Chapter Topics
What is Law?
How Legal Systems Are
Organized?
The Components of U.S. Law
Interpreting the Law
• 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
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”
Civil Law
• also called Roman law, Romano-Germanic
law, or continental law
• is the oldest family of law
• starts with a code—the compilation of laws
• the code expresses rules of law as general
principles
• the code provides answers for all disputes
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 used—mixed
tribunals of judges and lay citizens are used in
serious criminal cases
Socialist Law
• originated in the former Soviet Union
• partly based on the civil system (a code)
• but is also revolutionary—law is to be used
to create a radically different society
• based on the philosophy of Karl Marx and
Vladimir Lenin—the societal ownership of the
major means of production is a guiding
principle
Socialist Law
• rejects law as the fundamental basis for
society—law is the arbitrary work of an
autocratic sovereign
• the primary goal is the protection of the
state—private property receives less protection
• law has an educational role—it is an
instrument of educating members about the
new Socialist society
Islamic Law
• most legal systems of the world are
secular—but not all
• Islamic law is termed the shari’a
• based on the Qur’an, 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
Common Law
• traces its roots to medieval England
• after the Norman conquest (1066) the King’s
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 law—it was the law
common to the entire land
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)
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
Key Characteristics of the Common Law
• Judge-Made Law
• Precedent
• Uncodified Rules and Regulations
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 law’s most distinctive feature is the
development of a system of law from judicial
decisions
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 precedent—obiter dicta—
(dictum or dicta) the part of the reasoning in a
judicial opinion that is unnecessary to resolve
the case—is not considered precedent
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
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
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
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’?
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
Federalism
• federalism divides power between the
national and state state governments
• federal law refers to the law of the national
government—applies across the nation
• state law applies to citizens within its
territory—it is extensive and diverse (e.g.,
business and marriage law)
• local law applies to a limited geographic or
functional area—states grant local jurisdictions
legal powers
Multiple Sources of Law
• federal, state and local laws are found in
multiple sources
Constitutions
• 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)
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
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
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
administrative—but 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
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 private—it relies heavily on the actions of
public agencies
• e.g., divorce law—governs private relationships but
involves court decisions
Civil and Criminal Law
• a civil suit involves a dispute between private
parties
• a criminal suit involves a violation of a
government’s penal laws
• difference between who has been harmed
(individual v. state)
• types of remedies differ (compensation v.
prison, fines or probation)
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)
Substantive and Procedural Law
• substantive law defines legal rights—the 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
Remedies
• judgment – a court’s 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
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
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 dispute—not
hypothetical
• plaintiff must have standing to sue
• are judicially created and can be changed or
waived for a particular case—especially in
policy lawsuits
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 not—creating discretionary choices
Interpreting the Law
• discretionary choices lead to interpretation—
judges 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
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