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PROMPT: Law is an important component of social life. It is used to create order and to address various
social problems. In this course, for example, we have examined efforts to use law to accomplish several goals: to
minimize the threat of crime; to punish convicted criminals; to resolve conflicts; to support various rights claims; to
provide just resolution to horrific genocides.
Despite wide acceptance of the necessity and value of law, it remains an object of much controversy. Rare
are the instances where law is deployed to universal acclaim. Instead, law regularly generates robust political
debate. Much of this debate develops because of two of law’s central characteristics. One is that while law is built
with words, those words are often ambiguous. Also, even when the words of law are reasonably clear, they can
prove difficult to apply to a particular set of circumstances in everyday life. A second key characteristic of law is the
foundation of violence upon which it ultimately rests.
Use this essay to reflect on the role of law in society, and the realities and consequences of its construction
in words and its violence.

Why do human societies rely so heavily on law, and why do struggles over both the meanings of the words of law
and the violence of law work to make it a persistent focus of debate and disagreement?
● What are the key functions of law? What separates law from other forces in society?
● Why are the words of law important? How and why do these words often prove difficult to interpret in
actual practice?
● How and why are law and violence connected? Why is this relationship consequential for the politics that
surround law?
● How and why are law and rights frequently connected? Is this connection consequential?
● In what ways is law increasingly a globalizing force? Does this reality resolve or exacerbate the politics
that surround law?

Thesis: Law effectively gives order to heterogeneous societies through established norms and
standards. People look to law to impartially resolve disputes, yet law creates disputes because it’s
written down. Words are inherently ambiguous and officials must act on them, sometimes in violent
ways. When enforcement agents use violence unequally, questions of legitimacy arise, especially
when laws in action do not reflect laws on the books, when there are competing rights claims, or
when people are punished. This makes law a persistent focus of debate and disagreement, one that
society can never truly escape from: law supposedly protects citizens from violence, but rests upon
on a foundation of violence that is a necessary component of law.

1. Law functions as a mechanism that preserves collective order, in which formal social control
incentivizes desirable behavior through the threat of violent consequences for deviants.
a) Law creates order. Crime disrupts order. Violence is also disorderly and requires a forceful
response.
b) Formal social control is implemented in the forms of statutes, regulations, and rules. Its goal is to
create desirable/efficient/orderly behavior when informal social control doesn’t work.
i) Formal S.C. characteristics: written down, clear punishments, designated enforcement
authority
ii) Informal S.C. characteristics: not written down, unclear punishments, no designated
enforcers
b) Formal social control works because it’s built on legitimate violence = real effects
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i) Example: Disneyland case: people follow the rules because visitors know that they will
get kicked out of the park if they don’t (a violent act)
ii) Another example: many people are deterred from drinking underage - not because they
think it’s bad/immoral - but rather because they fear the violence of the law (they don’t
want to get arrested or have a criminal record)
iii) Compare Disneyland case to Shasta
1) In Shasta, there are no clear, written-down punishments that are followed, so
people have less incentive to follow the rules when cattle trespass occurs

2. This threat of violence separates law from other forces in society.


a) Further legitimized by clear enforcement agents who have the power to use coercive force
b) In fact, American LEO’s are given the capacity to kill (guns on their tool belts)
i) There is always the potential for illegitimate violence
1) Tennessee v. Garner: Garner was an unarmed burglar who posed no threat to a
police officer, but was fatally shot by that officer.
(a) An example of illegitimate violence
(i) Luckily, SCOTUS changed the “fleeing felon” rule - now you
can’t shoot someone unless there’s a credible threat of harm to
others

3. Law can help resolve disputes because the legal process is seen as “objective”
a) Example: McDonald’s coffee case turns to law to resolve disputes because both parties trust the
legal system (the threat of violence)
i) McDonald’s coffee case - an example of how law acts IN society because of how we
perceive it (tort law reform came out of it because of popular opinion that we live in a
litigious society)
ii) Additionally, law is a reflection of culture - that’s why it can act as a social force, like in
the McDonald’s case
iii) However, the verdict minimized harm to everyday citizens (defective products liability
protects citizens from corporate negligence, reinforced by the violence of the courts)

4. Idealistically, the words in statutes and rules are straightforward; however, because law is written
down, there are ambiguities that create disputes and afford law enforcement officers discretion.
a) Words can be slippery! For example, the 4th Amendment protects against government intrusion
by limiting searches and seizures without sufficient justification
i) However, some words in the 4th Amendment have incited disputes because they are
ambiguous, like “unreasonable”, “probable”, and “search”
1) Investigatory stops are seen by some as necessary, a proactive means to prevent
crime
(a) Example: Pulled Over - investigatory stops = violent (deprivation of
rights for those stopped)
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(i) Black drivers are compelled to consent to searches, even though


it’s their constitutional right not to (because of the threat of
violence if they don’t - provoke more suspicion)
(1) Worst case scenario for white motorist when pulled over
= ticket. Worst case scenario for black motorist when
pulled over = death.
a. Despite this, investigatory stops have been
deemed constitutional by SCOTUS (​Terry v.
Ohio​).
(2) Brings up questions of legitimacy
a. How you interact with law and how law
interacts with you enforces law’s legitimacy (so
white people see law/investigatory stops as
legitimate because they don’t negatively affect
them)
b. Violence is debated in terms of legitimacy
(traffic stops- no police discretion=legit vs.
investigatory-police discretion = not legit)
(3) No set definition of legitimate vs. illegitimate violence
(more ambiguity of law)
a. “Demonstrable malice” as a standard when it
comes to convicting police officers of murder
i. Tennessee v. Garner
(4) This leads to Black Americans being treated as
second-class citizens: the practice of pulling Black
drivers over at disproportionately high rates turns
something mundane into a highly problematic,
institutionalized form of racial oppression that renders
certain populations inferior under the law.
(b) Discretion is another thing that is unavoidable - although it would be
great if everyone was treated fairly under the law, that is unrealistic. It
would be impossible for police officers to enforce every single law. That
being said, the practice of investigatory stops is highly regressive and
police should probably be focusing their efforts elsewhere (working
WITH community members, for example).
(c) Ultimately, even though interpretations of law lead to unequal
applications of violence that can be seen as illegitimate (treatment of
whites vs. POC), violence is a necessary component of law (public
safety, order)
Deshaney case = ambiguity + violence AND protecting rights (dispute resolution?)
Any violence disrupts order
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5. Law’s ambiguity also plays into rights claims: the Supreme Court has been grappling with whether or
not the Constitution simply protects negative rights, or if positive rights are safeguarded as well, despite
the fact that they are never explicitly mentioned in the Constitution.
a) Rights = an idea/value that you think you’re entitled to as a human being
b) Example:​ Deshaney v. Winnebago County​ (Joshua Deshaney, a small child, was not adequately
protected by a government social services agency from his parent’s abuse; this ultimately led to
irreversible brain damage for “Poor Joshua”)
i) Plaintiff made rights claim based on positive charter (state has an affirmative duty to
assume a law enforcement role in order to protect children); DSS made claims based on
negative charter (state should assume a therapeutic role so that parents have the right to
protect their children without governmental interference)
1) SCOTUS ruled that the state's failure to protect an individual against private
violence did not constitute a violation of the Due Process Clause of the
Fourteenth Amendment (essentially that the Constitution doesn’t provide for
positive rights, and is a negative document)
2) What should state due in instances of child abuse? What are state obligations to
children/ do child rights supersede parental rights?
ii) WTO case: the result of the rights claims illustrates a discrepancy between law on the
books and law in action (Order No. 3 created a 25-block “no protest zone” as a response
to sometimes-violent protests against WTO convention)
1) Is the sidewalk a public forum or a thoroughfare for mobility? Do 4th amendment
rights to mobility supersede 1st amendment rights to assembly/protest?
2) Strict scrutiny test: yes (even though right to mobility is only implied in the
Constitution, in this case it supersedes explicitly-stated Constitutional 1st
Amendment rights)
3) Because the government restriction of the right to expressions is content neutral,
narrowly tailored, the least restrictive means, there are available alternative
means, and there is a compelling state interest (safety of WTO personnel/public
order)
iii) These cases also beg several questions: “What should we do when negative and positive
rights appear to be in conflict?” + “Does the government protect rights or create them?”
1) These debates will never disappear, because words are inherently ambiguous and
must constantly be interpreted in order to be enforced

6. Punishment is one of the most effective ways of law’s violence, for rights can be interpreted differently
using law’s ambiguity; this has real consequences for real people.
a) Ambiguity of words leads to restricted rights for people who are incarcerated or questioned by the
police
i) 4th Amendment can be interpreted in multiple ways, which can lead to different
understandings of rights.
1) Example: Utah v. Strieff weakens the exclusionary rule, so illegally-obtained
evidence can be admissible in court
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(a) This reinforces law’s ambiguity - Justice Thomas interpreted the 4th
Amendment’s under the crime control model, and found the exclusionary
rule to be inadmissible under the attenuation doctrine
(b) Justice Sotomayor interpreted the 4th Amendment differently, under the
due process model
(i) Legitimized and institutionalized police misconduct/violence
(c) This had very real implications for Streiff, who was incarcerated as a
result of Justice Thomas’s majority opinion (goes back to violence)
ii) Incarceration can be seen as the ultimate form of punishment, and often deprives
prisoners of their constitutional rights: putting a human being where they don’t want to
be, and holding them there against their will.
1) Prisoners do not get full 1st Amendment rights
(a) Example: Shabazz v. O’Lone - 1st Amendment rights cannot be fully
protected in prison (practice of religion)
(b) Example: Beard v. Banks - deference is given to prison authorities to
restrict speech (access to newspapers, magazines, photos)
(i) WHEN do people (prisoners) get to exercise their 1st
Amendment rights?
(ii) Evidently not everywhere
2) Incarceration rates have been skyrocketing in the past 30 years
(a) This is actually because of the lack of ambiguity in the laws!
(i) Mandatory minimums, weapons enhancements, 3-strikes laws,
parole elimination = increase “lifers” in U.S. prison system
(b) Again - incarceration is violent and has real effects for real people.
(i) Example: Rummel v. Texas - Rummel was sentenced to life
under 3-strikes law, even for minor crimes (petty theft that
totaled to less than $250). Is incapacitation for life a worthy
punishment?
(1) His punishment wasn’t seen as “cruel and unusual”
under the 8th Amendment
(c) Life sentences also bring up questions of legitimacy - is it just to
incarcerate someone for the rest of their life, essentially sentencing them
to a slow, monotonous death, especially when LWOP sentences are a
violation of human rights accords?
3) In the juvenile justice system, juvenile offenders can be deprived of their due
process rights
(a) Example: Gault v. Arizona - Gault, a 15-year-old boy, was deprived of
his due process rights - didn’t know what he was being convicted for,
didn’t get a jury, etc. - which was violent
(i) Even in juvenile court, violence can be done to offenders - Gault
was disproportionately punished (if he had been an adult, he
would have been fined $50; as a juvenile he spent 6 years
incarcerated for the same crime)
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7. Law has become a progressively global force because in the past few decades, pressing issues have
been exacerbated and require organized, global responses, such as human rights violations and climate
change matters. International law has not proven to be effective yet at tackling these issues, because
international associations (such as the UN) lack potency/authority/force backed by the threat of violence,
and also because international law doesn’t reflect the wildly different cultures that prevail around the
world.
a) International Human rights
i) Enforcement issues/violence
1) Example: Sea Shepherd Society - not a national enforcer, but the International
Whaling Commission was not coming down hard enough (this isn’t really an int’l
human rights issue though)
2) Real consequences:
b) Climate change
i) Little incentive for legislation that protects the environment
1) International laws are about the environment (“Global Warming: A Second
Coming for International Law?”
(a) Because there are no clear enforcers
(i) If there were, this enforcement may conflict with sovereignty
(1) The is violent, b/c sovereignty rights are sacrosanct
(ii) Real consequences:
c) In both cases, nothing’s happening because there is no violent enforcers
d) Additionally international law doesn’t work because societies are so different, and international
law is not currently a reflection of culture

Addie’s thesis: Human societies rely so heavily on law because it is the most effective way to create order, resolve disputes,
protect rights, and establish norms or standards for behavior in a large, heterogenous society. In order to effectively carry out
these functions, the law is written down in an attempt to provide clear, impartial, and consistent rules and consequences.
However, law will perpetually be a source of debate and disagreement because words are subject to various interpretations. When
law on the books is put into action, the enforcement of those laws and the punishments for breaking them arguably need to be
backed by the capacity to use and be violent as to ensure compliance and promote deterrence. Given that the words of the law are
open to interpretation, the violence used in the name of the law is also going to be a perpetual source of debate and disagreement
in terms of its legitimacy provided by the law.

● What about competing rights?


● law is an irreconcilable paradox that protects citizens from violence, but rests upon on a foundation of violence
in order to effectively protect its citizens.
● No set definition of what is legitimate vs. illegitimate violence (more ambiguity of law)
● Law acts in society (why?). Also, where do actual disagreements take place, and what are the implications?
● -people look to resolve disputes through law
● -because it’s written down, law creates disputes
● Law’s ambiguities = an assumption
● What laws are enforced are not the same as laws on the books. Laws have to be interpreted in order to be put into
action. Words have different meanings to different people - Brings up questions of legitimacy
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● Even though interpretations of law lead to unequal applications of violence (treatment of whites vs. blacks), violence is
a necessary component of law (public safety, order)
● Old thesis: ​Law is a formalized means by which society is controlled and desirable behavior is upheld. Law’s
ambiguities are legitimized by a foundation of violence, yet also protect citizens from state violence, which means that
law acts in society to resolve conflicts, punish wrongdoers, and protect citizens from governmental intrusions and
crime. Law has real, sometimes-deadly effects on the world, both locally and globally, because it is always legitimized
by violence as an imminent threat.

ii) More generally, police are afforded discretionary power through law’s ambiguity, which
brings up questions of legitimacy
1) What laws are enforced are not the same as laws on the books
(a) Laws have to be interpreted in order to be put into action
(b) Words have different meanings to different people
(c) No set definition of what is legitimate vs. illegitimate violence (more
ambiguity of law)
(d) Brings up questions of legitimacy
2) In Seattle, Black citizens are arrested for delivering drugs at a much higher rate
than White citizens
(a) This is because SPD patrols lower-income neighborhoods more than
higher-income ones, even though higher-income neighborhoods also use
and deal drugs
(i) This is violent! Has direct links to citizenship
(ii) There is always the potential for illegitimate violence in these
circumstances

b) Another example: ​Jackson v. City of Joliet​ (2 people died in a car crash/fire that could have been
prevented if there was no incompetence on the part of government actors)
i) Do government agencies have an obligation to preserve and protect citizens’ liberty? Or
is the constitution a doctrine of negative rights?
ii) Court held that there is no legal/constitutional obligation to save lives