Chapter Topics

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Chapter Topics
What is Law? How Legal Systems Are Organized? The
Components of U.S. Law Interpreting the Law
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• Law pervades our lives
• Law is a body of rules enacted by public
  officials in a legitimate manner and backed by
  the force of the state.
• Law regulates the public and private
  institutions that are a central part of our lives
• Law is a word of many meanings it is difficult
  to define

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Law and Justice

• Definitions of law do not necessarily include
  justice
• Justice is fairness in treatment by the law.
• The term justice is used many ways
• justice is winning
• justice is achieving desired results good v.
  bad results
• justice is equated with normative values right
  to privacy v. rights of the unborn

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Civil Law

• also called Roman law, Romano-Germanic law, or
  continental law
• is the oldest family of law
• starts with a codethe compilation of laws
• the code expresses rules of law as general
  principles
• the code provides answers for all disputes

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Civil Law

• judges not lawyers dominate court hearings
  (e.g., call witnesses)
• judges are career bureaucrats who have not been
  practicing lawyers
• juries are not generally usedmixed tribunals of
  judges and lay citizens are used in serious
  criminal cases

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Socialist Law

• originated in the former Soviet Union
• partly based on the civil system (a code)
• but is also revolutionarylaw is to be used to
  create a radically different society
• based on the philosophy of Karl Marx and
  Vladimir Leninthe societal ownership of the
  major means of production is a guiding principle

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Socialist Law

• rejects law as the fundamental basis for
  societylaw is the arbitrary work of an
  autocratic sovereign
• the primary goal is the protection of the
  stateprivate property receives less protection
• law has an educational roleit is an instrument
  of educating members about the new Socialist
  society

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Islamic Law

• most legal systems of the world are secularbut
  not all
• Islamic law is termed the sharia
• based on the Quran, which sets out principles
  revealed by God
• and the Sunna which contains the practices and
  decisions of Muhammad
• Islam and Islamic clerics influence the law

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Common Law

• traces its roots to medieval England
• after the Norman conquest (1066) the Kings
  courts began to apply the common customs of the
  entire realm rather than one village
• common law came to be viewed as general law as
  opposed to special lawit was the law common to
  the entire land

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Equity

• the common law became technical and evolved into
  a hard and limited law
• common law remedies were largely limited to
  monetary damages
• the refusal of judges to adapt gave rise to
  equity law
• equity meant fair dealing and equitable remedies
  were more flexible (e.g., injunctions)

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English Heritage American Adaptations

• colonists brought principles of British common
  law to America
• they brought procedures but did not always apply
  the substance
• law was adapted to the frontier society
• by the nineteenth century most states had merged
  their separate courts of law and equity
• today the term common law refers to the case
  method

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Key Characteristics of the Common Law

• Judge-Made Law
• Precedent
• Uncodified Rules and Regulations

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Judge-Made Law

• until the late 19th century, there was no
  important body of statutory law in the U.S.
• common-law courts developed rights in the area
  of property, torts, wills and contracts, and they
  defined such felonies as murder, manslaughter,
  arson, robbery, larceny and rape
• common laws most distinctive feature is the
  development of a system of law from judicial
  decisions

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Precedent

• court decision that serves as authority for
  deciding a similar question of law in a later
  case
• also referred to as stare decisis let the
  decision stand
• sometimes statements in a case are not
  interpreted as precedentobiter dicta(dictum or
  dicta) the part of the reasoning in a judicial
  opinion that is unnecessary to resolve the
  caseis not considered precedent

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Precedent

• reliance on precedent is central to the common
  law approach
• provides stability, coherence, and
  predictability
• Stare decisis is usually wise policy, because
  in most matters it is more important that the
  applicable rule of law be settled than that it be
  settled right. Justice Louis Brandeis

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Uncodified Rules and Regulations

• there is no one place to look for a statement of
  the law
• the law emerges through precedent found in court
  decisions
• common-law judges and lawyers reason by analogy
  which allows leeway in formulating new legal
  rules or modifying old ones, because analogies
  are neither correct nor incorrect, only more or
  less persuasive

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Uncodified Rules and Regulations

• judges may distinguish a current case from
  previous ones
• judges may find that a case differs from all
  previous cases or that a previous case was
  wrongly decided

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The Adversary System

• the common-law is adversarial, civil law is
  inquisitorial
• the parties are responsible for calling
  witnesses and asking questions
• a judge acts as a neutral decision maker
  presiding over a battle between the opposing
  parties
• the best system for finding the truth?

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The Adversary System

• Party Prosecution
• it is the responsibility of the parties, not the
  judge or jury, to define the legal issues
• encourages each party to present its best case
• Neutral and Passive Decision Maker
• the judge is a neutral arbitrator and expected
  to be passive
• must be free from pressure--independent

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Federalism

• federalism divides power between the national
  and state state governments
• federal law refers to the law of the national
  governmentapplies across the nation
• state law applies to citizens within its
  territoryit is extensive and diverse (e.g.,
  business and marriage law)
• local law applies to a limited geographic or
  functional areastates grant local jurisdictions
  legal powers

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Multiple Sources of Law

• federal, state and local laws are found in
  multiple sourcesConstitutions
• constitutions are the top rung
• a constitution is the document that establishes
  the underlying principles and general laws of a
  nation or state
• define the powers of branches of government
• limit the powers of government (e.g., Bill of
  Rights)

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Multiple Sources of Law

• Constitutions
• specify how government officials will be
  selected
• federal and state constitutions vary (e.g.,
  selection of judges)
• Statutes
• statutes are laws enacted by federal, state or
  local jurisdictions
• until late 19th century statutes were secondary
  to court decisions
• today legislatively enacted law is extensive and
  common

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Multiple Sources of Law

• Administrative Regulations
• rules and regulations adopted by administrative
  agencies that have the force of law
• e.g., IRS decisions, nursing home standards,
  zoning regulations
• newest and fastest growing source of law
• administrative law concerns the duties and
  proper running of an administrative agency

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Judicial Decisions

• appellate court decisions are an important
  source of law
• legislatures pass law wholesale courts make it
  retail (Friedman 1984)
• U.S. law today is primarily statutory and
  administrativebut some areas (e.g., tort law and
  court procedures) are dominated by judge-made law
• case law is important in determining the meaning
  of other sources of law

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Public and Private Law

• Public law directly involves government (e.g.,
  constitutional, criminal, administrative and
  international law)
• Private law governs the relationships between
  private citizens
• Tort law involves the legal wrong done to
  another person
• not really privateit relies heavily on the
  actions of public agencies
• e.g., divorce lawgoverns private relationships
  but involves court decisions

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Civil and Criminal Law

• a civil suit involves a dispute between private
  parties
• a criminal suit involves a violation of a
  governments penal laws
• difference between who has been harmed
  (individual v. state)
• types of remedies differ (compensation v.
  prison, fines or probation)

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Civil and Criminal Law

• there are different types of criminal violations
• a felony is a more serious criminal offense that
  involves a possible prison sentence of one year
  or more
• a misdemeanor is a less serious crime that
  usually involves a possible prison sentence of
  less than one year
• criminal and civil law can sometimes overlap
  (e.g., a drunk driver who kills someone)

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Substantive and Procedural Law

• substantive law defines legal rightsthe law
  defines the legal relationship between the
  citizen and the state, and among citizens
  themselves (e.g., contracts, property, torts,
  will criminal law)
• procedural law establishes the methods of
  enforcing legal rights
• governs the conduct of cases in court
• protects against arbitrary government actions
• the central idea is due process of law

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Remedies

• judgment a courts official decision about the
  rights and claims of each side in a lawsuit
• remedy the relief granted by the court,
  remedies include
• declaratory judgments a judicial determination
  of the legal rights of the parties
• restitution the return of goods a party is
  entitled to

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Remedies

• the most common remedy is monetary damages
• Compensatory damages payments for the actual
  harm suffered (e.g., medical bills, lost income,
  pain and suffering)
• Punitive damages monies awarded to a person who
  has been harmed in a particularly malicious or
  willful way (I.e., not related to the harm done
  and meant punish the responsible party)
• under equity law litigants seek an injunction
  a court order that requires a person to take and
  action or refrain from taking action

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Doctrines of Access

• used to control the flow of cases into the
  judiciary
• the court must have jurisdiction the power of
  a court to hear a case in question
• controversy must be a real disputenot
  hypothetical
• plaintiff must have standing to sue
• are judicially created and can be changed or
  waived for a particular caseespecially in policy
  lawsuits

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Interpreting the Law

• citizens typically misunderstand the how judges
  and lawyers interpret and apply the law
• the law is not a series of precisely written and
  readily located rules that cover situations
• lawyers and judges must make sense out of the
  words found in constitutions, statutes,
  administrative regulations, and previous court
  decisions
• some areas of law are relatively settled and
  others are notcreating discretionary choices

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Interpreting the Law

• discretionary choices lead to interpretationjudg
  es and lawyers must make choices
• meaning of the words legislatures and judges
  use vague language that leaves considerable room
  for interpretation
• conflicting laws it is not uncommon to find
  one law conflicting with another (e.g., allowing
  free exercise of religion may appear to be the
  establishment of that religion by the state)
• gaps in the law despite all of our law,
  situations do arise that are not contemplated,
  the discretionary choices courts make about these
  matters are important

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Conclusion

• U.S. law is complex, fragmented and voluminous
• Our common-law traditions are unique and differ
  considerably from civil-law traditions
• Our legal system is adversarial
• Juries play a more important role than in most
  legal systems
• The Supreme Court decides some of the most
  pressing social and political issues of the day