Law

1
Law

• Law consists of enforceable rules governing
  relationships among individuals and between
  individuals and their society.

2
Natural Law School

• Denotes a system of moral and ethical principles
  that are inherent in human nature and that people
  can discover them through the use of their
  natural intelligence.
• This law applies universally to mankind
• Basic human rights and duties are inherent and
  universal.

3
Historical Law School

• Emphasizes the evolutionary process of law by
  concentrating on the origin and history of the
  legal system.
• Looks to the past to discover what legal
  principles have withstood the passage of time and
  uses those laws as a basis for present law.
• High adherence to precedent (stare decisis to
  stand on decided cases)

4
Positivist Law School

• Says that there is no law higher than the laws of
  the nation or society at that point in time and
  those laws only apply to those in that nation or
  society.
• There are no natural rights All rights are
  bestowed by the government

5
Legal Realist School

• Law is just one of many institutions in society
  and is shaped by social forces and needs. Law is
  a human enterprise and judges should take social
  and economic realities into account when deciding
  a case.
• This school views law as a tool for promoting
  social justice and is likely to break with
  precedence and rewrite laws.

6
Classifications of Law

• Substantive Law consists of all laws that
  define, describe, regulate and create legal
  rights and obligations.
• Procedural Law consists of all laws that
  establish the methods of enforcing the rights
  established by substantive law.
• Civil Law is concerned with the duties that
  exist between persons or between citizens and
  their governments.
• Criminal Law is concerned with wrongs committed
  against the public as a whole.

7
How, if at all, do "scientific reasoning" and
"legal reasoning" differ?
8
How do you "prove" the truth or falsity of a
proposition in science?

• Use scientific method
• Observe
• Construct Tests
• Perform experiments
• Must be able to repeat events to test them in
  scientific sense.

9
How do you "prove" the truth or falsity of a
proposition in law?

• Laws of evidence
• Direct witnesses
• Direct evidence
• Expert Opinion
• Allowed and disallowed hearsay
• Since events are not repeatable, we must weigh
  the evidence of documents/ photos/ recordings and
  the testimony of people.

10
Legal Reasoning

• What are the key facts and issues?
• What rules of law apply to the case?
• How do the rules of law apply to the particular
  facts and circumstances of this case?
• What conclusion should be drawn?

11
Sources of American Law

• U.S. Constitution and constitutions of states
• Case law and common law doctrines.
• Statutory law including laws passed by
  Congress, state legislatures or local governing
  bodies.
• Regulations created by administrative agencies
  such as FDA, FCC, FTA, etc.

12
What is Jurisdiction?

• Jurisdiction juris means law and diction
  means to speak so the meaning is the power to
  speak the law
• A question often asked is who has jurisdiction
  in this matter?
• What is the correct venue for this? Should this
  dispute be settled in local court or federal
  court? Or perhaps it shouldnt be heard in any
  government court at all?

13
Order of proceedings

• Pleadings notify each part of the claims and
  specific issues involved in the case.
• The plaintiffs complaint
• Service of Process (notifying the defendant)
• The defendant's response
• Answer
• Affirmative defense
• Counterclaim

14
Order of proceedings

• Pre-trial
• Motion to dismiss
• Defendant claims not enough facts, wrong
  jurisdiction, etc.
• Motion for Judgment on the Pleadings
• If facts arent in question, only law is
• Motion for Summary Judgment
• Like above, but may submit evidence that is valid
  for trial. Judge then rules without trial.

15
Order of proceedings

• Discovery obtaining info, witnesses, etc.
• Depositions and Interrogatories
• Deposition is sworn testimony by witness or part
  to lawsuit and recorded by authorized official
• Interrogatories are written answers to written
  questions which are signed under oath.
• Requests for Admissions
• Requests for Documents, Objects, and Entry upon
  Land
• Request for Examination

16
Order of proceedings

• Right to Jury Trial
• Jury Selection
• Voir Dire Oral questions to potential jurors to
  determine objectivity
• Peremptory challenges dismiss jurors without
  reason
• Alternate jurors used in unforeseeable
  circumstances (illness, etc.)

17
Order of proceedings

• Trial
• Rules of Evidence
• Opening Statements
• Examination of Witnesses
• Direct examination
• Cross-examination
• Closing arguments
• Jury instructions and deliberation
• Jury Verdict

18
Order of proceedings

• Post-trial Motions
• Motion for new trial
• Only when judge or jury was in error
• Appeal
• Filing appeal
• Appellate review
• Enforcing the Judgment
• Writ of execution to claim losing parties assets

19
The Source of Law

• Remember the categories into which Thomas Aquinas
  split law?
• Eternal Law
• Divine Law
• Natural Law
• Human Law

20
The Source of Law

• What are the sources we could use for
  establishing the laws of a nation?
• Divine Law (The Mosaic Laws)
• Natural Law or jus gentium (the law of nations)
• Human custom (because we always did it that
  way)
• Human or Positive Law (because we (or I) want it
  to be that way)

21
Common Law
22

• When the supreme being formed the universe, and
  created matter out of nothing, he impressed
  certain principles on that matter. when he put
  that matter into motion, he established certain
  laws of motion. If we farther advance to
  vegetable and animal life, we shall find them
  still governed by laws. Man, considered as a
  creature, must necessarily be subject to the laws
  of his creator, for he is an entirely dependent
  being. And consequently as a man depends
  absolutely upon his maker for every thing, it is
  necessary that he should in all points conform to
  his makers will. This will of his maker is
  called the law of nature. William Blackstone

23
Natural Law

• Good and wise men, in all ages, have supposed
  that the Deity has constituted an eternal and
  immutable law, which is indispensably obligatory
  upon all mankind, prior to any human institution
  whatever. Alexander Hamilton

24
Natural Law

• It is strangely absurd to suppose that a million
  human beings collected together are not under the
  same moral laws that bind each of them
  separately. Thomas Jefferson

25
Natural Law

• Our political way of life is by the laws of
  nature, of natures God, and of course
  presupposes the existence of God, the moral ruler
  of the universe, and a rule of right and wrong,
  of just and unjust, binding upon man, preceding
  all institutions of human society and of
  government. - John Quincy Adams

26
The history of Common Law

• The collapse of Roman government around 500 A.D.
• The establishment of Monarchical and Feudal
  states in Europe
• Governments only wanted taxes and soldiers they
  ignored everything else
• People had to work our their own disputes
• To judge a dispute the people would go to a
  respected person who had a grasp of morality
  usually a clergyman.

27
The history of Common Law

• The decision made by the judge would become
  precedent for similar cases occurring later.
• Eventually the decisions were written down so
  people could study them and became known as case
  law.
• The precedents became the law of common usage
  the common law.

28
A problem occurred

• If we have two parties from different cultural or
  religious backgrounds, what principles should be
  used to judge the case?
• How can we solve this?

29
What rules are the foundation of law?

• Let us ask this question Where do the moral
  codes of the various religions agree?
• What principles do all major religious systems
  hold in common?

30
What rules are the foundation of law?

• The Bible says Thou shalt not steal, Thou
  shalt not murder, Better is it to not vow, than
  to vow and not pay and Do unto others what you
  would have them do to you.
• The Koran says Woe unto the unjust who, when
  others measure for them, measure in full, but
  when they measure or weigh for others, defraud
  them.

31
What rules are the foundation of law?

• Hillel, a great Rabi, said Do not do unto others
  what you do not want them to do to you.
• Confusian philosophy from 2000 B.C. contains the
  same thought as Do unto others.

32
What rules are the foundation of law?

• From these statements, what can we summarize?
• Do all you have agreed to do.
• Do not encroach on other persons or their
  property.
• - This wording of the two laws comes from Richard
  Maybury in Whatever Happened to Justice?

33
Common Law

• The first law is the basis of what we call
  contract law. This law governs agreements between
  parties and what happens when someone breaks and
  agreement.
• The second law is the basis of criminal and tort
  law. This is the law governing harm done by one
  person to another person or another persons
  property.

34
Common Law in Practice

• Since the government wasnt part of the legal
  system, who made people pay restitution or make
  up for harm?
• The answer is no one made them. But if a person
  refused to follow the judgment, that person was
  declared an outlaw they were no longer
  protected by the law.
• Anyone could steal from or kill or force into
  slavery an outlaw.

35
Common Law in Practice

• Today if your property is vandalized and the
  criminal is caught, the criminal gets sent to
  jail or fined by the government.
• Under common law, equity was a key principle. If
  you harmed someone, you had to make it up. If
  you killed someones horse, you had to give them
  a new one. If you killed someone, you either
  were made a slave or you lost your life.

36
Common Law in Practice

• Blackstone wrote that customs needed to meet
  conditions before they were to be made into law
• ancient, no man can remember the beginning of it.
• continuous, the rights claimed under it have
  never been abandoned or interrupted.
• peaceable, supported by the common consent of
  those using the custom.

37
Common Law in Practice

• reasonable, in light of legal reason.
• certain, in the sense of being ascertainable.
• compulsory, it is not left to the opinion of
  every man whether he will obey or not.
• consistent, for one custom cannot contradict
  another custom without producing an absurdity.
• - quoted in Origins of The Common Law by Arthur
  R. Hogue

38
The law is science?

• Man cannot make principles, he can only discover
  them. Thomas Paine
• The judge of common law sought to discover what
  principles applied. The judge spent his life
  discovering and applying moral principles.
• A scientist today seeks to discover natural
  principles and apply them.

39
Political Law
40
Its Origin

• Political law comes from the I want it that way
  idea.
• Whether the originator is a democratic body or a
  single tyrant, this law simply embodies the
  wishes of the people or person who made it.
• This law needs no consistency or underlying
  principles. It just is.

41
The Roman Decline

• The Roman republic had a system of common law,
  but as the government broke down giving power to
  the Caesars, this common law gave way to
  political law the dictate of the Caesar.
• The laws of the Roman Empire had some basis in
  natural law principles but this was eroded by
  political whim over time.

42
Code vs. Statute

• Common law is, from time to time, conflicting and
  confusing, so the legislature writes a version
  they believe to be right into a set of rules
  called code.
• This code embodies the common law and clarifies
  it. It is often difficult to read since it
  presumes the rest of the uncodified common law.

43
Code vs. Statute

• Statute, by contrast, is law simply created by
  the legislature. Statutes have no basis in
  common law. They can give permissions for which
  there are not common law rights, or restrict
  activities which the common law does not
  restrict.
• But they are simply the whims of the politicians
  made into law.

44
Statutory Law

• The legal systems of most nations which were not
  once British colonies are Statutory Legal
  systems. Most of Europe, all the communist
  countries, most Middle Eastern and African
  countries fall in this category.
• They draw their legal tradition from the law of
  the Roman Empire the law of the Caesars.

45
Differences Between Common and Political Law
46
Natural Rights

• The common law basis its idea on Natural law
  certain right are granted by God Himself in the
  way he created nature.
• The natural liberty of man is to be free fro
  many superior power on Earth, and not to be under
  the will or legislative authority of man, but
  only to have the law of nature for his rule.
  Samuel Adams, 1772

47
Natural Rights

• The Natural Rights of the colonists are these
  first, a right to live second, to liberty
  third, to property together with the right to
  support and defend them in the best manner they
  can. Samuel Adams

48
Natural Rights

• That all men are by nature equally free and
  independent, and have certain inherent rights, of
  which, when they enter into a state of society,
  they cannot, by any compact, deprive or divest
  their posterity namely, the enjoyment of life
  and liberty, with the means of acquiring and
  possessing property, and pursuing and obtaining
  happiness and safety. - Virginia Declaration of
  Rights, 1776

49
Natural Rights

• The Political Law position is that rights are
  granted by the state, but this means that the
  state can take them away whenever they please.
• No matter how misperceived as natural they may
  be, rights ... are the works of human artifice.
  Delos B. McKown

50
Natural Rights

• Am I not bringing in a doctrine of natural
  rights that are prior to political policy? No, I
  reject any such fiction. Paul Kurtz
• All existing moralities and all existing laws
  are human artifacts, products of human society,
  social conventions. Hocutt