social order based on unofficial norms (1961, p. 91). A regime of unofficial norms has a number of inherent limitations, including the difficulty of resolving uncertainties as to the existence or scope of a norm. No criterion or procedure is available for settling such issues. The distinctively legal emerges with the development of “secondary rules,” that is, rules of authoritative determination. These rules, selectively applied, raise up the unofficial norms and give them a legal status.
The elementary legal act is this appeal from an asserted rule, however coercively enforced, to a justifying rule. This presumes at least a dim awareness that some reason lies behind the impulse to conform; furthermore this reason is founded not in conscience, habit, or fear alone but rather in the decision to uphold an authoritative order. The rule of legal recognition may be quite blunt and crude: The law is what the king or priest says it is. But this initial reference of a historically given social norm to a more general ground of obligation breeds the complex elaboration of authoritative rules that marks a developed legal order.
Resources of legal institutions. The special work of law is to identify claims and obligations that merit official validation or enforcement. This may consist of nothing more than the establishment of a public record invested with a special claim upon the community’s respect as a guide to action. When institutions emerge that do this work we can speak of a legal order. These institutions need not be specialized, and they may have no resources for coercive enforcement; it is essential only that their determinations affecting rights and duties are accepted as authoritative.
An authoritative act asserts a claim to obedience, and the reach of that claim determines whether and to what extent a legal system exists. Although a weak legal order rests on a narrow base of consent, it may be able to mobilize very large resources of intimidation and thus command wide, if grudging, submission. A strong legal order is the product of a more substantial consensus and summons more willing obedience; it is correspondingly less dependent on the machinery of coercion. There is thus an important difference between the strength of a regime and the strength of a legal order, although the sheer persistence of the former may greatly influence acceptance for its claim to speak with authority. Of course, coercion is an important and often indispensable resource for law, but so are education, symbolism, and the appeal to reason. Coercion does not make law, though it may indeed establish an order out of which law may emerge.
In much of his work Max Weber saw quite clearly the intimate relation of the legal and the authoritative. For example, his theory of authority and legitimacy contrasts the charismatic, the traditional, and the “rational legal,” thus placing law in a context of evolving forms of authority (1922b, pp. 328 ff. in 1947 edition). In this analysis Weber views fully developed law as a system of governance by rules; he sees the distinctively legal obligation as a component of an impersonal order that exhibits a strain toward rationality. Thus when Weber actually used the concept of law, especially in his theory of bureaucracy, he greatly modified the significance of coercion.
Social foundations of legality
The view of law just sketched highlights the place of authority, consensus, and rationality in the legal order. In a developed legal order, authority transcends coercion, accepts the restraints of reason, and contributes to a public consensus regarding the foundations of civic obligation. To the extent that law is “the enterprise of subjecting human conduct to the governance of rules” (Fuller 1964, p. 106), it can be said that law aims at a moral achievement; the name of that achievement is legality or “the rule of law.” Its distinctive contribution is a progressive reduction of the arbitrary element in positive law and its administration.
As an intellectual discipline, the sociology of law has a far broader compass than the study of “the requirements of justice which lawyers term principles of legality” (Hart 1961, p. 202). Not every society gives equal weight to the ideal of “control by rule” as against other ideals; and there is much else to be said about law in society. Still, law is so intimately associated with the realization of these special values that study of “the rule of law” must be a chief preoccupation of legal sociology. Indeed, a considerable amount of contemporary research, as we shall note below, falls within this topic.
The sociological study of legality presumes that the potential of law for realizing values is at best unevenly fulfilled. Legal decision making is carried on by living men in living institutions, who are subject to all the external pressures and constraints and all the inner sources of recalcitrance that frustrate the embodiment of abstract ideals in action. At the same time, some patterns of group life are more congenial than others to the rule of law. To discover which social conditions are congenial to the rule of law and which undermine it, and in what ways, is the main task of scientific inquiry in this field. Four topics provide a framework in which research on legality can be pursued: the transition from legitimacy to legality; rational consensus and civic competence; institutionalized criticism; and institutionalized self-restraint. While these topics are suggested by the experience of the Western world, their relevance is universal.
Legitimacy and legality
The existence of legality presumes that the power exercised by public officials is “legitimate” power. This means that an appeal is made to some principle as a source of right—the right to dispose of community resources in a certain way and especially the right to issue orders and enforce them. Many different principles of legitimacy are possible—for example, divine will, democratic election, private property, hereditary succession, seniority, and special competence. What principle of legitimacy will be accepted depends on the nature of the group, its cultural heritage, and special historical circumstances. To trace the rise and decline of various principles of legitimacy is to touch on major themes of political and social history.
Legitimate power tends to be restrained. It is inherent in legitimacy that the will of the ruler, including the majority will of a democratic assembly, is not completely free. Nevertheless, many regimes properly classified as legitimate retain a very large amount of arbitrary rule. Legitimacy is only a first step toward legality. It can begin in a quite primitive fashion, meaning little more than unconscious acceptance of another’s authority be-cause he is thought to have communication with the gods or special magical powers or because he belongs to a noble family. Authority is primitive when power is legitimated by no more than a historically given public sentiment supporting a claim to rightful rule.
But legitimacy carries the lively seed of legality, implanted by the principle that the exercise of power must be justified. From this it is but a step to the view that reasons must be given to defend official acts. Reasons invite evaluation, and evaluation requires the development of public standards. At the same time, implicit in the fundamental norm that reasons should be given is the conclusion that where reasons are defective, authority is to that extent weakened and even invalidated.
The transition from legitimacy to legality requires the recognition that official acts can be questioned and appraised. The test is not whether the ruler is wise or good but whether his acts are justified by an explicit or implied grant of power. Most important, legality goes beyond a gross justification of the right to hold office; it gains strength and focus in proportion as the criterion of legitimacy is used to decide whether particular acts meet public standards of validity. For example, if conservation of natural resources is the purported foundation of rule making by a government agency, then that publicly acknowledged objective becomes available as a basis for criticizing specific rules and decisions.
Clearly some principles of legitimacy are more competent than others to sustain the ideal of legality. If power is justified on the basis of tradition, proprietorship, kinship, or hereditary succession, it is difficult to find the leverage for continuous, reasoned criticism. When prescriptive right gives way to an abstract principle, as in the case of justification by popular will, social utility, trusteeship, or even divine right, then the principle of legitimacy can be analyzed and acts assessed. The way is then open for an appeal to reason.
Rational consensus and civic competence
Legality requires that the principles of legitimacy be firmly established in the community’s habits of thought; hence the study of both the content and the quality of consensus has a special bearing on the social bases of the rule of law. Strictly speaking, there can be no purely rational consensus. However, it may be approximated under two related conditions: if the historically given, non-rational sentiments are themselves supportive of rational conduct, for example, when received modes of apprehending man and society encourage self-restraint and tolerance of ambiguity; and if there is broad opportunity for the emergence of a public opinion founded in the free play of interests and ideas. In other words, rational consensus presupposes a genuine public opinion rather than agreement based on manipulation, withholding of information, or unmitigated appeals to tradition.
Whatever contributes to rational consensus provides social support for legality. Decision making in the light of legality requires the continuous exercise of discriminating judgment, especially in the balancing of values, the elaboration of defensible rules, and the application of abstract principles to changing circumstances. While this work is largely carried on by a relatively small group of professionals, the capacity of the professionals to sustain and extend the ideals of legality depends on a parallel development of the public mind. The legal profession itself is not immune to influences that may undermine its commitment to the rule of law.
The consensus that sustains legality entails deepened public understanding of the complex meaning of freedom under law. This goes beyond passive belief or even commitment. It is an extension of civic competence—the competence to participate effectively in a legal order. This is manifested, for example, in an increased capacity to be patient with procedural niceties in the face of a desire to punish, to exercise impartial judgment, and to use principles of criticism against even the most favored leaders of government.
In a vital legal order something more is wanted than submission to law. A military establishment places very great emphasis on obedience to lawful commands, yet such a setting is hardly a model of the development of legality. So, too, a conception of law as the manifestation of awesome authority encourages a posture of submission and is fully compatible with arbitrary rule. In a community that aspires to a high order of legality obedience to law is not submissive compliance. The obligation to obey the law should be closely tied to the defensibility of the rules themselves and of the official decisions that enforce them.
If the ideals of legality are to be fulfilled, the capacity to generate and sustain reasoned criticism of the rules and of official discretion must be built into the machinery of lawmaking and administration. To this end, the Anglo-American legal tradition has relied heavily upon the availability of counsel, upon the adversary concept of the legal process, and upon the freedom of the judiciary and other officials to adopt a critical stance toward received law, both statutory and judge-made.
Sociological research in this area confronts the ideals of due process with the realities of institutional life. For example, the availability of counsel may be limited for large sectors of the population; the independence and objectivity of officials may be weakened by their social origins and commitments; and limitations of competence and resources may inhibit the judiciary from effective criticism of rule making in private and public agencies. The possibility of effective criticism may largely depend upon the availability of group resources. The lone individual seeking justice—especially if he is poor and if his claim is subject to routine processing—has little opportunity to press for new interpretations of law or of administrative regulations. Group-based counsel, on the other hand, can develop specialized expertise as well as work out a strategy for legal change.
In the Anglo—American tradition, the adversary principle has a special place as a vehicle of institutionalized criticism. It lends legitimacy to partisan advocacy within the legal process, allowing and even encouraging the zealous pursuit of special interest by means of self-serving interpretations of law and evidence. The assumptions underlying the adversary principle have not been fully analyzed or tested, nor have variations or functional surrogates in other societies been adequately studied. Moreover, there is evidence that partisan advocacy is weakened by certain factors that are becoming increasingly common in “administered” societies. Among these are the commitment of tribunals to a positive outcome, as in family conciliation proceedings; reliance on experts and investigators who serve the court directly; the mandate to temper justice with treatment, as in juvenile hearings; and the routine handling of a large number of cases.
No doubt these new problems and contexts will lessen reliance on the adversary principle in some areas; more important, however, will be the development of new forms of advocacy and critical dialogue. Administrative agencies, both criminal and civil, are increasingly recognized as active centers for making laws and dispensing justice, although the visibility of such decisions is often quite low. Sociological study of organizations can trace the actual course of decision making and can identify the opportunities available, within the social structure of the agency, for increasing the visibility of decisions and developing new forms of institutionalized criticism.
Every officer of the law—policeman, president, legislator, attorney, judge, licensing commissioner, draft board member—is in some degree a magistrate. He exercises discretion and thereby affects the rights of citizens. The rule of law requires that this discretion be restrained, yet it also asks for independent judgments in the assessment of fact, the assignment of moral culpability, and the application of legal rules to particular circumstances. To achieve restrained discretion, more is needed than criticism of authority and pressure upon it. The system depends heavily on seJf-restraint and thus on social mechanisms for building in appropriate values and rules of conduct.
Historically, legal self-restraint has been supported by public consensus on the nature and limits of authority, professionalization of lawyers and other officials, and the evolution of clearly defined roles, such as that of the judge. But there is considerable variation in that achievement, and under modern conditions there is a need for more attention to the organizational sources of self-restraint as distinguished from mechanisms of socialization. Ethical conduct is mainly found in settings that nourish and sustain it, that is, where such conduct makes sense for the official in the light of the realistic problems he faces. To design such settings is properly the chief aim of the architect of legal institutions. As applied to the legal profession, this principle has been documented in a recent study of the New York City bar (Carlin 1966).
Law and social change
The preceding discussion of the social foundations of legality emphasizes the conditions that strengthen or weaken the rule of law. The same problem may be approached historically, placing the evolution of legality in a context of broad social change and relating it to the development of other social institutions, including culturally defined conceptions of authority and justice. Thus Max Weber was interested in the emergence of rationality as a principle of organization and decision making; he saw rationality as the key to modernization and traced its effects in many fields, including law.
In modern Western society the extension of legality to new institutions and settings occurs mainly within government, encompassing wider circles of officials and agencies, subjecting more decisions to review, and raising the standard of what constitutes fair procedure. The Scandinavian ombudsman, an official to whom the citizen can appeal directly when he feels wronged by a government agency, is a symbol of the demand for new modes of redress against a large and opaque government apparatus. Also evident is a tentative movement toward legal restraint of arbitrary decision in nongovernmental institutions, especially those that serve a general public, such as colleges, trade unions, and large business firms. These developments, fostered in large measure by the work of associations formed to advance group interests, reflect a growing public sensitivity to legal rights. The legal profession itself, both by scholarship and by the official statements of its professional organizations, has contributed to the critical assessment of official procedures. Nor should it be overlooked that modern organizations, as part of their greater effectiveness and rationality, have an increased capacity to support the machinery of due process.
There is, however, an underlying conflict between administration and legality. In the first place, procedural safeguards are costly in time, energy, and the risk that action will be inhibited. In the United States, for instance, the police must carry out their traditional tasks of surveillance and apprehension subject to many new legal rulings affecting search, arrest, and detention. Any organization that has a job to do, yet must meet standards of fairness, faces this tension. Second, an official who is preoccupied with the fair application of general rules—equal treatment under law—finds it difficult to deal with each problem or case on its merits, taking account of special circumstances and needs and adapting policies to desired outcomes. The modern quest, and one that requires much supportive research, is for variable standards of fairness, embodying basic principles of procedural justice with due regard for the distinctive needs of specialized institutions and programs.
The antiformalist posture of legal sociology has encouraged interest in the problem-solving practices and spontaneous orderings of business or family life. While this approach has tended to depreciate formal law, in principle it just as easily supports an emphasis on the emergence of formal law out of the realities of group life. Incipient law is implicit in the way in which public sentiment develops or in any increasingly stabilized pattern of organization; it refers to a compelling claim of right or a practice so viable and so important to a functioning institution as to make legal recognition in due course highly probable. Thus some of the private arrangements worked out in collective bargaining agreements, especially seniority rights and protection against arbitrary dismissal, may be seen as incipient law. However, the location of incipient law cannot rest solely on the prevalence of a practice or even the urgency of a claim; two parallel assessments are required. First, the social viability of the practice in question—its functional significance for group life and especially for new institutional forms—must be considered. Second, the contemporary evolution of relevant legal principles must be assessed to see whether the new norm can be absorbed within the received but changing legal tradition.
A focus on incipient legal change bridges the concepts of law and social order without confounding the two; it assumes that law does indeed have its distinctive nature, however much it may rely on social support or be responsible to social change. On the other hand, some law is seen as latent in the evolving social and economic order. For example, the trend toward strict liability for harm caused by defects in manufactured goods (weakening or eliminating the need to prove negligence) reflects changing technology, both in manufacture and distribution, as well as the increased capacity of large firms to absorb the attendant costs either by increasing productivity or by passing them on to the general public. Similarly, the growing importance of large-scale organizations carries with it the likelihood that new claims of right will emerge, based upon a new perception of organizational membership as a protectable status.
Law as a vehicle of social change
For the most part, legal sociology has viewed law as a passive rather than active agent in social change. Law “responds” to new circumstances and pressures. However, especially in recent years the great social effects of legal change have been too obvious to ignore. The question is no longer whether law is a significant vehicle of social change but rather how it so functions and what special problems arise.
One way of approaching these problems is to consider the relative significance for social change of legislation, administration, and common law. Each has its special competence, and each has been dominant as a mode of change at different periods and in different branches of the law. In this context “common law” is not restricted to the Anglo-American legal tradition. Rather, it refers to any pattern of legal decision and evolution that relies on judicial creativity. Although this form of legal development is most explicitly recognized in what are called the “common-law” jurisdictions, in fact such creativity is inherent in the judicial process and plays an important part in the “code” jurisdictions of continental Europe (Friedmann  1960, pp. 483‱486).
The common-law approach relies heavily upon tradition and the authority of the tribunal as sources of legitimacy. Judicial elaboration of abstract ideas, including reasoning by analogy, fits new departures into a received system of concepts and rules. “Realist” criticism of common-law concepts has sometimes overlooked this social function of abstractions. Legal ideas are indeed often distant from the realities of social practice, but their very generality is useful for making new adaptations while preserving a sense of continuity and therefore of legitimacy.
The common-law method of change is mainly piecemeal and gradual. It can safeguard a precarious consensus by avoiding radical or sweeping change and by relying on studied indirection rather than unambiguous confrontation. On the other hand, judges who have the authority to interpret a basic statute, such as a written constitution, can provide leadership in some branches of the law, as United States history has shown. In such a case, public commitment to the statute reinforces the legitimacy of judicial decision.
The great weakness of common-law empiricism is the difficulty of working out comprehensive attacks on new problems, such as urban land use, industrial accidents, or labor-management relations. The common-law approach seems to work best when basic policy is settled and the need is for refinement of distinctions and adaptation of the policy to new settings.
Legislation is the most obvious way of bringing political will to bear for the purpose of effecting social change through law. Unlike courts, which are tied to tradition, legislatures are commonly perceived as legitimate agencies for innovation; they can muster better means of inquiry, and they can create administrative agencies to execute and elaborate legislative policy.
There are important continuities, as well as tensions, in the relation between legislation and common law. Where these continuities and tensions occur, jurisprudential problems of law and social change arise. For example, a series of statutes can be viewed as creating a new “field” of law (such as labor law or welfare law), with the result that authoritative concepts and doctrines emerge which go beyond the letter of the statutes and form starting points for legal reasoning. This work of interpretation and elaboration, using a common-law perspective, is carried on by administrative agencies as well as courts. Its effect is to institutionalize the statutory policy.
Although politics and legislation are the basic sources of legal change in modern society, the administrative agency is a characteristic and potent vehicle of that change. It can summon material and human resources, including moral dedication and professional zeal, for turning legislative policy into social reality. An administrative agency can contribute to law by detailed rule making, its own adjudications, the patterned course of discretion it adopts, the practical effect it has on the social structure, and the initiative it may take in proposing statutory changes. However, agencies differ markedly in their capacity to influence law and society. Much depends on whether the agency conceives of itself as active or passive; this in turn reflects the nature of its special constituency, if any, as well as the newness and popular appeal of the program, the initial resources it is given, and the relations it may develop with other agencies. Some agencies are captives of their constituencies, including groups they are supposed to regulate, and contribute little to legal development.
Perhaps the most basic resource of the law for fostering and guiding social change is the set of legal principles that can be invoked to justify action in their name. This is especially true of constitutional principles that contain ideals of civic right. Such ideals are usually only imperfectly embodied in the operative rules of a given time and place. For long periods the gap between the legal ideal and the legal reality may be accepted with passivity and even good will, but social change may bring with it new opportunities for more perfect embodiment of the ideal in practice and a quickened awareness of this possibility. The result is twofold: Energy for social change is enlarged by a sense of legitimacy, and those who attempt to defend the status quo are made vulnerable and placed on the defensive. Thus law both contributes to rising expectations and may, in due course, provide vehicles for their realization.
Major trends. Several large-scale social changes have contributed to a vast increase in the tasks that must be assumed by a modern legal order. As kinship, fixed status, and community have declined as sources of social control, the drift has been toward a mass society marked by high rates of mobility, fragmented social experience, rising demands for short-run gratification, and more active participation by large numbers in hitherto insulated areas of social life. This trend has resulted in greatly increased pressure on formal agencies of regulation and service. A related development has been the emergence of the large organization as the representative institution of modern society; it depends upon, and also summons, mass participation in economic, political, and cultural life. A new “corporatism” brings with it many new problems for the law, including assessment of the social responsibilities of private associations, blurring of the distinction between private and public law, concern for the rights of association members, and regulation of competition and conflict when self-governing market mechanisms break down (Friedmann 1959).
A third significant trend has been the ascendance of social interests over parochial interests. The increasing interdependence of existence in modern society and correlative changes in values have weakened the claims of private interests and stimulated the quest for criteria of social worth. This is the foundation of what has been called the “socialization of law.” As described by Pound (1959), the socialization of law is manifested in a growing tendency to impose limitations on the use and disposition of property, on freedom of contract, and on the power of creditors to exact satisfaction; in the movement toward liability without fault; and in many other legal rules and concepts. While this trend undermines the concept of the individual as a holder of abstract rights, it tends strongly to make the person an object of social and legal concern. This is reflected in much welfare legislation, which often begins as a way of solving a social problem and increasingly turns attention to the needs of persons.
Recent efforts to encourage the sociology of law have emphasized the need for empirical research and for a corresponding sense of relevance to con-temporary social problems. The newer work is less interested in showing the limitations of law relative to other forms of social control than in bringing the expertise of social science to bear on the analysis of specific problems. It is likely that in the future legal sociology will be characterized by an affirmation of law rather than by a downgrading of it. This is especially true of research on the administration of justice. Studies of tribunals and other legal agencies may be narrowly concerned with efficient use of scarce resources, but they also tend to compare the ideal and the reality. As the “morality of law” (Fuller 1964) becomes a subject for empirical research, there will be a natural tendency to stress the contribution law can make to a moral order.
In line with this emphasis, much current research centers on social aspects of the administration of justice, as in studies of the jury (Kalven & Zeisel 1966; Simon 1967), patterns of law enforcement (Lindesmith 1965; Skolnick 1966), juvenile justice (Tappan 1947; Matza 1964), and the legal profession. Most of this work is normative as well as factual: It seeks out the conditions and processes that undermine or support procedural fairness and the recognition of basic rights. There is an implicit demand for fulfillment of legal ideals.
A more ambiguous attitude toward the moral significance of law is found in the sociology of deviance. Here the recent emphasis is on the law’s role in creating deviance (Becker 1963). This occurs in two ways. First, the definition of what is “criminal” is a social process; and in borderline crimes, where consensus is weak, large numbers of people may find themselves classified as “criminals” as a result of political action by moralists. When this occurs, there is a strong tendency for illicit activity to continue, for that activity to take on more determinate criminal form, and for the quality of law enforcement to suffer. Second, a casual offender may be transformed into a committed deviant by the legal “processing” to which he is exposed, especially when he is systematically treated as a deviant and stigmatized as such. Under these circumstances law breeds illegality. The normative lesson is: To preserve the integrity of law it should be used with restraint in the control of personal conduct, especially where the specific harm is problematical and may be exceeded by the social costs of ineffective enforcement (Schur 1965).
Other research includes studies of public opinion and law (Cohen et al. 1958), legal forms and economic realities (Berle 1959; Macaulay 1963), judicial values and perspectives (Schubert 1960), the extension of legal or quasi-legal rights to members of “private governments,” such as the large corporation (Eels 1962), and social history of legal ideas and institutions (Friedman 1965; Hall 1935; Hurst 1950; I960; 1964). The comparative study of law and society is being stimulated by scholarly interest in the “developing” nations (Anderson 1963; Lev 1965), by the assessment of changes in communist society (Berman 1950; Hazard 1953; 1960), and by a marked tendency among some students of comparative law to take fuller account of social and political contexts (Von Mehren 1963).
The major problem of legal sociology remains the integration of jurisprudence and social research. Unless jurisprudential issues of the nature and functions of law, the relation of law and morals, the foundations of legality and fairness, and the role of social knowledge in law are addressed by modern investigators, the sociology of law can have only a peripheral intellectual importance.
Andersonm, James N. D. (editor) 1963 Changing Law in Developing Countries. New York: Praeger.
Arens, Richard; and Lasswell, Harold D. 1961 In Defense of Public Order: The Emerging Field of Sanction Law. New York: Columbia Univ. Press.
Becker, Howard S. 1963 Outsiders: Studies in the Sociology of Deviance. New York: Free Press.
Berger, Morroe (1952) 1954 Equality by Statute: Legal Controls Over Group Discrimination. New York: Columbia Univ. Press.
Berle, Adolf A. 1959 Power Without Property: A New Development in American Political Economy. New York: Harcourt.
Berman, Harold J. (1950) 1963 Justice in the U.S.S.R.: An Interpretation of Soviet Law. Rev. & enl. ed. Cam-bridge, Mass.: Harvard Univ. Press. → First published as Justice in Russia: An Interpretation of Soviet Law.
Carlin, Jerome E. 1962 Lawyers on Their Own: A Study of Individual Practitioners in Chicago. New Brunswick, N.J.: Rutgers Univ. Press.
Carlin, Jerome E. 1966 Lawyers’ Ethics: A Survey of the New York City Bar. New York: Russell Sage Foundation.
Cohen, Julius; Robson, Reginald A. H.; and Bates, Alan 1958 Parental Authority: The Community and the Law. New Brunswick, N.J.: Rutgers Univ. Press.
Davis, F. James et al. 1962 Society and the Law: New Meanings for an Old Profession. New York: Free Press.
Dicey, Albert V. (1905) 1962 Lectures on the Relation Between Law and Public Opinion in England, During the Nineteenth Century. 2d ed. London and New York: Macmillan. → A paperback edition was published in 1962.
Durkheim, ÉMILE (1893) 1960 The Division of Labor in Society. Glencoe, 111.: Free Press. → First published as De la division du travail social.
Durkheim, ÉMILE (1950) 1958 Professional Ethics and Civic Morals. Glencoe, 111.: Free Press. → First published, posthumously, as Lecons de sociologie: Physique des moeurs et du droit.
Eels, Richard 1962 The Government of Corporations. New York: Free Press.
Ehrlich, Eugen (1913) 1936 Fundamental Principles of the Sociology of Law. Translated by Walter L. Moll with an introduction by Roscoe Pound. Cambridge, Mass.: Harvard Univ. Press. → First published as Grundlegung der Soziologie des Rechts.
Evan, William M. (editor) 1962 Law and Sociology: Exploratory Essays. New York: Free Press.
Friedman, Lawrence M. 1965 Contract Law in America: A Social and Economic Case Study. Madison: Univ. of Wisconsin Press.
Friedmann, Wolfgang (1944) 1960 Legal Theory. 4th ed. London: Stevens.
Friedmann, Wolfgang 1959 Law in a Changing Society. Berkeley: Univ. of California Press.
Fuller, Lon L. 1964 The Morality of Law. New Haven: Yale Univ. Press.
Geiger, Theodor (editor) 1964 Vorstudien zu einer Soziologie des Rechts. Berlin and Neuwied: Luchter-hand. → See especially “Internationale Bibliographic der Rechtssoziologie” by Paul Trappe.
Gurvitch, Georges D. (1940) 1947 Sociology of Law. Preface by Roscoe Pound. London: Routledge. → First published in French.
Hall, Jerome (1935) 1952 Theft, Law and Society. 2d ed. Indianapolis, Ind.: Bobbs-Merrill.
Hart, H. L. A. 1961 The Concept of Law. Oxford: Clarendon.
Hazard, John N. 1953 Law and Social Change in the U.S.S.R. London: Stevens.
Hazard, John N. 1960 Settling Disputes in Soviet Society: The Formative Years of Legal Institutions. New York: Columbia Univ. Press.
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Hurst, James W. 1960 Law and Social Process in United States History. Ann Arbor: Univ. of Michigan Law School.
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Mannheim, Hermann 1946 Criminal Justice and Social Reconstruction. London: Routledge.
Matza, David 1964 Delinquency and Drift. New York: Wiley.
Pound, Roscoe 1959 Jurisprudence. 5 vols. St. Paul, Minn.: West. → Volume 1: Jurisprudence: The End of Law. Volume 2: The Nature of Law. Volume 3: The Scope and Subject Matter of Law. Volume 4: Application and Enforcement of Law. Volume 5: The System of Law. Volume 1 reviews the main literature of sociological jurisprudence.
Renner, Karl (1929) 1949 The Institutions of Private Law and Their Social Functions. London: Routledge. → First published as Die Rechtsinstitute des Privatrechts und ihre soziale Funktion: Ein Beitrag zur Kritik des biirgerlichen Rechts.
Schubert, Glendon 1960 Quantitative Analysis of Judicial Behavior. Glencoe, 111.: Free Press.
Schur, Edwin M. 1965 Crimes Without Victims. Engle-wood Cliffs, N.J.: Prentice-Hall.
Simon, Rita (JAMES) 1967 American Jury —The Defense of Insanity. Boston: Little.
Simpson, Sidney P.; and Stone, Julius (editors) 1948–1949 Cases and Readings on Law and Society. 3 vols. St. Paul, Minn.: West.
Skolnick, Jerome H. 1966 Justice Without Trial. New York: Wiley.
Tappan, Paul W. 1947 Delinquent Girls in Court: A Study of the Wayward Minor Court of New York.New York: Columbia Univ. Press.
Timasheff, Nicholas S. 1939 An Introduction to the Sociology of Law. Cambridge, Mass.: Harvard Univ., Committee on Research in the Social Sciences.
Vinogradoff, Paul 1920-1922 Outlines of Historical Jurisprudence. 2 vols. Oxford Univ. Press. → Volume 1: Introduction; Tribal Law. Volume 2: The Jurisprudence of the Greek City.
Von Mehren, Arthur T. (editor) 1963 Law in Japan: The Legal Order in a Changing Society. Cambridge, Mass.: Harvard Univ. Press.
Weber, Max (1922a) 1954 Max Weber on Law in Economy and Society. Edited, with an introduction and annotations by Max Rheinstein. Cambridge, Mass.: Harvard Univ. Press. → First published as Chapter 7 of Wirtschaft und Gesellschaft.
Weber, Max (1922b) 1957 The Theory of Social and Economic Organization. Edited by Talcott Parsons. Glencoe, 111.: Free Press. → First published as Part 1 of Wirtschaft und Gesellschaft.
The comparative analysis of the social structures of legal systems has its historical roots in the study of comparative law. It is possible to draw an analytical distinction between the two disciplines. Comparative structural analysis is a sociological endeavor. Its subject matter is the organization of legal activity and the variable character of the groups and social roles involved in the legal process; its primary goal is the discovery and explanation of regularities in institutional structure and development. Comparative law, on the other hand, is a jurisprudential study. Its practitioners are interested in the normative content of various systems of law and are often motivated by a desire to seek the fairest and most effective means of ordering the legal relations between men. Nevertheless, the intimate connection between the two fields should not be overlooked. In one branch of comparative law the sociological element is particularly strong: students of comparative legal history have generally accepted the proposition that legal concepts and modes of legal thought reflect an under-lying framework of social organization. Thus, legal historians have often viewed the normative content of law from a sociological perspective.
ORIGINS OF THE STRUCTURAL APPROACH
The sociological perspective is at least as old as the Enlightenment and Montesquieu’s classic,De I’esprit des lois(1748). Montesquieu found the sources of law in climate and geography and in the social institutions and national character of a people.
The concept of national character pervades the work of Friedrich Karl Savigny, who is generally regarded as the founder of historical jurisprudence (Stone  1950, chapter 18). Savigny wrote in the context of a national debate regarding the proposed codification of German law. He argued that codification would destroy the peculiarly Germanic character of German law and that the loss of national distinctiveness would be disastrous because any system of law must truly reflect the spirit and genius of the institutions of a people. To document his views, he produced a series of scholarly volumes on Roman and German law that were de-signed to demonstrate the close correspondence between social and legal development in those nations.
From here it is but a short, logical step to our contemporary interest in the relation between the “positive” norms of the law of the state and the de facto norms which emerge from the institutions of the larger society. In American sociology this concern has independent roots in William Graham Sumner’s interest in the mores, the folkways, and the stateways (1906), and in E. A. Ross’s emphasis on social control (1901; see also F. J. Davis et al. 1962, chapters 1, 2). On a global scale, however, the dominant transitional figure was the Austrian jurist Eugen Ehrlich (1913).
The proposition that laws ought to reflect the peculiar character of a nation’s social institutions is easily transformed into the closely related view that such a correspondence is desirable but has not been achieved. Ehrlich became disturbed by the failure of the conceptual apparatus of positive law to adequately reflect the “living law.” For Ehrlich the living law is the de facto normative pattern that develops as competing social interests are resolved within the many groups and institutions constituting the “inner order” of a society.
In the English-speaking world the works of Sir Henry Sumner Maine (1861) had a profound impact on jurists and social scientists alike, since Maine attempted to trace both the evolutionary development of legal concepts and the social developments that produced them. Maine’s posthumous influence extended to the Continent, where it played a role in shaping the thought of scholars within the emerging discipline of sociology.
Weber’s comparative studies . Among those Con tinental scholars, Max Weber (1922) formulated the most comprehensive accounts of comparative legal structure. Weber’s investigations were carried out as a part of his inquiries into the causes and consequences of the “rationalization” of the Western world. “Rationalization” in this context refers to the process by which aninstitution becomes systematically and logically elaborated according to general, analytical, and calculable principles.
Weber developed one of his characteristic ideal typologies for distinguishing the various types of legal thought found in the history of juristic development. He then elaborated one of Maine’s fundamental ideas by showing that each type of legal thought is associated with a given form of legal organization and particularly with the structural location of legal specialists. Thus, for example, the logical rationality of Continental European conceptual jurisprudence is attributable to the influence of university-based professors who turned their philosophically trained intellects to the task of expounding the Roman law as alogically closed, abstract system.
Weber also examined the impact of variation in the structure of both governmental institutions and power relations among elite groups. He pointed out that the forms of legal development fostered by the university-based Romanists appealed to the interests of monarchs and bureaucrats in systematic administration and to the concerns of the rising capitalist class with the predictable protection of private rights.
Weber’s account of comparative legal structure must also be seen in the context of his general interest in the rise and development of capitalist economic structure. His analysis of the role of law in capitalist development is effectively summarized in his treatment of the change in the concept of “special law.” We may speak of special law when legal obligations apply differentially to different groups of people. According to Weber, special law originated in the differentiation of society into various status groups each with its traditional code and a degree of feudal independence from regulation by agents of the larger society. By contrast, the modern law of the centralized, bureaucratic state permits the different units of society to enter into legally binding contracts with each other. Thus, the power of the state is made to support bodies of special law created de novo by capitalists with interdependent interests.
Durkheim’s theory of sanctions . Weber’s theory converges with the ideas of the French sociologist Emile Durkheim (1893), who, following in a direct line of influence from Maine, was interested in the transition to a social order based upon contract.
Durkheim speculated that differences in legal structure so closely reflect underlying differences in social structure as to constitute indices of types of societies. In primitive societies the bonds of cohesion are formed by the global, undifferentiated norms of the “common conscience.” In such a so ciety, law is repressive; it operates through sanctions designed to obliterate offenses to the common conscience and heal its wounds. Over time, as social solidarity comes to depend more and more upon the interdependence of specialized units, the legal order also becomes differentiated. Bodies of specialized norms develop, which are backed by restitutive sanctions designed to restore the balance of interests between competing but interdependent social groups. The new type of law permits private groups to negotiate within the context of general normative limitations and to contractually create for themselves viable systems of enforceable legal obligations.
Thus, Durkheim and Weber converged in a common recognition of an important dimension of structural variation in legal systems, namely, the extent of reliance on private action to create legal obligation. At the same time, both recognized the critical importance of the problem of the articulation of the authority of the larger society with private legal obligations.
PROBLEMS OF STRUCTURAL ANALYSIS
Given Western legal values, one problem area stands out as the central concern of comparative structural analysis: What are the various ways that legal systems relate to their social environment and, in particular, what are the structural correlates of legal independence?
DEFINING THE SYSTEM
The first problem is to establish an analytical boundary between the legal system and its environment by defining the term “legal system.” This is a notoriously difficult problem. Not the least of the difficulties stems from the fact that definitions that are adequate to the task of defining law in modern states fail to include the law of societies in which legal relations are inextricably entangled in other institutional contexts. One solution is to define the legal system functionally, so that its existence is not made to depend upon a structurally distinct set of roles or upon groups such as courts or police.
Many functional definitions rely upon the concept of social control (F. J. Davis et al. 1962, chapter 2). Law is defined as a type of social control that relies on a particular form of enforcement, usually enforcement through the legitimate use of force. Parsons (1962) and others would rather treat enforcement as a political function, external to the legal system. The advantage of this strategy is that it focuses attention on the variable structural arrangements through which legal systems come to have access to sources of coercive power.
In this view, the peculiar province of law is interpretation. Social integration is often attributed to normative controls. However, social norms are not sufficiently specific to provide authoritative guides to conduct. Further, consensus about norms is often accompanied by dispute about the facts to which norms are to be applied. Accordingly, procedures develop for issuing authoritative versions of ambiguous situations of conflict and for propounding binding rules tailored to the particularities of these situations. Enforcement, on the other hand, isa political problem, a problem of mobilizing sufficient power to implement legal decisions.
Those who insist on including enforcement within the legal system can reply that interpretation is a necessary component of any act of enforcement. Interpretation could never be isolated in any single differentiated institution. A viable research strategy must guard against the fallacy of neglecting the fact that consequential interpretive decisions are continually being made at many points in the social structure.
SYSTEM AND ENVIRONMENT
However the boundaries of the legal system are drawn, the problem of conceptualizing relations with the environment remains. There are a variety of ways of viewing this problem, but in Western thought one approach has dominated analysis. The problem has been defined as one of accounting for the independence of the legal system. Western political philosophy has accorded a high place to the “rule of law.” From a sociological perspective, the rule of law refers to a society with a differentiated legal system, free from domination by any other institutional complex. Where the rule of law prevails, the legal process is subordinate only to established, known, and universalistic rules. Given this value concern, the task of comparative sociology is to account for the social basis of the rule of law.
To this end, we may distinguish four types of relations between the legal system and its social environment. First, the legal system may be undifferentiated, that is, it may have no differentiated structural home. Thus, legal functions are performed only as a by-product of activity within other institutions. For example, among the Eskimos socially enforceable interpretations are implicitly made in the context of public curing ceremonies and popular assemblies and in ritualized combat of various sorts, but there are no specialized procedures for formally proclaiming enforceable decisions (Hoebel 1954, chapter 5).
Second, a system may be subordinate. In this case specialized formal procedures, involving specially designated personnel, are present but legal activities are controlled by other institutions. For example, justice may be dispensed by the king’s ministers, as in ancient Egypt, or by priests subject to sacerdotal discipline, as in Sumer and Babylonia.
Third, a system may be autonomous. The legal practitioners may become so insulated from external controls as to become unresponsive to demands from other quarters. In these circumstances a legal system will develop according to an inner dynamic reflecting the dominant concerns of the practitioner group. Thus, for example, religious scholars may treat the law as a logical elaboration of theological concepts. The outstanding example of this is the development of the Semitic legal tradition.
The fourth category is the most complicated, as well as the most highly prized, in legal philosophy. Legal systems may be called partially independent when they are sufficiently insulated to permit independence in some spheres but not so protected as to prevent adaptive responses to the needs of other sectors of the society. The “ideal” form of partial independence is procedural independence. In this case, insulating mechanisms protect the day-to-day operation of the legal system and the interpretive process but do not make the system unresponsive to social interests, as formulated into general policies by legislatures and organized public opinion.
The concept of procedural independence must not be confused with the discredited idea that the judicial process can be purely mechanical or logical. American political science and legal realism have effectively shown that legal decisions necessarily involve choices between alternative policies. The difference between autonomy and procedural independence is that in the latter case adjudicators are responsive to policy premises originating outside the legal system.
Procedural independence is not only highly valued; it is also a crucially important case for sociological theory. Theorists as divergent as Weber (1922) and Engels (Marx & Engels 1848-1898, pp. 447–448 in 1949 edition) have stressed that procedural independence may contribute to the interests of particular social classes or institutions. An independent legal system, operating through the universalistic interpretation of established rules, is an efficient vehicle for legitimizing political domination. Further, such a system provides a set of stable expectations that facilitate economic calculation. A degree of procedural independence may emerge as a response to the conditions of stable economic relations, even in the face of considerable political domination of the legal process. For instance, contractual arbitration in the Soviet Union became subject to the rule of law in order to foster accountability and stability in the relations between economic units (Berman 1950).
LAW AS SOCIAL INSTITUTION
The demand for stabilization of economic rights is only one of the forces supporting procedural in-dependence. It is the task of comparative analysis to explicate the various structures and mechanisms that either insulate legal systems or make them vulnerable to external demands. Many protective devices are quite familiar; judicial tenure, judicial review, constitutional limitation, and judicial control over enforcement officials are obvious sources of judicial power. But from a sociological point of view the important question is, How are these mechanisms institutionalized? that is, How are they supported by concrete social arrangements?
A number of components of social structure are involved in the patterning of the relations between legal systems and other social institutions, but one factor has seemed especially important to sociologists. Comparative analysts have been particularly interested in the impact of the structure of professional specialization.
The significance of the structural location and internal organization of professional groups is implicit in what has already been stated. Undifferendated legal systems, having no specialized legal procedures, lack persons with special legal functions. Once a differentiated legal system develops, its character is profoundly affected by the social characteristics of its associated professionals. Indeed, one of the central propositions of comparative legal sociology is that autonomous and independent legal systems are supported by tightly organized professional groups, with an independent power base, whereas subordinate legal systems reflect the dependency and weakness of legal specialists.
Apart from this general proposition, it may also be asserted that specific characteristics of legal systems may be derived from attributes of professional groups. To take an obvious example, when adjudication is controlled by religious functionaries, then law is likely to have religious overtones.
Four major categories of legal specialists can be distinguished for present purposes. The first group may be broadly designated adjudicators and includes judges, magistrates, arbitrators, referees, hearing examiners, and similar functionaries. The second group consists of professional advocates of legal causes. The third group consists of legal advisers, such as the familiar English solicitor. No taries, conveyancers, and other draftsmen, also, belong in this category, and their significance should not be underestimated. As Weber ( 1954, pp. 72–201, 210) has shown, where private elements are strong in the legal system, these “auxiliary” jurists assume special importance. When the state assures the bindingness of private agreements, the drafters of legal documents may become legal innovators who play an important role in shaping legal development.
The fourth group consists of the legal scholars —the teachers, writers, historians, and commentators whose contributions have been very important in both the Roman and civil law and in many non-Western traditions as well.
The four categories of legal specialists may or may not be differentiated from each other in practice, and the type and degree of internal differentiation is one of the important structural features of a legal system. Another of Weber’s hypotheses is that the intensely practical and empirical character of the common law reflects the fact that it developed at a time when teaching was not differentiated from legal practice; there were no specialized scholars to impart an abstract ideological content to the law.
Professional organization. The internal differentiation of the legal profession is only one organizational element among many within the profession. Patterns of professional recruitment and advancement, the organization of professional training, and the organization and control of professional practice may have important consequences for the operation of the legal system. The explana-tory potential of these variables is illustrated in Ulf Torgersen’s study of the small and declining political role of the Norwegian Supreme Court (1963). The relative insignificance of judicial re-view is attributable to the patterns of recruitment to the court, which has been increasingly dominated by career bureaucrats rather than private attorneys.
Tight professional control over recruitment, training, advancement, and practice, founded upon a monopoly of access to technical legal knowledge and a monopoly of the right to legal advocacy, is one major source of independence and autonomy. However, there are other sources of legal power. The independence of legal specialists may be supported by the sponsorship of representatives of other powerful groups. Thus, adjudicators may be insulated from the domination of economic interests by the sponsorship of governmental power, or vice versa.
Symbolic factors are often especially powerful in the legal sector. Legal specialists have rivaled religious functionaries in their capacity to assert successfully claims of special access to the sources of truth and right. Such claims have been supported by a variety of symbolic paraphernalia, ranging from magic and ritual to the more subtle trappings of modern judicial dignity. Ritualistic practices should not be discounted, but in modern liberal democracies the most important bulwark of legal independence has been the capture of the right to symbolically represent the limitation of governmental power. In this sense, the rule of law has supported itself; the independent professionals, who provide its social foundation, derive their influence in part from their symbolic embodiment of the normative regulation of power.
THE LEGAL PROCESS
Another approach to the articulation of the legal system and its social environment would eschew the abstract analysis of the structural location and internal organization of legal specialists in order to concentrate on the con-crete transactions between legal specialists and representatives of other spheres.
These transactions include such processes as litigation, professional consultation, judicial enforcement, appointment or election to adjudicative office, and complaint to legal authorities.
According to this view, the proper strategy for comparative analysis is to study the structural arrangements that pattern interaction between legal specialists and others. The structural framework of legal transactions shapes their content and often provides leverage for either the legal system or its potential adversaries.
For example, one of the functions of formal legal procedure is to compel the parties to legal disputes to mold their concrete conflicts into issues subject to normative settlement. In so doing, the parties are forced to isolate normative issues and eliminate extraneous power factors. Power factors come to be defined as being outside of the scope of inquiry, and the adjudicator thus gains leverage on his clients.
On the other hand, the process of litigation is structured by the characteristics of cases that are preshaped by social organization before they come to the attention of legal authorities. Social structure generates a variety of types of conflict. Some conflict situations are channeled to the legal system; others are resolved in other contexts. Ready access to the legal system may depend upon a preferred position in the social order. Further, even among those who have ready access to the legal system, litigation is a strategic alternative to a variety of other modes of pressing interests. In consequence, legal officials are not always in a position to control the types of issues that come before them or the structural context within which issues are presented. Thus, litigation can be conceived of as a series of transactions between the legal system and other social components, which are structured in part by the legal system and in part by external factors. Other transactions are subject to similar analysis.
EVOLUTION OF LEGAL SYSTEMS
A third approach to comparative analysis may be described as evolutionary: How, and in what sequence of steps, have differentiated legal systems emerged?
In this respect, Durkheim’s thought runs counter to Weber. Weber was concerned with the emergence of the modern state from its feudal predecessors, and in this context he stressed the lack of centralized machinery of enforcement in many preindustrial societies. Durkheim, in his insistence on the importance of repressive sanctions in primitive society, seems to assume that the existence of societal enforcement mechanisms is not problematical. The anthropologists and historians who are students of legal evolution cannot agree with him. They continually search for the analogues to the legal process in “stateless” societies and trace the development of differentiated legal systems based upon a state monopoly of legitimate enforcement power.
The gradual development of central legal machinery in Europe has been known to legal historians for some time (F. J. Davis et al. 1962, chapter 2; Wigmore 1928). Scholarly interest in the evolution of legal procedure has been reawakened recently, in part because of concern for the problems of world legal order. The sequence of development from primitive self-help to central enforcement of norms through a universalistic, normatively regulated procedure has intrigued those who are interested in the possibility of a similar development at the world level [see Inter-national law].
R. D. Schwartz and J. C. Miller (1964), in a cross-cultural study of 51 societies, have shown that three structural attributes of legal procedure combine in a systematic pattern that can be described as a cumulative scale. The representation of interests by third parties is found only in societies with both special police forces and third-party mediation of disputes. Police and mediation sometimes occur in the absence of representation, and sometimes mediation is found in the absence of any police to carry out the orders of mediating agencies. In some societies none of these procedural devices is present. The authors also found that the elaboration of legal procedure as measured by position on the cumulative scale is associated with measures of societal complexity, suggesting an evolutionary sequence of development. The sequence suggested is consistent with Western legal development as it has been pieced together by juristic scholars. The earliest legal systems are barely legal. The closest approximations to legal institutions are the rules governing kin-organized feuding and the sets of traditional compensations for wrongs. Later, regular procedures for submitting feuds to arbitration develop, but even then the parties may need to resort to self-help for enforcement. With the monopolization of legitimate force in the hands of the state, the legal system may rely on a specialized police force for enforcement of adjudicative orders. Finally, given a forum for binding and enforceable arbitration, the stage is set for the full development of professional advocacy.
GROWTH OF LEGAL PLURALISM
Historians have paid particular attention to the first two steps in the process. Law is said to appear in fully differentiated form once there is centralized enforcement of binding adjudication. From the perspective of comparative structural analysis the third step, also, is crucial, for with the appearance of institutionalized representation comes powerful support for procedural independence. For the first time there exists a set of legal specialists whose interests are not identical with the interests of mediators. It is possible that the new representer group will be captured by a particular set of interests, but theoretically the requisite social supports are present for the introduction of pluralism into the structure of the legal system. Professional representation can bring to the day-to-day administration of justice effective legal advocacy of the full range of interests present in society.
One step to pluralism is the creation of a market for professional services, so that legal representation can be purchased without regard to the content of the claims one wishes to advance. This requires either a high degree of professional neutrality or heterogeneity in the backgrounds and interests of recruits to professional service.
The establishment of a market for legal services is not a sufficient condition for pluralism, since the professional market will reflect the imperfections and inequalities of the economic structure of society. Since the inequalities of the marketplace may be overcome byvarious procedural devices and by effective organization for legal advocacy, the variable organization of access to representation is one of the most important elements in the comparative study of modern legal systems.
In many instances ready access to the legal system has been promoted through the creation of administrative remedies, which permit rights to be secured by direct application to administrative agencies of government. Traditional courts and their sometimes cumbersome procedures are bypassed. At the same time, in their judicial activities the administrative agencies operate in at least a quasi-judicial fashion, preserving many of the forms of law and subjecting themselves to the rule of law. Administrative procedure tends to be more informal than traditional legal procedure, and is less likely to involve formal adversaries. It can therefore permit the adjudicator a relatively free hand to shape solutions that take into account the particularities of a given case. Yet, administrative procedure is normatively regulated, and the standards of impartiality and decision according to law apply.
The tremendous burgeoning of administrative law in the twentieth century is the most recent chapter in legal evolution. On this count, Durkheim’s sense of evolutionary development fared well, for he successfully foretold the growth and elaboration of administrative law. For Durkheim administrative law was an integral part of the restitutive approach to law; the moral order, as represented by the common conscience, seemed to him less important than effective administration of a complicated network of obligations.
From this perspective, the growth of administrative law should be interpreted as consisting in the legalization of administration. It is simply an aspect of the process of bureaucratization that accompanies economic development. The increasing involvement of government in large-scale economic and welfare projects has been a world-wide phenomenon. The requirements of efficient administration and the interests of bureaucratic officials have combined to create pressure for the stabilization of rights and obligations.
Important as it is, the legalization of administration does not entirely account for the increasing domination of administrative law, for there has been a corresponding and converging development on the legal side. Many administrative tribunals have been created to operate in areas that have been exclusively within the jurisdiction of courts. Numerous boards, commissions, and authorities have sprung up to deal with various criminal actions and tort claims.
Again one may invoke the argument of efficiency. The administrative tribunal has numerous practical advantages: it is less costly to litigants; it permits a high volume of litigation; it permits adjudication by specialists who are both technically skilled in particular areas and well acquainted with the concrete, practical problems of administration; it permits individualized treatment of complicated situations. But efficiency is not a sufficient explanation, unless one can show that particular groups have an interest in efficient administration. In this context, the growth of democracy is crucial (Evan 1962). Populist governments are responsive to demands for efficient administration of programs designed to produce public wel-fare and economic development. In the United States, for example, the growth of administrative law has been stimulated by a tendency for social welfare legislation to become bogged down in courts and by a movement to temper all legal administration by the application of a philosophy of social welfare.
Despite its humanitarian credentials, the growth of administrative law is often viewed with alarm in countries with a strong legal tradition. It is not surprising that administrative law should be sur-rounded by controversy, for its emergence is a classic case of a process that is usually associated with social strain. Whenever a group claims that special expertise or special familiarity with problems gives it a right to perform functions that were traditionally handled at other social locations, conflict ensues. Conflict is heightened when the technical specialist claims that his expertise frees him from some of the normative restraints that have governed performance of the function in the past. Yet this is exactly the claim of emergent administrative systems. The very differentiation of the legal function appears threatened as legal systems lose functions to substantively specialized but multifunctional enforcement agencies. All these processes have still to be adequately studied by students of contemporary social organization.
Leon H. Mayhew
[Directly related are the entriesAdministrative law;Criminal law;Legal systems;Police;Punishment;Social control.Other relevant material may be found in Jurisprudence;Legal reasoning;and in the biographies of Beccaria;BlackStone;Coke;Durkheim;Ehrlich;Hauriou;Maine;Montesquieu;Savigny;Weber,Max.]
Berman, Harold J. (1950) 1963 Justice in the U.S.S.R.: An Interpretation of Soviet Law. Rev. & enl. ed. Cam-bridge, Mass.: Harvard Univ. Press. → First published as Justice in Russia: An Interpretation of Soviet Law.
Davis, E. Eugene 1962 Legal Structures in a Changing Society. Pages 196–226 in F. James Davis et al., Society and the Law: New Meanings for an Old Profession. New York: Free Press. → Summarizes, from a lawyer’s point of view, the administrative problems of the contemporary United States court system.
Davis, F. JAMES et al. 1962 Society and the Law: New Meanings for an Old Profession. New York: Free Press. → A symposium in which sociologists collabo-rated with lawyers. Chapter 1, “The Sociological Study of Law,” is especially useful for its summary of sociological interest in law in the United States since 1900.
Durkheim, ÉMILE (1893) 1960 The Division of Labor in Society. 2d ed. Glencoe, 111.: Free Press. → First published as De la division du travail social.
Ehrlich, Eugen (1913) 1936 Fundamental Principles of the Sociology of Law. Translated by Walter L. Moll with an introduction by Roscoe Pound. Cambridge, Mass.: Harvard Univ. Press. → First published as Grundlegung der Soziologie des Rechts.
Evan, William M. (editor) 1962 Law and Sociology:Exploratory Essays. New York: Free Press. → See especially “Public and Private Legal Systems,” pages 165–184. Argues that the modern democratic state contains a plurality of legal orders.
Hoebel, E. Adamson 1954 The Law of Primitive Man:A Study in Comparative Legal Dynamics. Cambridge, Mass.: Harvard Univ. Press.
Maine, Henry J. S. (1861) 1960 Ancient Law: Its Connection With the Early History of Society, and Its Relations to Modern Ideas. Rev. ed. New York: Dutton; London and Toronto: Dent. → A paperback edition was published in 1963 by Beacon.
Marx, Karl; and ENGELS, FRIEDRICH (1848-1898) 1962 Selected Works. Volume 2. Moscow: Foreign Languages Publishing House.
Montesquieu (1748) 1962 The Spirit of the Laws. 2 vols. New York: Hafner. → First published as De I’esprit des lois.
Parsons, Talcott 1962 The Law and Social Control. Pages 56–72 in William M. Evan (editor),Law and Sociology: Exploratory Essays. New York: Free Press.
Ross, Edward A. 1901 Social Control: A Survey of the Foundations of Order. New York and London: Macmillan.
Schwartz, Richard D.; and MILLER, JAMES C. 1964 Legal Evolution and Societal Complexity.American Journal of Sociology 70:159–169.
Stone, Julius (1946) 1950 The Province and Function of Law: Law as Logic, Justice, and Social Control; a Study in Jurisprudence. Sydney: Associated General Publications; Cambridge, Mass.: Harvard Univ. Press. SUMNER, WILLIAM G. (1906) 1959 Folkways: A Study of the Sociological Importance of Usages, Manners, Customs, Mores, and Morals. New York: Dover. → A paperback edition was published in 1960 by the New American Library.
Torgersen, Ulf 1963 The Role of the Supreme Court in the Norwegian Political System. Pages 221–244 in Glendon A. Schubert (editor),Judicial Decision-making. New York: Free Press.
Weber, Max (1922) 1954 Max Weber on Law in Economy and Society. Cambridge, Mass.: Harvard Univ. Press. → First published as Chapter 7 of Max Weber’s Wirtschaft und Gesellschaft, published posthumously; Weber died in 1920. His earliest contributions to the sociology of law date from the 1890s, and the topic was rarely absent from his subsequent writings.
Wigmore, John H. (1928) 1936 A Panorama of the World’s Legal Systems. 3 vols. Washington: Washington Law Book. → A historical survey of 16 legal systems.
The legal profession encompasses all those who in view of their special competence in matters of law assume a distinctive responsibility in the administration of a legal order. The nature and extent of this responsibility may vary, and its locus may be found in one or in several social roles: judges, advocates, counselors, draftsmen, teachers, scholars. Because of special issues connected with it, the topic of the judiciary is treated more extensively under other headings [see Judicial PROCESS].
The legal profession attracts the interest of both students of the professions and students of law and government. Political scientists, legal scholars, historians, and political sociologists are mainly concerned with the role of lawyers in politics and in the administration of justice. Recent sociological writings approach the bar from the perspective of the study of professions, focusing on such problems as professional independence, ethics, careers, recruitment, and relations with clients. The sociology of law draws on all these approaches.
A">The profession and the law
Whatever approach one takes to the study of the legal profession, it cannot be fully understood unless it is seen in the light of the special functions it performs for law and legal institutions. Indeed, the development and character of a legal profession are closely related to the growth and orientations of the legal order which it serves and within which it operates.
Where law is simply an expedient for the settlement of disputes or the accommodation of conflicting interests, the work of the lawyer involves little more than mastery of some techniques of social adjustment. The legal profession develops most fully when law is viewed as an embodiment of values. Society then requires specialized group energies for the protection of its legal heritage and may find them in that occupation whose interests are identified with the preservation of legal skills and values. In this process, the legal craftsmen are transformed into a legal elite and assume the critical mission of maintaining the legal order and determining its subsequent development. Although values are at stake, a legal elite may not be necessarily called for when, as in ancient Greece or in imperial China, the values of law are not seen as distinct from the morality of the polity. In Athens the legal tasks of counsel and judge were performed by experienced citizens in the absence of any specialized legal profession. But the more the distinctiveness of law is emphasized and the more society aspires to legality, the greater is the need for an autonomous profession. The profession will require more or less independence and authority, depending upon the relative strength of community commitment to legal values.
While its role is partly fashioned in response to social needs, the legal profession carries much autonomous power over the orientations of the legal and social order. It may shape many features of a legal tradition. The growth of Roman law can thus be traced to the way in which pontifices and, later, praetors declared the law in private cases: by developing and extending formulas to be used as bases for actions at law, they created a system that allowed a continuing and highly pragmatic elaboration of legal ideas. The legal profession may also succeed in imprinting the value of law upon the community, as American arbitrators have done in the relations between labor and industry. It may even give a color of legality to moral norms and religious doctrines as did the rabbis in the Talmudic period and, in a different way, the canonists in the Roman Catholic church. Similarly, the inner weaknesses of the profession may breed corresponding weaknesses in the quality and authority of the legal order. This occurs when the profession becomes captured by the special interests it serves or when it so insulates itself as to weaken its participation in and responsibility for the solution of social problems. How competent the profession is to perform its role and what institutional means secure this capability are critical issues in the assessment of the legal profession.
Thus, the more developed a legal order, the more demands and responsibilities are placed upon its legal profession. The lawyer is called to bring a set of distinctive skills to his task. His special competence may be defined as an expertise in the assessment of authoritativeness; this follows from the special character of law as an authoritative order. Whatever kind of activity he may be involved in, the lawyer’s distinctive contribution lies in his ability to formulate or criticize the reasons upon which the authority of claims, decisions, policies, or actions rests. This ability is not confined to the evaluation of lawfulness; it includes a capacity to unravel issues, to scrutinize the rationale of policies, and to explore the firmness and test the relevance of evidence and inferences. The true lawyer is a generalist: he conveys this quality in his very posture of self-confidence and in the forthrightness of his style (Riesman 1954). To what extent such skills can be developed, of course, always remains problematic. This will vary partly with the richness of the resources a legal tradition makes available in its techniques of reasoning and criticism and partly with the capacity of the profession itself to instill this competence in some, if only a few, of its members. But some expertise of that nature is essential if the lawyer is to perform his task: that is, to add to social and legal institutions this strain toward the rational and the justified, which is the source of growth and strength of the legal order (Radish 1961).
Typical legal roles
The legal profession is historically associated with the performance of some typical roles involving particular applications of this general expertise.
The adjudicator is responsible for making authoritative decisions on issues of right and responsibility in the light of legal principles. As the normative dimensions of adjudication rather than the mere settlement of disputes become more salient, there tends to be more pressure to reserve access to, and control of, this role to the legal profession.
The advocate, as a legal representative, carries out the task of pressing for the official recognition of claims of right. This role is closely tied to the adjudicative process, especially when the latter rests upon the adversary presentation of claims, as in the Anglo–American tradition. The significance of advocacy may however extend beyond the sphere of adjudication, especially when the law assumes a positive role in the fulfillment of human aspirations. The advocate may then acquire more direct functions in the formation of law; as a result new forms of advocacy will tend to develop in new institutional settings. The role of advocate is marked by conflict between the lawyer’s responsibilities as an officer of the law and his commitment to the interests of his client. This is a source of strains not only for the lawyer, who may cope with them in a variety of ways, but also for the legal system as a whole. Different systems vary in the way they balance these conflicting duties, as well as in the degree to which they tolerate this ambivalence and allow for the free development of advocacy. Whereas partisanship has been a cornerstone of common-law procedure, Soviet Russian law has until recently tended to restrict the right to counsel, and to insist on the advocate’s primary loyalty to the courts and the public interest (Hazard 1960).
The counselor or draftsman has the special burden of assisting in the solution of social and human problems, while at the same time preserving the ideals of the legal order. The more emphasis that is placed on law as a creator of opportunities, the more this role is likely to develop. Thus, the notaries of northern Italy became pioneers in the fashioning of the law merchant, or commercial law, and the creation of negotiable instruments; their influence can be compared to that of modern lawyers in the growth of corporate enterprise. This development has been particularly significant in the United States, where business counseling became a primary focus of law practice to a much greater extent than in any European country.
The jurist or legal scholar is in charge of the systematic analysis and criticism of legal doctrine. One characteristic of law, as compared with other systems of norms, is that it contains its own builtin principles of criticism; the extension and refinement of these principles is a major task of the jurist. He may also share with the practitioners the role of training future lawyers. Jurists provide the profession with an instrument of self-scrutiny. The authority of their opinions varies, being generally higher in continental European than in Anglo–American law. One of the most important sources of law in imperial Rome lay in the responsa prudentium, that is, opinions in which famous scholars answered difficult questions of law. Under Hellenic influence, these jurists founded a tradition of formal legal analysis and teaching, which contributed to the progressive systematization and codification of Roman law; the Valentinian Law of Citations in A.D. 426 conferred legal authority on their writings. The revival and reception of Roman law in the Middle Ages was also the work of a school of jurists, the glossators of northern Italy, later followed by the scholastic postglossators in France and Italy. The German school of usus modernus pandectarum continued this tradition and, until the end of the nineteenth century, adapted the Roman doctrines to provide Germany with a workable common law; much of this work was incorporated in the German civil code of 1900.
Jurisprudence also attempts to clarify the ideals and perspectives of the legal order, a function that may be more effectively performed when jurists are not too closely bound to the practicing profession. There is, however, no clear evidence on this point, although the case of American law schools may be suggestive. Because of weak ties to universities and a tendency to recruit teachers from the ranks of practitioners, American law schools have generally been oriented to the practical interests of the profession, with little concern for jurisprudence and broader issues pertaining to the quality and needs of the legal order.
Lawyers have also been called to assume many other roles, such as mediators, managers in private business, politicians, and public administrators. How extensively they participate in such roles, especially in government, may both affect and reflect the authority of the law. Of special importance is the character of their participation. Their only contribution may lie in the ability to accommodate interests and manipulate social structures, a kind of activity in which they would not significantly differ from any trained politician (Eulau & Sprague 1964). Or they may bring to public life some of their own distinctive commitments and competence and help evolve, in both private and public government, an orientation to orderly procedure and the ideals of legality.
Structure of the profession
To analyze the structure of the legal profession is to ask how the social organization of the profession affects the role it performs in the legal order. The focus here is on internal and external sources of weakness or strength.
By controlling access to the profession and the training of future lawyers, legal education has an important bearing on the character of the profession and the orientations of the law. Whether the law becomes the property of a privileged class or of the whole polity depends to some extent upon criteria of access to the profession. When admission is limited to a narrow segment of society, the services of the profession may be oriented primarily to this clan. The more the legal career is viewed as an avenue to political power and social status, the more efforts will be made to keep access open, especially where there is strong antipathy toward the establishment of governmental elites. This has been evident in the United States (Hurst 1950). Although wide accessibility may make the law responsive to a larger range of interests, it may also create problems for the profession in its endeavor to preserve standards of quality. American attempts to raise educational standards of admission to the bar have met only limited success: the shift from apprenticeship to academic training has been accompanied by the development of a highly stratified system of education, with only relatively few high-standard university law schools at the top. The bottom consists of a large number of low quality, part-time schools that have weak or no university ties and seek merely to prepare the student for the bar examination.
Methods of legal training affect the skills and perspectives lawyers bring to their practice and thereby shape many features of the law. Max Weber has noted the relation between apprenticeship and the pragmatic responsiveness of the common law, as contrasted with the more intellectual and formalistic treatment of the law arising from university education in Europe (1922). Orientations to law are thus created, which confer on the legal order more or less rigidity or flexibility. Some can better preserve the “open texture” of the law, allowing law to incorporate social change while retaining its continuity; the Anglo–American system has been remarkable in this respect. Other orientations are apt to freeze the structure of legal rules and to paralyze processes of legal change; the academism of legal education in Europe—a tradition that dates back to the glossators—tends to promote this rigidity. Social reforms are then more likely to be sought by means outside the law, thus arousing critical problems for the stability of both the legal and the political order. This tendency can be observed in some civillaw countries, especially in South America.
In a more direct way, legal education may become a source of law. In the very act of ordering legal materials for pedagogical purposes, law is divided into branches, and these are organized around governing concepts. The institutes of Roman law were originally purely pedagogical instruments; however, by systematizing the principles of Roman law, they started a movement toward codification and became an authoritative source of the Corpus juris civilis. In the process of being taught, law is thus given a structure which reflects the changing emphases of positive law and the needs of the practitioners. But this structure also provides ideas and perspectives which may affect the capacity of the law to cope with social change. Thus, the disappearance of the law of persons as a separate branch of legal study tends to impoverish the resources of American law for recognizing new forms of status.
Even more significant for the legal order is the role of legal education in providing lawyers with distinctive modes of analysis and reasoning. The case method, as practiced in American law schools, may be peculiarly competent to impart these skills. It may also tend, however, to create a perspective in which law appears as an outcome of controversies rather than a way of implementing values. More importantly, by identifying the main locus of law in appellate decisions, it may promote a restricted conception of the legal. Attention is diverted from the variety of ways and settings in which law can emerge and be administered. Even in its empirical focus on decisions, the case method overstresses the role of the judiciary, neglecting legislation and administrative decision making. It may thus limit the capacities of legal education to prepare lawyers for a period such as the present, when the role of law is being extended beyond its traditional confines.
The integrity of the law depends in part upon its ability to respond to political demands while maintaining its commitment to reason and impartiality. A continuing problem for the practicing lawyer is to remain sensitive to social needs and interests without becoming their captive and to preserve his autonomy without withdrawing himself from practical concerns.
Captivity may, of course, take a crude form, as when a political regime seizes control over the profession in order to neutralize a potential source of criticism (Kirchheimer 1961). It can, however, develop in more subtle forms where the profession is otherwise left free to serve. The lawyer can become the captive of his clients’ interests: an insecure practice, for example, makes it harder for him to resist pressures from clients for fear of losing them to competitors. This condition arises when the demand for legal services remains weak and intermittent, as it is among the lower classes, or when there is intense competition from other lawyers or from such groups as realtors and accountants, who encroach upon areas of practice requiring only low level and standardized skills (Carlin 1962). Captivity can also result from too intimate involvement in the affairs of particular clients. Lawyers may thus tie themselves to a small number of institutional clients who demand extensive and continuing services, or as “house counsel” (members of a legal department) they may become too closely identified with or too submissive toward the enterprise or agency which employs them.
Professional integrity may also be undermined in the lawyer’s dealings with courts and government agencies. The lower the standards of these institutions or the more open they are to outside political influences, as lower courts often are, the more they create opportunities and pressures which may attenuate norms of professional conduct. Continual practice before an agency may also lead the lawyer to share the perspectives of its administrators.
A common consequence of captivity is to deprive the lawyer of his special identity: he is transformed into a manipulator of social and economic structures who is no longer committed to the use of distinctively legal methods or resources. In this process, he tends to become indistinguishable from the politician or the business operator. Law is then made to appear as simply an expedient for the promotion of special interests, and the distinction between law and politics is lost.
The lawyer can resist pressures by avoiding involvement or insecurity, but such avoidance entails its own difficulties. A too rigid insistence upon independence and distinctiveness may divorce the lawyer from his clients’ problems and needs, thus weakening the contribution law might make to their solution. The lawyer may then find himself confined to the passive role of providing technical help in the event of legal trouble. Under such conditions, law tends to evolve into legalism. A special view of law is conveyed which stresses the formalism of the legal order and the obstacles it creates to effective problem solving. Law may thus be emptied of its moral and political significance and reduced to its purely technical and positivistic aspects. Paradoxically, in seeking to protect his autonomy the lawyer may so insulate himself as to weaken both his own authority and the authority of the law, perhaps eventually becoming a docile servant of corporate or political power. The history of the legal profession in Nazi Germany illustrates this process.
Organization of the bar
The profession has evolved a number of structural arrangements which can be more or less successful in securing a viable autonomy. Apart from its effectiveness in this regard, the social organization of the bar may also influence patterns of development in the law.
One organizational device is to create within the profession an elite specially charged with the protection of legal ideals. While this segment insulates itself from outside pressures, others in the profession are left free to respond to and accommodate the variety of demands that are made on the legal order. The British system has achieved this differentiation by developing a small and specialized class of barristers, who enjoy a monopoly of practice in the higher courts and deal with clients only through solicitors. The latter do most of the client counseling and take care of cases in the lower courts and government agencies (Jackson 1940). In the United States, the large law firms have developed a very high level of technical proficiency in legal work, have restricted their practice to the most stable and secure clientele, and have limited their contacts to the top levels of government and the judiciary (Smigel 1964). Special training institutions, such as the Inns of Court in Britain and the American Ivy League law schools, help to strengthen these elites, while sharing in their trusteeship for the legal order.
The services of the elite bar tend to benefit those most competent to pursue their interests through use of the legal process. Thus, a critical issue is whether the elite can preserve its loyalty to legal institutions and its responsibility for the law as a whole, for it runs the risk of becoming so identified with the aims of a special clientele as to restrict its concerns to those areas of the law that best serve these aims. This encourages a highly selective development of the law and impairs recognition of legal demands arising from other segments of society. Large American law firms have thus been strongly criticized for their too exclusive services to corporate interests and their loss of concern for general legal values (Berle 1933). Moreover, in the United States the large metropolitan bar is highly stratified, with little mobility or communication between the upper and lower strata (Carlin 1966). The more the elite is cut off from the lower levels of the profession and of government, the more difficult it becomes to incorporate in the legal order the demands that are brought to these levels.
Formal associations. The weaker the sense of common purpose is within the bar and the more threatening the conditions under which it operates, the more pressing is the need for instruments of self-scrutiny and control. The practicing profession has traditionally been organized into guildlike associations, such as the Inns of Court in Britain and the Ordre des Avocats in France, which have often been quite powerful in regulating the practice of law. In the United States, the organization of the bar used to consist exclusively of small local and voluntary associations with little cohesion and authority. It still remains today highly fragmented, and primarily concerned, even in the exercise of disciplinary control, with the protection of the profession against public intervention and lay encroachments. A movement of reform, starting in the 1870s, led to the establishment of state bar associations and later to the integration of some of these. In states which have an “integrated bar,” membership is compulsory for all practitioners in the state, and the association can thus enjoy greater security and larger resources. The American Bar Association was created in 1878 and progressively developed into a federation of state and local groups. It has assumed a prominent role in the bar as a whole, elaborating standards of admission and canons of ethics and recommending reforms in the law and the administration of justice. In legal reform it collaborates with two specialized organizations of the profession, the American Judicature Society and the American Law Institute. The latter under-took to codify American common law in a “Restatement of the Law.” This work is still in progress. Contributions of the Institute include the drafting of model acts and codes in various branches of the law.
Types of practice
The practice of law may take a variety of forms, some of which have already been mentioned. Lawyers may work on their own or associate in firms of various size. They may serve mainly discrete individuals or organizations and businesses; the role of family lawyers, such as attorneys in the field of probate and estate, tends to decline as the family loses its economic functions.
Not all areas of legal practice allow the same quality of work. For instance, workmen’s compensation and, frequently, personal injury call mainly for mass production and standardized legal techniques. In other fields, such as criminal law and domestic relations, “marriage counseling” and political manipulation are often more salient than legal craftsmanship (O’Gorman 1963). The lawyer is then likely to feel frustrated and threatened in his professional identity. The character of the market for services may also affect professional integrity: lawyers can more easily preserve their dignity when they can count on a secure and regular clientele. Others, however, especially those with low-status clients, have to keep continually searching for business, establishing connections, and resorting to such expedients as “ambulance chasing,” through which potential clients are located and advantage is taken of whatever claims and speculations can be aroused. In this very process they become deprofessionalized (Carlin 1962).
A new type of practice has begun to develop as organized groups, such as labor unions and trade associations, assume the function of providing to their members the services of their retained counsel. The special contribution of these groups lies in their ability to aggregate common interests and to articulate legal demands. Resources can then be mobilized to press these claims in a systematic way and thereby promote legal change.
The practice of law has become more specialized: lawyers specialize according to the class of clients they serve, the agencies with which they deal, or the branch of the law they handle. In the United States, this trend has been facilitated by the expansion of law firms (Smigel 1964). Specialization is particularly significant for the growth of legal doctrine in undeveloped areas of the law and where special government institutions must be made accountable and sensitive to social demands. Specialized lawyers have thus played an important role in the development of administrative law and labor law and in the extension of constitutional rights in the United States.
The explosion of advocacy
Modern social transformations tend to place new demands on the legal order and the legal profession. Government—public and private—is asked to perform tasks and satisfy needs that were formerly taken care of in more informal settings. Thus, in contrast to a rather passive role in the past, law and legal institutions are being summoned to participate more positively in the task of fulfilling human aspirations and accomplishing social purposes.
The effectiveness of law in this new role depends upon considerable expansion of social resources for legal criticism. Modern times may thus witness what has been termed an “explosion of advocacy,” with corresponding demands for critical changes in the services of the legal profession. The lawyer is called upon to relinquish his passive stance and assume an active role in the transformation of privileges into rights and in the development of rationality and competence in government institutions (Cahn & Cahn 1964).
This enlarged responsibility will require greater initiative on the part of the profession in scrutinizing the variety of social settings where decisions are made affecting established or incipient rights. The traditional role of law schools and professional associations will need re-evaluation in this respect. More positive responsibilities may fall upon legal departments, in view of their growing role in public and private organizations. Special agencies, similar to the Scandinavian office of ombudsman, may also be designed to carry out this task of legal criticism.
Wherever government relies upon self-help for the assertion of claims and interests, the viability of the system will ultimately depend upon the legal competence of the citizenry, that is, its capacity to make effective use of the legal machinery. To promote this competence is one of the major tasks of the legal profession. One requirement is that the provision of legal services be extended. Pressures on the profession to broaden its availability have been heightened by social demands for equality and political enfranchisement. It is unlikely, however, that the enlarged need for legal services can be fully met with existing institutions, such as legal aid and public defender offices. Serious limitations of available organized services can be seen in their dependence upon traditionally restricted sources of support, their routine treatment of cases, and their view of legal assistance as a form of public welfare (“The Availability of Counsel. . .”1965).
As legal institutions become increasingly used and crowded, a new burden falls on the lawyer. The working of both law offices and tribunals comes to depend upon establishing standardized methods for the mass processing of cases. Thus the operation of rules and procedures tends to become a routine which escapes criticism and blocks adaptation to unusual cases and new experiences. Special efforts are then required of the lawyer in continually subjecting procedures to re-evaluation and in opening them to challenge and change.
However, more than a simple extension of legal services may be needed. The traditional model of individual representation and counseling may prove inadequate to the task of developing legal competence. New types of legal services must be evolved. Thus, the older emphasis on serving individual clients may have to be supplemented and in part replaced by organizational advocacy: here legal services are provided to an organization representing the common interests of a group or they are made available to members of the group through intervention by the organization. This transformation has already taken place in American industry, where organized labor has secured the services of specialized labor lawyers to support the legal interests of its constituents. Group services will have to expand if legal assistance is to be made effectively available (“The Availablity of Counsel . . .” 1965). Experience has shown that persons who are insecure and lack social support for the assertion of their claims need a representative organization to lend them its strength and resources. Neighborhood law firms and defense organizations such as the National Association for the Advancement of Colored People and the American Civil Liberties Union constitute a step in this direction. As these changes proceed, new specializations will develop within the legal profession, thus promoting the growth of new, still inchoate, fields of law.
Together with the growth of group representation, there is a drift away from the passive acceptance of individual cases as they come. This traditional approach is consistent with an adversary system in which the presentation of legal issues depends upon the development of specific controversies between defined interests. This system tends to divert attention from structural sources of injustice. As individual demands become organized, strategic advocacy develops: the lawyer can select and possibly generate issues for the purpose of challenging practices and pressing recognition of new rights (Cahn & Cahn 1964). In this process, adjudication becomes less dependent upon disputes and can address itself more directly to issues of policy and the broader interests at stake. Adversariness is then used as a way of clarifying policy problems; at the same time, the role of the amicus curiae develops, and there is greater reliance upon forms of declaratory relief, where questions of law are clarified without the necessity of deciding on the outcome of a particular dispute. More importantly, the growth of the law tends to be less contingent upon the more or less random occurrence of cases and to proceed along lines of more systematic planning.
Philippe Nonet AND
Jerome E. Carlin
[Directly related are the entries Judicial PROCESS; Judiciary; Legal SYSTEMS. Other relevant material may he found in Canon LAW; Jurisprudence; Legal REASONING; Legislation.]
The Availability of Counsel and Group Legal Services: A Symposium. 1965 U.C.L.A. Law Review 12:279–463. → Contains a foreword and eight articles.
Berle, A. A. JR. 1933 Modern Legal Profession. Volume 9, pages 340–346 in Encyclopaedia of the Social Sciences. New York: Macmillan.
Blaustein, Albert P.; and Porter, Charles O. 1954 The American Lawyer: A Summary of the Survey of the Legal Profession. Univ. of Chicago Press. → Valuable as a bibliographical source.
Cahn, Edgar S.; and Cahn, Jean C. 1964 The War on Poverty: A Civilian Perspective. Yale Law Journal 73:1317–1352.
Carlin, Jerome E. 1962 Lawyers on Their Own: A Study of Individual Practitioners in Chicago. New Brunswick, N.J.: Rutgers Univ. Press.
Carlin, Jerome E. 1966 Lawyers’ Ethics: A Survey of the New York City Bar. New York: Russell Sage Foundation.
Eulau, Heinz; and Sprague, John D. 1964 Lawyers in Politics: A Study in Professional Convergence. Indianapolis, Ind.: Bobbs-Merrill.
Hazard, John N. 1960 Settling Disputes in Soviet Society: The Formative Years of Legal Institutions. New York: Columbia Univ. Press.
Hurst, James W. 1950 The Growth of American Law: The Law Makers. Boston: Little.
Jackson, Richard M. (1940) 1964 The Machinery of Justice in England. 4th ed. Cambridge Univ. Press.
Kadish, Sanford H. 1961 The Advocate and the Expert—Counsel in the Peno–Correctional Process. Minnesota Law Review 45:803–841.
Kirchheimer, Otto 1961 Political Justice: The Use of Legal Procedure for Political Ends. Princeton Univ. Press.
Lasswell, Harold D.; and Mcdougal, Myres S. 1943 Legal Education and Public Policy: Professional Training in the Public Interest. Yale Law Journal 52:203–295.
O’Gorman, Hubert J. 1963 Lawyers and Matrimonial Cases: A Study of Informal Pressures in Private Professional Practice. New York: Free Press.
Plucknett, Theodore F. T. (1929) 1956 A Concise History of the Common Law. 5th ed. London: Butter-worth. → See especially pages 79–289, “The Courts and Profession.”
Pound, Roscoe 1953 The Lawyer From Antiquity to Modern Times: With Particular Reference to the Development of Bar Associations in the United States. St. Paul, Minn.: West.
Riesman, David 1954 Individualism Reconsidered, andOther Essays. Glencoe, I11.: Free Press. → See especially pages 440–466, “Toward an Anthropological Science of Law and the Legal Profession.”
Schacht, Joseph (1950) 1959 The Origins of Muhammadan Jurisprudence. Oxford: Clarendon.
Weber, Max (1922) 1954 Max Weber on Law in Economy and Society. Edited, with an introduction and annotations by Max Rheinstein. Cambridge, Mass.: Harvard Univ. Press. → First published as Chapter 7 of Max Weber’s Wirtschaft und Gesellschaft.
More scholarship has probably gone into defining and explaining the concept of “law” than into any other concept still in central use in the social sciences. Efforts to delimit the subject matter of law—like efforts to define it—usually fall into one of several traps that are more easily seen than avoided. The most naive beg the question and use “law” in what they believe to be its commonsense, dictionary definition—apparently without looking into a dictionary to discover that the word “law” has six entries in Webster’s second edition, of which the first alone has 13 separate meanings, followed by five columns of the word used in combinations. German and French have even more complex ambiguities, since their comparable words (Recht, droit) include some dimensions for which English uses other words.
Sophisticated scholars, on the other hand, have been driven either to write treatises on the art and pitfalls of definition (Cohen & Hart 1955) or, like Stone (1964), to realize that in relation to a noetic unity like law, which is not represented by anything except man’s ideas about it, definition can mean no more than giving the reader a set of mnemonics to remind him what has been talked about. It was Kant who said, “The lawyers are still seeking a definition of their concept of law.” A century and a half later Stone stated that “‘law’ is necessarily an abstract term, and the definer is free to choose a level of abstraction; but by the same token, in these as in other choices, the choice must be such as to make sense and be significant in terms of the experience and present interest of those who are addressed “(1964, p. 177).
Definitions of “law”
Even if we agree with Hart (1954) that the searches for definition and the concomitant search for security that they represent became serious only in the time of Austin (and Kant’s remark would seem to belie this), it is apparent that schools of jurisprudence have risen, battled, and fallen on bastions erected on one meaning or another. Austin has permanently affected British jurisprudence by emphasizing the command aspect of a law and pointing out that the law is a command of the “sovereign” (itself an ambiguous concept). Since then lawyers have for generations and without signal success been arguing whether Austin’s stipulations applied only to developed systems of “municipal” law and whether he himself really gave the point of command such primacy.
The American “realists” clustered around Oliver Wendell Homes’s dictum that law is a prediction of what a court will enforce. Continental scholars tended to be more concerned with the moralistic “right” and “ought” aspects of the rules of law and have gone deeply into moral philosophy.
In the effort to define “law,” some modern scholars like Hart (1954) conclude that there are three “basic issues”: (1) How is law related to the maintenance of social order? (2) What is the relation between legal obligation and moral obligation?(3) What are rules and to what extent is law an affair of rules? Others (Stone 1966) describe several sets of attributes that are usually found associated with law. Accordingly, law is (1) a complex whole, (2) which always includes social norms that regulate human behavior. These norms are (3) social in character, and they form (4) a complex whole that is “orderly.” The order is(5) characteristically coercive and (6) institutionalized. Law has (7) a degree of effectiveness sufficient to maintain itself. Anthropological studies of law in the non-Western world have followed a similar course. To cite one of the most vivid and orderly presentations, Pospisil (1958) examined several attributes of the law—the attribute of authority, that of intention of universal application, that of obligatio (the right-obligation cluster), and that of sanction. In his view, the “legal “comprises a field in which custom, political decision, and the various attributes overlap, though each may be found extended outside that overlapping field, and there is no firm line, but rather a “zone of transition,” between that which is unquestion-ably legal and that which is not.
It was Kantorowicz (1958) who pointed out that there are many subjects, including some of a nonlegal nature, that employ a concept of law. He perceived that each needs a different definition of “law” if it is to achieve its purposes. He then proceeded to a more questionable point: it is for “general jurisprudence” to provide a back-ground to make these differing definitions sensible—in short, it is the task of jurisprudence to elicit meaning from this cacophony of attempted definitions. Kantorowicz’s method in jurisprudence is very like Pospisil’s in anthropology. Instead of trying to find points for definition of law, Kantorowicz examined some characteristics of law that are vital to one or more of the specific definitions. Law is thus characterized by having a body of rules that prescribe external conduct (it makes little immediate difference to the law how one feels about it—the law deals in deeds). These rules must be stated in such a way that the courts or other adjudging bodies can deal with them. Each of the rules contains a moralizing or “ought” element—and Kantorowicz fully recognized that this “ought” element is culturally determined and may change from society to society and from era to era. Normative rules of this sort must, obviously, also be distinguished from the real uniformities by which men (sometimes with and sometimes without the help of courts and lawyers) govern their daily round of activity. Law is one of the de-vices by means of which men can reconcile their actual activities and behavior with the ideal principles that they have come to accept, and can do it in a way that is not too painful or revolting to their sensibilities and in a way which allows ordered (which is to say predictable) social life to continue. No act is wholly bad if it is “within the law” no law is wholly good if it condones “immoral” action.
Custom is a body of more or less overt rules which express “ought” aspects of relationships between human beings and which are actually followed in practice much of the time. Law has an additional characteristic: it must be what Kantorowicz calls “justiciable/’ by which he means that the rules must be capable of reinterpretation, and be actually reinterpreted, by one of the legal institutions of society so that the conflicts within nonlegal institutions can be adjusted by an outside “authority.”
It is widely realized that many peoples of the world can state more or less precise “rules” which are, in fact, the ideals in accordance with which they think they ought to judge their conduct. In all societies there are allowable lapses from rules, and in most there are more or less precise rules (sometimes legal ones) for breaking rules.
In order to make the distinction between law and other rules, it has been necessary to introduce furtively the word “institution.” We must now make an honest term of it. A social institution can be defined as a group of people who are united (and hence organized) for some purpose; who have the material and technical means of achieving that purpose or at least of making rational attempts at it; who support a value system, ethics, and beliefs validating that purpose; and who repeat more or less predictable activities and events in the carrying out of the purpose (Malinowski 1945). With this rubric, all human activity can be viewed either as institutionalized or as random (and the degree of random behavior may be the most diagnostic feature of any society). It need hardly be added that “institutionalized” does not necessarily mean “approved” by the people who participate in the institutions.
With these ideas it is possible to distinguish legal institutions from nonlegal ones. A legal institution is one by means of which the people of a society settle disputes that arise between one another and counteract any gross and flagrant abuses of the rules of the other institutions of society. Every ongoing society has legal institutions in this sense, as well as a wide variety of nonlegal institutions.
It can be pointed out that some nonlegal institutions—the priestly, the psychiatric, and the like —serve the function of settling disputes. To make the distinction between legal and nonlegal, social scientists generally invoke the doctrine of coercion and use of force. Such a settlement is sensible because the legal institutions with which modern Western lawyers deal are usually associated with a political unit of which the state is one type. A political organization ipso facto supplies theorists with a “sovereign” of Austinian type and the “enforcement” predicated by Holmes and others. From this point of view, then, legal institutions must have two defining criteria: (1) they must settle the disputes that arise in other (nonlegal) institutions, and (2) they must be associated with (or even constitute) some sort of political organization. Obviously, for some purposes—particularly in the study of less-developed legal systems—the second criterion can and must be dropped; for most pur-poses of Western jurisprudence, just as obviously, it is probably necessary to retain it.
In carrying out the task of settling difficulties in the nonlegal institutions, legal institutions must have specific ways to (1) disengage the difficulties from the institutions of origin which they now threaten, (2) handle the difficulties within the framework of the legal institution, and (3) set the new solutions back within the processes of the nonlegal institutions from which they emerged. Indeed, the presence of such characteristics is a vivid index of the presence of a political organization.
There are, thus, at least two aspects of legal institutions that are not shared with other institutions of society. First, legal institutions alone must have some regularized way to interfere in the malfunctioning (and, perhaps, the functioning as well) of the nonlegal institutions in order to disengage the trouble case. Second, there must be two kinds of rules in the legal institutions—those which govern the activities of the legal institution itself (called “adjectival law” by Austin and “procedure” by most modern lawyers) and those which are substitutes for, or modifications or re-statements of, the rules of the nonlegal institution that has been invaded (called “substantive law”). The above are only the minimal aspects that are shared by all known legal institutions.
Seen in this light, the distinction between law and custom is fairly simple. Customs are rules (more or less strict and with greater or less support of moral, ethical, or even physical coercion) about the ways in which people must behave if social institutions are to perform their tasks and society is to endure. All institutions (including legal institutions) develop customs. Some customs in some societies are reinstitutionalized at another level: they are restated for the more precise purposes of legal institutions. When this happens, therefore, law may be regarded as a custom that has been restated in order to make it amenable to the activities of the legal institutions. In this sense one of the most characteristic attributes of legal institutions is that some of these “laws” are about the legal institutions themselves, although most are about the other institutions of society, such as the familial, economic, political, and ritual.
Malinowski, by his little book Crime and Custom in Savage Society (1926), has widely influenced lawyers with a faulty mode of distinguishing law from nonlaw. His idea was a good one; he claimed that law is “a body of binding obligations regarded as right by one party and acknowledged as the duty by the other, kept in force by the specific mechanism of reciprocity and publicity inherent in the structure of ... society.” His error was in equating what he had defined with the law. It is not law that is “kept in force by ... reciprocity and publicity” ( 1961, p. 58). It is custom as we have defined it here. Law is better thought of as “a body of binding obligations regarded as right by one party and acknowledged as the duty by the other”which has been reinstitutionalized within the legal institution so that society can continue to function in an orderly manner on the basis of rules so maintained. In short, reciprocity is the basis of custom; but the law rests on the basis of this double institutionalization.
One of the best ways to perceive the doubly institutionalized norms, or “laws,” is to examine the smaller components as they attach to persons (either human individuals or corporate groups) and so to work in terms of “rights” and their reciprocal “obligations.” In the framework of rights and duties, the relationships between law and custom, law and morals, law and anything else can be seen in a new light. Whether in the realm of kinship or contract, citizenship or property rights, the relationships between people can be reduced to a series of prescriptions with the obligations and the correlative rights which emanate from these prescriptions. In fact, thinking in terms of rights and obligations of persons (or role players) is a convenient and fruitful way of investi-gating much of the custom of many institutions. Legal rights are only those rights which attach to norms that have been doubly institutionalized; they provide a means for seeing the legal institutions from the standpoint of the persons engaged in them.
The phenomenon of double institutionalization of norms and therefore of legal rights has been recognized for a long time, but analysis of it has been only partially successful. Legal rights have their material origins in the customs of nonlegal institutions but must be overtly restated for the specific purpose of enabling the legal institutions to perform their tasks.
Many scholars, in comparative studies, have focused attention on the sanction for purposes of determining what is to be included in the “legal” field. Use of the term “sanction” has the advantage of allowing the scholar to beg the question of the Austinian sovereign. Sanction is generally understood to mean what the law itself says will or may happen to one found guilty of having transgressed a legal rule. The word is often used in common parlance to mean “the teeth in the law.” When it is used as a verb, its true ambivalence becomes apparent. “To sanction” something is in ordinary usage not to interfere with some-one’s doing it; yet jurists also use it to mean “visit an evil on doing it,” and social scientists have ex-tended the word “sanction” far beyond its technical meaning for modern law. Radcliffe-Brown (1934a) described positive and negative sanctions for behavior, embracing not only penalization of non-conformity but also rewarding of conformity—and all this without specifying precisely who confers rewards or inflicts punishments.
The problem of sanction would seem to be better summarized in terms of legal institutions which, in some situations, apply specific types of correction to adjudged breaches of law. That is, the “sanction” is the body of rules according to which legal institutions interpose themselves for the purpose of maintenance of a social system so that living in it can be comfortable and predictable.
Law and social science
It is apparent that we must examine two further factors. First, what sort of definitions of law may be needed by the social sciences? Second, and related to this, how can social scientists go about investigating the legal institutions and the legalization of rights in any specific culture or in any concatenation of cultures?
The kernel of the social scientist’s concept of law must be found, I believe, in the phenomenon of double institutionalization of rights: once within customary institutions, then again within the legal institutions. Therefore he is required absolutely to study both the legal institutions and the social institutions on which they feed—and only in this way can he ever make any progress with the thorny problem of the relationship between law and society.
The social scientist studying law is quite right when he considers the law a type of social superstructure to be judged by criteria or values of the social sciences. He is, however, quite wrong if he extends this position to mean that he need not consider what is known about the law on its own ground. The determining variables of the law may be considered as part of a social field; but equally so, the social field must be considered by jurisprudence. In short, what is required is a sort of stereoscopic vision, looking at data with the lens of jurisprudence in one eye and the lens of social science in the other.
Seen thus stereoscopically, a legal right (and, with it, a law) is the restatement, for the purpose of maintaining peaceful and just operation of the institutions of society, of some but never all of the recognized claims of persons within those institutions; the restatement must be made in such a way that these claims can be more or less assured by the total community or its representatives. Only by so viewing legal rights can the moral, religious, political, and economic implications of law be fully explored.
In fact, a primary problem of all legal studies may be the intersecting of the law and the other institutions of society. This relationship is no mere reflection of society in the law: it must be realized, rather, that the law is always out of phase with society, specifically because of the duality of the statement and restatement of rights. Indeed, the more highly developed the legal institutions, the greater the lack of phase, which not only results from the constant reorientation of the primary institutions but is magnified by the very dynamics of the legal institutions themselves (Stone 1964, chapter 1, sec. 1).
Thus, it is the very nature of law and its capacity to “do something about” the primary social institutions that create the lack of phase. Moreover, even if one could assume perfect legal institutionalization, change within the primary institutions would soon jar the system out of phase again. What is less obvious is that if there were ever to be perfect phase between law and society, then society could never repair itself, grow and change, flourish or wane. It is the fertile dilemma of law that it must always be out of step with society but that people must always (because they work better with fewer contradictions, if for no other reason) attempt to reduce the lack of phase. Custom must either grow to fit the law or it must actively reject it; law must either grow to fit the custom or it must ignore or suppress it. It is in these interstices that social growth and social decay take place.
Social catastrophe and social indignation and resultant changes in custom are sources of much new law. With technical and moral change new situations appear that must be “legalized.” This truth has particular and somewhat different applications to developed and to less highly developed legal systems. In developed municipal systems of law, in which means for institutionalizing behavior on a legal level are already traditionally concentrated in political decision-making groups such as legislatures, there is a tendency for the legal institution not to reflect custom so much as to shape it. As developed nations put more faith in their legislatures, nonlegal social institutions sometimes take a very long time to catch up with the law. On the other hand, in less-developed legal systems, it may be that little or no popular demand is made on the legal institutions, and therefore little real contact exists or can be made to exist between them and the primary institutions (Stone 1966, chapter 2, sec. 17). Law can become one of the major sources of innovation in society.
The social scientist’s first task, then, is the analysis of the legal institutions to be found and their interrelationships with the nonlegal institutions of society. There may be courts as in some parts of indigenous Africa or indigenous Europe; there may be self-help, oracles, moots, town meetings, contests, and certain types of feuds (although most feuds do not correct the difficulty and feed the corrected situation back into the nonlegal institutions of society). The social scientist can examine the particular types of customs that are legalized in any particular society. He can begin the process of comparing the customs of mating and child rearing with the laws of marriage; the customs of trading with the laws of contract; the customs of interpersonal relations with the law of tort; the customs of approved behavior with criminal law.
And what will he find? He will find that the practice of law is a force by itself, a force for preserving and molding society that both has its roots irrevocably in social institutions and must supersede any particular historicoethnographic phase of them.
The social scientist’s next task is the reporting and comparison of legal institutions in the terms of the people who participate in those institutions and the subsequent comparison of those terms with the terms in which other people live in analogous or similar institutions.
His third task is the exposition of what Hoebel (1954) has called the “postulates” of that people’s law: the assumptions held about the “natural” ways of the world, most often without even a possibility of overt statement, by the people who live by a custom and a law. These postulates lie behind the law as they lie behind every other aspect of that people’s activity. They are those “values,” or unquestioned premises, on which a people bases not merely its behavior (including law) but its moral evaluation of behavior (including ethics). The postulates behind a legal system are congruent with the postulates behind the accompanying economic or religious system. What may seem blatant discrepancies and contradictions and, indeed, hypocrisies (as between Sunday school and the market place) are in fact no more than inadequate analyses of the postulates. A postulate lying behind Anglo-American law is that the human body is inviolably private unless marriage or certain contracts have been entered into; a postulate behind Eskimo law is that life is hard and that kinship, amity, or love between individuals cannot be allowed to override the welfare of the society. The postulates underlying a people’s law also underlie the rest of its culture. Law cases provide one of the best mechanisms by which the ethnographer can capture these postulates and make them overt.
Allen, Carleton K. (1927) 1958 Law in the Making. 6th ed. Oxford Univ. Press.
Bohannan, Paul 1957 Justice and Judgment Among the Tiv. Published for the International African Institute. Oxford Univ. Press.
Cohen, Jonathan; and Hart, H. L. A. 1955 Symposium: Theory and Definition in Jurisprudence. Pages 213–264 in Aristotelian Society,Proceedings, Supplementary Volume 29: Problems in Psychotherapy and Jurisprudence. London: Harrison.
Cohen, Morris R. 1950 Reason and Law: Studies in Juristic Philosophy. Glencoe, I1L: Free Press. → A paperback edition was published in 1961 by Collier.
Ehrlich, Eugen (1913) 1936 Fundamental Principles of the Sociology of Law. Translated by Walter L. Moll with an introduction by Roscoe Pound. Cam-bridge, Mass.: Harvard Univ. Press. → First published as Grundlegung der Soziologie des Rechts.
Gluckman, Max 1955 The Judicial Process Among the Barotse of Northern Rhodesia. Manchester Univ. Press; Glencoe, 111.: Free Press.
Haar, Barend ter (1939) 1948 Adat Law in Indonesia. Translated and edited with an introduction by E. Adamson Hoebel and A. Arthur Schiller. New York: Institute of Pacific Relations, International Secretariat. → First published as Beginselen en stelsel van het adatrecht.
Hart, H. L. A. 1954 Definition and Theory in Jurisprudence.Law Quarterly Review 70:37–60.
Hart, H. L. A. 1961 The Concept of Law. Oxford: Clarendon.
Hoebel, E. Adamson 1954 The Law of Primitive Man: A Study in Comparative Legal Dynamics. Cambridge, Mass.: Harvard Univ. Press.
Jones, Harry W. 1962 Law and the Idea of Mankind. Columbia Law Review 62:753–772.
Kantorowicz, Hermann 1958 Definition of Law. Edited by A. H. Campbell. Cambridge Univ. Press. → Published posthumously.
Kantorowicz, Hermann; and Patterson, Edwin W. 1928 Legal Science: A Summary of Its Methodology.Columbia Law Review 28:679–707.
Llewellyn, Karl N.; and Hoebel, E. Adamson 1941 The Cheyenne Way: Conflict and Case Law in Primi-tive Jurisprudence. Norman: Univ. of Oklahoma Press.
Malinowski, Bronislaw (1926) 1961 Crime and Custom in Savage Society. London: Routledge. → A paperback edition was published in 1959 by Little-field.
Malinowski, Bronislaw 1945 The Dynamics of Culture Change: An Inquiry Into Race Relations in Africa. New Haven: Yale Univ. Press. → A paperback edition was published in 1961.
Pospisil, Leopold 1958 Kapauku Papuans and Their Law. Yale University Publications in Anthropology, No. 54. New Haven: Yale Univ., Department of Anthropology.
Radcliffe-Brown, A. R. 1934a Sanction, Social. Volume 13, pages 531–534 in Encyclopaedia of the Social Sciences. New York: Macmillan. → Reprinted in the author’s Structure and Function in Primitive Society.
Radcliffe-Brown, A. R. 1934b Law, Primitive. Volume 9, pages 202–206 in Encyclopaedia of the Social Sciences. New York: Macmillan.
Radin, Max 1940 Law as Logic and Experience. New Haven: Yale Univ. Press.
Stone, Julius 1964 Legal System and Lawyers’ Reasonings. Stanford Univ. Press.
Stone, Julius 1966 Social Dimensions of Law and Justice. Stanford Univ. Press.
Timasheff, Nicholas S. 1939 Introduction to the Sociology of Law. Cambridge, Mass.: Harvard University, Committee on Research in the Social Sciences.
Williams, L. Glanville 1945 International Law and the Controversy Concerning the Word “Law.”British Year Book of International Law 22:146–163.
Williams, L. Glanville 1945–1946 Language and the Law.Law Quarterly Review 61:71–86, 179–195, 293–303, 384–406; 62:387–406.
3700 ■ 100TH INFANTRY BATTALION VETERANS CLUB
Attn: Scholarship Committee
520 Kamoku Street
Honolulu, HI 96826
Tel: (808)732-5216 E-mail: [email protected]
Web Site: http://emedia.leeward.hawaii.edu/mnakano
To provide financial assistance to high school seniors and college students who major in business, political science, or law and exemplify the sponsor's motto of "Continuing Service."
Title of Award: Sakae Takahashi Scholarship Area, Field, or Subject: Business administration; Law; Political science Level of Education for which Award is Granted: Undergraduate Number Awarded: 1 each year. Funds Available: The stipend is $1,000. Duration: 1 year; nonrenewable.
Eligibility Requirements: This program is open to high school seniors planning to attend an institution of higher learning and full-time undergraduate students at community colleges, vocational/trade schools, 4-year colleges, and universities. Applicants must have a GPA of 2.5 or higher and be able to demonstrate civic responsibility and community service. They must be majoring or planning to major in business, political science, or law. Along with their application, they must submit a 4-page on the characteristics of positive leaders and the ways in which they are an extraordinary leader. Selection is based on that essay and the applicant's demonstration that he or she can effectively promote the legacy of the 100th Infantry Battalion and its motto of "Continuing Service." Financial need is not considered. Deadline for Receipt: April of each year.
3701 ■ ALABAMA SPACE GRANT CONSORTIUM
c/o University of Alabama in Huntsville
Materials Science Building, Room 205
Huntsville, AL 35899
E-mail: [email protected]
Web Site: http://www.uah.edu/ASGC
To provide financial assistance to undergraduates who are studying the space sciences at universities participating in the Alabama Space Grant Consortium (ASGC).
Title of Award: Undergraduate Scholarship Program of the Alabama Space Grant Consortium Area, Field, or Subject: Aerospace sciences; Behavioral sciences; Biological and clinical sciences; Business administration; Communications; Computer and information sciences; Economics; Education; Engineering, Aerospace/Aeronautical/Astronautical; International affairs and relations; Law; Natural sciences; Physical sciences; Public administration; Sociology; Space and planetary sciences Level of Education for which Award is Granted: Four Year College Number Awarded: Varies each year; recently, 32 of these scholarships were awarded. Funds Available: The stipend is $1,000 per year. Duration: 1 year; may be renewed 1 additional year.
Eligibility Requirements: This program is open to full-time students entering their junior or senior year at universities participating in the ASGC. Applicants must be studying in a field related to space, including the physical, natural, and biological sciences; engineering, education; economics; business; sociology; behavioral sciences; computer science; communications; law; international affairs; and public administration. They must be U.S. citizens and have a GPA of 3.0 or higher. Individuals from underrepresented groups (African Americans, Hispanic, American Indians, Pacific Islanders, Asian Americans, and women) are especially encouraged to apply. Interested students should submit a completed application with a career goal statement, personal references, a brief resume, and transcripts. Selection is based on 1) academic qualifications, 2) quality of the career goal statement, and 3) assessment of the applicant's motivation for a career in aerospace. Deadline for Receipt: February of each year. Additional Information: The member universities are University of Alabama in Huntsville, Alabama A&M University, University of Alabama, University of Alabama at Birmingham, University of South Alabama, Tuskegee University, and Auburn University. Funding for this program is provided by NASA.
3702 ■ ALASKA COMMISSION ON POSTSECONDARY EDUCATION
Attn: AlaskAdvantage Programs
3030 Vintage Boulevard
Juneau, AK 99801-7109
E-mail: [email protected]
Web Site: http://alaskaadvantage.state.ak.us/page/255
To provide scholarship/loans to Alaska residents who are interested in working on an undergraduate degree in law enforcement. Title of Award: Michael Murphy Education Loan Area, Field, or Subject: Criminal justice; Criminology; Law enforcement Level of Education for which Award is Granted: Undergraduate Number Awarded: Varies each year. Funds Available: Loans up to $1,000 per year are available. No interest is charged. An origination fee of 3% of the amount disbursed is added to the principal balance to be repaid. This is a scholarship/loan program. Recipients are forgiven 20% of the total loan for each 1-year period they are employed full time in Alaska law enforcement or related fields, up to 5 years. Duration: 1 year; may be renewed.
Eligibility Requirements: This program is open to full-time undergraduates working on a degree in law enforcement, probation and parole, penology, or other closely-related field anywhere in the United States. Applicants must have been residents of Alaska for at least 2 years, be high school graduates or equivalent, and demonstrate financial need. Deadline for Receipt: March of each year. Additional Information: This program is funded by private donations and by voluntary contributions from state employees who may contribute 1 or more days of annual leave to the fund. Information is also available from Alaska State Troopers, Attn: Recruitment Supervisor, 5700 East Tudor Road, Anchorage, AK 99507,(907) 269-5759, Fax: (907) 269-5751.
3703 ■ AMERICAN COUNCIL OF THE BLIND
Attn: Coordinator, Scholarship Program
1155 15th Street, N.W., Suite 1004
Washington, DC 20005
E-mail: [email protected]
Web Site: http://www.acb.org
To provide financial assistance to undergraduate or graduate students who are blind and are interested in studying in a field of service to persons with disabilities.
Title of Award: Arnold Sadler Memorial Scholarship Area, Field, or Subject: Disabilities; Education, Special; Law; Rehabilitation, Physical/Psychological Level of Education for which Award is Granted: Graduate, Undergraduate Number Awarded: 1 each year. Funds Available: The stipend is $2,000. In addition, the winner receives a Kurzweil-1000 Reading System. Duration: 1 year.
Eligibility Requirements: This program is open to students in rehabilitation, education, law, or other fields of service to persons with disabilities. Applicants must be legally blind and U.S. citizens. In addition to letters of recommendation and copies of academic transcripts, applications must include an autobiographical sketch. A cumulative GPA of 3.3 or higher is generally required. Selection is based on demonstrated academic record, involvement in extracurricular and civic activities, and academic objectives. The severity of the applicant's visual impairment and his/her study methods are also taken into account. Deadline for Receipt: February of each year. Additional Information: This scholarship is funded by the Arnold Sadler Memorial Scholarship Fund. Scholarship winners are expected to be present at the council's annual conference; the council will cover all reasonable expenses connected with convention attendance.
3704 ■ AMERICAN SOCIETY OF CRIMINOLOGY
Attn: Awards Committee
1314 Kinnear Road, Suite 212
Columbus, OH 43212-1156
Fax: (614)292-6767 E-mail: [email protected]
Web Site: http://www.asc41.com/uminorfel.htm
To provide financial assistance to ethnic minority undergraduate students interested in conducting a research project in criminology and criminal justice.
Title of Award: American Society of Criminology Undergraduate Student Minority Scholar/Mentor Research Grants Area, Field, or Subject: Criminal justice; Criminology; Law enforcement Level of Education for which Award is Granted: Four Year College Number Awarded: Varies each year; recently, 4 of these grants were awarded. Funds Available: The grant provides $5,000 per year for research support and a $1,500 travel grant to attend the ASC annual meetings. Duration: 2 years (the junior and senior year of college).
Eligibility Requirements: This program is open to undergraduate students who are members of historically disadvantaged and underrepresented ethnic and racial groups. Applicants must be entering their junior year in a program in criminology and criminal justice. They must be interested in conducting a research project under the mentorship of a faculty member, who must act as a co-applicant for the funding. Along with the application, students must provide a personal statement on their career goals in criminology and another statement on how the grant would enable them to focus more time on their academic work and better achieve their career goals. Faculty members must provide 1) a written recommendation for why the student has the academic potential and career aspirations to complete graduate student in criminology successfully and prepare for an academic career; 2) student transcripts and other supporting materials; 3) a description of the proposed collaborative research project that will result in a presentation at the annual meeting of the American Society of Criminology (ASC) in the student's senior years; and 4) a description of other mentoring activities and proposed contact with the student during the junior and senior years. Selection is based on the student's potential for completing doctoral work in criminology and the quality of the proposed mentoring relationship. Deadline for Receipt: April of each year. Additional Information: This program began in 2004. Information is also available from Todd R. Clear, Minority Scholar/Mentor Committee Chair, John Jay College of Criminal Justice, 899 Tenth Avenue, New York, NY 10019, (212) 237-8470.
3705 ■ APPALACHIAN COLLEGE ASSOCIATION
Attn: Director of Programs
210 Center Street
Berea, KY 40403
E-mail: [email protected]
Web Site: http://www.acaweb.org
To provide financial assistance to upper-division students at colleges and universities that are members of the Appalachian College Association (ACA) who plan to become lawyers.
Title of Award: Barbara Paul Robinson Scholarship Area, Field, or Subject: Law Level of Education for which Award is Granted: Four Year College Number Awarded: 1 each year. Funds Available: The stipend is $2,500 per year. Duration: 1 year; may be renewed 1 additional year.
Eligibility Requirements: This program is open to full-time students entering their junior or senior year at ACA member institutions with an interest in law. Applicants must have a GPA of 3.0 or higher and be able to document financial need. They must intend to become an attorney and serve the Appalachian people. Along with their application, they must submit a 500-word essay describing their personal and academic background and professional goals as a conscientious attorney, including any steps toward applying for law school or legal internships. Deadline for Receipt: January of each year. Additional Information: The ACA includes member institutions in Kentucky (Alice Lloyd College, Berea College, Campbellsville University, University of the Cumberlands, Kentucky Christian University, Lindsey Wilson College, Pikeville College, and Union College), North Carolina (Brevard College, Lees-McRae College, Mars Hill College, Montreat College, and Warren Wilson College), Tennessee (Bryan College, Carson-Newman College, King College, Lee University, Lincoln Memorial University, Maryville College, Milligan College, Tennessee Wesleyan College, Tusculum College, and University of the South), Virginia (Bluefield College, Emery & Henry College, Ferrum College, and Virginia Intermont College), and West Virginia (Alderson-Broaddus College, Bethany College, Davis & Elkins College, Ohio Valley University, University of Charleston, West Virginia Wesleyan College, and Wheeling Jesuit University).
3706 ■ BOYS & GIRLS CLUBS OF GREATER SAN DIEGO
4635 Clairemont Mesa Boulevard
San Diego, CA 92117
Tel: (619)298-3520; (866)SD-YOUTH
Web Site: http://www.sdyouth.org/scholarships.htm
To provide financial assistance to graduating male high school seniors who plan to study designated fields in college.
Title of Award: Spence Reese Scholarships Area, Field, or Subject: Engineering; Law; Medicine; Political science Level of Education for which Award is Granted: Undergraduate Number Awarded: 4 each year: 1 in each of the designated fields. Funds Available: The stipend is $2,000 per year. Duration: 4 years.
Eligibility Requirements: Applicants must be graduating male high school seniors planning to study law, medicine, engineering, or political science in college. They may live anywhere in the United States, but must attend an interview in San Diego, California. Selection is based on academic standing, potential for good citizenship, academic ability, and financial need. Deadline for Receipt: April of each year. Additional Information: Travel expenses for the interview are reimbursed by the sponsor. A $10 processing fee must accompany all applications.
3707 ■ H. FLETCHER BROWN TRUST
PNC Bank Delaware
Attn: Donald W. Davis
222 Delaware Avenue, 16th Floor
Wilmington, DE 19899
E-mail: [email protected]
To provide financial assistance to residents of Delaware who are interested in studying engineering, chemistry, medicine, dentistry, or law. Title of Award: H. Fletcher Brown Scholarship Area, Field, or Subject: Chemistry; Dentistry; Engineering; Law; Medicine; Medicine, Osteopathic Level of Education for which Award is Granted: Graduate, Professional, Undergraduate Funds Available: The amount of the scholarship is determined by the scholarship committee and is awarded in installments over the length of study. Duration: 1 year; may be renewed if the recipient maintains a GPA of 2.5 or higher and continues to be worthy of and eligible for the award.
Eligibility Requirements: This program is open to Delaware residents who were born in Delaware, are either high school seniors entering the first year of college or college seniors entering the first year of graduate school, are of good moral character, and need financial assistance from sources outside their family. Applicants must have combined mathematics and verbal SAT scores of 1000 or higher, rank in the upper 20% of their class, and come from a family whose income is less than $75,000. Their proposed fields of study must be engineering, chemistry, medicine (for an M.D. or D.O. degree only), dentistry, or law. Finalists are interviewed. Deadline for Receipt: March of each year.
3708 ■ BUSINESS AND PROFESSIONAL WOMEN OF VIRGINIA
Attn: Virginia BPW Foundation
P.O. Box 4842
McLean, VA 22103-4842
Web Site: http://www.bpwva.org/Foundation.shtml
To provide financial assistance to mature women in Virginia who are interested in upgrading their skills or education at a college, law school, or medical school in the state.
Title of Award: Buena M. Chesshir Memorial Women's Educational Scholarship Area, Field, or Subject: General studies/Field of study not specified; Law; Medicine Level of Education for which Award is Granted: Graduate, Professional, Undergraduate Number Awarded: 1or more each year. Funds Available: Stipends range from $100 to $1,000 per year; funds may be used for tuition, fees, books, transportation, living expenses, and dependent care. Duration: Recipients must complete their course of study within 2 years.
Eligibility Requirements: This program is open to women who are residents of Virginia, U.S. citizens, and at least 25 years of age. Applicants must have been accepted into an accredited program or course of study at a Virginia institution, have a definite plan to use their training to improve their chances for upward mobility in the work force, and be graduating within 2 years. Undergraduate applicants may by majoring in any field, but graduate student applicants must be working on a degree in law or medicine. Selection is based on demonstrated financial need and defined career goals. Deadline for Receipt: March of each year.
3709 ■ CHICKASAW FOUNDATION
P.O. Box 1726
Ada, OK 74821-1726
Web Site: http://www.cflink.org
To provide financial assistance to members of the Chickasaw Nation who are majoring or minoring in American history.
Title of Award: Colbert "Bud" Baker Scholarship Area, Field, or Subject: Education; History, American; Law; Native American studies Level of Education for which Award is Granted: Four Year College Number Awarded: 1 each year. Funds Available: The stipend is $1,000 per year. Duration: 1 year.
Eligibility Requirements: This program is open to Chickasaw students who are currently enrolled full time at an accredited institution of higher education. Applicants must be classified as juniors or seniors at a 4-year college. They must be majoring in history or majoring in education or prelaw with a minor in history. The history emphasis must be on Chickasaw tribal history or Native American studies. Along with their application, they must submit high school or college transcripts, 2 letters of recommendation, a copy of their Certificate of Degree of Indian Blood, a copy of their Chickasaw Nation citizenship card, and a 1-page essay on their long-term goals and plans for achieving them. Financial need is not considered in the selection process. Deadline for Receipt: May of each year.
3710 ■ CHRISTIAN LIFE RESOURCES
Attn: WELS Lutherans for Life
Scholarship Review Committee
2949 North Mayfair Road, Suite 309
Milwaukee, WI 53222-4304
Web Site: http://www.christianliferesources.com
To provide financial assistance to Lutheran high school seniors in Wisconsin who are interested in studying life-related issues in college.
Title of Award: WELS Lutherans for Life Scholarship Program Area, Field, or Subject: Biological and clinical sciences; Education, Special; Engineering, Biomedical; Journalism; Law; Medicine; Physical therapy; Political science; Psychology; Social work Level of Education for which Award is Granted: Four Year College Number Awarded: Varies each year; recently, 9 of these scholarships were awarded. Funds Available: Stipends up to $1,000 are available. Duration: 1 year.
Eligibility Requirements: This program is open to high school seniors who are active members of the Wisconsin Evangelical Lutheran Synod (WELS) or an affiliated church. Applicants must be planning to go to a 4-year school to prepare for a secular career in which pro-life values will be demonstrated. Acceptable fields include medicine, biotechnology/biological engineering, medical research/genetics, law/politics, journalism/media, psychology, physical therapy, social services, or special education. They must have a GPA of 3.25 or higher. Along with their application, they must submit essays on 1) the field of study they plan to enter and how it relates to pro-life issues; 2) why the scholarship should be awarded to them, including their future goals; and 3) how they have demonstrated a Christian, pro-life attitude in their life. Deadline for Receipt: February of each year. Additional Information: WELS Lutherans for Life was formerly a ministry of the Wisconsin Evangelical Lutheran Synod.
3711 ■ COMMUNITY FOUNDATION OF GREATER JACKSON
525 East Capitol Street, Suite 5B
Jackson, MS 39201
E-mail: [email protected]
Web Site: http://www.cfgreaterjackson.org
To provide financial assistance to upper-division students in Mississippi and Louisiana who are preparing for a career in the field of juvenile justice.
Title of Award: Anthony "Tony" Gobar Juvenile Justice Scholarship Fund Area, Field, or Subject: Counseling/Guidance; Criminal justice; Criminology; Law enforcement; Political science Level of Education for which Award is Granted: Four Year College Number Awarded: 1 each year. Funds Available: A stipend is awarded (amount not specified). Duration: 1 year.
Eligibility Requirements: This program is open to full-time juniors and seniors at public universities in Mississippi and at Southern University in Louisiana who are preparing to enter the field of juvenile justice. Applicants must have demonstrated a strong commitment to community and public service. They must be U.S. citizens with a GPA of 2.5 or higher. Eligible majors include criminal justice, counseling, and political science. Selection is based on merit and need. Deadline for Receipt: April of each year. Additional Information: This program was established in 2005.
3712 ■ CONNECTICUT ASSOCIATION OF WOMEN POLICE
P.O. Box 1653
Hartford, CT 06144-1653
E-mail: [email protected]
Web Site: http://www.cawp.net
To provide financial assistance to high school seniors in Connecticut who are interested in studying criminal justice in college.
Title of Award: Connecticut Association of Women Police Scholarships Area, Field, or Subject: Criminal justice; Criminology; Law enforcement Level of Education for which Award is Granted: Four Year College Number Awarded: Varies each year; recently, 5 of these scholarships were awarded. Funds Available: A stipend is awarded (amount not specified). Duration: 1 year.
Eligibility Requirements: This program is open to seniors graduating from high schools in Connecticut who are interested in attending a 4-year college or university to prepare for a career in criminal justice. Applicants must submit a personal essay of 200 to 250 words on their personal goals and why they should be selected for this scholarship. Selection is based on the essay and financial need. Deadline for Receipt: April of each year.
3713 ■ COOK INLET REGION, INC.
Attn: CIRI Foundation
2600 Cordova Street, Suite 206
Anchorage, AK 99503
E-mail: [email protected]
Web Site: http://www.thecirifoundation.org/scholarship.html
To provide financial assistance for undergraduate or graduate studies leading to a career in the law to Alaska Natives who are original enrollees to Cook Inlet Region, Inc. (CIRI) and their lineal descendants.
Title of Award: John N. Colberg Endowment Scholarship Fund Area, Field, or Subject: Law Level of Education for which Award is Granted: Four Year College, Graduate Number Awarded: Varies each year; recently, 1 of these scholarships (at $7,000 per year) was awarded. Funds Available: The stipend is $9,000 per year, $7,000 per year, or $2,000 per semester, depending on GPA. Duration: 1 year (2 semesters).
Eligibility Requirements: This program is open to Alaska Native enrollees to CIRI under the Alaska Native Claims Settlement Act (ANCSA) of 1971 and their lineal descendants. There are no Alaska residency requirements or age limitations. Applicants must be accepted or enrolled full time in a 4-year undergraduate or a graduate degree program. They must be working on a degree leading to the study of law and have a GPA of 2.5 or higher. Selection is based on academic achievement, rigor of course work or degree program, quality of a statement of purpose, student financial contribution, financial need, grade level, previous work performance, education and community activities, letters of recommendation, seriousness of purpose, and practicality of educational and professional goals. Deadline for Receipt: May of each year. Additional Information: Recipients must attend school on a full-time basis.
3714 ■ COOK INLET REGION, INC.
Attn: CIRI Foundation
2600 Cordova Street, Suite 206
Anchorage, AK 99503
E-mail: [email protected]
Web Site: http://www.thecirifoundation.org/scholarship.html
To provide financial assistance for undergraduate or graduate studies in selected liberal arts to Alaska Natives who are original enrollees to Cook Inlet Region, Inc. (CIRI) and their lineal descendants.
Title of Award: Lawrence Matson Memorial Endowment Fund Scholarships Area, Field, or Subject: Art; Communications; Education; Law; Linguistics; Social sciences Level of Education for which Award is Granted: Four Year College, Graduate Number Awarded: Varies each year; recently, 1 of these scholarships (at $7,000 per year) was awarded. Funds Available: The stipend is $9,000 per year, $7,000 per year, or $2,000 per semester, depending on GPA. Duration: 1 year (2 semesters).
Eligibility Requirements: This program is open to Alaska Native enrollees to CIRI under the Alaska Native Claims Settlement Act (ANCSA) of 1971 and their lineal descendants. There are no Alaska residency requirements or age limitations. Applicants must be accepted or enrolled full time in a 4-year undergraduate or a graduate degree program in the following liberal arts fields: language, education, social sciences, arts, communications, or law. They must have a GPA of 2.5 or higher. Selection is based on academic achievement, rigor of course work or degree program, quality of a statement of purpose, student financial contribution, financial need, grade level, previous work performance, education and community activities, letters of recommendation, seriousness of purpose, and practicality of educational and professional goals. Deadline for Receipt: May of each year. Additional Information: This fund was established in 1989. Recipients must attend school on a full-time basis.
3715 ■ HAWAI'I COMMUNITY FOUNDATION
Attn: Scholarship Department
1164 Bishop Street, Suite 800
Honolulu, HI 96813
Tel: (808)566-5570; 888-731-3863
E-mail: [email protected]
Web Site: http://www.hawaiicommunityfoundation.org/scholar/scholar.php
To provide financial assistance to Hawaii residents who are interested in studying marketing, law, or travel industry management in college or graduate school.
Title of Award: Bick Bickson Scholarship Fund Area, Field, or Subject: Law; Marketing and distribution; Travel and tourism Level of Education for which Award is Granted: Graduate, Undergraduate Number Awarded: Varies each year; recently, 2 of these scholarships were awarded. Funds Available: The amounts of the awards depend on the availability of funds and the need of the recipient; recently, stipends averaged $1,250. Duration: 1 year.
Eligibility Requirements: This program is open to Hawaii residents who are interested in majoring in marketing, law, or travel industry management on the undergraduate or graduate school level. They must be able to demonstrate academic achievement (GPA of 2.7 or higher), good moral character, and financial need. In addition to filling out the standard application form, applicants must write a short statement indicating their reasons for attending college, their planned course of study, and their career goals. Deadline for Receipt: February of each year. Additional Information: Recipients may attend college in Hawaii or on the mainland. Recipients must be full-time students.
3716 ■ HAWAI'I COMMUNITY FOUNDATION
Attn: Scholarship Department
1164 Bishop Street, Suite 800
Honolulu, HI 96813
Tel: (808)566-5570; 888-731-3863
E-mail: [email protected]
Web Site: http://www.hawaiicommunityfoundation.org/scholar/scholar.php
To provide financial assistance to residents of Hawaii for undergraduate or graduate studies in fields related to achieving world cooperation and international understanding.
Title of Award: Marion Maccarrell Scott Scholarship Area, Field, or Subject: Anthropology; Economics; Geography; History; International affairs and relations; Law; Peace studies; Philosophy; Political science; Psychology; Sociology Level of Education for which Award is Granted: Graduate, Undergraduate Number Awarded: Varies each year; recently, 258 of these scholarships were awarded. Funds Available: The amounts of the awards depend on the availability of funds and the need of the recipient; recently, stipends averaged $1,749. Duration: 1 year.
Eligibility Requirements: This program is open to graduates of public high schools in Hawaii. They must plan to attend school as full-time students (on the undergraduate or graduate level) on the mainland, majoring in history, government, political science, anthropology, economics, geography, international relations, law, psychology, philosophy, or sociology. They must be residents of the state of Hawaii, able to demonstrate financial need, interested in attending an accredited 2- or 4-year college or university, and able to demonstrate academic achievement (GPA of 2.8 or higher). Along with their application, they must submit an essay on their commitment to world peace that includes their learning experiences (courses, clubs, community activities, or travel) related to achieving world peace and international understanding and explaining how their experiences have enhanced their ability to achieve those goals. Deadline for Receipt: February of each year.
3717 ■ HOPI TRIBE
Attn: Office of Education
P.O. Box 123
Kykotsmovi, AZ 86039
E-mail: [email protected]
Web Site: http://www.hopi.nsn.us/education_htgsp.asp
To encourage Hopi students to get an undergraduate or graduate degree in an area of interest to the Hopi Tribe.
Title of Award: Hopi Tribal Priority Scholarship Area, Field, or Subject: Business administration; Education; Engineering; Environmental conservation; Environmental science; Health care services; Law; Medicine Level of Education for which Award is Granted: Four Year College, Graduate Number Awarded: Varies each year. Funds Available: The stipend covers all educational expenses. Duration: 1 year; may be renewed.
Eligibility Requirements: This program is open to enrolled members of the Hopi Tribe. They must be college juniors, seniors, or graduate students whose degree is in a subject area that is of priority interest to the Hopi Tribe. Those areas are law, natural resources, education, medicine, health, engineering, or business. This is a highly competitive scholarship. Selection is based on academic merit and the likelihood that the applicants will use their training and expertise for tribal goals and objectives. Deadline for Receipt: July of each year. Additional Information: Recipients must attend school on a full-time basis.
3718 ■ INTERNATIONAL FOUNDATION FOR GENDER EDUCATION
Attn: Transgender Scholarship and Education Legacy Fund
P.O. Box 540229
Waltham, MA 02454-0229
E-mail: [email protected]
Web Site: http://www.tself.org
To provide financial assistance to transgender students who are working on an undergraduate or graduate degree in the caring professions.
Title of Award: Transgender Scholarship and Education Legacy Fund Awards Area, Field, or Subject: Education; Health care services; Law; Religion; Social work Level of Education for which Award is Granted: Graduate, Undergraduate Number Awarded: Varies each year; recently, 4 of these scholarships were awarded. Funds Available: Stipends average $2,000. Funds are paid directly to the student. Duration: 1 year; nonrenewable.
Eligibility Requirements: This program is open to undergraduate and graduate students who are living full time in a gender or sex role that differs from that assigned to them at birth and who are "out and proud" about their transgender identity. Applicants must be working on a degree in the helping and caring professions, including, but not limited to, social services, health care, religious instruction, education, and the law. They may be of any age or nationality, but they must be attending or planning to attend a college, university, trade school, or technical college in the United States or Canada. Selection is based on affirmation of transgender identity; demonstration of integrity and honesty; participation and leadership in community activities; service as role model, mentor, colleague, or advisor for the transgender communities; and service as transgender role model, mentor, colleague, or advisor to non-transpeople in the helping and caring professions. Deadline for Receipt: January of each year. Additional Information: This program includes the TSELF Youth Award (for applicants under 22 years of age entering their first or second year of postsecondary education); the TSELF Schools Education Award (for applicants working on a degree in education and teaching); the Lee Frances Heller Memorial Award (for Christian students or applicants who are or will be attending a college, university, or other institution for religious studies); the HIV/AIDS Prevention and Treatment Award (for applicants who have been involved in HIV/AIDS prevention, care, and treatment activities); and the Chicago Gender Society Leadership Award (for applicants who have been involved in community building activities).
3719 ■ MARYLAND HIGHER EDUCATION COMMISSION
Attn: Office of Student Financial Assistance
839 Bestgate Road, Suite 400
Annapolis, MD 21401-3013
E-mail: [email protected]
Web Site: http://www.mhec.state.md.us/financialAid/ProgramDescriptions/prog_devdis.asp
To provide scholarship/loans to students in Maryland who are interested in working on a degree in a designated human services program.
Title of Award: Maryland Developmental Disabilities, Mental Health, Child Welfare, and Juvenile Justice Workforce Tuition Assistance Program Area, Field, or Subject: Counseling/Guidance; Criminal justice; Criminology; Disabilities; Education, Special; Gerontology; Law enforcement; Mental health; Nursing; Occupational therapy; Physical therapy; Psychology; Rehabilitation, Physical/Psychological; Social work Level of Education for which Award is Granted: Graduate, Undergraduate Number Awarded: Varies each year. Funds Available: The maximum stipend is $2,000 per year for students attending a 2-year institution or $3,000 per year for students at a 4-year institution. The total amount of all state awards may not exceed the cost of attendance as determined by the school's financial aid office or $17,800, whichever is less. Recipients must agree to work in a Maryland community-based program that is licensed by the Developmental Disabilities Administration or approved by the Mental Hygiene Administration, or in a residential program that is licensed by the Department of Human Resources or the Department of Juvenile Justice. The service obligation must begin within 6 months of graduation. The total service requirement is 2,000 hours if the award amount is $1,999 or less, 3,000 hours if the award amount is $2,000 to $3,999, or 4,000 hours if the award amount is $4,000 or more. If the service requirement is not completed, the award must be repaid with interest. Duration: 1 year; may be renewed if the recipient maintains satisfactory academic progress and remains enrolled in a human services degree program.
Eligibility Requirements: This program is open to high school seniors and full-time and part-time undergraduate and graduate students. Applicants and their parents must be Maryland residents attending a college or university in the state in 1 of the following human services degree programs: aging services, counseling, disability services, mental health, nursing, occupational therapy, physical therapy, psychology, rehabilitation, social work, special education, supported employment, vocational rehabilitation, or any other concentration in the healing arts or a program providing support services to individuals with special needs including child welfare and juvenile justice. Financial need is not considered in the selection process. Deadline for Receipt: June of each year.
3720 ■ MICHIGAN LAW ENFORCEMENT EDUCATION PROGRAM
c/o Scholarship Committee
667 East Big Beaver Road, Suite 205
Troy, MI 48083
To provide financial assistance for college to high school students in Michigan who are interested in preparing for a career in a field related to public safety.
Title of Award: LEEP Dream Scholarship Area, Field, or Subject: Criminal justice; Criminology; Emergency and disaster services; Fires and fire prevention; Law enforcement Level of Education for which Award is Granted: Undergraduate Number Awarded: Several each year. Funds Available: The stipend is $1,000. Duration: 1 year.
Eligibility Requirements: This program is open to seniors graduating from high schools in Michigan who are interested in preparing for a career as a law enforcement officer, police-fire dispatcher, corrections officer, fire fighter, or emergency medical technician. Applicants must be planning to attend a Michigan 4-year university, community college, or vocational training institution that grants a degree, certificate, or license in public safety or related field. Deadline for Receipt: May of each year.
3721 ■ MICHIGAN SHERIFFS' ASSOCIATION
Attn: Educational Services
515 North Capitol Avenue
Lansing, MI 48933
Web Site: http://www.michigansheriff.com
To provide financial assistance to high school seniors in Michigan who are interested in attending college to prepare for a career in criminal justice.
Title of Award: Bernard Grysen Memorial Criminal Justice Scholarships Area, Field, or Subject: Criminal justice; Criminology; Law enforcement Level of Education for which Award is Granted: Undergraduate Number Awarded: 10 each year: 2 in each of the association's districts. Funds Available: The stipend is $1,000. Duration: 1 year.
Eligibility Requirements: This program is open to seniors graduating from high schools in Michigan who are planning to attend a college or university in the state to prepare for a career in criminal justice. Applicants must be able to demonstrate high academic standing, high moral character, and a high degree of activity in civic and governmental affairs relating to law enforcement. They must be nominated by a member of the Michigan Sheriffs' Association. Along with their application, they must submit a 300-word essay on why they are preparing for a career in criminal justice. Financial need is not considered in the selection process. Deadline for Receipt: April of each year. Additional Information: This program was established in 1995.
3722 ■ MORRIS SCHOLARSHIP FUND
Attn: Scholarship Selection Committee
525 S.W. Fifth Street, Suite A
Des Moines, IA 50309-4501
E-mail: [email protected]
Web Site: http://www.morrisscholarship.org
To provide financial assistance to minority undergraduate, graduate, and law students in Iowa.
Title of Award: Morris Scholarship Area, Field, or Subject: General studies/Field of study not specified; Law Level of Education for which Award is Granted: Graduate, Undergraduate Number Awarded: Varies each year; recently, 11 of these scholarships were awarded. Funds Available: The stipend is $1,500 per year. Duration: 1 year; may be renewed.
Eligibility Requirements: This program is open to minority students (African Americans, Asian/Pacific Islanders, Hispanics, or Native Americans) who are interested in studying at a college, graduate school, or law school. Applicants must be either Iowa residents and high school graduates who are attending a college or university anywhere in the United States or non-Iowa residents who are attending a college or university in Iowa; preference is given to native Iowans who are attending an Iowa college or university. Along with their application, they must submit an essay of 250 to 500 words on why they are applying for this scholarship, activities or organizations in which they are involved, and their future plans. Selection is based on the essay, academic achievement (GPA of 2.5 or higher), community service, and financial need. Deadline for Receipt: January of each year. Additional Information: This fund was established in 1978 in honor of the J.B. Morris family, who founded the Iowa branch of the National Association for the Advancement of Colored People and published the Iowa Bystander newspaper.
3723 ■ NALS OF MICHIGAN
c/o Angela Head, Scholarship Chair
155 North 22nd Street
Battle Creek, MI 49015-1762
E-mail: [email protected]
Web Site: http://www.nalsofmichigan.org/Scholarship.htm
To provide financial assistance to residents of Michigan interested in a career in the legal field.
Title of Award: NALS of Michigan Scholarships Area, Field, or Subject: Paralegal studies; Secretarial sciences Level of Education for which Award is Granted: Undergraduate Number Awarded: 2 each year. Funds Available: The stipend is $1,000. Funds are to be used for tuition or books. Duration: 1 year; nonrenewable.
Eligibility Requirements: This program is open to high school seniors, students currently enrolled in a school of higher education, and members of NALS of Michigan. Applicants must be interested in a career in the legal field (e.g., legal secretary) and have at least a "B" average or (if a percentile system is used) 90% or higher. Along with their application, they must submit an official transcript, 2 letters of recommendation, and a 1-page autobiographical statement that includes a description of their goals and desires. Selection is based on scholastic or legal career achievements, future career goals, leadership ability, and financial need. Deadline for Receipt: January of each year. Additional Information: NALS formerly stood for National Association of Legal Secretaries.
3724 ■ NATIONAL FEDERATION OF THE BLIND
c/o Peggy Elliott, Scholarship Committee Chair
805 Fifth Avenue
Grinnell, IA 50112
Web Site: http://www.nfb.org/sch_intro.htm
To provide financial assistance for college or graduate school to blind students studying or planning to study law, medicine, engineering, architecture, or the natural sciences.
Title of Award: Howard Brown Rickard Scholarships Area, Field, or Subject: Architecture; Engineering; Law; Medicine; Natural sciences Level of Education for which Award is Granted: Graduate, Undergraduate Number Awarded: 1 each year. Funds Available: The stipend is $3,000. Duration: 1 year; recipients may resubmit applications up to 2 additional years.
Eligibility Requirements: This program is open to legally blind students who are enrolled in or planning to enroll in a full-time undergraduate or graduate course of study. Applicants must be studying or planning to study law, medicine, engineering, architecture, or the natural sciences. Selection is based on academic excellence, service to the community, and financial need. Deadline for Receipt: March of each year. Additional Information: Scholarships are awarded at the federation convention in July. Recipients attend the convention at federation expense; that funding is in addition to the scholarship grant.
3725 ■ NEBRASKA EDUCATIONAL OFFICE PROFESSIONALS ASSOCIATION
P.O. Box 83872
Lincoln, NE 68501-3872
Web Site: http://neopa.unl.edu/awards.html
To provide financial assistance to residents of Nebraska who are interested in preparing for an office-related career.
Title of Award: Nebraska Educational Office Professionals Association Student Scholarship Area, Field, or Subject: Accounting; Computer and information sciences; Law; Marketing and distribution; Publishing; Secretarial sciences Level of Education for which Award is Granted: Undergraduate Number Awarded: 1 each year. Funds Available: The stipend is $1,000. Duration: 1 year.
Eligibility Requirements: This program is open to residents of Nebraska who are graduating high school seniors or students currently enrolled in a postsecondary educational institution. Applicants must have completed 2 or more business education courses (in high school, college, or a combination) from among the following: computer classes, keyboarding/typing, marketing, accounting, office practices and procedures, bookkeeping, business communication, desktop publishing, and/or business law. They must submit a 1-page essay on why they are choosing an office-related career or vocation, 3 letters of recommendation, and high school or college transcripts. Selection is based on academic achievement, initiative of the student, and financial need. Deadline for Receipt: December of each year. Additional Information: Information is also available from Edie Schleiger, Scholarship Director, University of Nebraska at Lincoln, Office of Admissions, 1410 Q Street, Lincoln, NE 68588-0417.
3726 ■ NEBRASKA LEGAL PROFESSIONALS ASSOCIATION
c/o Diane Horak, Scholarship Chair
7111 Cedar Creek Circle
Lincoln, NE 68516-3056
To provide financial assistance to residents of Nebraska enrolled in a law-related program.
Title of Award: Nebraska Legal Professionals Scholarship Area, Field, or Subject: Law; Paralegal studies; Secretarial sciences Level of Education for which Award is Granted: Undergraduate Number Awarded: 2 each year. Funds Available: The stipend is $1,000 for first place and $500 for second. Duration: 1 year.
Eligibility Requirements: This program is open to residents of Nebraska enrolled full time in a pre-law, paralegal, legal secretary, or other law-related program. Applicants must submit a certified copy of their latest transcript; a resume covering their educational history, school and community activities, and work history for the last 5 years; a 1-page personal statement on why they wish to become a legal secretary/paralegal or why they wish to continue their formal legal secretarial/paralegal education; and a copy of their acceptance to the school of their choice. Deadline for Receipt: March of each year. Additional Information: This scholarship was first awarded in 2000.
3727 ■ NORTH CAROLINA STATE EDUCATION ASSISTANCE AUTHORITY
Attn: Scholarship and Grant Services
10 T.W. Alexander Drive
P.O. Box 14103
Research Triangle Park, NC 27709-4103
Tel: (919)549-8614 Free: 800-700-1775
E-mail: [email protected]
Web Site: http://www.ncseaa.edu
To provide financial assistance to children of deceased or disabled North Carolina law enforcement officers who are majoring in criminal justice in college.
Title of Award: North Carolina Sheriffs' Association Undergraduate Criminal Justice Scholarships Area, Field, or Subject: Criminal justice; Criminology; Law enforcement Level of Education for which Award is Granted: Undergraduate Number Awarded: Up to 10 each year: 1 at each of the participating universities. Funds Available: The stipend is $2,000 per year. Duration: 1 year; nonrenewable.
Eligibility Requirements: Eligible for this program are North Carolina residents studying criminal justice at any of the 10 state institutions offering that major: Appalachian State University, East Carolina University, Elizabeth City State University, Fayetteville State University, North Carolina Central University, North Carolina State University, the University of North Carolina at Pembroke, the University of North Carolina at Charlotte, the University of North Carolina at Wilmington, and Western Carolina University. First priority in selection is given to children of law enforcement officers killed in the line of duty; second priority is given to children of sheriffs or deputy sheriffs who are deceased, retired (regular or disability), or currently active in law enforcement in North Carolina; third priority is given to other resident criminal justice students meeting their institution's academic and financial need criteria. Additional Information: Funding for this program is provided by the North Carolina Sheriffs' Association. Recipients are selected by the financial aid office at the university they plan to attend or are currently attending; after selection, students obtain a letter of endorsement from the sheriff of the county in North Carolina where they reside.
3728 ■ NORTH CENTRAL TEXAS COUNCIL OF GOVERNMENTS
Attn: Transportation Department
616 Six Flags Drive, Centerpoint Two
P.O. Box 5888
Arlington, TX 76005-5888
Web Site: http://www.nctcog.org/trans/admin/fellowship
To provide financial assistance to ethnic minorities, women, and economically disadvantaged persons who are interested in obtaining an undergraduate or graduate degree and work experience in a transportation-related field in Texas.
Title of Award: Transportation Fellowship Program Area, Field, or Subject: Engineering, Civil; Environmental conservation; Environmental science; Geography; Law; Management; Transportation; Urban affairs/design/planning Level of Education for which Award is Granted: Graduate, Undergraduate Funds Available: The stipend is $2,000. Duration: 1 year; may be renewed if the recipient maintains a GPA of 3.0 or higher.
Eligibility Requirements: This program is open to ethnic minorities (African Americans, Hispanics, American Indians, Alaskan Natives, Asians, and Pacific Islanders), women, and those who are economically disadvantaged. Only U.S. citizens or permanent residents may apply. They must attend or be willing to attend a college or university within the 16-county North Central Texas region as an undergraduate or graduate student. Applicants must have a GPA of 2.5 or higher. They may be enrolled full or part time, but they must be majoring in a designated transportation-related field: transportation planning, transportation or civil engineering, urban and regional planning, transportation/environmental sciences, transportation law, urban or spatial geography, logistics, geographic information systems, or transportation management. Selection is based on financial need, interest in a professional career in transportation, and the ability to complete the program. Deadline for Receipt: March of each year. Additional Information: These fellowships are financed by the Federal Highway Administration, Federal Transit Administration, and the Texas Department of Transportation, in conjunction with local governments in north central Texas. An important part of the fellowship is an internship with a local agency (city or county), school, or transportation agency.
3729 ■ NORTHEASTERN ASSOCIATION OF FORENSIC SCIENTISTS
c/o Peter Diaczuk, Executive Secretary
John Jay College of Criminal Justice
445 West 59th Street
New York, NY 10019
E-mail: [email protected]
Web Site: http://www.neafs.org/scholarship.htm
To provide financial assistance to upper-division and graduate students working on a degree in forensic science at colleges and universities in designated northeastern states.
Title of Award: George W. Neighbor, Jr. Memorial Scholarship Area, Field, or Subject: Criminal justice Level of Education for which Award is Granted: Four Year College, Graduate Number Awarded: 1 or more each year. Funds Available: A stipend is awarded (amount not specified). Duration: 1 year.
Eligibility Requirements: This program is open to full-time college juniors and seniors and full- or part-time graduate students enrolled in a forensic science or related science program. Applicants must be attending a college or university in Connecticut, Maine, Massachusetts, New Hampshire, New Jersey, New York, Pennsylvania, Rhode Island, or Vermont. Along with their application, they must submit a letter describing their personal goals, achievements, and reasons why they should be considered for this award. Deadline for Receipt: April of each year. Additional Information: Information is also available from Margaret Lafond, NYSP FIC, State Campus Building 30, 1220 Washington Avenue, Albany, NY 12226-3000, E-mail: [email protected]
3730 ■ PEACE OFFICERS RESEARCH ASSOCIATION OF CALIFORNIA
Attn: Peace Officers Research and Education Foundation
4010 Truxel Road
Sacramento, CA 95834-3725
E-mail: [email protected]
Web Site: http://www.porac.org/scholarship.html
To provide financial assistance for college to relatives of members of the Peace Officers Research Association of California (PORAC) and to members who are medically retired.
Title of Award: PORAC Scholarships Area, Field, or Subject: Criminal justice; Criminology; General studies/Field of study not specified; Law enforcement Level of Education for which Award is Granted: Undergraduate Number Awarded: Varies each year; recently, 16 of these scholarships were awarded. Funds Available: The stipend is $1,000. Duration: 1 year.
Eligibility Requirements: This program is open to California residents who are 1) family members of law enforcement officers who have died in the line of duty; 2) dependents whose parent or legal guardian is an active PORAC member; 3) spouses and dependents of deceased PORAC members; and 4) PORAC members who have medically retired. Applicants must submit a composition, up to 750 words, on "My goals, present and future: why I am applying for this scholarship and its importance to me." They may be interested in scholastic or vocational study, but they are encouraged to consider law enforcement as a career. Selection is based on the essay, academic achievement (GPA of 2.0 or higher for dependents), school activities, community service, and financial need. Deadline for Receipt: March of each year. Additional Information: Recipients must enroll full time.
3731 ■ STUDENT PRESS LAW CENTER
Attn: Executive Director
1101 Wilson Boulevard, Suite 1100
Arlington, VA 22209-2211
E-mail: [email protected]
Web Site: http://www.splc.org/legalfellow.asp
To provide financial assistance and work experience to undergraduate and graduate students interested in news writing and media law.
Title of Award: Scripps Howard Foundation Journalism Internships Area, Field, or Subject: Journalism; Law Level of Education for which Award is Granted: Graduate, Undergraduate Number Awarded: The number of internships varies each year; up to 2 scholarships are awarded to undergraduate summer interns. Funds Available: Full-time interns during the fall and spring receive a stipend of $3,000. Full-time interns during the summer receive a stipend of $2,300. The scholarship stipend is $600. Duration: 1 semester or summer for the internships; 1 year for the scholarship.
Eligibility Requirements: This program is open to undergraduate and graduate students who have experience in news writing and an interest in media law. Applicants must be interested in working at the Student Press Law Center during the summer, fall, or spring. Summer interns who are undergraduates on the staff of a student publication that is a member of the Associated Collegiate Press are also eligible to apply for a scholarship for the academic year following their internship. Selection of scholarship recipients is based on journalism experience, writing ability, and commitment to freedom of the press. Deadline for Receipt: Students are encouraged to submit applications for summer internships by January of each year, for fall internships by May of each year, and for spring internships by October of each year. Additional Information: This program, which began in 2002, is sponsored by the Scripps Howard Foundation. Interns research, write, and help edit the Report, the publication of the Student Press Law Center that chronicles student press cases and controversies from around the country. They also participate in issue- oriented seminars organized by the Center and the Reporters Committee for Freedom of the Press. Further information on the scholarships is available from the Associated Collegiate Press, 2221 University Avenue, S.E., Minneapolis, MN 55414, (612) 625-8335.
3732 ■ TEXAS FEDERATION OF BUSINESS AND PROFESSIONAL WOMEN'S FOUNDATION, INC.
Attn: TFBPW Foundation
803 Forest Ridge Drive, Suite 207
Bedford, TX 76022
E-mail: [email protected]
Web Site: http://www.bpwtx.org/foundation.asp
To provide financial assistance to women in Texas who are preparing to enter selected professions.
Title of Award: Hermine Dalkowitz Tobolowsky Scholarship Area, Field, or Subject: History; Law; Political science; Public administration; Women's studies Level of Education for which Award is Granted: Graduate, Undergraduate Number Awarded: 1 or more each year. Funds Available: A stipend is awarded (amount not specified). Duration: 1 year.
Eligibility Requirements: This program is open to women in Texas who are interested in attending school to prepare for a career in law, public service, government, political science, or women's history. Applicants must have completed at least 2 semesters of study at an accredited college or university in Texas, have a GPA of 3.0 or higher, and be U.S. citizens. Selection is based on academic achievement and financial need. Deadline for Receipt: April of each year. Additional Information: This program was established in 1995.
3733 ■ TEXAS WOMEN IN LAW ENFORCEMENT
Attn: Scholarship Awards Chair
P.O. Box 925185
Houston, TX 77292-5185
E-mail: [email protected]
Web Site: http://www.acob.com/twle/scholar_award.html
To provide financial assistance for college to members of the Texas Women in Law Enforcement (TWLE) and their relatives.
Title of Award: Vanessa Rudloff Scholarship Program Area, Field, or Subject: Criminal justice; Criminology; General studies/Field of study not specified; Law enforcement Level of Education for which Award is Granted: Professional, Undergraduate Number Awarded: At least 4 each year. Funds Available: The stipend is $1,000. Duration: 1 year.
Eligibility Requirements: Members of TWLE must have been active for the past 2 years, must be currently in good standing with their department, must submit a 1-page essay stating why they deserve the scholarship, and must be majoring in criminal justice or a related field. Relatives of TWLE members must be the spouse, child, brother, sister, niece, nephew, or grandchild of the member; must be in the top 25% of their graduating class; must have a GPA of 3.0 or higher; must score at least 950 on the SAT or 21 on the ACT; must submit 2 letters of recommendation; and must submit a 1-page essay stating why they deserve the scholarship. For these relatives, the sponsor must have been an active member of TWLE for the past 2 years. Deadline for Receipt: March of each year.
3734 ■ HARRY S. TRUMAN SCHOLARSHIP FOUNDATION
Attn: Executive Secretary
712 Jackson Place, N.W.
Washington, DC 20006
E-mail: [email protected]
Web Site: http://www.truman.gov
To provide grants-for-service for graduate school to current college juniors who are interested in preparing for a career in public service.
Title of Award: Harry S. Truman Scholarship Program Area, Field, or Subject: Agricultural sciences; Biological and clinical sciences; Economics; Education; Engineering; Environmental conservation; Environmental science; History; International affairs and relations; Law; Physical sciences; Political science; Public administration; Public health; Public service; Social sciences; Technology Level of Education for which Award is Granted: Four Year College, Graduate Number Awarded: 70 to 75 each year: a) 1 "state" scholarship is available to a qualified resident nominee in each of the 50 states, the District of Columbia, Puerto Rico, and the Islands (Guam, the Virgin Islands, American Samoa, and the Commonwealth of the Northern Mariana Islands); and b) up to 25 at-large scholars. Funds Available: The program provides up to $30,000, including up to $15,000 for the first year of graduate study and up to $15,000 for the final year of graduate study. Duration: Support is provided for the first and last year of graduate study.
Eligibility Requirements: Students must be nominated to be considered for this program. Nominees must be full-time students with junior standing at a 4-year institution, committed to a career in government or public service, in the upper quarter of their class, and U.S. citizens or nationals. Each participating institution may nominate up to 4 candidates (and up to 3 additional students who completed their first 2 years at a community college); community colleges and other 2-year institutions may nominate former students who are enrolled as full-time students with junior-level academic standing at accredited 4-year institutions. Selection is based on extent and quality of community service and government involvement, academic performance, leadership record, suitability of the nominee's proposed program of study for a career in public service, and writing and analytical skills. Priority is given to candidates who plan to enroll in a graduate program that specifically trains them for a career in public service, including government at any level, uniformed services, public interest organizations, nongovernmental research and/or educational organizations, public and private schools, and public service oriented nonprofit organizations. The fields of study may include agriculture, biology, engineering, environmental management, physical and social sciences, and technology policy, as well as such traditional fields as economics, education, government, history, international relations, law, nonprofit management, political science, public administration, public health, and public policy. Interviews are required. Deadline for Receipt: February of each year. Additional Information: Recipients may attend graduate school in the United States or in foreign countries. Scholars are required to work in public service for 3 of the 7 years following completion of a graduate degree program funded by this program. Scholars who do not meet this service requirement, or who fail to provide timely proof to the foundation of such employment, will be required to repay funds received, along with interest.
3735 ■ U.S. MARINE CORPS
Attn: Marine Corps Recruiting Command
3280 Russell Road
Quantico, VA 22134-5103
E-mail: [email protected]
Web Site: http://www.usmc.mil
To provide financial assistance to students interested in serving in the Marines following completion of a bachelor's or law degree.
Title of Award: Platoon Leaders Class Marine Corps Tuition Assistance Program Area, Field, or Subject: General studies/Field of study not specified; Law Level of Education for which Award is Granted: Doctorate, Undergraduate Number Awarded: Up to 1,200 each year. Funds Available: This program provides reimbursement of tuition, books, and required fees, up to a maximum of $5,200 per academic year. If participants are also members of the Marine Corps Reserves, they may also use any Montgomery GI Bill benefits to which they are entitled. Duration: Up to 3 consecutive years, or completion of a bachelor's or law degree.
Eligibility Requirements: This program is open to full-time students enrolled in a bachelor's or law (J.D. or equivalent) degree program. When they complete their degree, undergraduates must be under 27 years of age (or up to 30 if they have prior military service) and law students must be younger than 31 (or 35 if they have prior military service). All applicants must have a GPA of 2.0 or higher and may not be on academic, disciplinary, social, or moral probation. They must be able to meet all medical and other requirements for entry into the Marine Corps Platoon Leader Class (PLC) Program. Applications may be submitted after they have completed the first summer of officer candidate training (usually after 1 year of college or law school). Deadline for Receipt: December of each year. Additional Information: Participants who successfully obtain a bachelor's or law degree and complete officer candidate training are commissioned second lieutenants in the Regular Marine Corps. This program was established in 1999. Participants incur a 60-month active-duty service obligation.
3736 ■ VERMONT STUDENT ASSISTANCE CORPORATION
Attn: Scholarship Programs
P.O. Box 2000
Winooski, VT 05404-2601
Tel: (802)654-3798; 888-253-4819
E-mail: [email protected]
Web Site: http://www.vsac.org
To provide financial assistance to high school seniors in Vermont who are interested in majoring in law enforcement in college.
Title of Award: Erwin Bugbee Memorial Scholarship Area, Field, or Subject: Criminal justice; Criminology; Law enforcement Level of Education for which Award is Granted: Undergraduate Number Awarded: 1 each year. Funds Available: The stipend is $1,000. Duration: 1 year.
Eligibility Requirements: This scholarship is available to high school seniors in Vermont who are interested in working on a degree in law enforcement in college. Selection is based on required essays and financial need. Deadline for Receipt: April of each year. Additional Information: This program was established by the Vermont Police Association, which is responsible for selecting the recipients.
3737 ■ VERMONT STUDENT ASSISTANCE CORPORATION
Attn: Scholarship Programs
P.O. Box 2000
Winooski, VT 05404-2601
Tel: (802)654-3798; 888-253-4819
E-mail: [email protected]
Web Site: http://www.vsac.org
To provide financial assistance to residents of Vermont who are interested in majoring in law enforcement in college.
Title of Award: Vermont Sheriffs' Association Scholarship Area, Field, or Subject: Criminal justice; Criminology; Law enforcement Level of Education for which Award is Granted: Undergraduate Number Awarded: 2 each year. Funds Available: The stipend is $1,000. Duration: 1 year.
Eligibility Requirements: This program is open to residents of Vermont who are graduating high school seniors, high school graduates, or current college students. Applicants must be interested in working on a college degree in law enforcement. Selection is based on academic achievement, required essays, and financial need. Deadline for Receipt: June of each year.
3738 ■ VIRGINIA SHERIFFS' INSTITUTE
701 East Franklin Street, Suite 706
Richmond, VA 23219
E-mail: [email protected]
Web Site: http://www.virginiasheriffs.org/vsi/scholarship/index.htm
To provide financial assistance to Virginia residents who are majoring or planning to major in law enforcement or criminal justice in college.
Title of Award: VSI Scholarship Program Area, Field, or Subject: Criminal justice; Criminology; Law enforcement Level of Education for which Award is Granted: Undergraduate Number Awarded: Varies each year. Funds Available: A stipend is awarded (amount not specified). Checks are made payable directly to the recipient's educational institution. Duration: 1 year; may be renewed.
Eligibility Requirements: This program is open to Virginia residents who live in areas where the sheriffs are members of the Virginia Sheriff's Institute and authorized the Institute to conduct a direct mail special appeal to raise funds for the scholarship program. Applicants must be attending or planning to attend a college or university in Virginia and major in law enforcement or criminal justice. Along with their application, they must submit a short essay on their proposed course of college study, how they reached that decision, what they expect to gain from college, and their personal goals and ambitions. Financial need is not considered in the selection process. Deadline for Receipt: April of each year.
3739 ■ JAMES D. VOELKER FOUNDATION
P.O. Box 15222
Lansing, MI 48901-5222
Web Site: http://www.voelkerfdn.org/Scholarships.asp
To provide financial assistance to students enrolled in Wisconsin or Michigan tribes who are interested in pursuing a legal education.
Title of Award: James D. Voelker Foundation Native American Scholarship Area, Field, or Subject: Law Level of Education for which Award is Granted: Graduate, Undergraduate Number Awarded: 1 or more each year. Funds Available: The amount awarded varies annually; recently, the scholarships were at least $4,000 each. Duration: 1 year.
Eligibility Requirements: This program is open to students who are enrolled members of a federally-recognized Michigan or Wisconsin tribe (applicants may live in any state) and are interested in studying law and working toward a career that will benefit Native American people. Applicants do not need to be currently enrolled in law school, but if they apply as undergraduates they must ultimately intend to attend law school. Selection is based on academic achievements and financial need (preference is given to applicants with the greatest need). Additional Information: Recipients must provide an annual report on their progress.
3740 ■ WISCONSIN SPACE GRANT CONSORTIUM
c/o University of Wisconsin at Green Bay
Department of Natural and Applied Sciences
2420 Nicolet Drive Green Bay, WI 54311-7001
E-mail: [email protected]
Web Site: http://www.uwgb.edu/wsgc/students/us.asp
To provide financial assistance to undergraduate students at colleges and universities participating in the Wisconsin Space Grant Consortium (WSGC).
Title of Award: Wisconsin Space Grant Consortium Undergraduate Scholarships Area, Field, or Subject: Aerospace sciences; Architecture; Business administration; Engineering; Engineering, Aerospace/Aeronautical/Astronautical; Law; Medicine; Nursing; Science; Space and planetary sciences Level of Education for which Award is Granted: Undergraduate Number Awarded: Varies each year; recently, 26 of these scholarships were awarded. Funds Available: Stipends up to $1,500 per year are available. Duration: 1 academic year.
Eligibility Requirements: This program is open to undergraduate students enrolled at universities participating in the WSGC. Applicants must be U.S. citizens; be working full time on a bachelor's degree in space science, aerospace, or interdisciplinary space studies (including, but not limited to, engineering, the sciences, architecture, law, business, nursing, and medicine); and have a GPA of 3.0 or higher. The consortium especially encourages applications from underrepresented minorities, women, and students with disabilities. Selection is based on academic performance and space-related promise. Deadline for Receipt: February of each year. Additional Information: Funding for this program is provided by the U.S. National Aeronautics and Space Administration (NASA). The schools participating in the consortium include the University of Wisconsin campuses at Fox Valley, Green Bay, La Crosse, Madison, Milwaukee, Oshkosh, Parkside, Superior, and Whitewater; Alverno College; Marquette University; College of the Menominee Nation; Carroll College; Lawrence University; Milwaukee School of Engineering; Ripon College; Medical College of Wisconsin; Western Wisconsin Technical College; and Wisconsin Lutheran College.
3741 ■ WOMEN IN FEDERAL LAW ENFORCEMENT
Attn: Scholarship Coordinator
2200 Wilson Boulevard, Suite 102
Arlington, VA 22201-3324
Tel: (703)548-9211; (866)399-4353
E-mail: [email protected]
Web Site: http://www.wifle.com/scholarshipfund/wiflescholarship.htm
To provide financial assistance for college or graduate school to women interested in preparing for a career in law enforcement.
Title of Award: Women in Federal Law Enforcement Scholarship Area, Field, or Subject: Computer and information sciences; Criminal justice; Criminology; Law enforcement Level of Education for which Award is Granted: Four Year College, Graduate Number Awarded: Several each year. Funds Available: Stipends range from $500 to $2,000. Duration: 1 year; may be renewed.
Eligibility Requirements: This program is open to women who are enrolled full time at an accredited 4-year college or university (or at a community college in the process of transferring to a 4-year school). Applicants must be preparing for a career in law enforcement (including special agents, forensic scientists, intelligence analysts, fingerprint and firearms examiners, bomb technicians, public information specialists, computer specialists, attorneys, and other related fields). They must have completed at least 1 year of college and have a GPA of 3.0 or higher. Students in graduate and postgraduate programs are also eligible, but those working on an associate degree are not. Along with their application, they must submit a 500-word essay describing a community project in which they have been involved and the results or impact to the community. Selection is based on academic potential, achievement, and commitment to serving communities in the field of law enforcement. Deadline for Receipt: April of each year. Additional Information: Information is also available from the WIFLE Scholarship Fund, P.O. Box 1480, Edgewater, MD 21037-7480.
3742 ■ WYOMING PEACE OFFICERS ASSOCIATION
c/o Valerie Sullivan, Chair, Scholarship Committee
1556 Riverbend Drive
Douglas, WY 82633-2056
To provide financial assistance for college to members of the Wyoming Peace Officers Association, to their dependents, or to nonmembers in Wyoming who are preparing for a career in law enforcement.
Title of Award: Wyoming Peace Officers Association Scholarship Area, Field, or Subject: Criminal justice; Criminology; General studies/Field of study not specified; Law enforcement Level of Education for which Award is Granted: Undergraduate Funds Available: Recipients are awarded up to $500 per semester or up to $1,000 per year. Funds are paid after a semester is successfully completed. Duration: 1 semester; may be renewed for a total of 4 semesters or 2 years.
Eligibility Requirements: There are 4 categories of applicants: 1) dependents of active, lifetime, or deceased members of the Wyoming Peace Officers Association who will be studying (in any subject) on a full-time basis during the scholarship year; 2) Wyoming residents majoring in law enforcement on a full-time basis at a Wyoming community college or the University of Wyoming; 3) active or retired Wyoming law enforcement officers who are members of the Wyoming Peace Officers Association and enrolled full or part time in a law enforcement major at a Wyoming community college or the University of Wyoming; and 4) pre-service students who have completed or will complete a peace officer basic course or detention officer basic course offered by the Wyoming Law Enforcement Academy and are, if currently employed by a law enforcement agency, a member of the Wyoming Peace Officers Association. Deadline for Receipt: July of each year.
Law and Order
Law and Order
The term law and order refers to a prominent theme of Richard Nixon’s (1913–1994) successful 1968 campaign for the American presidency. Law and order became a potent campaign symbol for Nixon, and related themes have sometimes surfaced in later Republican presidential campaigns—especially in 1972 and 1988. The term law and order is a political symbol capturing public anxieties about civil unrest, urban riots, black militant groups (which, some charged, fomented violence), and rising crime rates. Later events, such as the violence in the Boston area in response to court-ordered busing, widely publicized crime sprees like the Son of Sam murders in New York City, and continued rising crime rates, stoked fears of societal breakdown during the 1970s and gave law-and-order appeals additional resonance. These developments, sometimes connected with subtle racial appeals, contributed to the erosion of the Democratic Party’s dominant position in American politics after 1968.
After a period of relative domestic tranquility in the 1950s, the 1960s came as a rude shock to many Americans. Between 1961 and 1964, violent actions by southern whites bent on defending racial segregation became commonplace. Demonstrators at sit-ins and freedom riders, black and white, faced actual or threatened violence and mass arrests on fabricated charges. More violence erupted as federal officials attempted to carry out court-ordered desegregation. When black student James Meredith sought to enroll at (and integrate) the University of Mississippi, thousands of segregationists rioted, resulting in two deaths and forcing President John F. Kennedy (1917–1963) to mobilize thousands of troops to restore order.
As the civil rights movement continued, it was met with more violence. Police in Birmingham, Alabama, deployed dogs and high-pressure water cannons against unarmed civil rights demonstrators in 1963. The murders of National Association for the Advancement of Colored People (NAACP) leader Medgar Evers in Jackson, Mississippi, in 1963 and of three civil rights workers near Philadelphia, Mississippi, in 1964 fed fears of mounting social unrest. A 1963 bombing of a Birmingham black church killed four little girls, and Alabama state troopers attacked unarmed voting-rights marchers with dogs and electric cattle prods in March 1965. These cumulative shocks to the national consciousness were amplified by the 1963 assassination of President Kennedy in Dallas, Texas.
In response to white violence against civil rights activists, some black leaders adopted increasingly belligerent rhetoric. The rise of black radicalism was personified in militants like Stokely Carmichael (1941–1998) and H. Rap Brown. As political scientists Donald Kinder and Lynn Sanders noted, the new rhetoric frightened many whites. There was “less talk of nonviolence and more of self-defense; less yearning for integration and more for solidarity and black nationalism; ‘We Shall Overcome’ was replaced by Black Power and ‘burn, baby, burn’” (1996, p. 103). The image of neatly-dressed blacks pummeled by vicious white violence faded, replaced by images of blacks rampaging through city streets, torching cars and buildings and looting stores. The initial trigger for the changing imagery was the August 1965 Watts riot in Los Angeles. As Kinder and Sanders described the Watts riot:
The violence raged unchecked for three days, and three days longer in sporadic eruptions. Blacks looted stores, set fires, burned cars, and shot at policemen and firemen. Before the violence was halted, 14,000 National Guard troops, 1,000 police officers and 700 sheriff’s deputies were pressed into service.… In the end, 1,000 buildings were damaged, burned, looted or completely destroyed; almost 4,000 people were arrested; more than 1,000 were injured seriously enough to require medical treatment; and 34 were dead, all but three of them black. (Kinder and Sanders 1996, p. 103)
Watts was only the beginning, as 1966, 1967, and 1968 each brought more unrest. In 1967, 250 serious uprisings occurred, including the Detroit riots, which killed forty-three people. More disturbances erupted in multiple cities after the assassination of Martin Luther King Jr. in April 1968. As Kinder and Sanders observe:
For one long, hot summer after another, Americans watched what appeared to be the coming apart of their own country. On the front page of their morning newspapers and on their television screens in the evening appeared dramatic and frightening pictures of devastation and ruin: cities on fire, mobs of blacks looting stores and hurling rocks at police, tanks rumbling down the avenues of American cities.… Discussion of the “race problem” in America … centered on the threat that inner-city blacks posed to social order and public safety. (Kinder and Sanders 1996, p. 103)
In 1968 the Kerner Commission released a report on the civil disturbances, warning that the United States was “moving toward two societies, one black, one white—separate and unequal.” The urban violence and Kerner Commission report created an opening for Republicans to pounce on the law-and-order theme. Republican presidential candidate Richard Nixon blasted the report for “blaming everybody for the riots except the perpetrators of violence,” promising “retaliation against the perpetrators” that would be “swift and sure.” As noted by journalists Thomas Edsall and Mary Edsall, Nixon’s running mate, hard-line Maryland governor Spiro Agnew (1918–1996), summoned black leaders in Baltimore to a stormy meeting where he accused them of cowardice for refusing to renounce black militant leaders like Stokely Carmichael and H. Rap Brown. Speaking of the violence in Baltimore after the King assassination, Agnew charged: “The looting and rioting which has engulfed our city during the past several days did not occur by chance. It is no mere coincidence that a national disciple of violence, Mr. Stokely Carmichael, was observed meeting with local black power advocates and known criminals in Baltimore three days before the riots began” (quoted in Edsall and Edsall 1991, p. 85).
The 1968 Democratic national convention met in Chicago following the June 1968 assassination of Democratic presidential candidate Robert Kennedy. Chaotic scenes of police beating demonstrators in Chicago’s streets and parks echoed the tumult within the convention hall, as party delegates splintered over the Vietnam War (1957–1975). By 1965 almost all American homes had televisions, bringing searing images of one dramatic (and sometimes horrifying) event after another into the public consciousness. The racial subtext to much of the unrest of the 1960s is unmistakable. As Kinder and Sanders note:
The riots opened up a huge racial rift. Fear and revulsion against the violence were widespread among both white and black Americans, but whites were much more likely to condemn those who participated in the riots and more eager for the police and National Guard to retaliate against them. Where blacks saw the riots as expressions of legitimate grievances, whites were inclined to explain them as eruptions of black hatred and senseless criminality.… To many white Americans, then, the civil disorders of the 1960s amounted to an appalling collective mugging. (Kinder and Sanders 1996, p. 104).
Liberals, then, faced the unenviable task of explaining why, after leading the fight to pass major civil rights laws, blacks appeared to be responding not with gratitude, but with annual explosions of violence, looting, and destruction.
As political analyst James Sundquist observes, the potency of law-and-order themes was evident as early as 1966, when Ronald Reagan (1911–2004) easily won the governorship of California after promising to “get tough” on welfare, crime, riots, and student unrest. In October 1966, the Republican Coordinating Committee charged that officials in the Lyndon B. Johnson (1908–1973) administration had “condoned and encouraged disregard for law and order.” In an August 29, 1967, press conference, House Republican leader Gerald R. Ford (1913–2006) proclaimed:
The war at home—the war against crime—is being lost. The Administration appears to be in full retreat. The homes and the streets of America are no longer safe for our people. This is a frightful situation.… The Republicans in Congress demand that the Administration take the action required to protect our people in their homes, on the streets, at their jobs.… There can be no further Administration excuse for indecision, delay or evasion. When a Rap Brown and a Stokely Carmichael are allowed to run loose, to threaten law-abiding Americans with injury and death, it’s time to slam the door on them and any like them—and slam it hard! (quoted in Sundquist 1983, p. 385)
As Sundquist notes, Ford’s statement illustrates that “by 1967, the Republicans were pulling out all the stops” (on the law and order issue). In 1968 “the issue was propelled by so many events that it hardly needed partisan exploitation” (1983, p. 385).
The cumulative effect of civil-rights violence, assassinations, urban rioting and unrest, the tumult at the 1968 Democratic convention, and the comparatively peaceful 1968 Republican convention in Miami was to create a climate unmistakably ripe for Republican law-and-order appeals. Many Americans were shell-shocked by the rising crime rates and domestic violence of the 1960s, amplified by the increasingly controversial Vietnam War, with antiwar demonstrators burning their draft cards and soldiers coming home, some in body bags, others maimed. In May 1970, Ohio National Guardsmen opened fire on antiwar protesters at Kent State University, killing four students and injuring nine. Many Americans sympathized more with the shooting guardsmen than with the dead students—a sentiment captured in Neil Young’s protest song “Ohio” (written immediately after the Kent State shootings and performed by Crosby, Stills, Nash, and Young). The song characterized conservative sentiment as celebrating the shootings: “should’ve been done long ago.”
The political context in 1968 was clearly ripe for a campaign centering on law and order. The Nixon campaign eagerly seized the opening. Nixon’s selection of Agnew as his running mate sent an unmistakable signal that if elected president he would “crack down” hard on rioters, draft protesters, and others perceived as contributing to or fomenting social and urban unrest. At the 1968 Republican convention, Nixon began his acceptance speech: “As we look at America, we see cities enveloped in smoke and flame. We hear sirens in the night.” Nixon’s speech continued by attacking Democratic-sponsored government programs for the unemployed, the poor, and cities as “reaping an ugly harvest of frustration, violence, and failure across the land.” Nixon’s campaign advertisements, too, reinforced the law-and-order theme. As Kinder and Sanders note:
Nixon’s television advertisements played upon Americans’ fear of crime. While voiceovers pointed to sharp increases in violent crime and blamed the Democrats, the television viewer witnessed scenes of riots and buildings in flames, montages of urban decay, a lonely policeman on the beat, a mugging, crowds taunting the police, faces of anxious and perplexed Americans, and a woman walking alone on a deserted city street as darkness fell. (Kinder and Sanders 1996, p. 226)
After Nixon’s election victory in 1968, Agnew, as vice president, demonstrated a slashing, attack-dog speaking style that further expanded on law-and-order themes. As noted by Sundquist, Agnew toured the country to support Republican candidates, attacking and denouncing “permissivists,” “avowed anarchists and communists,” “misfits,” the “garbage” of society, “thieves, traitors and perverts,” and “radical liberals” (1983, p. 387). This rhetoric is anything but subtle in positioning the Republican Party as representing the masses of “middle America” that abide by society’s rules, are horrified by social violence, and support harsh crackdowns against it—a group that later would be targeted by the appeal of the 1972 Nixon campaign to the “silent majority.” By implication, Agnew sought to position Democrats as representing less savory elements: antiwar radicals, draft-card burners, urban rioters, black militants, hippies, and practitioners of recreational drug use and sexual activity. Agnew’s language, then, expanded the law-and-order theme to imply that Democrats sympathized not only with those who encouraged and practiced crime and violence (i.e., black militants, urban rioters, and draft-card burners), but also with groups that encouraged a more general social permissiveness and breakdown of traditional moral values—that is, permissivists, radical liberals, and perverts. These themes foreshadowed Nixon’s 1972 reelection campaign, which would successfully brand Democratic presidential candidate George McGovern as the candidate of “acid, amnesty, and abortion.”
Since 1972, explicit law-and-order themes have become less central issues in most campaigns. However, a major exception was the 1988 presidential campaign, when George H. W. Bush portrayed Democratic candidate Michael Dukakis as “soft” on violent crime in a campaign that critics charged appealed to racial prejudices. The campaign featured the story of William “Willie” Horton, a black convict who, released from prison on a weekend furlough (a controversial program supported by Massachusetts governor Dukakis), escaped to Maryland, where he attacked a couple in their home. Republican strategists openly exploited the Horton case. One television advertisement, sponsored by an independent pro-Bush group, showed a sinister and unruly-looking Horton in a mug shot, while an announcer recounted Horton’s crimes, emphasized by the words kidnapping, raping, and stabbing appearing in large print on the screen. Republican strategist Lee Atwater (1951–1991) promised that “by the time this election is over, Willie Horton will be a household name.” Later, he said “the Horton case is one of those gut issues that are value issues, particularly in the South, and if we hammer at these over and over, we are going to win.” As Kinder and Sanders note, Atwater joked to a Republican gathering, “There is a story about Willie Horton, who, for all I know may end up being Dukakis’ running mate.… Maybe [Dukakis] will put this Willie Horton on the ticket when all is said and done” (1996, p. 255).
The 1988 campaign illustrates the political dangers for Democrats of not responding adequately to Republican efforts to brand them as “soft on crime.” Especially in the more conservative South, Democrats have responded by emphasizing crime-fighting credentials and support for the death penalty. Bill Clinton used this formula successfully in his 1992 and 1996 presidential campaigns, and in 2005 Democrat Timothy Kaine won the governorship of Virginia, a conservative state. Kaine successfully fended off Republican attacks on his personal opposition to the death penalty by promising to uphold death sentences handed down by Virginia juries. The law-and-order campaign theme most clearly applies to the 1968 presidential campaign. However, it has spawned similar campaign themes, usually pursued by Republicans eager to portray Democrats as “soft on crime,” with varying degrees of success.
Paradoxically, the appeal of law-and-order themes has potentially contributed to citizen vigilantism at times. American history offers numerous examples of citizens “taking the law into their own hands.” White southerners’ lynchings of blacks are but one example of vigilante actions defending a social order that is anything but admirable. In 1898, for instance, the majority-black port city of Wilmington, North Carolina, was consumed by a race riot in which an unknown number of blacks (probably dozens) were murdered and hundreds more banished by an armed white mob bent on establishing white supremacy in local and statewide politics. Historian Timothy Tyson described the actions and motives of riot instigators as follows:
On Nov. 10, 1898, heavily armed columns of white men marched into the black neighborhoods of Wilmington. In the name of white supremacy, this well-ordered mob burned the offices of the local black newspaper, murdered perhaps dozens of black residents—the precise number isn’t known—and banished many successful black citizens and their so-called “white nigger” allies. A new social order was born in the blood and the flames, rooted in what News and Observer publisher Josephus Daniels, heralded as “permanent good government by the party of the White Man.” (Tyson 2006)
Tyson added that the riot “marked the embrace of virulent Jim Crow racism” nationwide. The Red Shirts, a paramilitary arm of the then-white-supremacist Democratic Party, had rampaged across North Carolina before the 1898 election, disrupting black church services and Republican meetings, and attacking blacks, who leaned Republican. These violent, vigilante actions were justified as necessary to preserve a cherished social order, white supremacy, by any means necessary. That their actions were neither lawful nor orderly probably never crossed the minds of either the Red Shirts or the white participants in the Wilmington riot.
Similarly, some anti-immigration activists along the U.S.-Mexican border have launched vigilante efforts to deter would-be undocumented immigrants from crossing from Mexico into the United States. Ranch Rescue is one such group, which styles itself as a defender of U.S. borders and private property rights against what it calls “criminal aliens” and “terrorists” out of a belief that law enforcement is unable or unwilling to act appropriately toward these ends. In 2005 Ranch Rescue founder Casey Nethercutt lost his southern Arizona ranch to satisfy a court judgment levied against him and other Ranch Rescue members for seizing and traumatizing two Mexican immigrants (Pollack 2005). The Wilmington riots and the Ranch Rescue case illustrate behaviors that are probably driven by the conviction that to restore law and order—or a cherished social goal—requires violating law and order at least temporarily.
The vigilantism inherent in the actions of the Wilmington riot instigators and Ranch Rescue members is also reflected in some American films. In movies like the Death Wish series starring Charles Bronson (1921–2003) and The Punisher (1989 and 2004), vigilantism is celebrated, with a curious and unmistakable implicit message: exacting revenge sometimes requires violating law and order—even abandoning the rule of law altogether. Law and order, then, has morphed from an often-potent political symbol from the 1960s through the 1980s to a notion that some action films celebrate violating—but whose impact in real-world politics is largely blunted.
SEE ALSO Law; Rule of Law
Edsall, Thomas Byrne, and Mary D. Edsall. 1991. Chain Reaction: The Impact of Race, Rights, and Taxes on American Politics. New York: Norton.
Kinder, Donald R., and Lynn M. Sanders. 1996. Divided by Color: Racial Politics and Democratic Ideals. Chicago: University of Chicago Press.
National Advisory Commission on Civil Disorders.  1988. The Kerner Report: The 1968 Report of the National Advisory Commission on Civil Disorders. New York: Pantheon.
Pollack, Andrew. 2005. Two Illegal Immigrants Win Arizona Ranch in Court. New York Times, August 19.
Tyson, Timothy B. 2006. The Ghosts of 1898: Wilmington’s Race Riot and the Rise of White Supremacy. Raleigh News & Observer, November 17.
The development of law and jurisprudential ideas since the 1970s represents a significant change from the conventional models that had earlier dominated the province of legal theory in the history of ideas. This entry focuses on two salient theoretical emphases that have continued to influence developments of conventional legal theory and postmodern paradigms of legal thought: the analytical tradition, and the jurisprudence inspired by the revolt against formalism, or legal realism.
Within the received tradition, the rules-based model (which regards law as a pure science), identified with Herbert Lionel Adolphus (H. L. A.) Hart (1907–1992) and the Oxford school of analytical positivism, was subjected to both strong internal critique and important development by such figures as Ronald Dworkin, a Yale law professor who later became professor of jurisprudence in Oxford. Dworkin's redevelopment of the analytical model focused centrally on the development of a powerful rights-based theory of law. The approach moved the consideration of conventional legal theory strongly in the direction of the moral foundations of political community. This created an awkward fit for analytical positivism, which traditionally strove to separate law from moral discourse, that is, to radically distinguish the law that is from the law that ought to be. Dworkin's work led him to stress the principle that the foundations of a rights-based approach to law are indeed rooted in the values of equal respect and dignity, the core moral precepts in a political community committed to taking rights seriously.
Responses to legal realism.
In the United States the dominant version of legal realism (an intellectual movement that advocates policy-oriented jurisprudence informed by developments in social and behavioral sciences, such as psychology and anthropology), which had reached its apex in American legal culture prior to World War II, also remained influential. The general criticism leveled at legal realism argued that an approach to adjudication that is result-selective and that only makes sense from an external observer's point of view is flawed. It compromises the conventional view of law and in particular undermines its special juridical character rooted in the ubiquity and special characteristics of rules governing social and legal relations. This criticism reflects the idea—implicit in pragmatic approaches to philosophy—that law, like all human relations, should be conceived in terms of process.
Three distinctive responses to legal realism developed in the United States. The first was an acceptance of a rules-rights–based approach to law from an internal point of view, with the corresponding conclusion that the foundations of any legal theory from an external point of view (an about-law point of view) was simply incompatible with a professional internal perspective of law based on rules. This critique gave analytical jurisprudence an important place not only in developments in the United States, but more broadly in the general development of legal theory.
The second response, associated primarily with the Harvard Law School, is known as the legal-process school. At Harvard, Henry M. Hart Jr. (1904–1969) and Albert M. Sacks (1920–1991) focused attention on the nature of adjudication from the point of view of a principle of institutional competence. Instead of asking the classical questions of analytical jurisprudence: "What is a valid law?" and "By what criteria might we objectively determine what a valid law is?," they asked a different question, namely, "What is a legal question?" They were particularly interested in the objective indices used to distinguish administrative, executive, legislative, or indeed more broadly, political questions from those distinctively legal. This approach provided more flexibility and focused, so to speak, on law as a process requiring a continuing definition and redefinition of legal/professional roles, distinguishing these roles from other roles in the broader processes of settling community disputes. A central feature was the principle that one could still use an objective standard to interpret either what the law is or what falls within the scope of judicial competence. In this sense, analytical jurisprudence and the legal-process school shared a deep commitment to the role of objectivity in law.
Doubtless, ideology could influence the nature of the indicators used to either broaden or narrow the scope of what an appropriate judicial role is or should be. It cannot, therefore, be said that the legal-process approach settled deep ideological differences about the role of law in governing human relations. Rather, it provided a framework that justified greater flexibility in managing the tasks of judicially settling disputes while maintaining fidelity to the importance of objectivity in law. Morton J. Horwitz summarizes the essential challenge to which the legal-process school responded as follows:
The legal process school sought to absorb and temper the insights of Legal Realism after the triumph of the New Deal. Its most important concession to Realism was in its recognition that doctrinal formalism was incapable of eliminating discretion in the law. The task was instead to harness and channel that discretion through institutional arrangements.
The third response, generally associated with the Yale Law School, is known as "Law Science and Policy." It was identified with the political scientist Harold D. Lasswell (1902–1978) and the international lawyer Myres S. McDougal (1906–1998). These scholars were deeply influenced by legal realism, but were dissatisfied with the implication that at the end of the day legal realism might lead to legal nihilism. Their initial collaboration, which came during World War II, resulted in the 1943 publication of "Legal Education and Public Policy: Professional Training in the Public Interest." In this article, they raise the broad question of what the purpose of professional training is and, indeed, how professional training relates to the public interest. In this view, the professions are not neutral, but rather have a great deal to do with the nature and quality of the system of public order a society promotes and defends. From this article, they developed a system of jurisprudential thought for a free society and developed a wide range of specific applications of their theory to international law. Their work in international law became identified with the so-called New Haven School of International Law.
Jurisprudence in this view had a radically different, but distinctively scientific orientation. Jurisprudence was to be a theory for inquiry about law. The theory had a deliberate focus on policy-and decision-making. Indeed, law would now be defined as a process of authoritative and controlling decision-making wherein members of the community seek to clarify and implement their common interests. The approach would be radically context-sensitive, it would be problem-oriented, goal-guided, multidisciplinary, and solution-oriented. Among the central elements of this jurisprudential emphasis was the meaning it gave to the task of problem definition. Law, in this view, is not about the scope of different rules created by current or past elites, or about how to interpret or reconcile contradictory rules created by the same legal sources. A problem is to be observed from the perspective of the subjectivities of individuals involved in social interaction in society itself. In short, human beings in society are making subjective demands for value allocations, and these demands often reproduce social conflict for which the community provides institutional mechanisms specialized with whatever degree of efficacy for responding to them. Thus, law is one of the specialized mechanisms in social organization that responds to the raw, subjective claims of individuals in the larger social process.
By focusing the lens of legal inquiry on individual subjectivities, that is to say perspectives, for example, of identity, demand, and expectation, the Law Science and Policy approach radically changed the starting point of the central ideas required for legal inquiry. This had large-scale impacts on the development of ideas within the framework of legal culture. Lasswell's work in the social sciences and his collaboration with McDougal also anticipated the later development of post-modernism in the social sciences and its particular application to law, influenced by such theorists as Michel Foucault (1926–1984), Jacques Derrida (b. 1930), Jacques Lacan (1901–1981), and Jürgen Habermas (b. 1929).
Since human subjectivities are the central raw materials from which human problems evolve, and if law is a response to these problems, then human subjectivities are a critical element in a realistic and comprehensive understanding of jurisprudence and law. When, for example, human beings make distinctively economic demands, we bring in the relevance of microeconomic theory. When we consider that the rules and doctrines of the past in virtually all legal cultures have been largely made by men, we see that we must account for women's perspectives in law, which leads to the development of feminist conceptions of jurisprudence. Critical conceptions of jurisprudence, such as critical legal studies and critical race theory, as well as Lat/Crit theory (a branch of critical race theory), such as it is, have entered the discourse about legal culture as a result of the breach in the edifice of legal objectivism identified with conventional legal theory, as well as the legal process perspective.
The Law Science and Policy approach is a theory about and not of law. The insistence on a theory about law was a cardinal tenet of legal realism and was central to unpacking confusions of vantage point generated by both participants (decision-makers and claimants) and observers who represent a degree of scientific detachment required for the scientific study of law. However, the most direct influence of the McDougal-Lasswell school was in the area of international law, which they styled the public order of the world community. It is, of course, not the case that all of international law reflects their basic tenets; however, their work has had substantial influence on how international law is conceived and on the salience and importance of many of its important doctrines.
McDougal, Lasswell, and W. Michael Reisman sought to apply jurisprudential insights and ideas directly to the study of international law. Apart from the relevance of context, the problem orientation, and the salience of multiple methods of inquiry about law, their approach stressed the importance of specific intellectual criteria for the study of jurisprudence in international law. These criteria included goal-thinking, trend-thinking, scientific-thinking, predictive-thinking, and alternative-thinking. The approach was also explicit in articulating the standards by which one could compare and evaluate all systems of legal thought. These criteria included the procedures used to maintain and establish a clear observational vantage point, the critical importance of focusing both comprehensively and specifically on the actual processes of policy and decision, the development and use of critical intellectual tasks, and the importance of the provisional postulation of fundamental public-order goals. These criteria could be applied in the study of a national system or the entire global system.
The central feature of the New Haven School of International Law was its insistence on universality and comprehensiveness. This approach coincided with the creation of new states out of the debris of colonial rule. The new states were not always new. They were often old and dependent. In order to stake a claim for statehood, doctrines had to be invented and supported by contemporaneous developments in international law and jurisprudence. Nationalist elites seeking freedom from colonial rule would stake a claim to self-determination and independence. This claim of course would be an attack on sovereignty, or at least the colonial version of it. American idealism in the form of Wilsonian internationalism succeeded after World War II in making German colonies a sacred trust of civilization while at the same time paying service to colonial hegemony. Thus, for example, German South West Africa, which was conquered by South Africa in 1917, was given to South Africa to administer as a special international mandate. The precedent created here was that colonial rule was not altogether to be insulated from international responsibility, in particular the sacred trust for the well-being of the inhabitants. After World War II, the dominant victorious allies, namely the United States and the Soviet Union, shared a common objective, supported for radically different reasons, that colonialism become obsolete. The United Nations was created, and a part of its growing mandate was to facilitate decolonization, self-determination, and independence.
The paradox of claims to resist colonial rule was that they were also claims to weaken the sovereignty idea in international law. If self-determination and independence were supported by international legal precepts, then international support for the integrity of sovereignty would be constrained by these competing claims. In short, sovereignty admits limitation, particularly limitations based on international obligations. Thus, the sovereignty idea began to evolve within the framework of a global constitutive process, as expressed in the theories of the New Haven School.
Problems of Sovereignty
The model for expanding the community of nation-states became the model of a sovereignty-dominated world order, which included the new Afro-Asian sovereigns. This model was largely Eurocentric, and its juridical roots are often identified with the Peace of Westphalia (1648). The claims about sovereignty now represented a paradox. Colonial sovereignty was to be seen as weaker and permeable: "soft sovereignty," as it were. However, the new sovereigns were based on political foundations that were both internally and externally vulnerable. The same elites who demanded a weak version of sovereignty to justify decolonization were now demanding something akin to an absolutist version for national survival. In short, they were frequently demanding a form of sovereignty identified with the international legal culture prior to World War II, a version largely unconstrained by respect for international obligations (hard or thick sovereignty).
The problems of weakening sovereigns coincided with the Cold War, and the hegemons could find surrogates to spear-head strategic interventions intended to weaken sovereigns ostensibly identified with one superpower or another. The normative status of sovereignty thus generated two powerful contradictory trends. The first trend was the high priority given to principles of sovereign equality and nonintervention. The second was the high priority given to the imperatives of international legal obligation and the competence to intervene when fundamental international values, such as peace, security, and humanitarian values, are compromised.
Thus, while the nation-state system was still expanding in the early 2000s—with approximately 192 sovereigns—sovereignty, in fact, was changing, as nations found that in giving up some sovereignty, they, in effect, strengthen their sovereignty. The expansion of NATO (North Atlantic Treaty Organization) is an illustration of this phenomenon; the development in the direction of the European Constitution is a further example; and the development of the African Union Constitution is a major doctrinal shift in the dynamic of sovereignty. This suggests that the political and juridical conceptions of sovereignty had the possibility of embracing theoretical reification and practical obsolescence, or becoming more refined, flexible, fluid, and relevant to the practicalities of governance.
The importance of understanding the context in which sovereigns are created, maintained, and possibly changed is a reflection of the insistence in legal theory that international sovereignty itself is the outcome of problems of power in the international system. What is apparent in the complex global network of institutions and participant actors is that there are many active participants in this process, such as international, continental, and regional organizations, and private-sector institutions of business, capital, and labor, as well as the vast organization and partial structure of nongovernmental operators and individuals who constitute national and global civil society. Therefore, it will be seen that the meaning of sovereignty itself derives not so much from state absolutism, but from the ways in which global society constructs and orders political identity and participation through sovereigns and other institutions of global salience.
The concept of sovereignty in the twenty-first century is, of course, tied to the concept of statehood. For a state to be recognized in international law, the state must meet certain practical and normative requirements. The first set of criteria relates to practical matters of power and control. The state must have control over territory, people, and institutions of governance, and must be competent to handle the international environment.
These matters are often collapsed into what is sometimes known as the declaratory theory of recognition. In order to become a member of the United Nations, a state must not only meet these criteria, but it must also meet certain normative standards. It must indicate a willingness to respect and honor the principles on which the United Nations is founded, including respect for peace and security, the rule of law, human rights, and more. In practice, governments have—from time to time—unilaterally indicated that certain states do not maintain standards of behavior consistent with the concept of international obligation. Thus, the United States has a list of states it regards as "terrorist," and has expanded this notion to include what it calls "rogue states." This indicates the beginning of a discourse that is more substantive with regard to the nature of the state itself and therefore the nature of sovereignty. Thus, the notion emerges of the abuse of sovereignty, and some writers have suggested that descriptive typologies of states could include such descriptions as failed states, anarchic states, genocidal states, homicidal states, rogue states, drug-influenced states, organized-crime-influenced states, kleptocratic states, terrorist states, authoritarian states, garrison or national security states, totalitarian states, and democratic rule of law states. Behind this discourse is the evolving notion of sovereignty itself. The older idea of sovereignty was identified with state absolutism. Among the elements of the new concept are the ideas and ideals of transparency, responsibility, and accountability in the analysis of both sovereignty and the state.
Sovereignty and the International Order
Sovereignty is ambiguously defined in the Charter of the United Nations. The first principle holds that the charter derives its legitimacy from the people of the earth-space community, but the constitutional scheme is weighted heavily in favor of the state-sovereignty paradigm, and limits, in some significant measure, the role of nongovernmental participation. Membership is open to sovereign states only. However, the basis of sovereignty is further clarified in the International Covenant on Civil and Political Rights. Individuals who constitute the "people" according to Article 16 "shall have the right to recognition everywhere as a person before the law." Article 18 specifies the people's right to freedom of thought; Article 19 stresses the people's "right to hold opinions without interference" and that the people "shall have the freedom of expression;" and Article 25 puts stress on the right to participate in the political welfare of the State, and the universal rights to vote and to participate in public service.
Thus, a significant change created by the UN Charter (along with subsequent practice) is that the conceptual basis of sovereignty is rooted not only in the monopoly of effective power, but also is predicated on authority and legitimacy, which are rooted in the expectations of people. The Declaration on the "Guidelines on the Recognition of New States in Eastern Europe and in the Soviet Union" made recognition and sovereign acceptance into the European community of states, subject to strong normative standards of international justice. The Guidelines include "respect for the provisions of the Charter of the UN and the commitments subscribed to in the Final Act of Helsinki and in the Charter of Paris, especially with regard to the rule of law, democracy and human rights." The Summit of the Americas Declaration of Principles and Plan of Action articulated that democracy is the sole political system that guarantees respect for human rights and the rule of law. The 1990 Charter of Paris is another important expectation-creating instrument wherein sovereignty is predicated in the will of the people. Participating states affirmed their respect for human rights protections and fundamental freedoms as "essential safeguards against an over-mighty State." Democracy is "based on the will of the people" and is the "foundation of human respect" (pp. 193–194).
These examples illustrate that fundamental expectations of the nature of the state, including its sovereignty and governance, are being conditioned by what scholars call a right to democratic governance. The idea is that the formal historic requirements for the de facto recognition of a state have been enhanced by the normative constraints and demands of critical symbols of authority associated or identified with the human right to democratic governance. These demands include transparency, responsibility, accountability, and a commitment that the rule of law must be an intrinsic component of the nature, scope, and practical functions of sovereignty.
The newer meaning of sovereignty, which ties control to authority and to decision-making, also raises the question about how power and authority (i.e., governance) and decision-making are constituted in the global environment. For example, there are nation-states with constitutions in Africa. There is also the Constitution of the African Union, which is a form of constitutionalism with linkages to the constitutions of African member states. In Europe, nation-states are tied together in an economic and political union. Each nation-state has its own constitution, which is an overt indicator of how governance is constituted in the state, but the continental linkages of these states are to a larger political and economic community, and a draft constitution has been formulated that will obviously have linkages to the constitutional scheme within each state.
At a more inclusive level, all of these developments (national and continental) have evolved complex constitutional orders, which fall under the umbrella of the global constitution: the Charter of the United Nations. It will be very obvious that sovereignty now involves complex clusters of competence; some competences are shared, and smaller states (pooling their economic and political capital) might now have a larger say in the important decisions affecting them in the larger international environment than would be the case if they were acting as individual, isolated sovereigns. However, collected powers also require submission to the rules of the game. In short, in the early twentieth century, sovereignty can be described as a strengthened expression of its former self to some degree, but it is nevertheless much changed.
Sovereignty and the International Community
The conceptual positioning of national sovereignty within the framework of constituting authority and control permits us now to see the importance of the fact that there are many other participants in the global community, power, and constitutive process. As a technical matter, the question of whether an international organization, such as the United Nations, could have an international legal personality for the purpose of suing another state at the international level was decided by the World Court in a case called The Reparations Case. In this case, the World Court recognized that even though the United Nations was not a state, it was nonetheless an organization with an international legal personality and the right to sue or otherwise act in the international environment within the framework of its constituted competence.
It was the Nuremberg Tribunal that, in fact, opened the breach to the possibility that individuals might have some sovereignty in the international legal environment. The Nuremberg defendants were made directly accountable for war crimes and crimes against humanity under international law. But these defendants were also given the right to a fair trial under international law. They not only had duties under international law, but they could also exercise rights. Thus the narrow principle was established that individuals could have rights directly under international law; for some purposes, the individual could exercise these rights and, thus, rights and duties in international law were not confined to formal sovereign entities. Two important developments were born of these events. The first was the development of the human-rights provisions in the UN Charter through the Universal Declaration of Human Rights (UNDHR) and the extensive treaty-based regime for the protection of global and regional human rights. The preamble of the UNDHR states that member states recognize:
[T]he inherent dignity and … the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world … [and] disregard and contempt for human rights have resulted in barbarous acts which have outraged the conscience of mankind, and the advent of a world in which human beings shall enjoy freedom of speech and belief and freedom from fear and want has been proclaimed as the highest aspiration of the common people … [and that] it is essential, if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by the rule of law.
The second development was that in the aftermath of the Cold War, two ad hoc tribunals were established to try governmental officials and others for humanitarian and grave human-rights violations. The relative successes of the International Criminal Tribunal for the Former Yugoslavia (ICTY; 1993) and the International Criminal Tribunal for Rwanda (ICTR; 1994) provided a renewed impetus for the creation of an International Criminal Court (1998), which was indeed established. It is therefore critical that we see the development of international legal order since the 1970s as having finally been able to capitalize on the revolutionary breakthrough established at Nuremberg, where it was determined that individuals could not hide behind the veil of the state when they committed horrendous crimes against the peace and against humanity. For example, Article 7 of the Statute of the International Tribunal for the Former Yugoslavia and Article 6 of the Statute of the International Tribunal for Rwanda harmonize on the issue of individual criminal responsibility. Both state that:
- A person who planned, instigated, ordered, committed or otherwise aided and abetted in the planning, preparation or execution of a crime referred to in articles 2 to 5 of the present Statute, shall be individually responsible for the crime.
- The official position of any accused person, whether as Head of State or Government or as a responsible Government official, shall not relieve such person of criminal responsibility nor mitigate punishment.
- The fact that any of the acts referred to in articles 2 to 5 of the present Statute was committed by a subordinate does not relieve his superior of criminal responsibility if he knew or had reason to know that the subordinate was about to commit such acts or had done so and the superior failed to take the necessary and reasonable measures to prevent such acts or to punish the perpetrators thereof.
- The fact that an accused person acted pursuant to an order of a Government or of a superior shall not relieve him of criminal responsibility, but may be considered in mitigation of punishment if the International Tribunal determines that justice so requires.
With regard to Yugoslavia, the former president of that country was tried in The Hague in the early 2000s, and in Rwanda, high governmental officials had already been convicted. The question is, what do these events mean for the history of ideas?
These ideas establish the revolutionary principle that, both politically and juridically, the international community may directly hold governmental officials to account (in certain circumstances) and punish them accordingly. It also establishes that the conditions of governance, such as transparency, responsibility, and accountability, are integral features of the authority foundations of the state, and therefore the normative foundations of the state itself have changed on a continuum that moves from state absolutism to rooting governance and constitutionalism in the foundations of authority. What is even more critical as a complement to these developments is the growth not simply of human-rights law, but of human rights as an integral part of governance and constitutionalism and as a deeply rooted expectation in the political and legal culture of the global community. What is important in these developments is that the human-rights culture finds strong intellectual roots in the development of rights-based jurisprudence, as well as in the jurisprudence that roots law in fundamental policy. The rights-based approach seeks to ensure that individual rights are taken seriously. The policy-based approach insists that law be responsive to the claim, the identity, and the fundamental expectation of the individual participation in the international legal and political environment. Central to each concept is the idea of fundamental respect, which is seen as the heart of responsible constitutionalism and accountable sovereignty, and which is fundamental to all human rights.
Central problems emerged—at least in theory—with regard to how to justify the principle of respect as the cornerstone of the principle of human dignity. It is unclear whether the concept of human dignity can itself be objectively justified, and indeed modern philosophers have even suggested that at a fundamental level, human values about dignity may be incommensurable. Apparently conflicting values might have to be contextualized (or more deeply analyzed) in light of broader, more abstract formulations of value judgment. Thus, values including power, respect, rectitude, affection, enlightenment, well-being, skill, and wealth must be construed in terms of their enhancement of a more abstract human-dignity postulation. The policy-maker seeking the development of universal dignity must develop technical methods of decision-making, including sophisticated standards of construction and interpretation. Perhaps at this operational level, practical lawyers, social scientists, and real-world policy-makers must render decisions regarding how to integrate what are often regarded to be ostensibly conflicting values and norms in order to genuinely enhance the universal ethic of human dignity.
The South African Constitutional Court, for example, dealt in 1998 with a political party's claim regarding the "Truth and Reconciliation" statute that provided individuals who would otherwise have been prosecuted for human-rights violations with amnesty; essentially, this party contested the constitutionality of the statute and regarded it as a grave violation of international law. The Constitutional Court was confronted with a mechanism to explore truth and guide reconciliation that comprised a critical foundation for the internal peace and security of the entire Republic of South Africa, as well as of the effort to afford each South African political freedom. This statute, however, was in ostensible conflict with universally accepted tenets of international law, which do not accept excuses to mitigate the commission of grave crimes against humanity. It is possible to argue that the ethic of universal respect and human dignity demands universal compliance, but at what cost?
To ensure that respect, humanitarian law, and democratic entitlement are continuously adhered to and honored demands in-depth analysis and delicacy with regard to the process of decisional interventions. Rules of construction and interpretation painstakingly pieced together articulate, for example, that even if a peremptory norm of international law comprises an erga omnes obligation, it should be appraised and applied to enhance similar rights, which might also have to be accommodated. The currency underlying the ethic of human dignity is that it affords practical decision makers standards and goals that permit the transformation of regional, continental, and international law into a greater approximation of the standards and goals embodied in the United Nations Charter.
Principle of equality.
A central element in the development of the respect–human dignity precept is that it is rooted in the principle of equality. The principle of equality has a longstanding normative basis in the rule of law. For example, rule-governed behavior works on the principle of equality, namely, that rules cover like cases, regardless of identity, status, or personality. The more normative expression of the equality principle is established in the idea that all participants are formally equal before the law. Practical experience suggests, however, that even if formal equality is embraced it too often entrenches hierarchy, a lack of equity, and a depreciation of substantial justice. The specific way in which the international legal system approached the equality principle was a clear-cut recognition that the business of why World War II was fought was, in part, rooted in the racialism and Herrenvolkism of the Nazis. It would therefore be no surprise that both the preamble and the purposes of the UN Charter would codify not simply the importance of human rights, but would establish that racial and gender equality were crucial to a meaningful expression of the human-rights principle. Two of the most important covenants that reflect the specific development of the equality principle are the 1965 International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) and the 1980 Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW).
International human-rights law has also made criminal the practice of seeking to destroy groups of human beings in whole or in part based on race, nationality, ethnicity, and religion as labels of identity. Thus, the very first human-rights treaty following World War II made genocide a human-rights crime. The full development of the equality principle in international law has also permitted regional developments and has deeply influenced constitutional development on the principle of equality. The race relations convention, for example, goes further than the idea of formal equality in race relations. It specifically holds that affirmative action to achieve substantive equality is not unfair or prohibited discrimination. It cannot be said that the public order of the world community has achieved a community in which both substantive and formal equality are, in fact, realized. However, enormous developments have been stimulated by the development of the equality principle at the international level through the prism of universal human rights. This rise has served as a base of power for important levels of social activism within the framework of civil society to improve the condition of women discriminated against because of sex, as well as minorities discriminated against because of race.
One of the most important factors influencing international society in the early 2000s is the principle of globalism. The impact of globalism on sovereignty is fueled by the vast growth in the flow of goods, services, capital, and labor across state and national lines. This process has been dramatically accelerated by the communications revolution, and the impact on state sovereignty suggests that these global forces have seriously weakened the territorial boundaries of states. This intense flow of values across state and national lines also invited instant comparison and appraisal. As barriers to human interaction have been liberalized, what has been the social benefit and the social cost? There is no clear answer to this question. We know, for example, that without the communications revolution, it is possible that the global HIV/AIDS pandemic might have been containable. Thus, following the SARS (Severe Acute Respiratory Syndrome) outbreak of 2003, dramatic limitations were placed on communication to prevent the disease from spreading globally.
If nation-state barriers are not as salient, other barriers in the global age challenge the concept of global equity and fairness. While the world has generated more wealth than mankind has ever before achieved, the conditions of impoverishment throughout huge sections of the planet suggest a global economic apartheid rather than a global vista of improved and shared equity. It is widely recognized that a planet that is radically divided between the haves and the have-nots, in which there is an acceleration of short-term gains for the haves and an acceleration of poverty and deprivation for the have-nots, will ultimately result in the depreciation of all. In short, underdeveloped as the concept of global equity is, it may be the cornerstone upon which the improvement of the global condition of deprivation is built, not because this is necessarily a spiritually beneficial thing, but because the long-term prosperity—and possibly the survival—of the human race may depend on it. The history of ideas in the future will therefore be challenged by the ideological and jurisprudential relevance of the concept of equity and whether equity can be the critical lever that provides us with universal concepts of respect and freedom in a global commonwealth of dignity.
See also Authority ; Critical Race Theory ; International Order ; Justice ; Sovereignty ; State, The .
Charter of Paris for A New Europe, 21 November 1990. In International Legal Materials 30 (1991): 190 ff. Also available at www.ejil.org.
Convention on the Elimination of All Forms of Discrimination against Women, opened for signature Mar. 1, 1980, G.A. Res. 34/180, U.N. GAOR, 34th Sess., Supp. No. 46, at 193, U.N. Doc. A/34/46 (1979), 1249 U.N.T.S. 13, reprinted in 19 I.L.M. 33 (1980) (entered into force on Sept. 3, 1981). One hundred sixty-three states are party to the treaty. Also available at www.un.org.
Dworkin, Ronald. Taking Rights Seriously. Cambridge, Mass.: Harvard University Press, 1977.
——. "'Natural' Law Revisited." University of Florida Law Review 34 (1982): 165–188.
Hart, H. L. A. The Concept of Law. Oxford: Clarendon, 1961.
Hart, Henry M. Jr., and Albert M. Sacks. The Legal Process: Basic Problems in the Making and Application of Law. Prepared from the 1958 tentative edition by and containing an introductory essay by William N. Eskridge Jr. and Philip P. Frickey. Westbury, N.Y.: Foundation, 1994.
International Convention on the Elimination of All Forms of Racial Discrimination, Dec. 21, 1965, 660 U.N.T.S. 195 (entered into force on Jan. 4, 1969; and for the United States on Nov. 20, 1994). One hundred fifty-two states are party to the treaty. See U.S. Department of State, Treaties In Force 427 (1997). Also available at www.unhchr.ch.
International Covenant on Civil and Political Rights, U.N.G.A. Res. 2200 A (xxi), 999 U.N.T.S. (Dec. 16, 1966); International Legal Materials 6 (1967): 368 ff. Also available at www.unhchr.ch.
Lasswell, Harold D. Politics: Who Gets What, When, How. New York: McGraw-Hill, 1936.
Lasswell Harold D., and Myres S. McDougal. Jurisprudence for a Free Society: Studies in Law, Science, and Policy. Boston: Nijhoff, 1991.
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Marmor, A. "An Essay on the Objectivity of Law." In Analyzing Law: New Essays in Legal Theory, edited by Brian Bix. Oxford: Clarendon, 1998.
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McDougal, Myres S., Harold D. Lasswell, and W. Michael Reisman. "Theories about International Law: Prologue to a Configurative Jurisprudence." Virginia Journal of International Law 8 (1968): 188 ff.
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Rawls, John. A Theory of Justice. Cambridge, Mass.: Harvard University Press, 1971.
Statute of the International Tribunal for the Former Yugoslavia, adopted at New York, May 25, 1993, S.C. Res. 827, U.N. SCOR, 48th Sess., 3217th mtg., at 1–2, U.N. Doc. S/RES/827 (1993), reprinted in International Legal Materials 32 (1993): 1159 ff. Also available at www.un.org.
Statute of the International Tribunal for Rwanda, adopted at New York, Nov. 8, 1994, S.C. Res. 955, U.N.SCOR, 49th Sess., 3453d mtg., U.N. Doc. S/RES/955 (1994). Reprinted in International Legal Materials 33 (1994): 1598 ff. Also available at www.ictr.org.
Stacy, Helen M. Postmodernism and Law: Jurisprudence in a Fragmenting World. Burlington, Vt.: Dartmouth, 2001.
Winston P. Nagan
The emergence of Islamic law originates in a definition of human deeds as understood from a specifically Islamic viewpoint. This could only be developed over time, as notions of good and bad evolved according to the interpretation of the Qur˒anic verses, Prophetic sayings, and the Islamic legacy as a whole. The evaluation of the goodness or badness of deeds according to the Islamic point of view was called fiqh (understanding), and the person holding the qualities of knowledge and competence to produce opinions in this respect was called faqih (the knowledgeable who understands well). The consideration of human actions within an Islamic religious context was encouraged by sayings of the Prophet, such as "He whom God favors with good, God makes him the one who understands in religion (faqih)," (Bukhari, Sahih, I, 25) and "there may be some narrators who may narrate the words to some of the receivers who may be able to understand better (afqah) than the narrators themselves" (Tirmidhi, Sunan, V, 34). In the Prophetic era and years immediately following, fiqh was not specifically about practical human deeds, but covered a general range of issues that were of religious concern, such as general religious knowledge and the understanding of the sacred texts. However, the day-to-day practice of Islam at this early stage of development was still being worked out, and fiqh came to be employed for the creation of legal definitions and interpretations of proper behavior. Over time, the role of fiqh was gradually narrowed to the consideration of legally relevant matters, dealing with both personal and public concerns.
|Central concepts in law|
|usul al-fiqh||sources of law: Qur˒an, hadith (sayings of the Prophet); ijma˓ (consensus of schools and community); qiyas (reasoning by analogy)|
|˓ilm||knowledge, especially of law, the learning of the ˓alim (pl. ulema)|
|taqlid||imitation; following the established teachings|
|ijtihad||independent judgment of qualified legal scholar (mujtahid)|
|shari˓a||the way, the total corpus of Muslim law and belief|
|fatwa||advisory opinion on a matter of law given by a mufti (jurisconsult)|
|qada||court judgment made by a qadi (judge) on the basis of shari˓a|
|SOURCE: Lapidus, Ira M. A History of Islamic Societies. New York: Cambridge University Press, 1988.|
Key concepts of Islamic law.
In the second century of Islam, a theoretical foundation for juridical thought evolved, leading to a properly constituted legal system. At this point, fiqh came to concern itself with codifying this theoretical understanding, while still dealing with issues relating to the proper conduct of worship (˓ibadat). To complement the now more narrow scope of fiqh, a broader legal context, embodied in the concept of religious law (shari˓a), extended the formal Islamic legal order to all aspects of societal life.
Beginning with the initial concept of fiqh, Islamic law organizes the understanding and, thus, definition, of human deeds along a continuum. At one end are those behaviors deserving of the utmost prohibition, and at the other end are those deeds subject to the utmost imperative injunction. At the very center point of the continuum are found the behaviors deemed to be neutral, neither prohibited nor enjoined. Thus, the prohibited and the enjoined share the same quality of being mandatory, whereas acts falling between these two extremes become a matter of scholarly opinion and are therefore less binding.
In evaluating the potentially infinite range of human deeds, criteria of judgment (dalils) were needed. There are two sources of these: the Qur˒an and the prophetic sunna. The Muslim community was explicitly referred to these by the Prophet himself, who said, "I have left for you two principles; should you stick to them you will never err" (Malik, Muwatta, II, 899). These two principles were by no means the sole criteria offered by the Prophet. They were supplemented by the practice of shura, for example, which held that authorities should seek the counsel of the wise when running the affairs of the community. In addition, judges were enjoined to employ reasoning in order to make proper decisions. Moreover, legal decision-making had to be carried out within the larger context of Islamic tradition. Finally, the evolution of Islamic law was influenced by politics, war, and other societal events, which variously endorsed, transformed, or replaced traditional practices. All these factors provided the framework within which the development of Islamic society and law occurred during the time of the Prophet and, later, the prominent Companions (the immediate successors of the Prophet).
This early, emerging structure of Islamic society prevailed in the first century of Hijra, which covers the age of the Prophet and largely that of the Companions. The significance of this era was twofold. On the one hand, the Companions were concerned with the preservation of the Qur˒anic texts, and were therefore conservative in their application of the Prophet's sayings when substantial legal matters were at stake. On the other hand, the Companions' era was a time in which trends of legal thought and methodology were initiated for the forthcoming generation of Islam's leading thinkers. In the first century of Islam, Medina was the main center for the development of Islamic knowledge and practice, but these were complemented by the work of other competent figures who were appointed to fulfill juridical and administrative duties elsewhere. Among these were Ibn Mas˓ud, who served in Iraq, and Mu˒az Ibn Jabal and Abu Musa al-Ash˓ari, both of whom served in Yemen. In the late decades of the first century, in addition to the ruling political authorities, there were others living throughout the expanding Muslim world who made substantial contributions to juristic thought. Among there were Sa˓id Ibn al-Musayyab (d. 713), ˓Urwa Ibn al-Zubayr (d. 716), ˓Ubeydullah Ibn ˓Utbah (d. 717), and Abu Bakr Ibn ˓Abd al-Rahman (d. 713) in Medina; and ˓Alqamah Ibn Qays (d. 682), Shurayh Ibn al-Harith (d. 679), Masruq Ibn al-Ajda (d. 683), and Ibrahim al-Nakha'i (d. 714) in Kufa.
By the turn of the first century of Islam, the political authorities had already pursued two main policies relating to the use of the textual sources of Islamic law. First, the standardization of Qur˒an began under the reign of Abu Bakr and was later finalized under the reign of ˓Uthman. Second, the Umayyad caliph, ˓Umar Ibn ˓Abd al-Aziz, encouraged the collection of the sayings of the Prophet. In the early decades of the second century, scholarship regarding Islamic law was expanded, giving rise to two schools of juridical thought, one centered in Medina, the other in Kufa. The scholars of Medina included Rabi˒at al-Ra˓y (d. 753) and al-Zuhri (d. 742), who were early proponents of the pro-hadith school (hadith refers to sayings of the Prophet). Leading scholars in Kufa included al-Nakha˓i and his disciple Hammad Ibn Abu Sulayman (d. 738), followed by Abu Hanifa Nu˓man Ibn al-Thabit (d. 757), who favored the reasoning approach. These legal trends are also known, respectively, as ahl al-hadith (the people of the hadith line) and ahl al-ra˓y (the people of the pro-reasoning line). They were also called the schools of Hijaz and of Iraq, respectively, making reference to their geographical domains.
The line of distinction between these two early trends in legal thought was found in their perceptions of the hadith. For the school of Hijaz, hadith was the actual legacy of the Prophet, and was the ultimate source of both legitimacy and solutions to social problems. This approach was well suited for Medina, which provided a strong Islamic culture of practice starting from the exemplary Prophetic era. By contrast, Iraq was relatively new to Islam. In addition, Iraq was something of a gate for the eastward advancement of Islam, and thus was host to many travellers passing through, each with a competing understanding of the life of the Prophet. This gave rise to multiple hadith, leading to doubt about the accuracy of the narrations. To overcome such doubts, reasoning was applied. Thus, Abu Hanifa of Iraq understood hadith through applying his concept of dhabt (precise preservation). Dhabt was, in his view, the precise understanding of the juristic content of the hadith and its precise transmission. The narrator himself therefore needed to be faqih in order to understand the precise content of what he narrated. Here, the significance of reasoning prevails over the literal transmission of the texts.
Although Medina stood as the center of political power in Islam during the era of the Prophet and in the thirty years that followed, it was later transferred to Syria. There it remained for the entire duration of the Umayyad reign, and it was in Syria where the prominent and influential jurist ˓Abd al-Rahman al-Awza˓i (d. 764) built his legal career in association with the Hijazi trend of law. Al-Awza˓i is famous for his work, called al-Siyar, but this text has been lost to later generations. Nonetheless, it is known that this lost work marked the beginning of a literature that developed later and that dealt with issues of war and peace. It also influenced the work of Abu Yusuf, one of the prime disciples of Abu Hanifa of Iraq. Abu Yusuf wrote al-Radd˓ala siyar al-Awza˓i (The response to the Siyar of al-Awza˓i), and from it one can glean not only Abu Yusuf's counterviews but also al-Awza˓i's original theses.
Abu Yusuf's treatise provides insights into interregional activities and the flourishing state of legal thought. Medina, the birthplace of the Islamic society, had a special advantage for traditional Islam and remained a main center of gravity for the Islamic legal scholarship. Medina's dominance in this field is expressed in the concept of ˓amal ahl al-Medina (the practice of the Medinese people), which served as an example of proper practice throughout the Islamic world. Jurists were thus enjoined to follow the Medina example when seeking a better understanding of Islamic laws. The vital role attributed to Medina attracted the scholarly attention of several important jurists, such as Shaybani (d. 804), and Shafi˓i (d. 819), who eventually argued against it. Shaybani, who was a key jurist of the Iraqi school, studied the hadiths called al-Muwatta˒, Malik's collection of mainly legal content. In his own work, Shaybani often mentioned the disagreements of the Iraqi jurists with the views presented by Malik. Furthermore, Shaybani compiled an independent work called al-Hujjah ˓ala ahl al-Medina (The argument against the people of Medina).
Shafi˓i, too, had studied the Medinese and the Iraqi notions of law. He took a position against both, arguing for the elimination of regional concepts and promoting instead an overarching, ecumenical system of legal thought. In Shafi˓i's point of view, the Iraqi concepts were inaccurate or inconsistent, while the Medina-based Hijazi school was too regionally specific. The diversities in legal thought that arose through these interregional argumentative dialogues gradually paved the way for the evolution of a supra-regional system of legal thought, an evolution inspired by Shafi˓i's leadership.
In the first half of the second century, the Iraqi-led legal trend was mostly identified with Abu Hanifa and, thus, with a more free use of reason. He recognized three sources of Islamic law: the Qur˒an undisputedly came first, followed by the hadith of the Prophet and then the ijma˓, which is the consensus of the Companions. Abu Hanifa had a relatively cautious and restrictive attitude toward accepting hadiths, giving greater weight to the juristic contents of the sayings than to the literal understanding of the words themselves. He treated the diverse opinions of the Companions as various options that needed to be evaluated before choosing one from among them. He held that the methodological key to this evaluation was a methodology called qiyas (analogical reasoning), which required that a jurist look to previous cases for precedents when determining the outcome of a current case. Through this method of qiyas, the jurist could establish connections between the present and the past and thus produce systematic juristic opinions, but it sometimes failed, when similar cases could not be found, or their similarities were only superficial. At such times, Abu Hanifa would abandon qiyas and instead employ free reasoning, or istihsan. He described his approach to legal thought in the following terms.:
What comes from the Companions [in disagreement] we do not abandon altogether. . . [we chose from among their varying opinions]; and what comes from the Successors we ignore them. (Ibn al-Qayyim, I Lam, IV, 123)
This statement shows Abu Hanifa's lack of interest in the narrated opinions of the Successors of the Companions. It also demonstrates his confidence in the reasoning abilities of jurists of his own generation. This confidence in the reliability of free reasoning allowed Iraqi jurists to override textual or systematic limitations. Iraqi jurists also opposed the Umayyad political power based in Syria, which meant that they were not employed by the government and thus did not have to compromise their methodology to suit the practical limitations that such political affiliation might impose. However, this freedom from political constraint would not last for long.
|Early schools of law|
|al-Awza˓i (d. 744)||Syria||Awza˓i|
|Abu Hanifa (d. 767)*||Iraq||Hanafi|
|Malik b. Anas (d. 795)*||Medina||Maliki|
|al-Shafi˓i (d. 820)*||Egypt||Shafi˓i|
|Ibn Hanbal (d. 855)*||Iraq||Hanbali|
|Dawud b. Khalaf (d. 883)||Iraq||Zahiri|
|*These schools became Sunni madhhabs (orthodox schools of law).|
|SOURCE: Lapidus, Ira M. A History of Islamic Societies. New York: Cambridge University Press, 1988.|
Early schools of law.
In about 750 c.e., the Umayyads were overthrown by the Abbasid revolution, and the center of power in the Muslim world moved from Damascus to Baghdad. The new regime sought to bring a new order to Islamic society. This need for change was most felt by Ibn al-Muqaffa˓ (d. 757), the chief advisor to the Abbasid caliph Abu Ja˓far al-Mansur, who diagnosed an intolerable state of disorder in the judiciary and decried the injustices that the people were suffering. Ibn al-Muqaffa˓ asked the caliph to take control of the matter by imposing consistency in judicial administration and a coherent system for the application of laws. He further urged the caliph to codify the law, making it possible to perpetuate the legal system. In addition, he advised the caliph on the selection of the team of jurists who should be assigned these tasks, making a strong case for the use of Iraqi scholars over those from other regions.
The Abbasid regime followed the recommendations of Ibn al Muqaffa˓, and in time managed to overcome the reluctance of famous jurists to serve the government that had long characterized the scholars of the Iraqi school. Abu Yusuf was appointed to the newly created post of qadi al-qudat (chief judge) and was granted discretionary power over the administration of the entire judiciary. First among his tasks was the grand project of codifying the laws and policies of the new judicial and fiscal order, thus demanding a degree of textual orientation never previously confronted by the Iraqi school of law. Abu Yusuf's thought on finance is contained in his Kitab al-Kharaj (The book of taxation), which was written during the reign of Caliph Harun al-Rashid. (Abu Yusuf's other main works are Kitab al-Athar, Ikhtilaf Abu Hanifa wa Ibn Abi Laila, and al-Radd ˓ala Siyar al-Awza˓i).
Muhammad al-Shaybani, another preeminent disciple of Abu Hanifa, was also employed by the new Abbasid regime, serving as judge and as a teacher of jurisprudence. Shaybani, though lower in rank than Abu Yusuf, was a more prolific writer, and thus achieved more real advances for the Hanafi School of law. His main works, known collectively as Zahir alriwaya (The reliable narrations), consist of the following titles: al-Asl, al-Jami˒ al-kabir, al-Jami˒ al-saghir, al-Siyar alkabir, al-Siyar al-saghir, and al-Ziyadat. In general, these works cover a wide range of religious-legal issues, such as prayer, tax, marriage, divorce, commerce, and punishment, with the exception of al-Siyar al-kabir and al-Siyar al-sighir, which are thematic of laws of war and peace. Also, these works that represent early Hanafite legal thought were collected by al-Hakim al-Shahid al-Marwazi (d. 955) in the tenth century and presented under the title of al-Kafi. They were later reinterpreted and elaborated upon by Sarakhsi (d. 1090) under the title of al-Mabsut. Shaybani's work, as well as Sarakhsi's commentary, discloses the evolution of law in Iraq, starting with the free use of reason as championed by Abu Hanifa and his predecessors and moving toward greater textual orientation and structural regulation. This trend toward the institutionalization of juristic principles can be attributed to two factors: the accession of leading post-Abu Hanifa Iraqi jurists into the official power circles and, later, to the indelible impact of al-Shafi˓i (d. 819).
Al-Shafi˓i came to dominate the next phase of the evolution of Islamic legal theory. He limited the legitimate sources of juristic knowledge to four: the Qur˒an, the sunna, ijma˓, and qiyas. He utterly rejected the principle of istihsan that had been advanced by Abu Hanifa. Shafi˓i's approach to each of the four approved sources emphasized the development of a centralized perception of Islamic law, and rejected the validity of regional variations that contradicted this unitary conception of the law. Moreover, in his work titled al-Risala, he argued that the only language suitable for Islamic scholarship was Arabic: "[T]he entire book of God came down in none but the Arabic language" (Shafi˒i, Risala 40).
Shafi˓i's emphasis on Arabic as the language of the Qur˒an meant that translations of the Qur˒an into other languages were not equivalent of the Qur˒an. From this it follows that not only scripture and scholarship, but also the prayers of the faithful, must be in Arabic, for the language was held to be an essential element. This position was in outright contrast with that of Abu Hanifa, who approved of the recitation of the Qur˒an in Persian in prayers. As Shafi˓i's literalist approach gained ascendency, Abu Hanifa's disciples were forced to reinterpret their mentor's position (that prayer in Persian was permissible) as exclusive and temporary, applicable only in certain exceptional cases until people could learn the proper Arabic recitation of the Qur˒anic verses.
Shafi˓i's sunna of the Prophet was twofold. He considered the further sacralization of the Prophet, whose sayings were divinely inspired, and held that the authenticity of the sayings' transmission through narrators was directly dependent upon the literal faithfulness of their narrations. In other words, it was the letter of the narration, rather than the content, that was paramount in determining the legitimacy of the narrations and recitations of the sunna. This approach contradicted the Medinese perception of the sunna which was more concerned with Medina tradition and practice as it reflected the legacy of the Prophet, and it differed from previous Iraqi legal trends, which judged the authenticity of hadiths on their content as distinct from their sole letter. Shafi˓i's literalist understanding had an enduring impact upon the Hafanite legal thought. For instance, Abu Bakr al-Jassas (d. 980) of the Hanafi School was forced to attempt to distinguish among the words of the Prophet, conceding that at least some of the Prophet's utterances were divinely revealed or inspired, whereas others reflected his "ordinary" or more humanly derived opinion.
Shafi˓i's approach to the ijma˓ is perhaps the most polemic of all. In the Shafi˓ite view, the ijma˓ should mean the consensus of the entire umma (community), and this is not possible unless it is with the participation of each and every Muslim individual. This perception of ijma˓ contrasts with the perception held by the Medinese jurists, who restricted their understanding of ijma˓ to the consensus of the scholars of Medina, as it was reflected in the practice of the Medinese people. It also contradicted earlier Iraqi perceptions of ijma˓, which called for the consensus only of the jurists of the Iraqi legal trend. However, Shafi˓i's arguments were more explicitly directed against the views of his nearer contemporaries, the Iraqi jurists of the post-Abu Hanifa period.
Shafi˓i's argument boils down to the claim that true consensus of all Muslims or even merely of all jurists on a juristic personal opinion (ijtihad) cannot be reached. At best, it can only be apparent, because a verbalized consensus could easily mask silent disagreements. In his view, the only viable ijma˓ is to be found in the already existing acceptance, by each and every Muslim, of obligatory matters such as belief in the necessity of prayer. Obviously, this conception of ijma˓ is better suited to theological purposes governing elements of faith than to legal ones, which are more concerned with matters of behavior.
Shafi˓i's refutation of the ijma˓ of all jurists may be valid on grounds of logic, but it renders the concept irrelevant for legal purposes. Nonetheless, both al-Jassas and al-Sarakhsi were forced to contend with its implications. They responded by dividing the ijma˓ into two main types. The first follows Shafi˓i's formulation, including all Muslims, whereas the second refers specifically to consensus among the jurists alone.
Shafi˓i's approach to the qiyas rests in his rejection of istihsan. The legitimacy of qiyas arises from the fact that it relates new cases to previous ones. In this retrospective process, the qiyas ultimately draws the jurist back to the prime sources of juristic knowledge: the Qur˒an, the sunna of the Prophet, and the ijma˒. On the other hand, the Shafi˓ite school of legal thought considers istihsan as disconnection from the letter of these three recognized sources of knowledge because, in contrast to qiyas, it involves the use of free reason without reference to the legitimate origins of law. Also, there can be no legitimacy accorded to the free use of reason when consensus is restricted to the scope of the nusus (the sacred texts), as in Furud and Muharramat (which are held to stem from a divine origin), the sunna of the Prophet (considered to be divinely inspired), and the Qur˒an. Yielding to the pressure from the Shafi˓ite position regarding the use of istihsan, and the Hanafite School eventually replaced the term istihsan with the designation "hidden qiyas" to signify that istihsan was just another type of qiyas.
Shafi˓i rejected istihsan because it was the product of the human mind, rather than deriving from the nusus. This position attracted the attention and admiration of Dawud al-Isfehani (d. 883), because of the distinction it drew between divine and human decisions. Eventually, Dawud noticed that qiyas, too, involved human reasoning. Thus, he took a radical step further than the Shafi˓i, rejecting the qiyas in addition to the istihsan. This line of legal thought is known as the Zahiri (literalist) School of Law, because its theory strives to prove that legitimacy in religious law is confined to the literal scope and contents of the nusus and the ijma˓ that are in agreement with the Qur˒an, and the hadiths, too, are held to be literal narratives of the acts and practice of the Prophet, devoid of interpretation. This line of thought is sharply opposed to the use of ta˒lil (reasoning) in shar˒ (legislation with religious overtones). The Zahiri School, zealously defended and systematized by Ibn Hazm, thus insists that human reason cannot be part of decision-making in religious law.
Ahmad Ibn Hanbal (d. 855), an admirer of Shafi˓i for his emphasis upon the hadith, became an inspiring source for a distinctly hadith-oriented trend of law called the Hanbali School. Ibn Hanbal is famous for his nonconformist position against the official pressure of the "rationalist" Abbasid regime (particularly of al-Ma˓mun and al-Mu˓tasim), which ordered him to speak in support of the theological belief that the Qur˒an was makhluq (created). Ibn Hanbal was a respected hadith scholar, but he was not particularly famous as a jurist. Indeed, the hadiths he presents in his main work, al-Musnad, are overwhelmed by the citations of the names of their narrators. However, his position, and his focus on hadith, helped inspire a certain pro-hadith line of legal thought.
The Hanbali School of Law in proper terms was systematized in the great work of Ibn Qudame (d. 1223), al-Mughni. Prominent scholars belonging to this legal school include such jurists as Ibn Taymiyya (d. 1328) and Ibn al-Qayyim al-Jawziyya (d. 1350). The Hanbali line of legal thought still holds enormous influence throughout most of Gulf region, and in Saudi Arabia, in particular.
Shafi˓i's role in the development of Islamic legal theory was decisive in challenging the regional schools of law and their diverse methodologies, and in motivating them to evolve their concepts and terminology toward a centralized Islamic legal thought. In the formative period of Islamic law, the Medinese legal trend had been basically expressed by the Muwatta˒ of Malik and further substantiated by the voluminous work of Sahnun (d. 854), al-Mudawwana, which focused on the concept of Medinese practice. Meanwhile, the Iraqi legal trend evolved from being primarily rationalistic into being the gradually centralizing and relatively conservative Hanafi School of Law, in line with the prevalent Shafi˓ite influence. The Hanbali School of Law was itself systematized long after the death of Ibn Hanbal, gaining a strong place in the history of Islamic law. The Zahiri legal trend, on the other hand, was denied legitimacy and was ultimately excluded from the Sunni arena of Islamic law, principally because of its rejection of qiyas. In today's Islamic law, the four "legitimate sources" of juristic knowledge, set forth by Shafi˓i, provide the minimum of the compulsory criteria to be satisfied for any legal trend to take place within the context of Sunni legal theory.
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The importance of law is much more easily determined than its definition. Law is perhaps the most conspicuous arena wherein theory and practice meet. Law often acts as a catalyst in society, introducing ideas and solutions that might not otherwise take hold. Law can also act as a barrier to social progress and justice. The civil rights legislation of the 1960s, constructed in part to end desegregation in the U.S. South, is an example of law as a catalyst. The very laws overturned by the civil rights legislation illustrate how law can impede social change. Law also reacts to cultural and moral developments and can be understood as responding to a new social consensus or understanding. In this sense the same civil rights legislation that acted as a catalyst in one region of the United States can be said to have simultaneously reflected a growing national consensus; in this case, a national judgment that racial segregation in public schools was a gross violation of American ideals.
But if law, and the study of law, is important because of its obvious connection to social problems and social change, what exactly is it? For a straightforward definition one need only consult Black’s Law Dictionary, which describes law as “a rule of civil conduct prescribed by the supreme power in a state,” or more fully, a law is a “general rule of human action, taking cognizance only of external acts, enforced by a determinate authority, which authority is human, and among human authorities is that which is paramount in a political society.”
These definitions are helpful in identifying some important features of the law and legal systems. Not surprisingly, however, such definitions cannot entirely capture other salient features of what is meant by the term law. A more comprehensive approach to the question of what law is involves taking a closer look at some of the most important components of law. Finally, some of the different types of law must be examined, as well as methods of approaching the study of law.
In what remains one of the most elegant and insightful investigations into the nature of law, the English scholar H. L. A. Hart opens his 1961 book The Concept of Law by noting that law is a unique discipline. Chemists, professors of French literature, and medical doctors do not expend a great deal of intellectual energy on the question of what comprises chemistry, French literature, or medicine. Yet scholars who study law, also known in this context as jurisprudence or philosophy of law, have created a voluminous literature dedicated to the question of the essence of law.
This seems rather odd, given that most of us would have no problem identifying examples of “the law.” Hart describes five features that we would expect to find in a legal system ( 1994, p. 3). First, there are laws mandating some actions (e.g., wearing a seatbelt in a car) while prohibiting others (e.g., driving the car above a certain speed limit). If citizens run afoul of such laws, and are convicted as such, there are prescribed punishments. Second, there are rules that require citizens to repay those whom they have injured in some way. Third, there are laws that allow citizens to create legally recognized relationships that did not exist before; for example, marriage and contract laws. Fourth, there are courts created by law for the express purpose of determining when and how laws have been broken and what recompense is warranted. Finally, there is a special category of law that concerns how new laws are created. Article 1 of the U.S. Constitution is an example of this sort of law, as it specifies how Congress as the legislative branch can create new law.
But note that these bare minimum characteristics describe a legal system, not necessarily the law itself. How might one understand the difference? Although there is some conceptual overlap between the two terms and they are often used interchangeably, generally, legal systems are concrete attempts to instantiate laws within a given political community. Some examples include the U.S. legal system, the British legal system, and the Chinese legal system. Social scientists can describe various legal systems with more precision than they can the more ambiguous concept of law itself. A legal system can be explained by reference to its constitution, legal traditions, and the actual practices of a government; a flow chart can show the defining governing bodies, powers, checks, and legal rights and responsibilities. However, defining and understanding various legal systems does not do away with the need to understand law as conceptually distinct from the various legal systems that attempt to instantiate and embody different understandings of law. One need only consider, as Hart notes, that the very constitutional conventions that establish modern legal systems have something to do with law, yet cannot themselves be understood as identical with the legal systems they create. Legal systems, however they may differ from nation to nation, are attempts to instantiate law.
What, then, is the purpose of law? Law exists to secure social and public goods, which include such important political priorities as order, justice, equality, and liberty. In short, and paraphrasing legal scholar Ronald Dworkin’s introduction to his influential 1986 tome Law’s Empire, we “live in and by the law,” pursuing our goals and relationships, our identities and our livelihoods, within the framework created and maintained by a system of laws.
But this does not capture all the essential elements of what law is or how law works in society. A system of law has by definition at least an element of coercion. Laws that proscribe or enjoin behaviors have attached to them penalties that must be enforced by some level of government. As Hart’s example of a marriage law illustrates, not every law has a punitive or coercive element to it, but given the impossibility of voluntary and unanimous adherence to laws, coercion and punishment are necessary components of a legal system.
This notion of coercion leads naturally to the questions of authority and legitimacy and their relation to a society’s laws. By what authority are laws made, and who has the right to enforce them? One answer to this question is based purely on power: Whoever can impose laws and enforce them has authority. But this answer collapses any understanding of what is lawful into a mere description of who holds power. It undercuts a basic intuition that law serves a normative purpose and can be imposed by a legitimate governing body. Most liberal constitutional democracies, at a procedural minimum, understand a legitimate governing body to be one that enjoys the consent of those governed by its laws and is ultimately accountable for its representation of its citizens through fair and regular elections.
Legitimacy itself is best understood as a normative or moral concept, and it highlights the link between law and morality. Scholars differ as to exactly how morality and law are related, and as to how morality should inform descriptions and theorizing about law, but there is some general agreement that describing law accurately entails some measure of understanding of what actors in the legal arena aim to do. Thus one is brought back to the social goals mentioned previously: justice, order, freedom, and the like. These are inherently normative concepts, the realization of which can be understood as making society somehow better. Traffic laws, for example, aim at providing an orderly and safe means of transportation. This in turn protects the value one’s society places on life, commerce, free movement, and so on. To be sure, there are often tensions between social goods, such as liberty and security, and laws are often inefficient means of promoting or securing such goods (indeed, laws themselves can be instruments of injustice). Moreover, the content of morality and law are not identical. Many citizens might consider a given behavior, for example gossiping, to be immoral without thinking that it should also be illegal. Nevertheless, there does seem to be a connection between law, its social function, and morality. It is difficult to persuasively describe what law is without making at least some reference to a society’s understanding of what law ought to be.
Legal emphases and specialties have proliferated to the point where categorizing all the different types of law is a Herculean task. In addition to traditional subject areas such as contract law, torts, criminal law, and constitutional law, prospective lawyers, social scientists, and interested laypersons can expect to find new avenues of research and study in environmental law, election law, intellectual property law, Internet law, and law pertaining to the rights of indigenous peoples, to name just a few. With that in mind, a few words are in order about some of the central areas of law: constitutional law, criminal law, and torts.
Constitutional Law A constitution acts as the framing document of a given political entity. Often, constitutions will include an aspirational preamble, a declaration or bill of rights, explicit means whereby the constitution may be amended, and the basic framework of the government’s bodies in their executive, legislative, or judicial functions. Constitutions vary a great deal, not only in their allotment of political responsibility but also in their means of interpretation. In the British parliamentary system the executive and legislative functions are both found in Parliament, whereas the U.S. Constitution places legislative duties with Congress and executive duties with the president. In some European nations a court must review the constitutionality of every piece of legislation; in the United States the Supreme Court does not review the constitutionality of a law unless a citizen or state pursues the issue through the lower courts.
Constitutional law, then, is the practice of law that concerns itself both with applying constitutional norms to contemporary issues and with arguments about the constitution itself. An example of the former is found in deciding how to apply constitutional provisions to new technologies or developments. For example, the framers of the U.S. Constitution forbade “unreasonable search and seizure” but could not have anticipated how to apply this norm to telephone technology and wiretapping. Constitutional law is also the purview of those who might want to change the constitution itself.
Criminal Law One of the major areas addressed by constitutional law is criminal law. Criminal law addresses wrongs that are public in nature. District attorneys prosecute crimes in the name of the people of their particular state, province, or city. This is because some wrongs are seen as injuring not only the individual victim, but also the wider public. Criminal law includes prohibited and required actions as well as the safeguards in place to ensure fair trials and sentencing. Obviously this area is most closely identified with the coercive element of law.
Torts Not all wrongs committed between citizens are considered public wrongs that would be tried in a criminal court. These other wrongs are called torts, or civil wrongs, and these sorts of cases are what is commonly meant when lawsuits are filed between citizens. One of the chief differences between civil and criminal trials is that in a civil trial the state acts as a facilitator in the attempt to resolve the conflict, whereas in a criminal trial the state, in its executive function, is itself a party in the dispute. Another key difference is that damages in a civil trial are usually monetary; in a criminal trial prison time in addition to monetary fines is a frequent punishment. Occasionally the same event can result in both a criminal and civil trial. One famous example of this is the 1994 murder of Ron Goldman and Nicole Brown Simpson. O. J. Simpson was found not guilty in the criminal case brought against him by the state of California in 1995, but the parents of Ron Goldman sued successfully for damages in civil court in 1997.
The topic of law can certainly seem overwhelming given the innumerable manifestations of law, debates over its essence and application, and differing social science approaches in how to describe law and its relation to politics and society. There are two methodological aids that may be helpful for anyone interested in pursuing the study of law regardless of discipline (i.e., law school, sociology of law, philosophy of law).
The Central Case The “central case” method is useful for trying to determine what counts as law or a legal system, given that such descriptions are not always a clear matter of either-or categorization. For example, international law courts have many of the salient features of a legal system save one, coercion. There is as yet no authority superior to a nation-state to enforce international law. If coercion is a necessary feature of a legal system, should international law be categorized as law, or something else? The legal philosopher John Finnis in his 1981 book Natural Law and Natural Rights builds on insights from the ancient Greek philosopher Aristotle and contemporary legal philosopher Joseph Raz in presenting the central case as a useful tool (pp. 9–16).
What the central case method allows one to do is articulate several key elements of a legal system and thus identify an authoritative definition of law without having to then dismiss every example that does not exhibit every single key element, or does not exhibit them to the same degree. For example, one might describe the central case of constitutional government as being one that includes the rule of law, regular and fair elections, separation of powers, and an independent judiciary. A political scientist working on comparative legal systems can identify nations whose legal systems fulfill these criteria, as well as nations that are missing one of these elements (e.g., an independent judiciary). We might describe such a nation’s legal system as being a somewhat watered-down version of the central case. The central case method is a useful tool that allows observers to describe legal and social phenomena with enough flexibility to allow for real-world conditions that are not always amenable to orderly categorizations.
The Internal Point of View Another of H. L. A. Hart’s contributions to the study of law is the internal point of view (Hart  1994, pp. 89–91). The social scientist or observer who utilizes the internal point of view counts as worthwhile knowledge the self-understanding of the actors in any given system or social group. Consider for example U.S. Supreme Court Justice Oliver Wendell Holmes’s famous definition of law in his 1897 “The Path of the Law” address, that law is the “prophecies of what the courts will do in fact” (1920, p. 173). Whatever merit this view of law might have, it does not take into account what judges and lawmakers understand themselves to be doing. Legislators who pass laws, and judges who interpret them, understand themselves to be doing more than merely guessing how judges will rule on various situations in the future. Hart’s point is not that one need adopt the viewpoint of the judge, or anyone else, as one’s own. Rather, his argument is that one cannot accurately describe social phenomena without taking the internal view into account, precisely because those internal views are themselves part of the social phenomena and they help explain actions taken by legal actors in the system.
When faced with any study or explanation of legal behavior or phenomena, the notion of the internal point of view is helpful. Does a particular study of why judges decide cases the way they do take into account how judges understand their own role? If not, do the authors offer a persuasive explanation for their methodological choices? If nothing else, understanding Hart’s endorsement of taking into account the internal point of view encourages the student of law and legal phenomena to be aware of important questions regarding the objectivity and accuracy of legal theorists and social scientists.
SEE ALSO Authority; Crime and Criminology; Government; Judiciary; Jurisprudence; Justice; Legal Systems; Litigation, Social Science Role in; Regulation; State, The
Barber, Soterios A., Walter F. Murphy, James E. Fleming, and Stephen Macedo, eds. 2003. American Constitutional Interpretation. 3rd ed. New York: Foundation Press.
Dworkin, Ronald. 1986. Law’s Empire. Cambridge, MA: Harvard University Press.
Finnis, John. 1981. Natural Law and Natural Rights. Oxford: Oxford University Press.
Gardner, Brian A., ed. 2004. Black’s Law Dictionary. 8th ed. St. Paul, MN: Thomson West.
Hart, H. L. A.  1994. The Concept of Law. 2nd ed. Oxford: Oxford University Press.
Holmes, Oliver Wendell. 1920. Collected Legal Papers. New York: Harcourt, Brace, and Howe.
Raz, Joseph. 1979. The Authority of Law: Essays on Law and Morality. Oxford: Oxford University Press.
Unger, Roberto Mangabeira. 1983. The Critical Legal Studies Movement. Cambridge, MA: Harvard University Press.
Micah J. Watson
Law and Order
Law and Order
Complications. Utopia, the wildly successful humanist satire of 1516, describes the imaginary island of Utopia, an ideal world of perfect justice where lawyers do not exist. Sir Thomas More was himself a practicing lawyer when he wrote his novel, yet he provided no place for lawyers in Utopia. Conduct in Utopia was governed by simple rules that were natural and obvious to all. Lawyers would complicate things and thereby alienate ordinary citizens who merely wanted to live free from arbitrary constraints. Utopia was More’s scathing attack against the evils afflicting men who live under the rule of tyrants, yet he saw no role for legal scholars who might protect those citizens. Animosity toward lawyers was especially high in More’s age because the heightened professionalism of law made it difficult to pursue legal avenues without employing a lawyer.
Case Law v. Code Law. More’s England had a system of common law that was based on royal decrees and older customs. Decisions in English courts were made relative to the precedent of prior court cases. Case law, as this system is called, requires vast knowledge of previous court cases and a familiarity with how the court actually functions. Lawyers in England were trained at common-law courts where they could watch the deliberations of legally decisive cases. The Inns of Court began as housing for students who wished to follow the Westminister court sessions, but over time they evolved into formal schools. In contrast to England’s case-law system, legal disputes on the Continent were settled by law professors and legal scholars who interpreted
a written code. Code law required careful analysis of the actual written laws instead of the precedent of prior cases. Other than in England, Wales, and Ireland, code law had become the basis of European legal systems by the sixteenth century. The written law codes in these areas were products of Roman law, which was a system of laws that had modified and supplemented customary law in most of Europe. Roman law was a product of the ancient Roman Empire where legal matters were controlled by the emperor instead of the people. Roman law had become a university discipline, first in medieval Italy and then France. Medieval rulers replaced the role of local custom with a written law code that required academically trained lawyers who were versed in Latin. This language became a prerequisite for lawyers, and thus lawyers spoke a jargon that the average person could not fully understand.
Roman Law. Written Roman law dominated southern Europe and customary law was more common in northern Europe until Roman law was revived in the Middle Ages. Roman law returned to prominence in the eleventh century with the revival of a text known as the Justinian law code, or Body of the Civil Law. Emperor Justinian I was a successful Byzantine emperor of the sixth century C.E. who reconquered Western provinces lost to the Barbarians and rebuilt Ravenna and Constantinople. He is best known for the law code that bears his name. The Justinian code was not written by Justinian, rather it was the compilation of laws into a single coherent body. The Justinian code was a product of almost six hundred years of the Roman Empire under the rule of an emperor. The senate had controlled the legal system in the Roman Republic, but the emperor was the source of law in the Roman Empire. Roman law therefore supported strong centralized governments ruled by an emperor, king, or prince. European rulers intent on centralizing power were eager to modify a code that would allow them to be the focal point of the law. The revival of Roman law was also influenced by an 1140 compilation of church law by Gratian of Bologna known as Decretum, or Concordance of Discordant Canons. European customary law became written law due to the convergence of the Roman tradition with a Christian tradition known as canon law.
Canon Law. Ancient Greek construction workers used a measuring rod called a kanon. The early church used the term to define an approved standard such as the canon of books that the church deemed divinely inspired and thus part of the Bible. By the fourth century, church discipline had moved from local custom to formal regulations, or canons, that were legislated at synods. The legislation of councils thus began a legal tradition of ecclesiastical or church law that came to be known as canon law. The 325 Council of Nicaea was called in part to deal with early heresy. The Council of Nicaea created twenty canons dealing with everything from church structure and liturgy to the treatment of schismatics. The eleventh-century papal reform movement and Peter Abelard’s twelfth-century dialectical method of textual criticism had important implications for canon law. These and other attempts to collect and rationalize church law culminated in Gratian’s Decretum. Gratian reconciled contradictions in church law by applying Peter Abelard’s dialectical method to church decrees. In so doing, Gratian established canon law as a field of study. The Decretum and the rise of formal study of law fostered the creation of law faculties across Europe. The growing number of legal scholars resulted in increased petitions to Rome to settle contested interpretations. In 1234 Pope Gregory IX compiled the Decretals, an official collection of papal decrees that were given specifically to settle legal disputes. Four other collections of decretals were released between 1298 and 1500. Gratian’s Decretum and the five later collections of decretals were published together as Corpus luris Canonici in 1503. Fourteen years before Martin Luther posted the Ninety-five Theses, a universal law code for Roman Christianity was printed and circulated. Canon law was recognized by virtually all of Europe from the time of Gratian’s Decretum until the Protestant Reformation.
On 15 March 1579 Phillip II of Spain offered generous rewards to potential assassins of William of Orange, who had initiated in 1572 the Dutch War of Independence against Spain. The, fanatic Catholic Balthazar Gerard, on 10 July 1584, succeeded in carrying out the order by shooting and mortally wounding William.
It is well known to all how favorably the late emperor, Charles V, ... treated William of Nassau. . . . Nevertheless, as everyone knows, we had scarcely turned our back on the Netherlands before the said William . . . (who had become . . . prince of Orange) began ... by sinister arts, plots, and intrigues . . . to gain [control] over those whom he believed to be malcontents, or haters of justice, or anxious for innovations, and . ., Above all, those who were suspected in the matter of religion ., . With the knowledge, advice, and encouragement of the said Orange, the heretics commenced to destroy the images, attars, and churches.... So soon as the said Nassau was received into the government of the provinces, he began, through his agents and satellites, to introduce heretical preaching. . . . Then he introduced liberty of conscience . . . which soon brought it about that the Catholics were openly persecuted and driven out . . . . Moreover he obtained such a hold upon our poor subjects of Holland and Zeeland ... That nearly all the towns, one after the other, have been besieged. . . .
Therefore, for all these just reasons, for his evil doings as chief disturber of the public peace .. . we outlaw him forever and forbid our subjects to associate with him ... in public or in secret. We declare him an enemy of the human race, and in order the sooner to remove our people from his tyranny and oppression, we promise, on the word of a king and as God’s servant, that if one of our subjects be found so generous of heart and desirous of doing us a service and advantaging die public that he shall find the means of executing this decree and of rid-ding us of the said pest, either by delivering him to us dead or alive, or by depriving him at once of life, we will give him and his heirs landed estates or money, as he will, to the amount of twenty-five thousand gold crowns. If he has committed any crime, of any kind whatsoever, we will pardon him. If he be not noble, we will ennoble him for his valor; and should he require other persons to assist him, we will reward them according to the service rendered, pardon thek crimes, and ennoble them too.
Role. Canon law fulfilled a special role that was distinct from governmental laws. Canon law legislated the clergy, who were separate from the rest of society because of their vows, as well as issues for the laity that were related to belief and the sacraments, such as heresy, marriage, and divorce. Discipline in canon law was administered by the bishops who were expected to correct moral transgressions,
whereas the state punished criminal transgressions. Bishops could not seek the same avenues of punishment as the secular rulers because their ultimate goal was to correct evil and lead people to salvation. Church courts were not allowed to utilize any punishment that resulted in death, mutilation, or the shedding of blood. Canon law required penitential punishment. The emphasis of canon law on the correction and improvement of the perpetrator became a model for European systems of discipline that shifted from public punishment, such as the scaffold, to personal rehabilitation, such as the prison system.
Demise. Protestant reformers rejected the authority of the Roman Church and thus greatly curtailed the role of canon law in European society during the sixteenth century. Because Protestant reformers rejected the validity of canon law, they were faced with the task of creating legislation to regulate marriage and other aspects of canon law. Most followed one of three approaches: secular authority appointed members to consistories in Lutheran areas; church courts were eliminated and replaced by democratic bodies in Reformed areas; and the king placed everything under royal control, as in the case with England. The 1577 Formula of Concord maintained Luther’s distinction between gospel, which can save someone, and law, which can only condemn. Canon law was thus reduced to human law that could not bind Christian conscience. The Formula of Concord did acknowledge the validity of the law for political (maintain order), theological (make people aware of sins), and educational ends (guidelines for Christian life). The Roman Church responded to Protestant reformers’ demands at the 1545-1563 Council of Trent. The council forbade anyone from publishing interpretations of canon law and thus ended a long tradition of legal commentaries and glosses. The Corpus luris Canonici was reviewed at the council and in 1582 an official edition was published. The Pope forbade any changes to the official edition and thus effectively ended the study of canon law by stifling any pursuit of improved interpretations of the law. The combination of Protestants turning to state legal systems and the papacy forbidding reinterpretation doomed canon law, but it left its mark on Europe because legal scholars who revised Roman law had relied heavily on the academic tradition of canon law.
Convergence. Canon law evolved in the tradition of Roman law and thus the two shared many structural similarities. Yet, when Roman law was revived, legal scholars turned to canon law as a model for reviving important procedural issues. Roman law adapted a rigid hierarchy of proofs that included a role for eyewitnesses and for confessions. In the fourteenth century the state became prosecutor in trials and the state began to withhold from the accused the names of witnesses and even their testimony. As a result, the accused had no right to question and evaluate the evidence. Procedures of the Inquisition made their way into Roman law and courts began to conduct most parts of a criminal trial. The open adversarial procedures that allowed public evaluation of evidence simply disappeared. The courts also had the ability to initiate the cases that were being prosecuted without public recourse to the evidence. This approach was not always popular with the general public who resented being forced to go to court for an offense that two parties might have reconciled. In 1532 Charles V issued his Constitutio Criminalis Carolina, a criminal code that attempted to safeguard the innocent from inquisitorial methods. However, the Carolina limited actual trials to a public ceremony at the end of the state’s secretive inquisition. Trials were separate from the execution of punishment, but the actual deliberations were a secret matter controlled by the authorities. Punishment and execution were turned into public spectacle that validated the nonpublic courts. Public executions served to demonstrate that the people consented to a sentence that they could not control.
Holy Roman Empire. Rulers who sought to impose Roman law faced harsh opposition because it eliminated local traditions, customs, and statutes. This situation was especially true in the Holy Roman Empire, where lawyers had studied at foreign universities such as Bologna. New laws and foreign-trained lawyers who employed strange proceedings were common complaints of German grievances during rebellions such as the Poor Conrad (1514) and the Peasants’ War (1525). Roman law took on a new role in the Holy Roman Empire in 1495 with the creation of the Reichskamergericht (Imperial Chamber Court). The Imperial Chamber Court was a supreme court of the empire and yet not of the emperor. The court was based on written law and thus contributed to the end of customary law in the Holy Roman Empire. The court also forced residents of the empire to hire a trained specialist or lawyer. Residents of the empire resented the new law code because they thought it was unfair when in fact it was less arbitrary than customary law. Not only was Roman law written, it also emphasized valid evidence and notarized documentation. Contracts needed to be drawn by a government certified official in a manner that gave the state an expanded role in all transactions.
Law and Sovereignty. The Renaissance counciliar movement was an attempt to shift church power from the hands of the popes to the hands of church councils. The presence of two popes during the Great Schism (1378-1417) threatened the authority of canon law because two different supreme judges were capable of making contradicting decisions. The counciliarists believed that the pope was obli-gated to obey the council. Ecclesiastical law, like civil law, was thus based on the authority of existing statutes: the canon law of the church council and the Roman law of the historical past. Tyranny in either arena could be resisted by appeal to a written legal code. Law remained a source of legitimacy until Niccolo Machiavelli and Martin Luther offered a different alternative. The two were at polar extremes on most issues, but both agreed that law and tyranny went hand in hand. Luther believed that active resistance against a tyrant was always wrong, yet he broke with the Pope because he considered him a tyrant. Machiavelli argued that a tyrant was nothing other than a prince. For both men, law was a human creation. Jean Bodin offered a solution at the end of the sixteenth century. Like Luther and Machiavelli, he agreed that there was a huge difference between legality and legitimacy. Luther trusted faith and Machiavelli trusted politics as a means to bridge legality and legitimacy, but Bodin turned to the law itself. Rulers should have absolute power to establish order and law. Bodin’s notion of the king as lawgiver contrasted with the medieval notion that law had always existed. The sovereign was the one to decide the laws. In the end, law that was approved by a sovereign was good law. The king, however, was in theory bound by natural law, divine law, and the fundamental laws of the realm. Yet, divine law and natural law were valid only if the sovereign accepted them. What-ever the sovereign accepted was valid for all subjects.
David Nicholas, The Transformation of Europe 1300-1600 (New York: Oxford University Press, 1999).
Steven W. Rowan, Law and Jurisprudence in the Sixteenth Century: An Introductory Bibliography (St. Louis: Center for Reformation Research, 1986).
Laura Ikins Stern, The Criminal Law System of Medieval and Renaissance Florence (Baltimore: Johns Hopkins University Press, 1994).
Gerald R. Strauss, Law, Resistance and the State: The Opposition to Roman Law in Reformation Germany (Princeton: Princeton University Press, 1986).
Jonathan W. Zophy, The Holy Roman Empire (Westport, Conn.: Greenwood Press, 1980).
A body of rules of conduct of binding legal force and effect, prescribed, recognized, and enforced by controlling authority.
In U.S. law, the word law refers to any rule that if broken subjects a party to criminal punishment or civil liability. Laws in the United States are made by federal, state, and local legislatures, judges, the president, state governors, and administrative agencies.
Law in the United States is a mosaic of statutes, treaties, case law, administrative agency regulations, executive orders, and local laws. U.S. law can be bewildering because the laws of the various jurisdictions—federal, state, and local—are sometimes in conflict. Moreover, U.S. law is not static. New laws are regularly introduced, old laws are repealed, and existing laws are modified, so the precise definition of a particular law may be different in the future from what it is today.
The U.S. Constitution
The highest law in the United States is the U.S. Constitution. No state or federal law may contradict any provision in the Constitution. In a sense the federal Constitution is a collection of inviolable statutes. It can be altered only by amendment. Amendments pass after they are approved by two-thirds of both houses of Congress or after petition by two-thirds of the state legislatures. Amendments are then ratified by three-fourths of the state legislatures or by conventions in three-fourths of the states. Upon ratification, the amendment becomes part of the Constitution.
Beneath the federal Constitution lies a vast body of other laws, including federal statutes, treaties, court decisions, agency regulations, and executive orders, and state constitutions, statutes, court decisions, agency regulations, and executive orders.
Statutes and Treaties
After the federal Constitution, the highest laws are written laws, or statutes, passed by elected federal lawmakers. States have their own constitution and statutes.
Federal laws generally involve matters that concern the entire country. State laws generally do not reach beyond the borders of the state. Under Article VI, Section 2, of the U.S. Constitution, federal laws have supremacy over state and local laws. This means that when a state or local law conflicts with a federal law, the federal law prevails.
Federal statutes are passed by Congress and signed into law by the president. State statutes are passed by state legislatures and approved by the governor. If a president or governor vetoes, or rejects, a proposed law, the legislature may override the veto if at least two-thirds of the members of each house of the legislature vote for the law.
Statutes are contained in statutory codes at the federal and state levels. These statutory codes are available in many public libraries, in law libraries, and in some government buildings, such as city halls and courthouses. They are also available on the World Wide Web. For example, the statutory codes that are in effect in the state of Michigan can be accessed at <http://www.michigan.gov/orr>. A researcher may access the United States Code, which is the compilation of all federal laws, at <http://uscode.house.gov>. The site is maintained by the Office of the Law Revision Counsel of the U.S. House of Representatives.
On the federal level, the president has the power to enter into treaties, with the advice and consent of Congress. Treaties are agreements with sovereign nations concerning a wide range of topics such as environmental protection and the manufacture of nuclear missiles. A treaty does not become law until it is approved by two-thirds of the U.S. Senate. Most treaties are concerned with the actions of government employees, but treaties also apply to private citizens.
Statutes are the primary source of law, and the power to enact statutes is reserved to elected lawmakers. However, judicial decisions also have the force of law. Statutes do not cover every conceivable case, and even when a statute does control a case, the courts may need to interpret it. Judicial decisions are known collectively as case law. A judicial decision legally binds the parties in the case, and also may serve as a law in the same prospective sense as does a statute. In other words, a judicial decision determines the outcome of the particular case, and also may regulate future conduct of all persons within the jurisdiction of the court.
The opinions of courts, taken together, comprise the common law. When there is no statute specifically addressing a legal dispute, courts look to prior cases for guidance. The issues, reasoning, and holdings of prior cases guide courts in settling similar disputes. A prior opinion or collection of opinions on a particular legal issue is known as precedent, and courts generally follow precedent, if any, when deciding cases. Breaking with precedent may be justified when circumstances or attitudes have changed, but following precedent is the norm. This gives the common law a certain predictability and consistency. The common law often controls civil matters, such as contract disputes and personal injury cases (torts). Almost all criminal laws are statutory, so common law principles are rarely applied in criminal cases.
Sometimes courts hear challenges to statutes or regulations based on constitutional grounds. Courts can make law by striking down part or all of a particular piece of legislation. The Supreme Court has the power to make law binding throughout the country on federal constitutional issues. The highest court in each state has the same power to interpret the state constitution and to issue holdings that have the force of law.
Occasionally courts create new law by departing from existing precedent or by issuing a decision in a case involving novel issues, called a case of first impression. If legislators disagree with the decision, they may nullify the holding by passing a new statute. However, if the court believes that the new statute violates a constitutional provision, it may strike down all or part of the new law. If courts and lawmakers are at odds, the precise law on a certain topic can change over and over.
Courts of law are a fundamental part of the U.S. judicial system. The U.S. Constitution and all state constitutions recognize a judicial branch of government that is charged with adjudicating disputes. Beginning in the 1990s, vigilante organizations challenged the judicial system by establishing their own so-called common-law courts. By 1996 these common-law courts existed in more than 30 states. Though they have no legitimate power, being created without either constitutional or statutory authority, and in fact sometimes contravene established law.
Traditionally, common-law courts administered the common law, that is, law based on prior decisions rather than statutes. These new common-law courts, however, are premised on a mixture of U.S. constitutional law, English common law, and the Bible, all filtered through an often racist and anti-Semitic world view that holds the U.S. legal system to be illegitimate. These common-law courts imitate the formalities of the U.S. justice system, issuing subpoenas, making criminal indictments, and hearing cases. Most of their cases involve divorce decrees and foreclosure actions. Many of the persons on the courts or seeking their assistance are in dire financial circumstances. They wish to prevent the loss of their property by having a common-law court declare them free of the loans they have secured from banks.
Though common-law courts appeared to be merely a symbolic attempt by extremists to assert their political legitimacy, the actions of some of them led to prosecution for criminal conspiracy. Common-law courts have issued arrest warrants for judges and prosecutors in Montana and Idaho and have threatened sheriffs who refused to follow their instructions. In 1994 the Garfield County, Montana, prosecutor charged members of a common-law court with criminal syndicalism, for advocating violence against public officials. One court member was sentenced to ten years in prison, and others received shorter sentences.
When researching a legal issue, it is helpful to consult relevant case law. The researcher first finds the relevant annotated statutes, and then reads the cases that are listed under the statutes. Reading case law helps the researcher understand how the courts interpret statutes, and also how the courts analyze related issues that are not covered in the statutes. Volumes of case law can be found in some public libraries, in law libraries, in courthouses, and in state government buildings such as statehouses and state libraries. Case law research can also be conducted using the internet. For example, Cornell University's online Legal Information Institute (<http://www.law.cornell.edu>) offers recent and historic U.S. Supreme Court decisions, as well as recent New York appeals decisions.
Agency Regulations and Executive Orders
Administrative agencies may also create laws. The federal and state constitutions implicitly give the legislatures the power to create administrative agencies. Administrative agencies are necessary because lawmakers often lack detailed knowledge about important issues, and they need experts to manage the regulation of complex subjects. On the federal level, for example, the Department of the Interior was created by Congress to manage the nation's natural resources. In creating the agency, Congress gave it power to promulgate regulations concerning the use and protection of natural resources.
Administrative agency regulations have the force of law if they have a binding effect on the rights and duties of persons. For example, interior department regulations that prohibit mining or logging in certain areas of the country are considered law, even though they are not formulated by an elected official or judge. Federal administrative agency rules are approved by Congress, so ultimately they are a product of the will of elected officials. Similarly, on the state and local levels, an administrative agency may promulgate rules that have the force of law, but only at the pleasure of the elected lawmakers that created the agency. If an agency seeks to change a regulation, it must, in most cases, inform the public of its intentions and provide the public with an opportunity to voice concerns at a public meeting.
Not all agency regulations have the force of law. Agency rules that merely interpret other rules, state policy, or govern organization, procedure, and practice need not be obeyed by parties outside the agency.
Some administrative agencies have quasi-judicial powers. That is, they have limited authority to hear disputes and make binding decisions on matters relevant to the agency. For example, the health and human services department (HHS) has a court with authority to hear cases concerning actions by the HHS, such as the denial of social security benefits. An administrative law judge (ALJ) presides over the court, and appeals from ALJ decisions can be taken to an HHS appeals council. If an administrative agency has quasi-judicial powers, decisions made by the ALJ and boards of appeals have the force of law.
The quickest way to uncover information about state agency regulations is to search the World Wide Web. Most state agencies maintain a comprehensive website. Each state's secretary of state can also be accessed on the Web. Most agencies are named according to their area of concern. For example, a department of gaming is concerned with gambling, and a department of fish, game, and wildlife is concerned with issues related to hunting and wildlife conservation.
Executive orders are issued to interpret, implement, or administer laws. On the federal level, executive orders are issued by the president or by another executive branch official under the president's direction. Executive orders range from commands for detailed changes in federal administrative agency procedures to commands for military action. To have the force of law, a federal executive order must be published in the Federal Register, the official government publication of executive orders and federal administrative agency regulations. On the state level, governors have similar authority to make laws concerning state administrative agencies and state military personnel.
Counties, cities, and towns also have the authority to make laws. Local laws are issued by elected lawmakers and local administrative agencies. Local laws cannot conflict with state or federal laws. Decisions by local courts generally operate as law insofar as they apply to the participants in the case. To a lesser extent, local court decisions may have a prospective effect. That is, a local court decision can operate as precedent, but only in cases brought within the same jurisdiction. For example, a decision by a court in Green County may affect future court cases in Green County, but it has no bearing on the law in any other county. Local laws can be found in local courthouses, in local libraries, and in state government libraries. Local laws may also be accessed via the World Wide Web.
Administrative Law and Procedure; Civil Law; Congress of the United States; Constitutional Amendment; Constitution of the United States;Court Opinion; Criminal Law; Equity; Federalism; Federal Register; Judicial Review; Private Law; Public Law; Stare Decisis.
Renaissance Europe inherited a variety of legal codes and procedures from the Middle Ages. Much of this legal tradition remained intact throughout the period. However, the Renaissance also saw the spread of ancient Roman law to parts of northern Europe, as well as the development of new legal systems based on humanism*. By the 1600s, the foundations of modern international law had begun to emerge.
Law in the Middle Ages. The 1100s marked a turning point in the development of law in Europe. During that century, the study of ancient Roman law revived in Italy. At the same time, the related study of canon law, or church law, developed. The Italian city of Bologna became one of the most important early centers for legal study, which focused on written texts.
The texts of Roman law had been assembled in the 500s by order of the Roman Emperor Justinian. They included the Codex, a collection of existing laws; a textbook on law; and a collection of writings from Roman jurists*. Roman civil law focused on such matters as kinship and status, inheritance, property, and obligations. Criminal law and judicial procedure received much less attention. Canon law, however, developed those areas further.
The central text of canon law was the Decretum, assembled in the 1100s by a monk named Gratian. Unlike Roman law, canon law was used, interpreted, and applied in courts throughout Christian Europe. When problems arose with canon law, the pope in Rome would settle the disputed point. These papal* rulings on legal issues such as marriage became part of the body of canon law.
Learned jurists in Bologna saw these unrelated ancient and medieval* legal codes as forming a single body of law, based on a basic, unchanging standard of reason and justice. They made no attempt to find or correct errors in legal texts. Instead, they studied the texts and instructed others in the law, chiefly by preparing comments that explained legal terms, highlighted principles, and referred to other sections within the legal code. These comments became the basis from which students learned how to apply and extend the ius commune—the body of common law.
By the mid-1200s, many Italian cities and states had books of their own local laws on such matters as government offices, public places, crimes, and inheritance. Similar sets of laws appeared in France, Spain, and Portugal. These laws and customs made up the iura propria—a set of laws peculiar to a specific place, in contrast to the ius commune. However, the ius commune served as a secondary source of rules on the local level. Local laws changed frequently, but common law provided a fixed body of rules and principles.
Counsels and Commentaries. Legal scholars of the 1300s and 1400s developed new types of legal writing that had a major impact on the study of law. The two chief forms were commentaria (commentaries on legal texts) and consilia (advice on legal cases or problems).
The commentaria were the personal views of jurists on how to interpret medieval legal texts. Many of them sought to identify connections between different legal principles and to give reality to the body of law. Consilia, by contrast, were written opinions that jurists had given in actual cases. These texts often focused on the question of which law, within the body of common law or local laws, applied in a given case. Consilia first appeared in the 1100s, and by the late 1300s they had became a regular feature of judicial practice. They could serve to aid a judge or to support the arguments of one of the parties in a lawsuit.
Many consilia by famous jurists were collected and published in the 1400s. Other jurists referred to them for arguments to use in their own consilia. In Italian cities, the production of legal opinions became a major activity and a source of income for jurists. As the century progressed, consilia became longer, including more and more notes on each point of law. The material in the consilia served as a body of communes opiniones (common opinions) on legal points—in essence, a form of judicial precedent*.
In some cases, jurists used these precedents to overturn existing laws. Rulers came up with various strategies to avoid this problem. The city of Florence set up a court called the ruota, staffed by trained jurists, both local and foreign. The decisions of this court, rather than the precedents established in common opinion, were the final authority in matters of law. In other cases, rulers simply used their authority to rewrite laws or overturn decisions.
One of the most important authors of commentaria and consilia was the Italian jurist Bartolus of Sassoferrato, who lived in the 1300s. During his life, Bartolus produced hundreds of commentaries, consilia, and treatises* based on his study of legal texts. His work helped make the law more flexible, adapting ancient legal principles to the realities of his day. Another Italian jurist of the 1300s, Baldus of Ubaldis, expanded on Bartolus's work, seeking to adapt the law to the standards of his time. The works of Bartolus and Baldus became key references for later jurists, who often quoted them in their own legal writings.
Humanist Ideas on Law. The humanistic approach to law had its roots in the 1300s, when scholars such as Petrarch and Giovanni Boccaccio criticized legal practice and teaching because it lacked a sense of history. They began to question the role of law in human knowledge. Humanist criticism of medieval legal ideas increased in the 1400s. A number of humanist scholars strongly attacked the work of earlier jurists, such as Bartolus, on the grounds that they contained errors in their language and in their interpretation of ancient texts.
The work of these humanist scholars turned the common view of Roman law on its head. They saw Roman law as the product of a specific social and political environment, rather than as a universal standard. They rejected the idea of Bartolus and Baldus that ancient laws could be adapted to modern societies. Humanists presented Roman law as a leftover from the past—useful in some ways, but not essential.
Law Across Europe. Like other Renaissance ideas, the different views of law spread from Italy to other parts of Europe during the 1400s and early 1500s. The English king Henry VIII established faculties of civil law at Oxford and Cambridge Universities. The Holy Roman Empire* also adopted the practical methods of Italian law. One example was a new means of conducting trials, in which judges questioned witnesses directly rather than listening to the evidence presented by the opposing parties. The law faculties of German universities also adopted Italian methods of teaching law. A new class of jurists arose who helped spread Italian legal ideas to the courts of cities and rulers.
The jurists of France, however, rejected both Roman law and Italian legal methods as foreign and unsuitable. They adopted their own method of humanist study of law, creating a "French style" to counter the "Italian style" of Bartolus and Baldus. Spain, by contrast, continued to cling to the legal ideas of the Middle Ages. Spanish scholars believed in an eternal standard of justice contained in "natural law"—a code of rules and behavior inspired by God, which applied to all human societies.
Natural Law. Debate over natural law deepened in the 1600s. By that time, humanistic views on law had undermined Roman law, which could no longer serve as a universal standard. Similarly, the Protestant Reformation* had made it impossible for traditional canon law to provide a universal standard, as there was no longer a single, unified church. Legal publications began focusing on existing laws, customs, and court rulings, and many proposals appeared for creating a modern code of law.
In 1625, Dutch humanist Hugo Grotius launched the modern era of international law with the publication of his book The Law of War and Peace. Grotius based his ideas on the principles of natural law, rather than on ancient Roman codes. Grotius, however, saw natural law not as inspired by God but as an extension of human reason. His work inspired legal reform through much of Europe, and international law grew throughout the 1600s.
- * humanism
Renaissance cultural movement promoting the study of the humanities (the languages, literature, and history of ancient Greece and Rome) as a guide to living
- * jurist
person with a thorough knowledge of the law
- * papal
referring to the office and authority of the pope
- * medieval
referring to the Middle Ages, a period that began around a.d. 400 and ended around 1400 in Italy and 1500 in the rest of Europe
Women and the Law
Renaissance women did not have nearly as many rights as men did, either as individuals or as members of family groups. Local customs and laws limited women's control of property and their access to the courts. Many of these laws dictated that if a man died without a will, his money went to his nearest male relatives. In some parts of Europe, however, a woman could own and sell property in her own name, and when she died her dowry (the money she had brought to her marriage) went to her heirs. The different legal codes of the Renaissance left a confused pattern.
- * precedent
legal decision that serves as an example in deciding similar cases
- * treatise
long, detailed essay
- * Holy Roman Empire
political body in central Europe composed of several states; existed until 1806
- * Protestant Reformation
religious movement that began in the 1500s as a protest against certain practices of the Roman Catholic Church and eventually led to the establishment of a variety of Protestant churches