Gap studies have been part of the social legal studies since the early 1960’s and 70’s. The early Gap studies suggest that law is rational and looks at law as one fixed discourse, which governs everything effectively. Classical Gap study states that there is a gap between laws in action versus law in books; this is a theory that arises from legal realists. Oliver Wendell Holmes Jr. was one of the legal realists who believed that the focus should be on law in action and not just on the law in books (Hartog: 1985). The realists believe that judges are not impartial when it comes to making decisions and can make and amend the law whenever they want. Hence the realists believe that law is rational and governs behavior and that attention needs to
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In his study, Wald discusses the Miranda case to show how law fails to live up to its objective at times. Miranda v Arizona was a case whether statements made from an individual during the interrogations could be used against him when the police have not followed the proper rules (Wald: 1967). Upon arrest, it is the responsibility of the officials to ensure they read out a persons “Miranda rights” that let the individual know they have the right to remain silent and the right to an attorney. However in this case, Miranda was arrested without being informed of these rights and was in interrogation for two hours (Wald: 1967). The confession made during this interrogation was used against him at trial. The court had stated that the confession would be admissible at trial only if there is sufficient proof to show that Miranda was informed of his right to remain silent and to an attorney upon his arrest. This impacted United States law significantly, as today this case is known as the “Miranda Rights” that has now become a part of the routine (Wald: 1967). In Wald’s study Miranda was used as a benchmark for custodial interrogations (Gould: 2012). The Miranda case has been set as a precedent for future cases, whereas earlier the fifth and sixth amendments were used to regulate interrogation practices (Leo: 1996). …show more content…
Several critics have raised concerns with gap studies. One of the concerns about gap studies is that it is methodological (Gould: 2012). Critics have argued that often times researches of Gap studies may establish laws intention or goals which its suppose to meet based on personal ideas or society’s ideals. For instance, in the case of pig keeping, the law simply prohibited pig keeping in a city due to it being a city and not a country side/farm area. However researchers such as Hartog have argued that the law fails to meet its needs, which may not be true because this idea is vague and it is never clear what the law commands (Gould: 2012). In addition, critics have argued that researches of Gap study have failed to question the conception of law. Researches at times fail to correctly interpret the law using exceptions that are necessary to understand the role of law in society. Gap studies fail to recognize and address the structure and role of law that may be dominant in reaching its goals. These goals are meant to have hegemonic effects of norms on society, rather than a presumed a cause-and-effect relationship (Gould: 2012). Gap studies need to focus on ways in which law is meant to deliver to society in different aspects such as political and social rather than the presumed relationship researchers claim it
In his study, Wald discusses the Miranda case to show how law fails to live up to its objective at times. Miranda v Arizona was a case whether statements made from an individual during the interrogations could be used against him when the police have not followed the proper rules (Wald: 1967). Upon arrest, it is the responsibility of the officials to ensure they read out a persons “Miranda rights” that let the individual know they have the right to remain silent and the right to an attorney. However in this case, Miranda was arrested without being informed of these rights and was in interrogation for two hours (Wald: 1967). The confession made during this interrogation was used against him at trial. The court had stated that the confession would be admissible at trial only if there is sufficient proof to show that Miranda was informed of his right to remain silent and to an attorney upon his arrest. This impacted United States law significantly, as today this case is known as the “Miranda Rights” that has now become a part of the routine (Wald: 1967). In Wald’s study Miranda was used as a benchmark for custodial interrogations (Gould: 2012). The Miranda case has been set as a precedent for future cases, whereas earlier the fifth and sixth amendments were used to regulate interrogation practices (Leo: 1996). …show more content…
Several critics have raised concerns with gap studies. One of the concerns about gap studies is that it is methodological (Gould: 2012). Critics have argued that often times researches of Gap studies may establish laws intention or goals which its suppose to meet based on personal ideas or society’s ideals. For instance, in the case of pig keeping, the law simply prohibited pig keeping in a city due to it being a city and not a country side/farm area. However researchers such as Hartog have argued that the law fails to meet its needs, which may not be true because this idea is vague and it is never clear what the law commands (Gould: 2012). In addition, critics have argued that researches of Gap study have failed to question the conception of law. Researches at times fail to correctly interpret the law using exceptions that are necessary to understand the role of law in society. Gap studies fail to recognize and address the structure and role of law that may be dominant in reaching its goals. These goals are meant to have hegemonic effects of norms on society, rather than a presumed a cause-and-effect relationship (Gould: 2012). Gap studies need to focus on ways in which law is meant to deliver to society in different aspects such as political and social rather than the presumed relationship researchers claim it