Law Law consists of enforceable rules governing relationships among individuals and between...

LawLaw

Law consists of enforceable Law consists of enforceable rules governing relationships rules governing relationships

among individuals and among individuals and between individuals and their between individuals and their

society.society.

Natural Law SchoolNatural Law School

Denotes a system of moral and ethical Denotes a system of moral and ethical principles that are inherent in human principles that are inherent in human nature and that people can discover them nature and that people can discover them through the use of their natural through the use of their natural intelligence.intelligence.

This law applies universally to mankindThis law applies universally to mankind

Basic human rights and duties are Basic human rights and duties are inherent and universal.inherent and universal.

Historical Law SchoolHistorical Law School

Emphasizes the evolutionary process of Emphasizes the evolutionary process of law by concentrating on the origin and law by concentrating on the origin and history of the legal system.history of the legal system.Looks to the past to discover what legal Looks to the past to discover what legal principles have withstood the passage of principles have withstood the passage of time and uses those laws as a basis for time and uses those laws as a basis for present law.present law.High adherence to precedent (High adherence to precedent (stare stare decisis – decisis – to stand on decided cases)to stand on decided cases)

Positivist Law SchoolPositivist Law School

Says that there is no law higher than the Says that there is no law higher than the laws of the nation or society at that point in laws of the nation or society at that point in time and those laws only apply to those in time and those laws only apply to those in that nation or society.that nation or society.

There are no natural rights; All rights are There are no natural rights; All rights are bestowed by the governmentbestowed by the government

Legal Realist SchoolLegal Realist School

Law is just one of many institutions in Law is just one of many institutions in society and is shaped by social forces and society and is shaped by social forces and needs. Law is a human enterprise and needs. Law is a human enterprise and judges should take social and economic judges should take social and economic realities into account when deciding a realities into account when deciding a case.case.

This school views law as a tool for This school views law as a tool for promoting social justice and is likely to promoting social justice and is likely to break with precedence and rewrite laws.break with precedence and rewrite laws.

Classifications of LawClassifications of Law

Substantive Law – consists of all laws that Substantive Law – consists of all laws that define, describe, regulate and create legal define, describe, regulate and create legal rights and obligations.rights and obligations.Procedural Law – consists of all laws that Procedural Law – consists of all laws that establish the methods of enforcing the rights establish the methods of enforcing the rights established by substantive law.established by substantive law.Civil Law – is concerned with the duties that Civil Law – is concerned with the duties that exist between persons or between citizens exist between persons or between citizens and their governments.and their governments.Criminal Law – is concerned with wrongs Criminal Law – is concerned with wrongs committed against the public as a whole.committed against the public as a whole.

How, if at all, do How, if at all, do "scientific reasoning" and "scientific reasoning" and "legal reasoning" differ?"legal reasoning" differ?

How do you "prove" the truth or How do you "prove" the truth or falsity of a proposition in falsity of a proposition in

science? science?

Use scientific methodUse scientific method– ObserveObserve– Construct TestsConstruct Tests– Perform experimentsPerform experiments

Must be able to repeat events to test them Must be able to repeat events to test them in scientific sense.in scientific sense.

How do you "prove" the truth or How do you "prove" the truth or falsity of a proposition in law? falsity of a proposition in law?

Laws of evidenceLaws of evidence– Direct witnessesDirect witnesses– Direct evidenceDirect evidence– Expert OpinionExpert Opinion– Allowed and disallowed hearsayAllowed and disallowed hearsay

Since events are not repeatable, we must Since events are not repeatable, we must weigh the evidence of documents/ photos/ weigh the evidence of documents/ photos/ recordings and the testimony of people.recordings and the testimony of people.

Legal ReasoningLegal Reasoning

What are the key facts and issues?What are the key facts and issues?

What rules of law apply to the case?What rules of law apply to the case?

How do the rules of law apply to the How do the rules of law apply to the particular facts and circumstances of this particular facts and circumstances of this case?case?

What conclusion should be drawn?What conclusion should be drawn?

Sources of American LawSources of American Law

U.S. Constitution and constitutions of U.S. Constitution and constitutions of statesstates

Case law and common law doctrines.Case law and common law doctrines.

Statutory law – including laws passed by Statutory law – including laws passed by Congress, state legislatures or local Congress, state legislatures or local governing bodies.governing bodies.

Regulations created by administrative Regulations created by administrative agencies such as FDA, FCC, FTA, etc.agencies such as FDA, FCC, FTA, etc.

What is Jurisdiction?What is Jurisdiction?

Jurisdiction – Jurisdiction – jurisjuris means “law” and means “law” and dictiondiction means “to speak” so the meaning is “the means “to speak” so the meaning is “the power to speak the law”power to speak the law”

A question often asked is “who has A question often asked is “who has jurisdiction in this matter?”jurisdiction in this matter?”

What is the correct venue for this? Should What is the correct venue for this? Should this dispute be settled in local court or this dispute be settled in local court or federal court? Or perhaps it shouldn’t be federal court? Or perhaps it shouldn’t be heard in any government court at all?heard in any government court at all?

Order of proceedingsOrder of proceedings

Pleadings – notify each part of the claims Pleadings – notify each part of the claims and specific issues involved in the case.and specific issues involved in the case.– The plaintiff’s complaintThe plaintiff’s complaint– Service of Process (notifying the defendant)Service of Process (notifying the defendant)– The defendant's responseThe defendant's response

AnswerAnswer

Affirmative defenseAffirmative defense

CounterclaimCounterclaim


Pre-trialPre-trial– Motion to dismissMotion to dismiss

Defendant claims not enough facts, wrong Defendant claims not enough facts, wrong jurisdiction, etc.jurisdiction, etc.

– Motion for Judgment on the PleadingsMotion for Judgment on the PleadingsIf facts aren’t in question, only law isIf facts aren’t in question, only law is

– Motion for Summary JudgmentMotion for Summary JudgmentLike above, but may submit evidence that is valid Like above, but may submit evidence that is valid for trial. Judge then rules without trial.for trial. Judge then rules without trial.


Discovery – obtaining info, witnesses, etc.Discovery – obtaining info, witnesses, etc.– Depositions and InterrogatoriesDepositions and Interrogatories

Deposition is sworn testimony by witness or part to Deposition is sworn testimony by witness or part to lawsuit and recorded by authorized officiallawsuit and recorded by authorized official

Interrogatories are written answers to written Interrogatories are written answers to written questions which are signed under oath.questions which are signed under oath.

– Requests for AdmissionsRequests for Admissions– Requests for Documents, Objects, and Entry Requests for Documents, Objects, and Entry

upon Landupon Land– Request for ExaminationRequest for Examination


Right to Jury TrialRight to Jury Trial– Jury SelectionJury Selection

Voir Dire – Oral questions to potential jurors to Voir Dire – Oral questions to potential jurors to determine objectivitydetermine objectivity

Peremptory challenges – dismiss jurors without Peremptory challenges – dismiss jurors without reasonreason

Alternate jurors – used in unforeseeable Alternate jurors – used in unforeseeable circumstances (illness, etc.)circumstances (illness, etc.)


TrialTrial– Rules of EvidenceRules of Evidence– Opening StatementsOpening Statements– Examination of WitnessesExamination of Witnesses

Direct examinationDirect examination

Cross-examinationCross-examination

– Closing argumentsClosing arguments– Jury instructions and deliberationJury instructions and deliberation– Jury VerdictJury Verdict


Post-trial MotionsPost-trial Motions– Motion for new trialMotion for new trial

Only when judge or jury was in errorOnly when judge or jury was in error

AppealAppeal– Filing appealFiling appeal– Appellate reviewAppellate review

Enforcing the JudgmentEnforcing the Judgment– Writ of execution – to claim losing parties Writ of execution – to claim losing parties

assetsassets

The Source of LawThe Source of Law

Remember the categories into which Remember the categories into which Thomas Aquinas split law?Thomas Aquinas split law?– Eternal LawEternal Law– Divine LawDivine Law– Natural LawNatural Law– Human LawHuman Law

The Source of LawThe Source of Law

What are the sources we could use for What are the sources we could use for establishing the laws of a nation?establishing the laws of a nation?– Divine Law (The Mosaic Laws)Divine Law (The Mosaic Laws)– Natural Law or jus gentium (the law of nations)Natural Law or jus gentium (the law of nations)– Human custom (“because we always did it that Human custom (“because we always did it that

way”)way”)– Human or Positive Law (“because we (or I) Human or Positive Law (“because we (or I)

want it to be that way”)want it to be that way”)

Common LawCommon Law

““When the supreme being formed the universe, When the supreme being formed the universe, and created matter out of nothing, he impressed and created matter out of nothing, he impressed certain principles on that matter.… when he put certain principles on that matter.… when he put that matter into motion, he established certain that matter into motion, he established certain laws of motion…. If we farther advance to laws of motion…. If we farther advance to vegetable and animal life, we shall find them still vegetable and animal life, we shall find them still governed by laws.… Man, considered as a governed by laws.… Man, considered as a creature, must necessarily be subject to the laws creature, must necessarily be subject to the laws of his creator, for he is an entirely dependent of his creator, for he is an entirely dependent being…. And consequently as a man depends being…. And consequently as a man depends absolutely upon his maker for every thing, it is absolutely upon his maker for every thing, it is necessary that he should in all points conform to necessary that he should in all points conform to his maker’s will. This will of his maker is called his maker’s will. This will of his maker is called the law of nature.” – William Blackstonethe law of nature.” – William Blackstone

Natural LawNatural Law

““Good and wise men, in all ages, have … Good and wise men, in all ages, have … supposed that the Deity… has constituted supposed that the Deity… has constituted an eternal and immutable law, which is an eternal and immutable law, which is indispensably obligatory upon all mankind, indispensably obligatory upon all mankind, prior to any human institution whatever.” prior to any human institution whatever.” – Alexander Hamilton– Alexander Hamilton


““It is strangely absurd to suppose that a It is strangely absurd to suppose that a million human beings collected together million human beings collected together are not under the same moral laws that are not under the same moral laws that bind each of them separately.” bind each of them separately.” – Thomas Jefferson– Thomas Jefferson


““Our political way of life is by the laws of Our political way of life is by the laws of nature, of nature’s God, and of course nature, of nature’s God, and of course presupposes the existence of God, the presupposes the existence of God, the moral ruler of the universe, and a rule of moral ruler of the universe, and a rule of right and wrong, of just and unjust, binding right and wrong, of just and unjust, binding upon man, preceding all institutions of upon man, preceding all institutions of human society and of government.” human society and of government.” - John Quincy Adams- John Quincy Adams

The history of Common LawThe history of Common LawThe collapse of Roman government The collapse of Roman government around 500 A.D.around 500 A.D.

The establishment of Monarchical and The establishment of Monarchical and Feudal states in EuropeFeudal states in Europe

Governments only wanted taxes and Governments only wanted taxes and soldiers – they ignored everything elsesoldiers – they ignored everything else

People had to work our their own disputesPeople had to work our their own disputes

To judge a dispute the people would go to To judge a dispute the people would go to a respected person who had a grasp of a respected person who had a grasp of morality – usually a clergyman.morality – usually a clergyman.

The history of Common LawThe history of Common Law

The decision made by the judge would The decision made by the judge would become become precedentprecedent for similar cases for similar cases occurring later.occurring later.

Eventually the decisions were written Eventually the decisions were written down so people could study them and down so people could study them and became known as became known as case lawcase law..

The precedents became the law of The precedents became the law of common usage – the common law.common usage – the common law.

A problem occurred…A problem occurred…

If we have two parties from different If we have two parties from different cultural or religious backgrounds, what cultural or religious backgrounds, what principles should be used to judge the principles should be used to judge the case?case?

How can we solve this?How can we solve this?

What rules are the What rules are the foundation of law?foundation of law?

Let us ask this question: Where do the Let us ask this question: Where do the moral codes of the various religions moral codes of the various religions agree?agree?

What principles do all major religious What principles do all major religious systems hold in common?systems hold in common?


The Bible says: “Thou shalt not steal,” The Bible says: “Thou shalt not steal,” “Thou shalt not murder,” “Better is it to not “Thou shalt not murder,” “Better is it to not vow, than to vow and not pay” and “Do vow, than to vow and not pay” and “Do unto others what you would have them do unto others what you would have them do to you.”to you.”The Koran says “Woe unto the unjust who, The Koran says “Woe unto the unjust who, when others measure for them, measure when others measure for them, measure in full, but when they measure or weigh for in full, but when they measure or weigh for others, defraud them.”others, defraud them.”


Hillel, a great Rabi, said “Do not do unto Hillel, a great Rabi, said “Do not do unto others what you do not want them to do to others what you do not want them to do to you.”you.”

Confusian philosophy from 2000 B.C. Confusian philosophy from 2000 B.C. contains the same thought as “Do unto contains the same thought as “Do unto others.”others.”


From these statements, what can we From these statements, what can we summarize?summarize?

““Do all you have agreed to do.”Do all you have agreed to do.”

““Do not encroach on other persons or their Do not encroach on other persons or their property.”property.”

- This wording of the two laws comes from - This wording of the two laws comes from Richard Maybury in Richard Maybury in Whatever Happened Whatever Happened to Justice?to Justice?

Common LawCommon Law

The first law is the basis of what we call The first law is the basis of what we call contract lawcontract law. This law governs . This law governs agreements between parties and what agreements between parties and what happens when someone breaks and happens when someone breaks and agreement.agreement.The second law is the basis of The second law is the basis of criminal criminal and tort lawand tort law. This is the law governing . This is the law governing harm done by one person to another harm done by one person to another person or another person’s property. person or another person’s property.

Common Law in PracticeCommon Law in Practice

Since the government wasn’t part of the Since the government wasn’t part of the legal system, who made people pay legal system, who made people pay restitution or make up for harm?restitution or make up for harm?

The answer is no one The answer is no one mademade them. But if a them. But if a person refused to follow the judgment, that person refused to follow the judgment, that person was declared an outlaw – they person was declared an outlaw – they were no longer protected by the law.were no longer protected by the law.

Anyone could steal from or kill or force into Anyone could steal from or kill or force into slavery an outlaw. slavery an outlaw.


Today if your property is vandalized and Today if your property is vandalized and the criminal is caught, the criminal gets the criminal is caught, the criminal gets sent to jail or fined by the government. sent to jail or fined by the government.

Under common law, Under common law, equityequity was a key was a key principle. If you harmed someone, you principle. If you harmed someone, you had to make it up. If you killed someone’s had to make it up. If you killed someone’s horse, you had to give them a new one. If horse, you had to give them a new one. If you killed someone, you either were made you killed someone, you either were made a slave or you lost your life.a slave or you lost your life.


Blackstone wrote that customs needed to Blackstone wrote that customs needed to meet conditions before they were to be meet conditions before they were to be made into law:made into law:

1.1. ancient, no man can remember the ancient, no man can remember the beginning of it.beginning of it.

2.2. continuous, the rights claimed under it have continuous, the rights claimed under it have never been abandoned or interrupted.never been abandoned or interrupted.

3.3. peaceable, supported by the common peaceable, supported by the common consent of those using the custom.consent of those using the custom.


4.4. reasonable, in light of ‘legal’ reason.reasonable, in light of ‘legal’ reason.

5.5. certain, in the sense of being ascertainable.certain, in the sense of being ascertainable.

6.6. compulsory, it is not left to the opinion of compulsory, it is not left to the opinion of every man whether he will obey or not.every man whether he will obey or not.

7.7. consistent, for one custom cannot contradict consistent, for one custom cannot contradict another custom without producing an another custom without producing an absurdity.absurdity.

- quoted in - quoted in Origins of The Common LawOrigins of The Common Law by by Arthur R. HogueArthur R. Hogue

The law is science?The law is science?

““Man cannot make principles, he can only Man cannot make principles, he can only discover them.” – Thomas Painediscover them.” – Thomas Paine

The judge of common law sought to The judge of common law sought to discover what principles applied. The discover what principles applied. The judge spent his life discovering and judge spent his life discovering and applying moral principles. applying moral principles.

A scientist today seeks to discover natural A scientist today seeks to discover natural principles and apply them. principles and apply them.

Political LawPolitical Law

Its OriginIts Origin

Political law comes from the “I want it that Political law comes from the “I want it that way” idea. way” idea.

Whether the originator is a democratic Whether the originator is a democratic body or a single tyrant, this law simply body or a single tyrant, this law simply embodies the wishes of the people or embodies the wishes of the people or person who made it.person who made it.

This law needs no consistency or This law needs no consistency or underlying principles. It just is.underlying principles. It just is.

The Roman DeclineThe Roman Decline

The Roman republic had a system of The Roman republic had a system of common law, but as the government broke common law, but as the government broke down giving power to the Caesars, this down giving power to the Caesars, this common law gave way to political law – common law gave way to political law – the dictate of the Caesar. the dictate of the Caesar.

The laws of the Roman Empire had some The laws of the Roman Empire had some basis in natural law principles but this was basis in natural law principles but this was eroded by political whim over time.eroded by political whim over time.

Code vs. StatuteCode vs. Statute

Common law is, from time to time, Common law is, from time to time, conflicting and confusing, so the conflicting and confusing, so the legislature writes a version they believe to legislature writes a version they believe to be right into a set of rules called code. be right into a set of rules called code.

This code embodies the common law and This code embodies the common law and clarifies it. It is often difficult to read since clarifies it. It is often difficult to read since it presumes the rest of the uncodified it presumes the rest of the uncodified common law.common law.

Code vs. StatuteCode vs. Statute

Statute, by contrast, is law simply created Statute, by contrast, is law simply created by the legislature. Statutes have no basis by the legislature. Statutes have no basis in common law. They can give in common law. They can give permissions for which there are not permissions for which there are not common law rights, or restrict activities common law rights, or restrict activities which the common law does not restrict. which the common law does not restrict.

But they are simply the whims of the But they are simply the whims of the politicians made into law.politicians made into law.

Statutory LawStatutory Law

The legal systems of most nations which The legal systems of most nations which were not once British colonies are were not once British colonies are Statutory Legal systems. Most of Europe, Statutory Legal systems. Most of Europe, all the communist countries, most Middle all the communist countries, most Middle Eastern and African countries fall in this Eastern and African countries fall in this category.category.

They draw their legal tradition from the law They draw their legal tradition from the law of the Roman Empire – the law of the of the Roman Empire – the law of the Caesars. Caesars.

Differences Between Differences Between Common and Political LawCommon and Political Law

Natural RightsNatural Rights

The common law basis its idea on Natural The common law basis its idea on Natural law – certain right are granted by God law – certain right are granted by God Himself in the way he created nature. Himself in the way he created nature.

““The natural liberty of man is to be free fro The natural liberty of man is to be free fro many superior power on Earth, and not to many superior power on Earth, and not to be under the will or legislative authority of be under the will or legislative authority of man, but only to have the law of nature for man, but only to have the law of nature for his rule.” – Samuel Adams, 1772his rule.” – Samuel Adams, 1772


““The Natural Rights of the colonists are The Natural Rights of the colonists are these: first, a right to live; second, to these: first, a right to live; second, to liberty; third, to property; together with the liberty; third, to property; together with the right to support and defend them in the right to support and defend them in the best manner they can.” – Samuel Adamsbest manner they can.” – Samuel Adams


““That all men are by nature equally free That all men are by nature equally free and independent, and have certain and independent, and have certain inherent rights, of which, when they enter inherent rights, of which, when they enter into a state of society, they cannot, by any into a state of society, they cannot, by any compact, deprive or divest their posterity; compact, deprive or divest their posterity; namely, the enjoyment of life and liberty, namely, the enjoyment of life and liberty, with the means of acquiring and with the means of acquiring and possessing property, and pursuing and possessing property, and pursuing and obtaining happiness and safety.” obtaining happiness and safety.” - Virginia Declaration of Rights, 1776- Virginia Declaration of Rights, 1776


The Political Law position is that rights are The Political Law position is that rights are granted by the state, but this means that granted by the state, but this means that the state can take them away whenever the state can take them away whenever they please.they please.

““No matter how misperceived as No matter how misperceived as natural they may be, rights ... are the natural they may be, rights ... are the works of human artifice.” – Delos B. works of human artifice.” – Delos B. McKownMcKown


““Am I not bringing in a doctrine of natural Am I not bringing in a doctrine of natural rights that are prior to political policy? No, rights that are prior to political policy? No, I reject any such fiction.” – Paul KurtzI reject any such fiction.” – Paul Kurtz

““All existing moralities and all existing laws All existing moralities and all existing laws are human artifacts, products of human are human artifacts, products of human society, social conventions.” – Hocuttsociety, social conventions.” – Hocutt

Law Law consists of enforceable rules governing relationships among individuals and between...

Documents

Transcript of Law Law consists of enforceable rules governing relationships among individuals and between...