Chapter 2: Law and Legal Systems

WHAT IS LAW?

“As used in this book, law is a body of rules enacted by public officials in a legitimate manner and backed by the force of the state. This working definition incorporates features that most scholars agree on.
First, law is a body of rule governing the relationships between members of society. These rules and regulations provide predictability in the conduct of human affairs.
Second, rules are enacted by public officials. Thus, by definition, law is connected with government…
Third, law must be enacted by public officials in a legitimate manner…
Fourth, law is backed by the force of the state. There can be no law without sanctions…” (p.26)

Law and Justice

What is justice?

LEGAL SYSTEMS

“Each of the nearly 200 nations of the world has its own distinct legal system. The role of law in each society varies because of very different social and political environments. But some important commonalities exist among legal systems.” (p.27)

CIVIL LAW

“Civil law is also referred to as Roman law, Romano-Germanic law, or continental civil law. It is the oldest family of law, tracing its origins to the Roman Empire. This legal tradition was preserved after the fall of the Roman Empire by the universities of both Latin and Germanic countries in Europe. Beginning in the twelfth century, law professors developed codes of law based on the compilation of Roman law by the Roman emperor Justinian.
In civil law, the starting point is the code – the compilation of laws…
The code serves as a source of law that provides answers for all disputes. The tradition is that those rules will be interpreted broadly. Therefore, judges and lawyers emphasize abstract concepts rather than concrete cases…” (p.27-28)

Describe some of the major differences between the French and U.S. legal systems.

SOCIALIST LAW

“The foundations of socialist law reflect two contradictory forces. On the one hand, the legal systems of Eastern Europe were formerly part of the civil law legal system and have retained some of those characteristics. Codes, for example, provide the source of general rules of conduct. Moreover, legal terminology and legal procedures reflect, to a large extent, their civil law heritage.
On the other hand, the originality of socialist law stems from its birth in revolution. Unlike the emphasis in common law and civil law on maintaining order, socialist law is premised on creating a radically different society…” (p.30)

What are some of the basic differences between Socialist and common law systems?

ISLAMIC LAW

“The primary contemporary example of a legal system directly reflecting religious tenets is Islamic law. What is perhaps most distinctive about Islam is the extent to which it dominates all aspects of life.” (p.31)

How does this differ from U.S. common law?

COMMON LAW

“The common law traces its roots to medieval England… After the Norman conquest of 1066, the new rules gradually introduced central governmental administration, including the establishment of courts of law. Initially, the bulk of the law was local and was administered in local courts. A distinct body of national law began to develop during the reign of Henry II (1154-1189), who expanded the jurisdiction of the royal courts. The king’s courts applied the common customs of the entire realm rather than the parochial traditions of a particular shire or village. Thus, the term common law meant general law as opposed to special law; it was the law common to the entire land.” (p.31-32)

Equity

What is equity? How did it evolve?

English Heritage; American Adaptations

“In ways large and small, Americans adapted the heritage of the English common law to the social context of, first, the colonies and, later, the states. Early in the nineteenth century, U.S. courts abandoned the complex rules of civil procedure in favor of simpler ones. By the late nineteenth century, most states had merged their separate courts of law and equity. By the early twentieth century, judge-made law was rapidly being replaced by legislatively passed laws. Thus, over time, the American usage of the term common law focused on the case method rather than on specific English practices.” (p.34)

KEY CHARACTERISTICS OF THE COMMON LAW

“The common-law heritage is strikingly different from that of European civil law. Whereas civil law developed in the antiseptic atmosphere of the university, Anglo-American law grew out of the muck and mire of courtroom battles over real disputes involving living human beings. Through the centuries, three key characteristics of this common-law heritage emerged: (1) judge-made law; (2) use of precedent, and (3) uncodified regulations.” (p.34)

Define these three key characteristics…

THE ADVERSARY SYSTEM

“Essentially, two approaches exist – inquisitional and adversarial – to the question of how best to establish the facts of a particular case. Civil law is inquisitional in style: The judge is responsible for calling witnesses and asking questions. (Inquisition refers to judicial examination; unfortunately, Americans tend to equate the inquisitional style of justice with church-based inquisitions that sometimes used torture to ferret out and punish heresy.) In sharp contrast, common law is confrontational in style: The opposing parties are responsible for calling witnesses and asking questions.
The common law uses the adversary system, in which a judge acts as a neutral decision maker presiding over a battle between two opposing parties…” (p.36)

What are the principles of Party Prosecution and a Neutral and Passive Decision Maker?

THE MAJOR COMPONENTS OF U.S. LAW

Federalism

“One of the most important features of the U.S. Constitution is federalism, which divides power between the national government and state governments. Federalism produces a complicated and somewhat intricate distribution of powers among the three levels of government – federal, state, and local. The end result is a fragmented set of laws.” (p.38)

Multiple Sources of Law

Define the multiple sources of law within the U.S. legal system.

Judicial Decisions

Why are appellate courts important sources of law?

Public and Private Law

“U.S. law also draws a distinction between public law and private law. Public law directly involves government… Private law governs the relationships between private citizens and falls into several major divisions…” (p.42)

What are the major distinctions between: (1) Civil and Criminal law; (2) Substantive and Procedural law; and (3) various types of Remedies?

INTERPRETING THE LAW

“As Justice Douglas once wrote: ‘The law is not a series of calculating machines where definitions and answers come tumbling out when the rights levers are pushed’… Law is more than a collection of rules and regulations; it is a process of reasoning about the meaning of words, concepts, and doctrines. The craft of U.S. judges and lawyers lies in the common-law heritage, which provides a way of interpreting and applying the vast array of legal rules.” (p.46)

Sample Solution

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