§1: Schools of Jurisprudential Thought

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Chapter Outline
Schools of Jurisprudential Thought
Business Activities and the Legal Environment
Sources of American Law
The Common Law Tradition
The Common Law Today
Classifications of Law
How to Find Primary Sources of Law
How to Read and Understand Case Law
Definition of Law
Enforceable rules governing relationships
among individuals (civil law) and
between individuals and their society
(criminal law).
§1: Schools of
Jurisprudential Thought
Natural Law view.
Positivist view.
Historical view.
Legal Realism view.
Natural Law School
• Assumes that law, rights and ethics are
based on universal moral principals inherent
in nature discoverable through the human
• The oldest view of jurisprudence dating
back to Aristotle.
• The Declaration assumes natural law, or
what Jefferson called “the Laws of Nature.”
The Positivist School
• Law is the supreme will of the State that
applies only to the citizens of that nation at
that time.
• Law, and therefore rights and ethics, are not
universal. The morality of a law, or whether
the law is “bad or good,” is irrelevant.
The Historical School
• Emphasizes the evolutionary process of law
• Concentrates on the origins of the legal
• Law derives its legitimacy and authority
from standards that have withstood the test
of time
• Follows decisions of earlier cases
Legal Realism
View of law started in 1920’s.
Law must be viewed within the social
Judges should take economic and social
realities into account.
Sociological jurisprudence tends to be
activistic, e.g., Civil Rights decisions.
Do not feel bound by past decisions.
§3: Sources of American Law
U.S. and State Constitutions.
Statutory Law—federal, state and local.
Administrative regulations and decisions.
Case Law and Common Law Doctrines.
Hierarchy Among Sources of
American Law
 Laws coming from various sources of
American law are enforced according to the
following hierarchy:
1. The US Constitution
2. Federal statutory law
3. State Constitutions
4. State statutory law
5. Local ordinances
6. Administrative rules
7. Common Law
Sources of American Law
 Constitutional Law-Found in text and cases
arising from federal and state constitutions-it
is the supreme law of the land.
 Statutory Law
-Laws enacted by federal and state
-Local ordinances
-Uniform Laws (e.g., UCC).
Sources of American Law
Administrative Law
-Rules, orders and decisions of administrative
agencies, federal, state and local.
-Administrative agencies can be independent
regulatory agencies such ad the FDA
-Agencies make rules, then investigate and
enforce the rules in administrative hearings.
Sources of American Law
Case Law and Common Law Doctrines
-Much of the common law is still used today.
-Common law governs all areas not specifically
covered by statutory or constitutional law.
-Restatements of the law: modern compilations of
common law principles found, e.g., in
contracts, torts, property and agency.
Stare Decisis
Stare decisis is a Latin phrase meaning “to
stand on decided cases.”
– Makes the law stable and predictable.
– Increases judicial efficiency by relieving courts
of having to reinvent legal principles for each
case brought before them.
Stare Decisis and Precedent
• Stare decisis is “judge made law” based on
• Precedents are judicial decisions that give rise to
legal principles that can be applied in future cases
based upon similar facts.
• Precedents and other forms of positive law, such
as statutes, constitutions, and regulations, are
referred to as binding authority and must be
Cases of “First Impression”
In cases of “first impression” where there is
no precedent, the court may refer to positive
law, public policy, and widely held social
values in order to craft the best new
§4: The Common Law Tradition
• American law is based largely on English
Common Law which was based largely on
traditions, social customs, rules, and cases
developed over hundreds of years.
Remedies: Law vs. equity
• Remedy: means to enforce a right or compensate
for injury to that right.
• Remedy at Law: in king’s courts, remedies were
restricted to damages in either money or property.
• Equitable Remedy: based on justice and fair
dealing-a chancery court does what is right.
• Today, in most states, legal and equitable remedies
are found in the same court.
The Common Law Tradition [2]
• At common law, there were two separate
court systems with two different types of
– COURTS OF LAW (monetary relief), and
– COURTS OF EQUITY (non-monetary relief)
based on “notions of justice and fair dealing.”
Courts of Law
• Also called “king’s courts” where judges
were appointed by the king.
• Remedies limited to those provided at law,
i.e., land, chattel, money.
• Judges resolved disputes by application of
rules of law to the facts of the case before
the court.
Equitable Maxims
• Whoever seeks equity must do equity;
• Where the equities favor both parties, the dispute
must be decided according to the law;
• Whoever seeks equity must come to the court with
“clean hands”;
• Equitable relief will be awarded only when there
is no adequate remedy at law;
• Equity favors substance over form; and
• Whoever seeks equity must pursue the vindication
of their rights vigilantly or risk having their claims
§6: Classifications of Law
Every type of law will be either:
– Civil or Criminal, and either
– Substantive or Procedural, and either
– Public or Private.
* Cyberlaw is law applied to internet
Civil vs. Criminal
• Civil law defines the rights between
individuals or individuals and governments.
• Criminal law defines an individual’s
obligations to society as a whole.
Substantive vs. Procedural
• Substantive law defines or creates the rights
and obligations of persons and governments.
• Procedural law provides the steps one must
follow in order to avail oneself of one’s legal
rights or enforce another’s legal obligations.
§8: Reading &
Understanding Case Law
Legal cases are identified by a “legal citation”
(or a “cite”) as the example below:
Toyota Motor Manufacturing,
Kentucky, Inc., 534 U.S. 184 (2002).
Title: First Party is Plaintiff, second
party is Defendant. The parties are
either italicized or underlined.
Reading &
Understanding Case Law [2]
Legal cases are identified by a “legal citation”
(or a “cite”) as the example below:
Toyota Motor Manufacturing, Kentucky,
Inc., 534 U.S. 184 (2002).
This is a U.S. Supreme Court Case
found in volume 534, page 184 of
the U.S. Supreme Court reporter.
Reading &
Understanding Case Law [4]
Legal cases are identified by a “legal citation”
(or a “cite”) as the example below:
Federal Express Corp. v. Federal
Espresso, Inc., 201 F.3d 168 (2nd Cir.
Read this Case at Findlaw.com
by clicking on the hyperlink.