Chapter 1
Introduction to Law
PURPOSE
This chapter introduces the nature, classification, and sources of law in the American legal system. The
chapter discusses the concept of law in a general sense, and then examines the classifications and sources of
American law. Most of the chapter deals with the science of law, known as jurisprudence. The chapter
introduces the student to important basic terminology, concepts, and principles that are essential to an
understanding of later chapters.
LEARNING OBJECTIVES
After reading this chapter you should be able to:
1. Identify and describe the basic functions of law.
2. Distinguish between (a) law and justice and (b) law and morals.
3. Distinguish between (a) substantive and procedural law, (b) public and private law, and (c) civil and criminal
law.
4. Identify and describe the sources of law.
5. Explain the principle of stare decisis.
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CHAPTER OUTLINE
A. Nature of Law–Law is a pervasive instrument of social control whose function is to regulate, within
certain limitations, human conduct and human relations. It has evolved slowly and will continue to
change, because it is not a pure science that is based upon unchanging and universal truths, but
rather, it results from a continuous striving to develop a workable set of rules that balance the
individual and group rights of a society.
1. Definition of Law–Numerous philosophers and jurists have attempted to define law. American
jurists Oliver Wendell Holmes and Benjamin Cardozo defined law as predictions of the way that
a court will decide specific legal questions. The English jurist Blackstone defined law as “a rule
of civil conduct prescribed by the supreme power in a state, commanding what is right, and
prohibiting what is wrong.”
2. Functions of Law–The primary function of law is to maintain stability in the social, political, and
economic system while at the same time permitting change. A second function is to protect private ownership of property and to assist in the making of voluntary agreements. A third function
is the preservation of the state.
3. Law and Morals–The law is greatly affected by moral concepts; however, law and morality are
not the same. There are ideas that are both moral and legal, yet many rules of law are completely
unrelated to morals, and many moral precepts are not enforced by law.
4. Law and Justice–These are separate and distinct concepts, although without law, there can be no
justice in the sense of fair, equitable, and impartial treatment of competing interests and desires
with due regard for the common good.
B. Classification of Law–There are a number of ways in which law can be classified. Basic to understanding these classifications are the terms right and duty. A right is the capacity of a person, with
the aid of the law, to require another person or persons to perform, or refrain from performing, a
certain act. A duty is the obligation imposed by law upon a person by which he or she is required to
perform a certain act or to refrain from performing a certain act. There can be no right in one person
without a corresponding duty resting upon some other person, or in some cases upon all other
persons.
1. Substantive and Procedural Law–Substantive law creates, defines, and regulates legal rights and
duties. Procedural law states the rules for enforcing rights that exist because of substantive law.
2. Public and Private Law–Public law is the branch of substantive law that deals with the government’s rights and powers and its relationship to individuals or groups. It consists of
constitutional, administrative, and criminal law. Private law is that part of substantive law governing individuals and legal entities in their relationships with one another. Business law is
primarily private law.
3. Civil and Criminal Law–Civil law is the law dealing with the rights and duties of individuals
among themselves and is a part of private law. Criminal law is the law that involves offenses
against the entire community and is a part of public law. In a civil action, the injured party
(plaintiff) begins a lawsuit (sues) to recover compensation for the damages resulting from the defendant’s wrongful conduct. The plaintiff has the burden of proof which must be sustained by a
preponderance (greater weight) of the evidence. The principal forms of relief under civil law are
money damages and decrees ordering the defendant to perform a specified act or to stop specified
conduct. In a criminal action, the government brings a criminal proceeding against (prosecutes) a
Introduction to Law 3
person accused of committing a crime. A crime is any act prohibited or omission required by
public law in the interest of protection of the public and made punishable by the government in a
judicial proceeding brought by it. The government must prove criminal guilt beyond a
reasonable doubt, a higher burden of proof than that required in a civil action. The principal
sanctions under criminal law are capital punishment, imprisonment, and fines.
C. Sources of Law–The sources of law in the U.S. legal system are the federal and state constitutions,
federal treaties, interstate compacts, federal and state statutes, the ordinances of countless local municipal governments, executive orders, the rules and regulations of federal and state administrative
agencies, and an ever-increasing volume of reported federal and state court decisions. The supreme
law of the land is the U. S. Constitution. The U. S. Constitution provides that federal statutes and
treaties shall be paramount to state constitutions and statutes. Federal legislation and court decisions
are significant sources of law. The paramount law of each state is contained in its constitution; state
statutes and state case law are subordinate. A state constitution cannot deprive citizens of federal
constitutional rights, but it can guarantee rights beyond those provided in the U. S. Constitution.
1. Constitutional Law–A constitution is the fundamental law of a government, establishing the governmental structure and allocating power among the levels of government, thereby defining
political relationship. All other law in the United States is subordinate to the federal Constitution. Incorporated into our Constitution is the principle of separation of powers, meaning that
there are three distinct and independent branches of government–the federal judiciary, the Congress, and the executive branch. Courts have the authority to determine the constitutionality of
legislative and executive acts under the principle of judicial review. The Constitution of the
United States also specifies the rights and liberties of the people.
2. Judicial Law–The common law is a body of law that originated in England and is derived from
judicial decisions. The U.S. legal system is a common law system that relies heavily on the judiciary as a source of law and on the adversary system for settling disputes. The adversary system
is one in which opposing parties initiate and present their cases. In contrast to common law
systems are civil law systems, which are based on Roman law and depend upon comprehensive
legislative enactments called codes and the inquisitorial system of determining disputes. In an
inquisitorial system, the judiciary initiates, conducts, and decides cases.
a. Common Law–The courts in common law systems have developed a body of law that serves
as precedent for determination of later controversies. This law is called case law, judge-made
law, or common law. In order to evolve in a stable and predictable manner, the common law
has developed by application of stare decisis. Stare decisis literally means “to stand by the
decisions” and is the principle that courts should apply rules decided by them or by courts
superior to them in prior, substantially similar cases.
b. Equity–Equity is a body of law based upon principles distinct from common law and providing remedies not available at law. Equity developed because the common law in England
became overly rigid and beset with technicalities and law courts could provide only limited
remedies, usually in the form of money damages. Individuals who could not obtain adequate
relief from monetary awards began to petition the king directly for justice. He delegated
these petitions to his chancellor who eventually developed a new second system of courts
known as chancery or equity courts. An important difference between law and equity is that
the chancellor could issue a decree ordering a party to perform a contractual duty (specific
performance) or a decree ordering a party to do or refrain from doing a specified act
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(injunction). Reformation is an equitable remedy rewriting a contract to conform to the
original intent of the contracting parties. Rescission is an equitable remedy invalidating a
contract. Discretion was exercised by the courts of equity in providing remedies according to
general legal principles, known as maxims, developed over the years.
c. Restatements of Law–The American Law Institute is composed of a distinguished group of
lawyers, judges, and law teachers who have set out to prepare “an orderly restatement of the
general common law of the United States.” The Restatements they have developed cover
many of the important areas of common law and are regarded as the authoritative statement
of the common law of the United States, though not actually binding law in themselves.
3. Legislative Law–Since the end of the nineteenth century, legislation has become the primary
source of new law and ordered social change in the United States. This emphasis on legislative
or statutory law has occurred because common law is not well suited to making drastic or comprehensive changes. Some business law topics, such as contracts, agency, property, and trusts,
remain governed principally by the common law. However, most areas of commercial law have
become largely statutory. In the second half of the twentieth century, there has been an increased
need for uniformity and codification of business or commercial law. The National Conference of
Commissioners on Uniform State Laws (NCCUSL) has drafted over 200 uniform laws, i.e.,
model acts, which states may enact in order to bring greater uniformity to states’ laws. An
example of is the Uniform Commercial Code (UCC) which has been adopted by all fifty states.
a. Treaties–A treaty is an agreement between or among independent nations. The U. S.
Constitution authorizes the president to enter into treaties with the advice and consent of the
Senate “provided two thirds of the senators present concur.”
b. Executive Orders–An executive order is a law issued by the president of the United States or
by the governor of a state.
4. Administrative Law–Administrative law is a branch of public law created by administrative
agencies in the form of rules, regulations, orders, and decisions to carry out the regulatory powers
and duties of those agencies. Because of the increasing complexity of the social, economic, and
industrial life of the nation, the scope of administrative law has expanded enormously.
D. Legal Analysis–This refers to the method of analyzing and briefing federal and state judicial decisions. Decisions of many state supreme courts and courts of appeal can be found in a regional
reporter published by West Publishing Company. A citation that says 86 P.3d 689 (2001) means that
the case cited is found in volume 86 of the Pacific Reporter, Third Series, and beginning on page 689
and that it was decided in 2001. The appellant is the party who appeals a decision. In appellate court
decisions, the name of the appellant will sometimes appear first in the citation even though the
appellant was the defendant in the trial court. Four basic steps to analyze a reported decision are: (1)
state the facts of the case; (2) determine the legal issue or question involved; (3) state the decision of
the court; and (4) explain the legal reasons or basis for the court’s decision.
Four important points to remember when reading legal opinions are: (1) a court must decide the
specific legal dispute before it; (2) a court can decide only the specific legal dispute before it; (3) a
court can decide the legal dispute before it only according to general rules that cover the whole class
of similar disputes; and (4) everything stated in the opinion must be read regarding the legal dispute.
Introduction to Law 5
KEY TERMS
1. Substantive law
11. Adversary system
2. Procedural law
12. Civil law system
3. Public law
13. Inquisitorial system
4. Private law
14. Stare decisis
5. Civil law
15. Equity
6. Criminal law
16. Restatements
7. Defendant
17. Legislative law
8. Plaintiff
18. Treaty
9. Constitution
19. Executive order
10. Common law system
20. Administrative law
TRUE/FALSE
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1. Although the law is greatly affected by moral concepts, morals and law are not the same.
____ 2. In a civil trial, the plaintiff must show that the defendant is guilty beyond a reasonable doubt.
____ 3. A state statute may be valid even though it violates the federal constitution.
____ 4. The courts of equity arose to provide relief to those who had no adequate remedy at common
law.
____ 5. Over the past century, the emphasis in law making has shifted from legislatively enacted
(statutory) law to judge-made (common) law.
____ 6. A constitution is a fundamental law of a particular level of government.
____ 7. Because of the many statutes enacted by the legislatures of the states and by the federal
government, the American legal system is considered to be a civil law system.
____ 8. Under the principle of judicial review, the courts have the authority to determine the constitutionality of legislative and executive acts.
____ 9. Restatements of law are a source of law written by legal scholars, and Restatements are binding
on the courts.
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____ 10. The law is constantly changing in an effort to meet the evolving needs of society.
____ 11. In a civil action, the plaintiff must prove the case by a preponderance of the evidence.
____ 12. The Supreme Court of the United States ultimately decides the constitutionality of any law.
____ 13. Business law is primarily public law.
____ 14. The Uniform Commercial Code is a federal statute that was adopted by Congress to make the law
uniform among the states.
____ 15. Forms of relief in civil law include judgments for money damages and equitable remedies.
MULTIPLE CHOICE
____ 1. Which of the following is not a primary function of law?
a. Maintain stability in the social, political, and economic system
b. Protect ownership of private property
c. Insure to all a minimum living
d. Preservation of the state
____ 2. Which of the following is not a category of private law?
a. Tort law
b. Contract law
c. Criminal law
d. Property law
____ 3. Which of the following is not a category of public law?
a. Constitutional law
b. Criminal law
c. Contract law
d. Administrative law
____ 4. While the principle of stare decisis provides that courts will follow their precedents in making
subsequent decisions, nevertheless a court may decline to follow its precedents:
a. to correct an erroneous decision.
b. to choose among conflicting precedents.
c. in recognition of the fact that the needs of society change over time.
d. all of the above.
____ 5. Which of the following is NOT a characteristic of a court of equity?
a. It may provide injunctive relief.
b. It may reform or rescind a contract.
c. It presides over jury trials.
d. It may command a person to perform a contract.
Introduction to Law 7
____ 6. A person who is injured by the wrongful act of another may bring a civil suit to:
a. recover money damages.
b. have the wrongdoer thrown in jail.
c. order the wrongdoer to engage in or desist from certain conduct.
d. (a) and (c), but not (b).
____ 7. The appeals court decision in the case of State v. Dawson, 282 S.E.2d 284, may be found at:
a. page 282 of volume 284 of the Southeastern Reporter, second series.
b. page 284 of volume 282 of the Southeastern Reporter, second series.
c. pages 282–284 of volume 2 of the Southeastern Reporter.
d. none of the above.
____ 8. Which of the following is NOT true of an action brought under criminal law?
a. It involves a wrongful act.
b. Criminal guilt must be proven beyond a reasonable doubt.
c. It must be brought by the government.
d. The main purpose of the suit is to require payment of money damages to the victim.
____ 9. Sources of state law include:
a. state judicial decisions.
b. state constitutions.
c. state statutes.
d. all of the above.
____ 10. In the criminal trial of State of West Virginia v. Dawson, the defendant in the action was:
a. Dawson.
b. the State of West Virginia.
c. the victim of the crime.
d. the federal government.
____ 11. The highest source of law in the United States is:
a. an executive order of the president.
b. an interstate compact.
c. the federal Constitution.
d. the state constitutions.
____ 12. The most successful work by the National Conference of Commissioners on Uniform State Laws
and the American Law Institute has been the:
a. Uniform Commercial Code.
b. Uniform Limited Partnership Act.
c. Model Business Corporation Act.
d. Uniform Probate Code.
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____ 13. A major difference between law and equity is that:
a. today, in most states, courts of law decide law cases and courts of equity decide equity cases.
b. law originated in America and equity was developed in England.
c. the plaintiff could seek money damages under law, while the plaintiff could seek specific
performance under equity.
d. equity was overly rigid, while law provided various remedies.
____ 14. Which of the following is/are equitable remedies?
a. Injunction
b. Reformation
c. Rescission
d. All of the above
____ 15. Bill Businessman files a lawsuit against Carl Contractor for breach of contract. This case is a(n):
a. equitable action.
b. criminal proceeding.
c. civil lawsuit.
d. public law case.
SHORT ESSAY
1. What are the major differences between common law systems and civil law systems?
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2. Explain the concepts of “right” and “duty” as they relate to law.
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Introduction to Law 9
3. Define stare decisis and give a brief explanation.
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4. How are the Restatements of Law and the Uniform Commercial Code similar? How are they different?
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5. George, who is driving while intoxicated, crashed into Alice. Alice was injured, and her car sustained
damage. State the two types of actions that could be brought and list the differences between them.
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