1. Law defined: Laws are designed to maintain social stability by regulating the behavior of
people. For laws to act as a means of social control, the laws must be accepted and followed
by the people. It must, therefore, reflect, generally speaking, the social, economic, political,
religious, and moral views of the members of society at large.
a. Functions of law: Our legal system performs a number of specific functions:
1) Dispute resolution: Whether the dispute is criminal or civil, every system of law
must have an orderly means of settling disputes and determining remedies for those
who are injured.
2) Protection of property: Laws determine the status of property, how it can be used,
and how it can be exchanged. Laws dealing with property and contracts are an
essential part of the legal structure.
3) Orderly means of change: In order for the legal system to remain vibrant, it must
reflect the will of the people. There must be, therefore, a mechanism that allows the
law to change over a period of time.
b. Pervasiveness of law: The law touches virtually every aspect of our lives. It regulates the
food we eat, the relationship between family members, the obligations we have to others,
the taxes we pay, the quality of the homes we live in, the safety of the automobiles we
drive, etc.
2. Classification of law: There are a number of ways to categorize the law. The following
represents some of the more common ways in which this vast subject matter has been
classified.
a. Substantive and procedural law: Substantive law defines the rights and obligations of
the people.
Example: A law that says no one may drive faster than 65 mph is an example of
substantive law. It says exactly what the people can or cannot do.
Procedural laws are rules that determine how laws will be enforced. The objective of
procedural law is to make the enforcement of the law as fair and as efficient as possible.
Example: When a person is placed under arrest, procedural laws state that the person
must be advised of certain rights (right to remain silent, the right to consult with an
attorney, etc.) before the police may question the person.
b. Civil law: Civil law defines the rights and duties of people in their relationships with one
another.
Example: When Bill forms a contract to sell his car to Sally, this transaction is regulated
by civil law. The law defines the rights and obligations of the two parties to the contract.
Bill has an obligation to sell his car, and Sally has an obligation to pay the purchase price.
1) Objective of civil law: The usual objective of civil law is to determine whether
someone was injured or rights violated, and if so, to determine the appropriate
remedy (compensation) for the injured party. Remedies usually take the form of money damages or an injunction that requires one party to do or not to do certain
things.
2) Standard of proof: The burden is always upon the plaintiff (the party bringing the
law suit) to prove his or her claim against the defendant (the party being sued), and
the decision of the court (or jury) is made on the basis of a standard called
preponderance of the evidence. Preponderance of the evidence simply means that
one party produced more persuasive evidence than the other.
c. Criminal law: Criminal law defines the rights and obligation of the people in their
relationship to society.
Example: Stealing is viewed not only as an act against the victim of the theft, but also
against the societal interest in protecting people’s property and feeling of security.
1) Standard of proof: Criminal cases are prosecuted by the government (the office of
the District Attorney, the Department of Justice, etc.). And because a conviction
carries the possibility of imprisonment or death, the standard of proof in a criminal
case is much higher than in a civil case. The prosecution must bring forth sufficient
evidence to prove the guilt of the accused beyond a reasonable doubt.
2) The same act may violate both a civil and criminal law: When Linda steals Jack’s
car, she has violated a civil law (taking Jack’s property without permission) as well as
a criminal law (car theft), and can be prosecuted by the local district attorney’s office
in the criminal case and by Jack in the civil suit.
3. Sources of law: In the American system of law, the following sources contribute to the
creation and growth of the law.
a. Federal and state constitutions: The U.S. Constitution is considered to be the supreme
law of the land. The principles outlined in the U.S. Constitution form the basis for both
federal and state law. The state constitution has the same impact upon state laws.
1) Federal and state statutes: Both at the federal and state level, most laws are created
by the legislature.
a) Legislative or statutory law: As direct representatives of the people, the theory
is that the members of the legislatures are better able to understand and represent
the needs of their constituents and to enact laws that are designed to meet their
needs.
b. Treaties: Treaties are agreements between the United States and other countries. Treaties
are negotiated by the executive branch and must be approved by two thirds of the U.S.
Senate. Once approved, a treaty has the force of federal law, and can supersede an
existing federal law. As a federal law, a treaty must be consistent with the U.S.
Constitution.
c. Executive orders: Issued by the President and have the force of federal law. The
President can issue executive orders only in cases where Congress has given the
President authority to do so. An example of an executive order is one issued by President
Johnson that prohibited discrimination in the hiring of workers on the basis of race, color,
sex, religion, or national origin by contractors working on federal projects.
d. Administrative laws: Administrative laws are issued by various departments and
commissions of the executive branch. Administrative departments are given power to
issue rulings that have the force of federal law by Congress. The Social Security
Administration, for example, has been given authority by Congress to pass regulations in
order to carry out its goals.
e. Common law: When a court makes a decision in a case, it may have to determine how a
law passed by the legislative branch should be interpreted.
Example. After another year of dismal performance by San Francisco students on the
standardized tests, the Board of Supervisors of San Francisco passed a city law setting a
10 p.m. curfew for all minors. This law was designed to encourage students to stay home
and study or rest. Bill, 16 years of age, was cited by the police for violating the curfew
law after he was found walking home on a Friday morning at 1 am. Bill contested this
arrest making the case that the curfew rule did not apply on Fridays and Saturday
evenings since the following days were not school days. If a court accepts Bill’s defense,
it will have changed the way in which the curfew law will be interpreted. This is an
example of how courts make laws—enlarging or limiting the law—through their
interpretation of the law.
1) Precedent: The concept of precedent insures that court made law evolves in an
orderly manner. Precedent, or stare decisis, requires courts to research how similar
cases were decided in the past, and to continue to rule in the same way as long as the
basis for the prior decisions continues to make sense. This allows for a degree of
stability, predictability, and continuity in our laws.
Courts are; however, free to break with precedent if the basis for the past ruling no
longer makes sense in light of current societal needs. This power gives the judicial
system an important means of infusing change, and making sure the laws meet the
current needs of society.
f. American Law Institute: The American Law Institute, composed of distinguished
lawyers, law professors, and members of the legislature, was created in the early 1900’s
to make sense out of the law. The overwhelming number of case being decided at that
time made it difficult for the practitioner (lawyers and judges) to understand the current
state of the law. The ALI published Restatements of the Law in various sub fields of
the law which gave a wonderful sense of balance and sense of direction regarding the
state of the law in each sub field. The ALI also published Model Laws in various sub
fields of the law arguing for changes in the law. The restatements and model laws are not
law, but because of the quality of the work, they are very persuasive upon both the courts
and the legislature.
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