Individual Rights and Social Order - Term Paper Example

Individual rights and social order Introduction The criminal justice system of the US continually faces balancing individual rights and the need for social order. While the criminal system of justice must uphold the rights that citizens are granted, it should also protect its people. Two opposing sides, crusaders of individual rights and those advocating social order represent this act of balancing. An observation was made by the Presidents Crime Commission some forty years ago, which a justice system is a mechanism used to impose standards of conduct. This mechanism in whatever society or the environment, it may arise deemed essential to shield individuals. Additionally, it was necessary to safeguard the overall well-being of the community. The Commission also observed that in fulfilling this function, a system of justice tends to possess a divided role. Some of the roles were certain prevention of activities and the apprehension and formal processing of individuals, who have committed illegal acts in the society. According to Beames and Stonehouse (2007), a good society is one that nurtures both social values and the rights of an individual. A significant facet of good societies is that they find a healthy tension between individual needs and the needs of a group. Social order lies at the opposite end of the spectrum from individualism. Social conservatives are more interested in reinforcing the moral order. They prefer legislation use, rather than relying on normative means of impacting the behavior of an individual, to promote the values they hold. Examples of normative means that can influence individual behavior include leadership, moral voices within the society and education. Explanation of the difference in individual rights and social order and their major effects of both on the legal system overall Individual rights is the act of seeking to protect the personal freedoms of an individual within the criminal justice system, while social order is whereby the societys interest take precedence over the rights of an individual. Numerous laws and regulation have been put into place to balance the two sides throughout the American history. People are guaranteed the right to free assembly and free speech. However, those rights guaranteed by the Constitution may be limited when those actions harm others. For instance, when the actions of a citizen become violent, the authorities have a duty to halt the violence ant to shield the society. Governments considered to be democratic promote the freedom value but must also place limits on the freedom of an individual. Actions that might cause harm or alarm are forbidden for the common good. For instance, a person has the freedom of speech, but the court of supreme rule that it does not give one the rights to shout in a crowded theater. It is argued in America that the freedom of an individual is limited to guarantee order within the society, to protect people from one another and to promote the common welfare. Additionally, Social order is promoted through the use of formal sanctions. Opinion on the amendment that offers the most protection of the social control There are two forms of social control, formal and informal. Formal social control is the selected form that is articulated in law as regulations, rules, and statutes over unusual behavior. Government and organizations carry it out. The formal social control uses law enforcement techniques as well as other formal social control sanctions that include fines and imprisonment. The fourth amendment protects formal social control. The amendment protects citizens from illegal seizes and searches. Formal social control employs the law as the only mechanism to instill social control. The fourth amendment helps in protecting the privacy and property of citizens, making them safer and at liberty to go on with their day-to-day activities, without any form of intimidation. The amendment also creates a good relationship between the government and citizens, since they feel protected and respected. Officers are also given an opportunity to deal with criminals who take advantage of this liberty by being permitted to employ reasonable judgment (Champion, Hartley & Rabe, 2012). Essentials ways in which the law effectuates social change in American society through judicial activism Judicial activism is one of those sensations far more often talked about than defined. Three processes may be regarded as constituting judicial activism. The first relates to the common law. In this regard, a judicial activism charge will refer ordinarily to the court actions in consciously establishing the common law according to the perceptions of that court. This is as to the directions the law should take in terms of legal, social or another policy. Activism on the judges part may be dramatic. For instance, there have been various progressive and completely uncontroversial adjustments in such areas of the common law as contracts and torts. These were on the at least inherent understanding that such adjustments were needed for the better understanding or implementation of certain legal, social, or commercial principles. In recent times, the court has effected major changes of legal policy in both these law areas. Overt and widespread reference has been made to the desirability of the law operating so as to foster the accomplishment of certain social results. Comparable movements have been observed in such areas as the administrative law, specifically in relation to natural justice. The system of criminal justice plays a significant role in a democratic society. The law and order maintenance need authorities that are empowered to restrict citizen liberties and to use coercion to compel law obedience and to sanction those who disobey the laws of the society. Hitherto, at the same time, individuals must have the freedom to exercise the liberties that are guaranteed by the constitution. Hence, the law must permit the reasonable freedom exercises when those actions do not harm others. It is a difficult and a sophisticated mission to balance the exercise of civil liberties against the need for law and order. The overall importance of both substantive law and procedural law Substantive law and procedural law are the two major categories of the law. Substantive law refers to the law that establishes principles, generates and defines limitation of rights under which the society is governed. Procedural law is the legal rules body that governs the process for determining the parties rights. Substantive law refers to all groups of public and private law. It includes the contract law, real property, and criminal law. For instance, criminal law defines certain individual behavior as illegal and lists the elements the government must substantiate to convict a person who has committed a crime. On the other hand, the accused persons rights that are guaranteed by the fourth, fifth and sixth amendments to the Constitution of the US are part of a criminal procedural law body. Substantive law shapes the public opinion of the court. There is a close correspondence between the personal views of an individual on an issue and the majority opinions of the court pertaining to it. When there is consistency between the courts ruling and the opinion of the people, the people have likelihood to express a favorable view of the court. On the contrary, when an opinion rendered by the court is at odds with individually held viewpoints, the citizens are less likely to view the court favorably. While substantive law is believed to play a less influential role in shaping perception of the public on the local courts, procedural law is thought to exert more influence. By contrast, substantive justice concerns are believed to play a less prominent role in shaping public perceptions of local courts. The law received attention in the past because of increasing evidence that the authority of the legal system can encourage voluntary acceptance with their decisions if they behave in a way that is perceived fair. Studies also show that apart from encouraging voluntary compliance with legal directives, judicial conduct that is seen to be procedural just enhances the stature and the overall legitimacy of courts in the public eyes. The significance of procedural law is to shape the perception of the public of the local courts. This is likely due to proximity. The public, in general, is much closer, both legally and geographically to local courts than they are to the supreme court of the US. In contrast to the Supreme Court, local courts are in close juxtaposition to the citizens. They are positioned where people live, and they offer a venue in which citizens can interact directly with the court through either observation or participation (Belton, 2005). Invaluable aspects of substantive and procedural in keeping the adversarial system in balance while protecting individual rights and social order The invaluable aspects of procedural law include the right of accused and suspect and protection of witness and victims. It also includes the right to trial, right to defense and right to report a crime. These facets ensure the right to legal proceedings is carried out where the jury is offered with facts from both sides. The jury is also offered with confession from both sides, to ensure there are no injustices exercised during any form of legal proceeding. The accused is offered all rights of the constitution that can be offered to a defendant to prove him or herself innocent. An unbiased jury also rules the case. The invaluable aspects of substantive law comprise of criminal responsibility of an individual, the crime type, and defense. A person is held liable for his or her mistakes. Furthermore, an individual is punished based on the exact crime he committed, and the defense mechanism applied to show the accused innocence in the court of law. Substantive and procedural law application guarantees equilibrium in the adversarial system while guarding social order and the rights of the individual. Procedural law ensures the rights of the individual are respected, and no one interferes with the rights of an individual in an unconstitutional manner. The persons accused are granted all rights of the constitution even when found in crimes, to make sure justice is served, and no innocent person is wrongly convicted. Conversely, substantive law permits the state to exercise its duty in relation to any offense. The law also ensures that criminals pay for the crimes done, receiving a penalty proportionate to the crime, as a way of correcting an offender to fit in the society based on the defined restrictions. Analysis of the key differences between criminal law, civil law, and administrative law Civil law deals with individual disputes, organization disputes or disputes between individual and organization in which the victim is awarded compensation. The criminal law is concerned with crime and the legal punishment of criminal offenses. The basis of criminal law is punishment. In administrative law, rules and regulations are made through proper procedures by agencies, to which power has been given by a state legislature or in the federal system by the United States Congress. Administrative agencies also inspect and decide cases that concern potential violation of their rules. The purpose of civil law is to deal with disputes between individuals, organizations or amongst the two whereby compensation is awarded to the victim. On the other hand, the purpose of criminal law is to maintain the states stability and the society, by punishing offenders and preventing them from hurting others. A private party in the case of civil law usually files a case, while in the case of criminal law the government usually files the case. In the case of civil law, the jury opinion may not have to be unanimous but in the criminal law, the jury must unanimously agree before a defendant is convicted. The role of each when criminal and administrative law or civil and administrative law intersects with the litigation process When the criminal law and civil law intersects in a litigation process, the criminal law attempts to pride evidence that the offender committed a crime against the community norms. This crime is usually punishable by criminal charges specified. On the other hand, the civil law attempts to prove that the negligence of the offender resulted in the destruction of a specific victim and compensation is required. Where the civil law and legislative law intersect, the civil law tries to prove that the negligence of the defendant resulted in the destruction of a person who needed equivalent compensation. The legislative law attempts to demonstrate that the actions of the defendant were against the standard set by that specific law that defines their business and a penalty need to be imposed. The civil law shields the rights of an individual by ensuring that each is liable to the kind of business they engage. The criminal law shields the rights of a person, by giving a defendant an opportunity to defend himself or herself, to be tried by an unbiased jury, to get an attorney and to appeal. The criminal law also protects social order by making sure that all criminals who act against the social norms are placed on trial and punished for their crimes to re-instill order in the society. The legislative law protects social order by making certain that laws governing each agency protect others from likely harm that could originate from any form of misconduct and hence instilling social order and protecting the rights of an individual. Review the three (3) functions of law. The aim of a legal system is to offer a systematic, orderly, and a foreseeable mechanism for solving disagreements. In order for the legal system to do its job, the system must perform three closely correlated but nonetheless discrete functions. The functions comprise of legislation, adjudication, and execution. The aim of the legislative function is to define the rules that will govern the adjudication process. It tells the judicial function how to adjudge. The legislative process may be discrete from the judicial process, as when the Congress passes the laws and the Supreme Court consequently applies them. The judicial function is the center of any legal system. A legal system presides over disputes, issuing a decision as to ways the dispute should be settled, in its judicial function. The legislative function and the executive function are simply adjuncts to this central function. The executive function purpose is to make certain, that the parties disputing submit to adjudication in the initial place. In its function, the legal system may depend on intimidating force or voluntary social function. The executive function offers incentives for peaceful behavior. Both national defense and law enforcement fall under the executive function. How law ensures the existence of adequate order, provides resolutions to conflicts and protects civil liberties as set in the U.S. Constitution. The US Constitution is the Americans government central institution and the supreme law of the land. It has guided the evolution of the institutions of government and has offered the foundation for political stability, economic growth, individual freedom and social progress. The US Constitution was designed to protect the American people against authority abuse by distributing the federal government powers among three separate but co-equal branches. Additionally, all citizens are afforded the rights enumerated in the International Covenant on civil and political rights. Individual rights to challenge the actions of government in court and the judiciary power to invalidate those actions that fail to meet the standards of the constitution, offers an effective method for equal protection of the law in practice. Furthermore, various vital anti-discrimination statutes offer additional protection for a persons civil and political rights within the United States. In addition, of particular significance is Article 2 of the Constitution, which guarantees equal protection to all. The principle is derived from the Fourteenth Amendment that guarantees that no state may deny any individual the equal protection of the laws. In addition, the Fifth Amendment guarantees that no individual shall be deprived of property, liberty, or life without due law process. These provisions of the Constitution limit government powers with respect to all individuals subject to US jurisdiction. As elaborated and applied by the Supreme Court of the US, the equal protection doctrine applies not only with respect to the individual rights protected by the Covenant, but also to the government services and benefits provision. These include education, housing, and employment. Right to life protection is also implicated in states regulating the official use of force. Police, sheriffs, prison guards and other state officials who abuse their power through the unwarranted use of force may be punished under sections 241, and 242 of the US Constitution discussed under article 2. Where officials of law enforcement are involved in using extreme force, in a conspiracy or individually, victims are protected by the rights secured by the fourth, eighth and fourteenth amendments to the US constitution. As outlined in Article 9 section 203 of the US Constitution, citizens are protected against subjective arrest and detention. The constitution restricts great governments ability at all levels, to infringe on citizens liberty. The Fifth Amendment states that no individual shall be deprived of liberty without due law process. Moreover, according to the fourth amendment, all individuals shall be free from unreasonable searches and seizures. The sixth amendment offers that in all criminal prosecutions, an unprejudiced jury of the state shall give the person accused a prompt and public trial. The accused shall also be educated of the nature and reason of the accusation brought against them. Debate whether or not social control(s), as a function of law, play a fundamentally positive or negative role in the development of modern American law The social control as a function of law plays a significant positive role in the development of modern American law. The law makes certain that there is a restriction on how people behave towards others and to the society. The constraint shields the society from decadences that may affect its economic and social development. Furthermore, the order of social control guarantees development and continuation of a society by ensuring a secure environment for nurturing young talents. Social control confines individuals to their social norms and shields those who follow them from suffering any form of danger that can result from those individuals who are not obeying those norms. The law of the modern America focuses on offering people with enough safety without undermining their individual rights. The purpose of the law is to help in the development of the society where every person feels safe to conduct his or her legal business. The law also helps individuals develop the economy of America without interference from criminals. This can also be attained by warranting that strict social control is enforced such that the society is only left with dedicated people who exercise their business legally, without imposing dangers. Conclusion Liberty is only possible when loyalty to the overall rules of conduct makes the suppression of detailed directives and restrictions superfluous for social order maintenance. The perfect setting for liberty is one in which a person has internalized an ethical responsibility and limitation that motivates compliance with the overall rules of the society. It is because this perfection can never be fully realized nevertheless the power of the government is essential if liberty is to be prevented from consuming itself. References Beames, S., & Stonehouse, P. (2007). Liberty and social order on expeditions. Horizons, 40, 22- 24 Belton, R. K. (2005). Competing Definitions of the Rule of Law: Implications for Practitioners. Carnegie papers. Champion, D. J., Hartley, R. D., & Rabe, G.A. (2012). Chapter 1 Law: The Legal Battlefield. In Criminal courts: Structure, process, and issues (3rd ed.). Upper Saddle River, NJ: Pearson Education, Inc. Read More