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 codethe 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 usedmixed 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 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

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

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

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

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 laws 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 precedentobiter dicta (dictum or dicta) the part of the reasoning in a judicial opinion that is unnecessary to resolve the caseis 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 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

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 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

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

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)

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 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

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

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 disputenot hypothetical plaintiff must have standing to sue

are judicially created and can be changed or waived for a particular caseespecially 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 notcreating 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