In the modern society and with the empowerment of citizens who are aware of their rights and freedoms, it is difficult to attain a balance between individual rights and social order. Striving for a perfect world, contemporary society is confused when deciding which one of the above-mentioned concepts is more important than the other. Therefore, this paper attempts to analyze the difference between the two concepts and their effect on the overall legal system. It also discusses different types of laws such as civil law and procedural law, while explaining the functions of the law. The concepts of judicial activism and social control are also analyzed.
Individual Rights and Social Order
Individual rights are freedoms that are guaranteed to every person. They are provided under Common law, the Constitution and statutory laws. Examples of such rights within the process of criminal justice include personal liberty, the right to dignity and the right to due process. The protection of these personal freedoms is provided by the perspective of ensuring that the government shall not use unnecessary restrictive actions that limit or eliminate the rights of the citizens. The proponents of the protection of individual rights support the idea of sacrificing public safety for the protection of personal freedoms. Social order, on the other hand, is the representation of how the society runs. It is regarded from the perspective that the interests of the society should be given precedence over individual rights. Its proponents believe that in case of the conflict between these rights and public safety, the rights and freedoms should be limited to protect the social order in the state. While individual rights concentrate on the protection of each and every person’s freedoms, social order is concerned with the protection of the public safety in the first place.
However, it should be noted that individual rights have had an effect on the legal system of the state, in general. The need to protect individual rights and freedoms from violation has led to the creation of laws that focus on the enforcement of the latter. These laws grant certain rights to the American citizens regardless of gender, race, ethnicity, disabilities, or religious beliefs. An example is the Civil Rights Act of 1964. It provides for the abolishment of the unequal voter registration application process. The legislation also prohibited the discrimination of employees on the grounds of color, race, and religion and ensured the desegregation of educational institutions. In its turn, social order issue has also had an effect on the legal system of the U.S.A. It has led to the creation of laws that have endeavored to protect the safety of the American nation. An example is the National Minimum Drinking Act of 1984, which set the legal drinking age to 21 years of age. The legislation aimed at curbing underage drinking.
Laws of Arrest as a form of Social Control
Arrests are one of the ways in which the government exercises social control in the society. However, to prevent arbitrary arrests, the government has enacted laws on arrests that regulate the procedure of taking a person under arrest among other issues. The Fourth Amendment to the U.S. Constitution provides the protection of individual rights and freedoms during arrest or detention. It forms the basis for all other laws on arrests, search, and seizures. It provides for the security of the citizens and their properties. It also protects persons against unwarranted searches (including arrests). The amendment also prohibits issuing of warrants unless with probable cause and supported by an oath or affirmation. Currently, there are procedures such as the issuance of search warrants and safety inspections.
The Fourth Amendment of the Constitution is clearly not just an instrument that ensures that rights and liberties of the American citizens are secure. Through it, there is the development of statutory laws on protection. Legislation on the procedures of arrests, search and seizures has also been enacted subsequently. These laws provide a framework for the interaction of citizens without the government interfering through arbitrary arrests. The government also interacts with the citizens based on these procedures. Examples are the Criminal Procedure codes of different federal states. They each have provisions on the conduct of arrests, including the procedure for the issuing of arrest and search warrants. They also provide the procedure of conducting arrests and the rights that the arrested persons are entitled to.
Judicial Activism, Law and Social Change
Judicial activism is defined as the way in which modern-day judges abandon the traditional role of a neutral referee, and resort to tipping the “scales of justice” in the name of distributive justice. The society has seen judges become the so-called “social engineers of change” in the society. In this way, they propagate positive justice. One of the ways in which judicial activism effectuates social change is through the interpreting role of judges. They are mandated to interpret laws in a progressive manner, reflecting the current situation. Such approach comes from the idea that any legislative enactment, being ‘living’ as compared to ‘moribund’, should be able to respond to various situations as they arise. For instance, the idea of Miranda rights was not a prominent issue when the Constitution was being ratified by the Congress on June 21st, 1788, or even when the Fourteenth Amendment was passed on July 9th, 1868. However, after its issuing, police officers became obliged to inform the accused persons of their rights. A failure of the officer to follow the arrest procedure correctly could lead to the acquittal of the accused person. In the contemporary world, police officers have ingrained these rights into their system as the first action they do during the arrest of a suspect. This procedure has greatly assisted in educating individuals about their rights, as well as granted protection from arbitrary and forced confessions by the police officers. Nowadays, people know that the state has to provide them with an advocate if they cannot afford one on their initiative.
Another way where judicial activism has effectuated social change is through the invalidation of federal and state laws seen as unconstitutional. For example, the current Supreme Court ruling on same-sex marriages. The Highest Court recently made the landmark ruling that redefined marriage and allowed for same-sex unions in all states of the USA in compliance with the fundamental right to marry. In this case, the judges have claimed to use judicial activism to protect the principles built into the Constitution and statutory laws to foster social justice. However, this decision has received a negative feedback from other sectors of the government. Legislators, and given the recent Supreme Court ruling, Christians and conservatives alike, feel that the judiciary is usurping the function of the legislature, the only arm of government mandated with creating laws.
Substantive and Procedural Law
Substantive law is the body of written rules that creates, defines and regulates rights and duties of the individuals. It is also viewed as the philosophy that grants courts their powers. Procedural law is the body of legal rules that govern the procedure for the determination of the rights and fundamental freedoms. It adheres to due process, a right granted under the Fourteenth Amendment. Substantive law is important because it provides the rights that are to govern actions. It relates to the prevention of abuse of discretion by the judiciary and those implementing the law since written rules are quite clear on their obligations and actions. Another importance of substantive law is its ability to define the legal relationship among persons, and between the persons and the state. Procedural law, on its part, governs the application of substantive law. It ensures a fair and due process and fundamental justice to all court cases. Without procedural law, individuals would have no regard to the Constitution or statutory laws and would be negligent on how to apply them correctly since there would be no procedure to regulate the application of these laws.
The protection of both individual rights and social order by the two laws discussed above is reflected in written documents. Most of the legislations contain provisions for the fundamental rights and duties accorded to the American citizens and the procedures for the enforcement of these rights. An example is the Bill of Rights in the U.S. Constitution. These rights are to be protected and respected by all. At the same time, these laws also provide the limits of application of these rights. It is meant to ensure that arbitrary application of individual rights does not lead to a state of public insecurity. In this way, it ensures the protection of social order.
The second way in which these two laws protect individual rights and social order is in the punishments elaborated in these legislations. The substantive law lays down the punishments for the infringement of the rights and fundamental freedoms while the procedural law provides for the court processes in cases involving infringement of the individual rights. These laws, protecting social order, provide for punishments and their procedures for the citizens that disturb public order all in the name of enforcing the fundamental rights of all the members of the society.
The third way that substantive and procedural laws protect both individual rights and social order is in the limitation of government’s powers. An example is the Third Amendment on the right to privacy. The provision limits the intrusion by the government into the private affairs of its citizens without their consent. The Eighth Amendment has also limited and challenged the government’s authority on issuing the capital punishment. The Fourteenth Amendment limits the powers of the States by declaring that “no state is to deprive any person of life, liberty or property, without due process of the law.” If the government follows the due procedure, individual rights remain protected while, at the same time, social order is assured.
The adversarial system advocates for impartiality in the conducting of court affairs whereby both the prosecution and the defense are to be accorded equal opportunities to explain their side. When subscribing to the adversarial system, procedural law provides for due process of the law. The courts are to follow the correct procedures when arriving at the conclusion of a trial. They are to provide the accused persons a fair hearing. In its turn, substantive law advocates for equality of the parties before the law, incorporates the rule of a party being declared innocent before proven guilty and grants the accused persons the right to bail as per the Eighth Amendment. Such aspects of procedural and substantive law help to assure that the adversarial system has been adhered to while at the same time ensuring that the individual rights are protected. In this way, social order is protected as in the following due process. If a person is found guilty, then he/she is sentenced in accordance with the Eighth Amendment, and the public order and safety are, therefore, guaranteed.
Criminal, Civil and Procedural Laws
In as much as civil, criminal, and administrative laws are all bodies of the law, they differ in some aspects. In civil law, a party to the suit can institute a case against another individual or the state. Under criminal law, the state, being the custodian of the citizens, is the only party mandated with instituting cases against the accused persons. In administrative law, any person who has been wrongfully affected by the decisions of an administrative institution is entitled to commence proceedings. Secondly, is the mode of filing a suit. Cases in civil law are initiated by summons while cases under criminal law proceed with pleadings. In administrative law, suits are initiated by a judicial review process. Thirdly is the aim of the suits. In civil law, the case aims to restitute the plaintiff for the wrong doings of the defendant and to indemnify him/her. Criminal law, on its part, aims to deter the commission of crimes by the accused person and other people. The administrative law ensures the restoration of persons wrongfully affected by the decisions of government institutions to their former positions. The fourth difference is in the parties involved. Under civil and administrative laws, these are the plaintiff and the defendant. In criminal law, the parties are the state, through the prosecutor, and the defendant or accused person, through a lawyer. The fifth difference lies in the standard of proof. In civil and administrative cases, it is based on the balance of probabilities. The plaintiff just needs to demonstrate a preponderance of proof. Under criminal law, the standard of proof required is beyond reasonable doubt. The sixth difference is on the burden of proof. In civil and administrative cases, it lies on the plaintiff to prove that the defendant is guilty. The only exception is in cases of Res Ipsa Loquitur, where facts clearly show that the defendant is guilty. In criminal cases, the burden of proof rests on the prosecutor to show why and how the defendant is guilty. The defendant can decide to keep quiet and not respond to the allegations from the prosecutor’s side. The seventh difference lies in the types of punishments the courts give to the parties. Criminal law punishes persons by issuing either custodial or non-custodial sentences or sometimes both. Courts award financial damages under civil cases in cases of the restoration of the positions in administrative law. The final difference is in appeals. Under criminal law, only the defendant can appeal the judgments of the court while under both civil and administrative laws, either party can appeal the court’s decisions.
In the case of an intersection between criminal and administrative law in the litigation process, the role of the latter would be ensuring that the officers used the correct channels and procedures for their actions. For example, in case of embezzlement, the administrative law would apply to relieve the officer of his/her duties following the procedures of the organization. The criminal law would then come in to prosecute the person and if convicted to sentence him/her according to the due process of the law. In an intersection between civil and administrative law, the role of the latter in the case of dismissal would be ensuring that the policies of the agency were applied legally in the sacking of the employee. Civil law would come in when the employee decides to sue the agency if he/she considers the dismissal unfair. The law would thus offer the employee the compensation he/she seeks including damages and reinstatement to the prior office.
Administrative, civil, and criminal laws protect individual rights and social order. First, these laws ensure that the due process is followed in the manner of conducting the cases. When the rights of parties in a suit are upheld, they are protected by the implication. It subsequently ensures that the social order is maintained since if following the due process, these rights do not interfere with the safety of the nation. Secondly, these laws limit the government interference. Every person is entitled to equality before the law, and none is superior to the other. By performing this role, the laws ensure that the government cannot apply its discretion and use arbitrary powers to infringe the rights of individuals and disturb the balance between these rights and the public order.
Functions of Law
First of all, the law performs the main role of social control. There are legislations set to regulate the interrelation between the members of the society. They control the way people behave towards one another, the society and the government, in general. The social controls have been categorized into two types, informal and formal social controls. The informal social control presupposes the society to create the laws. For example, parents and the elderly create rules to preserve order in the community. These norms are aimed at influencing the behavior of the younger generation. However, they can cover areas such as dressing and behavior. At the same time, strict punishment may be given to a person refusing to adhere to the community norms, such as ostracizing from the community or rejection by the family members. As a means of formal control, the government has enacted several laws to ensure the maintenance of social order. These are legislations on the arrest, prosecution, and sentencing of the persons. The Fourth Amendment, for example, protects persons from arbitrary arrests, searches, and seizures. The Fifth Amendment guards citizens against self-incrimination and double jeopardy and guarantees them the right to due process. The Sixth Amendment, on its part, covers the procedures required during the trial and prosecution stage, while the Eighth Amendment governs sentencing rules by protecting against excessive bail, excessive fines and the infliction of unusual punishments.
The second function of law is that of dispute resolution. A high number of misunderstandings and disputes happen on a daily basis in every society. These can be as small as domestic disputes, or of a higher magnitude like those of land disputes or conflicts between different states. Therefore, laws are created to solve these disputes before they cause negative effects and interfere with the peace and order in the society. The law provides the rights and obligations of each party to a dispute. It also explains the processes of handling the disputes; namely, the U.S. Constitution provides mechanisms for resolving disputes. For example, Article III, Section 2, Clause I provides for means of settling interstate conflicts. Federal courts have the jurisdiction to handle such cases between the states.
The third function of the law relates to social change. Legislation is the avenue for the projection of social change in the society because the dynamics of the modern world require constant changes in various spheres of social and personal aspects of life. An example would be laws on revenue, which are being developed and updated to adapt to the increasing need for higher taxes brought by the government expenditure and budget. The judiciary has been at the forefront in setting of court case precedents that advocate and protect the rights of the citizens. Judges have decided inter-alia cases on the rights of accused persons, freedom of thought, belief, and assembly. The judiciary acts in line with the U.S Constitution’s Bill of Rights that protects these civil liberties. The Fourteenth Amendment further authorizes the protection of these rights with its introduction of the Equal Protection, the Due Process, and the Privileges or Immunities Clauses.
The function of law as a means of social control reflects on the relationship between an individual and the society. On the one hand, it is the respect accorded to social order. On the other hand, it is the enforceability of power. It enforces discipline in the community. However, social control may be perceived as a means of restricting peoples’ development and that of the state, in general. There is an opinion that social order laws aim at discriminating a particular class of people. For example, laws meant at criminalizing conduct such as sitting, sleeping and begging on the street walks may be regarded as discriminative against the persons, being seen as a nuisance, in favor of the security of the areas. There also exists an idea that social order laws mostly target the helpless in the society. Therefore, social control, in some aspects, is viewed as having a negative influence and its subsequent laws as negative in nature.
However, those propagating for social control as having a positive role in the development of modern law base their claims on the fact that these legislations help in the maintenance of peace and order in the society. The contemporary society is characterized by the cultural disintegration of the system of regulations. Law, through its binding decisions, makes it possible to integrate a diverse society. It also provides an avenue for the imposition of sanctions on those violating the rights and social order. Without laws on social control, the country would result in a state of anarchy. As seen with the proliferation of terrorist activities and crimes in the U.S. and the world at large, laws on social control help to intensify the protection and to curb the menace of terrorism.
For the law to develop amidst a dynamic society, the prioritization of individual rights and social order should occur. However, the two should balance one another. In as much as individual rights of people are respected, these rights should not interfere in the social order of the country. A balance will lead to the prevailing of peace and public order. The agencies mandated with maintaining human rights and social order should work with this goal in mind. The protection of individual rights and freedoms should not disturb the maintenance of social order and vice versa.