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Title: Chapter Topics


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Chapter Topics
What is Law? How Legal Systems Are Organized? The
Components of U.S. Law Interpreting the Law
3
  • 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

4
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

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Civil Law
  • also called Roman law, Romano-Germanic law, or
    continental law
  • is the oldest family of law
  • starts with a codethe compilation of laws
  • the code expresses rules of law as general
    principles
  • the code provides answers for all disputes

7
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 usedmixed tribunals of
    judges and lay citizens are used in serious
    criminal cases

8
Socialist Law
  • originated in the former Soviet Union
  • partly based on the civil system (a code)
  • but is also revolutionarylaw is to be used to
    create a radically different society
  • based on the philosophy of Karl Marx and
    Vladimir Leninthe societal ownership of the
    major means of production is a guiding principle

9
Socialist Law
  • rejects law as the fundamental basis for
    societylaw is the arbitrary work of an
    autocratic sovereign
  • the primary goal is the protection of the
    stateprivate property receives less protection
  • law has an educational roleit is an instrument
    of educating members about the new Socialist
    society

10
Islamic Law
  • most legal systems of the world are secularbut
    not all
  • Islamic law is termed the sharia
  • based on the Quran, 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

11
Common Law
  • traces its roots to medieval England
  • after the Norman conquest (1066) the Kings
    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 lawit was the law common to
    the entire land

12
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)

13
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

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Key Characteristics of the Common Law
  • Judge-Made Law
  • Precedent
  • Uncodified Rules and Regulations

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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 laws most distinctive feature is the
    development of a system of law from judicial
    decisions

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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 precedentobiter dicta(dictum or
    dicta) the part of the reasoning in a judicial
    opinion that is unnecessary to resolve the
    caseis not considered precedent

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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

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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

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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

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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?

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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

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Federalism
  • federalism divides power between the national
    and state state governments
  • federal law refers to the law of the national
    governmentapplies across the nation
  • state law applies to citizens within its
    territoryit is extensive and diverse (e.g.,
    business and marriage law)
  • local law applies to a limited geographic or
    functional areastates grant local jurisdictions
    legal powers

24
Multiple Sources of Law
  • federal, state and local laws are found in
    multiple sourcesConstitutions
  • 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)

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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

26
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

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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
    administrativebut 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

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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 privateit relies heavily on the
    actions of public agencies
  • e.g., divorce lawgoverns private relationships
    but involves court decisions

29
Civil and Criminal Law
  • a civil suit involves a dispute between private
    parties
  • a criminal suit involves a violation of a
    governments penal laws
  • difference between who has been harmed
    (individual v. state)
  • types of remedies differ (compensation v.
    prison, fines or probation)

30
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)

31
Substantive and Procedural Law
  • substantive law defines legal rightsthe 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

32
Remedies
  • judgment a courts 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

33
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

34
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 disputenot
    hypothetical
  • plaintiff must have standing to sue
  • are judicially created and can be changed or
    waived for a particular caseespecially in policy
    lawsuits

35
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 notcreating discretionary choices

36
Interpreting the Law
  • discretionary choices lead to interpretationjudg
    es 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

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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
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