Chapter Topics What is Law? How Legal Systems Are Organized? The Components of U.S. Law Interpreting the Law.

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