Total Justice

Total Justice

Lawrence M. Friedman
Copyright Date: 1985
Published by: Russell Sage Foundation
Pages: 176
https://www.jstor.org/stable/10.7758/9781610442305
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  • Book Info
    Total Justice
    Book Description:

    It is a widely held belief today that there are too many lawsuits, too many lawyers, too much law. As readers of this engaging and provocative essay will discover, the evidence for a "litigation explosion" is actually quite ambiguous. But the American legal profession has become extremely large, and it seems clear that the scope and reach of legal process have indeed increased greatly. How can we best understand these changes? Lawrence Friedman focuses on transformations in American legal culture—that is, people's beliefs and expectations with regard to law. In the early nineteenth century, people were accustomed to facing sudden disasters (disease, accidents, joblessness) without the protection of social and private insurance. The uncertainty of life and the unavailability of compensation for loss were mirrored in a culture of low legal expectations. Medical, technical, and social developments during our own century have created a very different set of expectations about life, again reflected in our legal culture. Friedman argues that we are moving toward a general expectation of total justice, of recompense for all injuries and losses that are not the victim's fault. And the expansion of legal rights and protections in turn creates fresh expectations, a cycle of demand and response. This timely and important book articulates clearly, and in nontechnical language, the recent changes that many have sensed in the American legal system but that few have discussed in so powerful and sensible a way.

    eISBN: 978-1-61044-230-5
    Subjects: Sociology, Law, Political Science

Table of Contents

  1. Front Matter
    (pp. i-vi)
  2. PREFACE
    (pp. vii-viii)
    Lawrence M. Friedman
  3. Table of Contents
    (pp. ix-x)
  4. PART I
    • 1 THE PROBLEM STATED
      (pp. 3-5)

      One of the most striking aspects of American society, to natives and foreigners alike, is the way law and the legal system seem to dominate public life—and, apparently, much private life as well. There are, as we shall see, an extraordinary number of lawyers in this country; and they seem to be multiplying like rabbits. In general, law appears to be growing at an alarming pace. If an outside observer took the daily newspaper as a rough guide to events and situations that worry or excite Americans, he would conclude that sports and law are the two main topics...

    • 2 THE LAW: CREATURES FROM INNER SPACE
      (pp. 6-37)

      In a cheap horror movie that was popular a while back, the world was invaded by some sort of living goo from outer space that spread relentlessly, gobbling up absolutely everything in its path. Some of the cries of alarm about the American legal system picture law as a phenomenon very much like this blob from outer space, growing relentlessly and swallowing up billions of dollars and whole social institutions as it spreads. Everybody, it is said, is suing everybody else. There is a serious “litigation explosion.” The machinery of law is breaking down. There is a “crisis” on our...

    • 3 THE BIRTH OF A MODERN LEGAL CULTURE
      (pp. 38-44)

      The central proposition of this book is that social change leads to changes in legal culture, which in turn produce legal change. What has happened, in the last century or so, to American legal culture?

      A few words should be said at the outset about modern society, which I will contrast with two other types of society. All three types are idealized constructs, exaggerated for purposes of argument. No human society is simple, although some are more complex than others. Societies are also, in a way, always both logical and illogical. Their features and behavior patterns are coherent and form...

    • 4 THE SECURITY STATE
      (pp. 45-79)

      As we mentioned, the most striking aspect of the modern state is its overwhelming size. Government is big in every dimension: it has the most money income; it spends the most; it has the most people on its payroll. Modern states handle immense amounts of wealth; anywhere from a quarter to a half of the gross national product flows in and out of the coffer of the central government. The national budget of the United States government is something on the order of $800 billion. This is more money than most people can even imagine. By way of contrast, the...

    • 5 THE DUE PROCESS REVOLUTION
      (pp. 80-94)

      It is hard to give an exact definition of the legal changes that go under the general phrase, the “due process revolution.” They consist at least in part of a vast expansion of procedural rights. “Due process” is, of course, a fundamental constitutional principle. The phrase appears in the Fifth Amendment, and also in the Fourteenth. No one can be deprived of “life, liberty, or property” without “due process of law.“ “Due process,” then, is a technical term of law, whatever else it may mean. The most famous cases about due process are constitutional cases in the Supreme Court. Thus...

  5. PART II
    • 6 AMERICAN LEGAL CHARACTER
      (pp. 97-125)

      The first part of this book discussed changes taking place in American legal culture, and connected those changes with developments in the legal system and in the texture of the law. “Legal culture” refers to public attitudes, norms, values, and ideas about the legal system; the theme of part I was the rise of new attitudes and norms—for example, the general expectation of justice. Part II asks whether these changes in legal culture affect the very “legal character” of Americans, and, in particular, ideas and practices relating to equality and inequality, style of life, and sexual behavior.

      The subject...

    • 7 SEXUAL BEHAVIOR AND THE LAW: A CASE IN POINT
      (pp. 126-146)

      Earlier chapters tried to trace changes in American legal culture over the past hundred years or so, moving toward a cluster of principles summed up in the phrase “total justice.” This chapter will look at a specific area of law: control of sexual behavior. This will serve as an illustration of some of the themes of this study. In some ways, however, the growth of the law in this area seems to go against the grain. In other parts of social life, zones of immunity to law have been shrinking; but this is a tale ofnewimmunity. We live...

    • 8 AN ASSESSMENT
      (pp. 147-152)

      The argument of this book is that legal culture and legal character have been moving in a single direction, toward what I have called total justice. Total justice is a social norm; it is also, more and more, a working principle transforming legal and social institutions. Its fingerprints are all over—tort law; labor law; the law of landlord and tenant; the expansive world of constitutional law; the due process revolution; the behavior of large institutions; the regulation (or nonregulation) of aspects of private life. Whether on the whole these developments are good or bad is another issue. Since we...

    • 9 EPILOGUE: A NOTE ON THE WIDE, WIDE WORLD
      (pp. 153-156)

      This was a monograph about changes in American law and American legal culture. Examples came from the history of this country and its experience, with only a few exceptions. A reader is bound to ask: are these changes peculiar to the United States, or are they more general? Are these trends going on all over the Western world?

      This is not easy to answer. There is not much systematic information on comparative legal culture. There is even less systematic theory to explain what information there is.¹ Legal systems seem to be very different in different countries, although some legal scholars...

  6. ACKNOWLEDGMENTS
    (pp. 157-158)
  7. INDEX
    (pp. 159-166)