Law:
Logic,
Sources
Classifications
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I.
RULES – BASIC PATTERNS
A. “Permissive” and “Prohibitive” Systems
1.
A “permissive” system is based on the premise that the only
legal actions are those specifically permitted by law.
» Everything not expressly permitted is prohibited.
» Laws gives permission
2.
A “prohibitive” system is based on the premise that the only
illegal actions are those specifically prohibited by law
» Everything not expressly prohibited is permitted.
» Laws prohibit
B. Two Types of Rules :
1.
“Thou shalt not . . . .
2.
“Thou shalt . . . .
» In a prohibitive system, “thou shalt” rules must be preceded
by a “thou shalt not. . . . .” rule.
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C. A Statute-Drafting Problem
1.
2.
3.
Statutes are written to govern future actions and events
a.
It is impossible to predict the future with absolute certainty
b.
Statutes can be written anywhere from extremely precise
to extremely general
Extremely precise statutes have problems
a.
It may be relatively easy to avoid violations but still obtain
the result intended to be prohibited
»
E.G. “designer drugs”
b.
Changing conditions can render precise statutes obsolete
Extremely general statutes have problems
a.
It may be very difficult to determine what all is covered
b.
Constitutional “due process” requires that persons be
able to determine in advance what acts are prohibited
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II.
LEGAL LOGIC
A. Syllogism:
1.
2.
3.
Major premise (normally a statement of the/a law)
Minor premise (normally a statement of fact)
Conclusion (logical result of applying the first two [ law to fact ] )
The result is not always reasonable
EXAMPLE: Assume killing a human being is a capital offense (possible
death penalty). Also assume this is subject to the general
rule that attempting a crime carries the same penalty as
succeeding.
Major Premise:
Timur is a human being.
Minor Premise: Timur attempted to kill Timur.
Conclusion:
Timur can be given the death penalty.
Why does that not make sense?
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B.
Analogy:
1.
2.
Something is like another thing (at least in some way)
a.
“Can not compare apples and oranges”
Why not?
b.
Compare? Elephants and Mice?
Trees and horses?
“Precedent” (in Common Law) is using prior court decisions to
determine “the law” for a present case
a.
To be usable precedent, the prior case must:
(1) Have similar facts
(2) Have similar legal issues
b.
Similarity and difference is determined using analogy
c.
A constant question = how far must the facts or legal
issues be generalized before they are analogous?
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3.
When trying to determine if precedent exists
a.
4.
Carefully analyze the basis/reasons for the prior decision
–
If the key factor in an oranges case was that the item
was a fruit, is it precedent for a later apple case?
–
If the key factor was the color of the outer layer of the
item, is it precedent for an apple case?
Things to argue about:
a.
What, exactly, was the key factor(s) in the prior decision?
b.
Is the analogous factor most significant in the problem, or
are there other factors that should have greater weight?
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C.
Another use of “precedent” – Establishing & applying a general rule
Inference = determining a general rule from a sampling of
individual events
1.
Find a number of cases dealing with similar facts and legal
issues
2.
Summarize (generalize) the result of those cases into a single
rule that explains/includes all of them
3.
Apply that general rule to the problem case, using deductive
logic
4.
This is more like “scientific” logic – general “laws” of physics
are inferred from a number of experimental observations
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III. Influence of History
A.
B.
Context influences development and application of rules
1.
Historical
2.
Political
3.
Social
Broad background of U.S. law
1.
European history/culture/religion after Roman Empire
(See “Fabulous Eleventh Century” from website)
C.
2.
Colonialism & Trade
3.
Relationship between individual and group
More specific
1.
2.
3.
English colonies, “rights” of English citizens
Western expansion
Industrialization
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IV. LAW SOURCES
A.
Major “Sources” of Law in U.S.
1.
U.S. Constitution
2.
Federal statutes, treaties, regulations
3.
State Constitutions and state statutes
4.
Agencies (bureaucracy) state and federal
5.
Common Law
A “statute” is a law enacted by
a legislative body.
(Note the three “t”s!)
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B.
C.
U.S. Constitution
1.
Is the “supreme law of the land”
2.
Delegates to Congress, President, a limited number
of subjects upon which they can act
3.
Provides that itself and laws, treaties, etc., adopted
pursuant to it are the “supreme law of the land”
Federal statutes, treaties, regulations
1.
Federal law can only be on those subjects permitted
by the Constitution (as interpreted by Supreme
Court).
2.
Everything else is left to the states or the people
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D.
E.
State Constitutions and state law
1.
State legislature can pass laws on any subject not
restricted by a constitution (very, very few of those)
2.
State law controls the most basic (everyday, pervasive)
subjects, such as:
Contract
Tort (personal injury)
Property
Crime
3.
Local governments (city, county, precinct, mosquito
control district, etc., can adopt law on specific subjects.
4.
“State law” is not limited to statutes
Agencies (bureaucracy) state and federal
1.
Authorized to issue rules on subjects within their area
2.
Frequently the most detailed, and most difficult to find
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F.
Common Law
1.
“Precedent” and stare decisis
2.
Prior court decisions with similar facts and similar legal
issues guide decisions in new cases
3.
Most basic law in the U.S. is found here
4.
The oldest, most pervasive legal rules are found only in
court decisions
5.
Contrast “Civil Law” Systems
a.
Court decisions are not “precedent”
b.
Basic law is included in “Civil Code” (statute)
c.
Judges apply the Code rules to cases, consulting
only expert commentary on Code (or not)
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IV. TWO KINDS OF LAW IN U.S. — Common Law, Enacted Law
A. Distinctions (where “the law” is made and found)
1.
2.
“Enacted law” consists of rules adopted by some empowered
governmental body or agency
a.
Statutes (“statutory law”) = adopted by legislative body
(1) Congress (federal)
(2) Legislatures of states
(3) Local government bodies (a/k/a “ordinances”)
(4) Administrative agencies (a/k/a “regulations”)
b.
Enacted as distinct pieces of law
c.
Normally compiled into some type of rational arrangement,
usually referred to as a “code”
U.S. enacted law ASSUMES the existence of Common Law
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2.
“Common Law” is a many-century accumulation of court
decisions
a.
Inherent limitations:
(1) Necessarily retroactive
(2) Court can only decide case before it
(3) Cannot “enact” rule intended to bind all persons in the
future
b.
BUT courts are aware that decisions will be followed in later
cases (subject to precedent rules)
(1) One consideration is how a decision may be applied
in the future – major concern in writing a decision
(2) US Supreme Court may take application into account
more than being concerned about “proper” decision
of the current case
c.
“Common Law” subjects are the most fundamental rules
(Contract, tort, property, agency, etc.)
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3.
How they work together
a.
Common Law
(1) Retroactive, determining legal consequences of past acts
(2) Is flexible, can change with the times/circumstances
on a case-by-case basis
(3) Slight variations in facts can change the result
(4) Can not effectively deal with broad issues/problem
b.
Statutory law
(1) Prospective only, specifies result if events happen later
(2) Is not very flexible, change only by legislature
(3) Enacted to produce standard result in standardized fact
situations
(4) Especially suited to establishing rules for complicated
problem categories
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SOME “CLASSIFICATIONS”
CRIMINAL
Deals with “offences against
society”
a. Plaintiff is government
b. Government (prosecutor)
controls litigation
c. Victim has no real say
in prosecution or
sentencing
d. “Compensate” society by
suffering punishment,
retribution
CIVIL
Deals with relationships and
claims between persons and
entities not acting in a
governmental capacity
a. Normally between individuals and/or private
companies
b. Governments can be
involved when not acting as
a government (e.g. buying
office supplies)
c. Not a very clear distinction
in many areas subject to
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significant regulation
PROCEDURAL
Establishes the processes
through which laws are made
and enforced
Everything not procedural are
substantive.
a.
One must follow proper
procedures if one wants a
particular result
a.
Establishes the rights and
obligations of individuals,
entities, governments
b.
If procedural rules not are
followed, result is not legal
b.
Not following substantive
laws may result in civil or
criminal liability
c.
Criminal procedures favor
the defendant
c.
Substantive laws cannot be
waived by a court, but they
can be amended or repealed
by a government body
d.
Civil procedure rules are
intended to be balanced
e
The entity/group that made
the procedural rule can
waive it
SUBSTANTIVE
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