Introduction to Law in American
Society
PS 380
Dr. Troy Gibson
Chapter 1
Law, Courts, and Politics
I. Courts and Government
Courts = 3rd branch, but distinctive (law degree, formal
procedures, it’s own language).
A. Course: We will examine the judicial system’s
relationship with each of the following:
1. Constitution
2. Federalism
3. President’s role
4. Legislatures
5. Elections
6. Political Parties
7. Interest Groups
8. Public Opinion
II. Legal Institutions
A. Many components other than courtrooms (lawyers,
judges, plaintiffs, defendants, witnesses, jurors,
investigators, etc.)
B. Legal System (Fig 1-1).
1. Inner Ring: Institutions of Law (3 branches of
government; tell us what the law is and how fast it
should change). Actors here are lawgivers.
2. Middle Ring: Interpreters of Law – composed of
actors who serve as gatekeepers (lawyers, judges,
judicial elections, law schools) between the inner
and outer rings. These actors control the entry and
exit of litigation (law suits).
3.
4.
C.
1.
2.
3.
Outer ring – consumers of the law. All of those who seek legal
solutions to their perceived problems. That is, anyone who
desires something from a legal process; could be interest groups
or individuals, businesses or governments.
These rings operate within the context of the larger political,
economic, and cultural environment. As this context changes,
the legal system may move (though slowly).
Courts as Political Institutions – courts do not exist in a vacuum,
no matter how much we think courts are or should be immune
from “politics.” Since courts also determine what the law is (via
interpretation), they are inherently political institutions because
discretion is built into the judiciary as it is in other government
institutions. But there are differences:
Passive, not active – must wait on cases before they get to
decide things
Less able to avoid decision-making (e.g., politically charged
issues); can’t “punt” as easily.
Majoritarian politics is less directly influential over courts.
4.
Information is limited and narrow, not broad and
open. Comes mostly through two disputing parties;
not open forums comprised of groups,
stakeholders, voters, etc.
III. Courts and Controversy
“There is almost no political question in the U.S. that is
not resolved sooner or later into a judicial
question.” - Tocqueville
A. Courts have emerged as principle players in public
policy debates.
B. Three headings of legal-policy debates:
1. Social policies (e.g., segregation)
2. Criminal justice issues (e.g., death penalty)
3. Civil justice issues (e.g., tort reform)
C. Liberal and Conservative positions (T 1-1)
Chapter 2: Law and Legal Systems
I.
What is Law? Body of rules enacted by public officials in a legitimate
manner and backed by force of state.
A.
Philosophy of Law – What is the ultimate ground of law?
1.
Legal Positivism – Law is utterly dependent upon human beings; it is
malleable; it carries with it no inherent moral or ethical
underpinnings. “Law is not only posited (that is, selected) through
decision, but also is valid by the power of decision (thus contingent
and changeable” (Luhmann, 1987). Law has only a subjective basis.
2.
Natural Law – Natural law theory asserts that there are laws that are
immanent in nature, to which enacted laws, morally, should
correspond as closely as possible. An unjust law is not a true law.
natural law theory attempts to identify a moral compass to guide the
lawmaking power of the state. Law has an objective basis.
3.
Special Revelation – similar to natural law, but argues that natural
law itself flows from a divinely revealed body of law communicated to
humans from above.
Implications: If the ground of law is man’s subjective decision, then what of
its authority? If the ground is natural revelation or special revelation,
then what of the authority of those laws that are seen as
disharmonious with that revelation?
Law and Justice – justice is associated with normative
values; not winning, not pragmatism (prohibition).
II. Legal Systems (Table 2-1)
A. Civil Law (Roman) – oldest law family.
1. Starts with the code (compilation of law) - expresses
rules of law as general principles phrased in abstract
language. Dissimilar to U.S. Law books (court
decisions).
2. Judges and lawyers emphasize the code and not
concrete cases (deductive reasoning from the code to
the decision). No precedent use. Small working library!
3. Judges and not lawyers dominate hearings (witnesses
and questions)
4. Judges are bureaucrats, not practicing lawyers
5. No juries. Mixed tribunals (judges and citizens) are used
for serious crimes.
3.
B.
1.
2.
3.
C.
1.
2.
3.
4.
5.
6.
Most widely used system in Europe; LA uses it in civil cases
(Napoleonic Code)
Socialist law – birthed in revolution; focus on changing society
and creating the new socialist state, not maintaining order.
Russia/China.
Rejects common law and civil law assertions that law is basis
of society.
Goal – protection of the state (not private property).
Law is to be educational, targeting the new socialist society
(crime=failure of state, not individuals).
Islamic Law – only law family directly tied to an organized
religion’s beliefs (other systems may be tied to religious beliefs
if religious simply refers to a comprehensive system of beliefs
or worldview).
Exhaustive – all aspects of life
Source – God (Allah), through the Koran and the Sunna
dictated and written by Muhammad.
Judges receive legal & religious training.
Lawyers are not independent of legal system/gov’t.
Juries not allowed
Courts do NOT make policy.
Common Law – rooted in medieval England; meaning
common to all (applies to entire land rather than particular
villages).
A. History – over time, became stagnate and inflexible. Was
totally reactive and never proactive.
1. Soon, concerns over equity (broad principles of justice and
reason) emerged and moved common law toward changing
conditions and new legal practices. For example, the
practice of injunctions was underdeveloped (proactive).
2.
Common law was slow to develop (unlike civil law).
B. Americans adopted this system.
C. Characteristics in American context
1.
Judge-Made law. Judges were the primary instruments of
law-making until late 19th century (wills, property, contracts,
etc.).
2.
Precedent – stare decisis is the practice of letting previous
decisions stand. “Broad rules and policy directives emerge
only over time through the accumulation of court decisions.”
III.
Uncodified Rules and Regulations – no place to
find the official statement of the WHOLE law. Law
emerges through court decisions.
D. Adversary system – we also have an adversary
system (not inquisitorial), where judges are
passive/neutral and lawyers run the show
(prosecute cases/question/call witnesses).
Discussion: Which is better, inquisitorial or adversarial?
(page 36).
IV. Eight Layers of U.S. Law
A. Federalism: power divided between national and
state. Federal/state/local order of hierarchy.
B. Multiple Sources of Law –
1. Constitutions
2. Statutes
3.
3. Administrative Regulations (Administrative law)
C. Judicial Decisions – courts don’t make law, but they
find it in previous decisions.
D. Public and Private law
1. Public law involves government (e.g., International
law).
2. Private law involves relationships between private
citizens
• Tort law – legal wrongdoing to another person (e.g.,
injuries)
• Contracts (including divorce)
• Property – (wills, estates, etc.)
E. Civil and Criminal law
1. Civil suit involves dispute between private parties
(focus on deciding who has been harmed).
2.
F.
1.
2.
G.
1.
2.
3.
H.
Criminal suits involves a violation of a government penal laws
(focus on harm to society). Sometimes a single action results
in both (OJ-homicide and wrongful death).
Substantive and Procedural Law
Substantive – law that defines legal rights (what). Tells us
what our rights are and that they are to be respected by
others and protected by the state (e.g. contracts and criminal
laws).
Procedural – establishes methods of enforcing legal rights
(how). Rules of court and constitutional due process.
Designed to ensure the fair and orderly administration of
justice.
Remedies
Declaratory judgment (defining rights of parties)
Restitution – recovering of damages (compensatory or
punitive)
In equity cases, litigants seek injunctions (no law has been
violated, yet).
Doctrines of Access
1.
2.
3.
V.
A.
B.
1.
2.
3.
Jurisdiction – right of a court to hear a case
Real dispute (not contrived)
Standing – plaintiff must demonstrate real injury/harm in
order to sue.
Interpreting the Law
Ideally, judicial process is to consider what the law is and
not what policy should be. Average citizen things in terms of
the latter (abortion).
Why interpretation (judges have discretionary choice)?
Meaning of words (establishment, interstate commerce)
Conflicting laws – (different courts, federalism, states,
statements in constitution). Often, courts use “tests” to
balance these conflicts (e.g., Lemon test).
Gaps in law – law and circumstance imbalance (DNA
evidence in criminal cases)