Chapter 1
The Legal
and International
Foundations
Chapter Objectives
1. Explain what is generally meant by
the term law.
2. Describe the origins and importance
of the common law tradition.
3. Identify the four major sources of
American law.
4. List some important classifications of
law.
5. Distinguish between national law and
international law.
2
The Nature of Law
Law is a body of enforceable rules
governing relationships among
individuals and between individuals
and their society.
Three important schools of legal
thought:
 Natural law tradition
 Legal positivism
 Legal realism
3
Natural Law Tradition
One of the oldest and most
significant schools of legal
thought.
Those who believe in natural
law hold there is a universal
law applicable to all human
beings and that this law is of a
higher order than positive, or
conventional law.
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Legal Positivism
A school of legal thought
centered on the assumption
that there is no law higher
than the laws created by the
government.
Laws must be obeyed, even if
they are unjust, to prevent
anarchy.
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Legal Realism
A popular school of legal thought
during the 1920s and 1930s.
Legal realists generally advocated a
less abstract and more realistic
approach to the law, an approach
that would take into account
customary practices and the
circumstances in which
transactions take place.
The school left a lasting imprint on
American jurisprudence.
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The Common Law Tradition
The Common Law originated in
medieval England with the
creation of the king’s courts, or
curia regis, and the development
of a body of rules that were
applied throughout the land.
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Stare Decisis
A doctrine under which judges
“stand on decided cases,” or
follow the rule of precedent, in
deciding cases.
Stare decisis is the cornerstone
of the common law tradition.
8
Legal and Equitable Remedies
Remedies at law:
 Money, property, land or something else
of value
Remedies in equity:
 Remedies that are granted when the
remedies at law are unavailable or
inadequate
Equitable remedies include:
 Specific performance
 Injunction
 Contract rescission (cancellation)
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10
Equitable Principles and Maxims
Where there is equal equity, the law must prevail.
One seeking the aid of an equity court must come to
the court with clean hands.
Equity will not suffer a wrong without a remedy.
Equity regards substance rather than form.
Equity aids the vigilant, not those who rest on their
rights.
Whoever seeks equity must do equity.
Why would equity courts give credence to such general
maxims rather than to a hard-and-fast body of law?
11
Sources Of American Law
Constitutional Law
Statutory Law
Administrative Law
Case Law and
Common Law Doctrines
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Sources of American Law
Which source of law takes priority in the
following situations, and why?
 A federal statute conflicts with the U.S.
Constitution.
 A federal statute conflicts with a state
constitution.
 A state statute conflicts with the common law
of that state.
 A state constitutional amendment conflicts
with the U.S. Constitution.
 A federal administrative regulation conflicts
with a state constitution.
13
Constitutional Law
The law as expressed in the U.S.
Constitution and the various state
constitutions.
The U.S. Constitution is the
supreme law of the land.
State constitutions are supreme
within state borders to the extent
that they do not violate the U.S.
Constitution or a federal law.
14
Statutory Law
Laws or ordinances created by
federal, state, and local legislatures
and governing bodies.
None of these laws can violate the
U.S. Constitution or the relevant
state constitutions.
Uniform laws, when adopted by a
state legislature, become statutory
law in that state.
15
Administrative Law
The rules, orders, regulations, and
decisions of federal, state, or local
government administrative
agencies.
Federal administrative agencies are
created by enabling legislation
enacted by the U.S. Congress.
Agency functions include:
 Rulemaking
 Investigation and enforcement
 Adjudication
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Administrative Agencies
The Constitution authorizes only the
legislative branch to create laws.
Administrative agencies, however,
which are not specifically referred to
in the Constitution, make rules that
are as legally binding as laws passed
by Congress.
Is there any way to avoid placing so
much power in the hands of
administrative agencies? Is there any
practical alternative?
17
Case Law and
Common Law Doctrines
Judge-made law, including
interpretations of constitutional
provisions, of statutes enacted by
legislatures, and of regulations
created by administrative agencies.
The common law, the doctrines and
principles embodied in case law,
governs all areas not covered by
statutory law or agency regulations
issued to implement various
statutes.
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Classifications of Law
The law may be broken down
according to several
classification systems, such as:





Substantive vs. Procedural law
Civil vs. Criminal law
Federal vs. State law
National vs. International law
Private vs. Public law
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20
Online Legal Research
The world of legal research is
rapidly changing.
 How has current technology changed
the methods of legal research?
Describe what a law and legal
research library might consist
of in the future.
21
National and
International Law
Increasingly, businesspersons in
the U.S. are engaging in
transactions that extend beyond
our national borders.
National law vs. International law
 What’s the difference?
 Key difference is that national law can be
enforced by government authorities.
What government can enforce
international law?
22
National Law
Definition: law that pertains
to a particular nation.
Most nations today have
either a common law system
or a civil law system.
23
Common Law System
Generally, those countries that
were once colonies of Great
Britain retained their English
common law heritage after they
achieved their independence.
The doctrine of stare decisis is
the cornerstone of the common
law tradition.
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25
Civil Law System
A legal system stemming from
Roman “code law,” in which the
primary source of law is a statutory
code—an ordered grouping of legal
principles enacted into law by a
legislature or governing body.
Precedents are not binding in a civil
law system because they do not
follow the doctrine of stare decisis.
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International Law
A body of written and unwritten
laws observed by independent
nations and governing the acts of
individuals as well as governments.
Sources of international law
include:




National laws
Customs
Treaties
International organizations and
conferences
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Cultural Differences
Suppose that John, the president of a U.S.
bank, wants to take his top vice
president, Carla, with him to a meeting
overseas. John is advised that he would
lose respect in the eyes of the overseas
company if he took Carla, a woman, with
him.
List some of the pros and cons of taking
Carla to the meeting that John should
consider in making his decision.
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For Review
1. What is the common law tradition?
2. What is a precedent? When might
a court depart from precedent?
3. What is the difference between
remedies at law and remedies in
equity?
4. What is the Uniform Commercial
Code?
5. What is the difference between
civil law and criminal law?
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