Laws and Their Ethical

FoundationChapter 1

What is Law?O Laws—enforceable rules of conduct in

societyO Reflect the culture and circumstances that

create themO Grouped into an organized form called CODE

O Similarities can be found when you compare one civilization’s codes with the codes of other civilizations

O Many of our law codes today are based on 4,000 year old codes created by Hammurabi, King of Babylon

Stages in the Growth of Law

O Most societies go through four distinct stages in forming their legal systems:

1. Individuals take revenge for wrongs done to them

2. A powerful leader or other form of central authority substitutes an award of money or goods for revenge

3. The leader or authority gives power to a system of courts

4. The leader or central authority acts to prevent an punish wrongs

Stage 1O Injuries inflicted on one human being by

another are matters for personal revenge

O Those who are wronged feel that justice can be done only through personally punishing the wrongdoers.

O Example:O Gang wars

Stage 2O To achieve peace, the powerful

leader or authority forces the injured parties to take awards of money or goods as a substitute for revengeO Sovereign—the leader or authority

Stage 3O The sovereign sets up a system of

courts and gives them appropriate powers

O Elders or priests usually preside over these courts

O Sovereign presides over most important matteres

Stage 4O The sovereign goes from being a

passive authority working only to resolve disputes to try to prevent breaches of peace BEFORE they occur

O Enforces a set of laws and matching punishments

Common LawO Law based on the current standards

and customs of the peopleO Usually formed from the rules used by

judges to settle people’s disputes

Positive LawO Law dictated from a sovereign or

other central authority to prevent disputes and wrongs from occurring in the first place

English Common LawO Before common law developed,

feudal barons acted as judges within their territoriesO Disputes were settled on the basis of

local customs and enforced by the baron’s power

O Laws differed from region to regionO Difficult for people to followO Difficult for central government to

maintain control

English Common LawO King’s Bench

O King Henry II appointed a number of judges from a group of trusted noblesO Gave them the power to order that wrongdoers

pay with money or goods to the parties they injured

O In good-weather months, the judges would “ride circuit” and hold court in the villages

O In bad-weather months, the judges would meet in London to hear cases on appeal

O Local “baron courts” could decide minor casesO King’s court always had JURISDICTION, or power

to decided a case, over the most important cases

English Common LawO Jury

O King Henry recognized that it was important to decide the court cases in harmony with the customs of the people

O Judges were instructed to choose citizens from each region to help interpret that region’s customs for the court

English Common LawO Advantages:

O Uniform web of custom-based law developed across England

O Achieves uniformity while maintaining an ability to adapt to changes in society

O Model for legal systems worldwide, including the United States

English Common LawO Disadvantages:

O Rigid adherence to proper form—a misplaced period or misspelled word would nullify, or void, the effect of a document

O Courts were limited to granting the remedy of damages—reactive—had to wait until something happened

O If the injured person was a noble, they could get around the common lawO A chancellor would hear the case under different

rulesO Could issue an INJUNCTION which stops something

from being done

English Common LawO King realized that need for equitable

remedies for all citizensO Created a system of equity courts

O Had power to issue injunctions or to compel specific actions

O United States courts are generally mergedO Law courts and equity courtsO Can award damages or issue orders or

both

Roman Civil LawO Early Romans lived by laws

developed through centuries of customs

O Customary laws were handed down through generationsO Inherited aspect of their society as it

had evolved from its earliest daysO Only applied to Roman citizens—CIVIL

LAW

Roman Civil LawO Romans were divided into two

classes:O Patricians—elite class who ruled

Roman societyO Plebeians—common people

O Pontiffs—a group of Patrician men made decisions and ruled in questions of customary lawO Patricians had some advantage in the

legal decisions made by the pontiffs

Roman Civil LawO The Twelve Tables

O Documented the centuries-old customary lawsO Became the foundation of Roman law as we

know itO Transferred established customary law into a

written formO Focused on specific facets that lead to or

could lead to dispute or disagreementO Addressed technical aspects of legal

procedure so that a citizen had a guide to the proper ways to pursue legal action

Roman Civil LawO As the Roman Empire grew it faced challenges

regarding non-citizens as Roman law only applied to Roman citizens

O This lead to the development of:O Law of Nations—body of laws that applied to all

people, foreigners and non-citizens as well as citizensO Based on the common principles and reasoning that

civilized societies and humankind were understood to live by and share

O Natural Law—a category of law based on the principles shared by all living creatures, humans as well as animals (pro-creation, physical defense against attack)

Roman Civil LawO Justinian Code

O Emperor Justinian sought to unify the Roman EmpireO Formed a commission of jurists to compile all existing

Roman law into one body which could serve to convey the historical tradition, culture, and language of Roman Law throughout the empire

O Original Parts:O Digest—collection of all classical jurists’ writings on law

and justiceO Code—outlined actual laws of the empire, citing

imperial constitutions, legislation, and pronouncements

O Institutes—smaller work that summarized the Digest, intended as a textbook for students of law

U.S. LawO U.S. legal system is modeled after

English Common LawO Ability to adapt to changes in societal

customsO Create a uniform set of laws

encompassing those changesO Exception:

O Louisiana—settled by the French—original laws based on Roman Civil Law

Sources of LawO ConstitutionsO StatutesO Case LawO Administrative Regulations

ConstitutionsO Documents that set forth the framework of

government and its relationship to the people it governs

O Constitutional Law--When constitutions are adopted or amended, or when courts interpret constitutionsO We are governed by the U.S. constitution and the

constitution of our stateO Highest sources of law—”supreme law of the

land”O Any federal, state, or local law is not valid if it

conflicts with the federal ConstitutionO State constitutions are supreme to all other state

laws

Constitutions

O Concerned primarily with defining and allocating certain powers in our society

O Allocate powers:O Between the people and their governments

O Bill of RightsO Between state governments and the federal

governmentO Interstate vs Intrastate

O Among the branches of governmentO System of checks and balances—executive,

legislative, judicial

StatutesO Statutes—laws created by state and

federal legislaturesO Ordinances—laws created by town or

city council or by a county board of commissionersO Effective only within the boundary of

the local governments that enacted them

Case LawO Created by the judicial branch of governmentO Usually made after a trial has ended and one of

the parties has appealed the result to a higher courtO Appeal based on legal rulings made by the lower

court in deciding the caseO When the appellate court publishes its opinion on a

case, that opinion may state new rules to be used in deciding the case and others like itO Referred to as CASE LAW at either the state or federal

levelO STARE DECISIS—Latin for “let the decision stand”

O Lower courts must follow established case law in deciding similar cases

Administrative Regulations

O Administrative Agencies—governmental bodies formed to carry out particular lawsO Created by state, federal, and local legislaturesO Controlled by the executive branch of

governmentO Have some legislative and limited judicial

powersO Create rules and regulationsO Hold hearings, make determinations of fact, apply

law to particular cases

ConflictsO Laws created by different levels of government

sometimes conflictO Legal rules are used to determine which

statement of the law is superior to the other and should be enforced

O SUPREMECYO federal law prevails over state lawO State law prevails over local lawO Constitutional law prevails over statutory lawO Statutory law prevails over administrative lawO Higher court’s decisions prevail over lower courts

Constitution and Validity

O Any federal, state, or local statute, case law, or administrative decision is not valid if it conflicts with the federal Constitution

O When any type of law is declared invalid by a state or federal court because it conflicts with a constitution, it is said to be UNCONSTITUTIONAL

O Supreme court has the final say within the federal system

O People have the power to amend constitutions if they disagree with the courts’ interpretation

Statutes and ValidityO Statutes or ordinances must be

constitutional to be validO Courts also examine the statutes and

ordinances involved to see whether or not the law’s enactment exceeded the scope of powers of the body that authored it

Case Law and ValidityO A case law decision by a court

holding a statute invalid is not always the end of the issue

O Legislative bodies have the power to nullify a court’s interpretation of a statute or ordinance by rewriting the statute

O Administrative agencies can also revise their regulations when challenged

Types of LawO Civil LawO Criminal LawO Procedural LawO Substantive LawO Business Law

Civil LawO A group of laws that make up for wrongs

against individual personsO Police do not get take action in civil

conflictsO If a defendant loses a civil case, that

defendant is liableO Also applies if one person is injured by

anotherO TORTS—civil offenses against people or

organizations

Criminal LawO Crime—offense against society, not an

individualO Criminal Law—acting in the name of all people,

the government investigates an alleged wrongdoingO If a crime has been committed and the person

responsible can be found, the government will prosecute

O Conviction can result in a fine, imprisonment, and in some states, execution

O Criminal cases may also be a civil offense and the victim may sue the wrongdoer

Procedural LawO Deals with methods of enforcing legal

rights and dutiesO How and when police can make arrestsO Methods used in a trial procedure

O Determines whether equitable remedies, such as an injunction, are available

O ExamplesO STARE DECISIS O Rules for determining the supremacy of

conflicting law

Procedural LawO Types

O Criminal procedureO Defines the process for enforcing the

law when someone is charged with a crime

O Civil procedureO Used when someone violates civil law

Substantive LawO Defines rights and dutiesO Concerned with all rules of conduct EXCEPT

those dealing with enforcementO Defines offenses:

O MurderO TheftO Breach of contractO Negligence

Business LawO Rules that apply to business transactions

and situationsO Involve a merchant and a consumerO Mainly concerned with civil law (especially

contracts)O Uniform Business Laws

O Uniform Commercial CodeO Widely adopted uniform business lawO Governs areas such as sale of goods,

certain aspects of banking, and leases of goods

Ethics and the LawO Ethics—a practice of deciding what is right

or wrong in a reasoned, impartial mannerO A decision must affect you or others in a

significant way (stakeholders)O Must be reasoned out by referring to a

written authority that provides consistencyO LawO Religious texts

O Must be impartialO Same ethical standards should apply to

everyone

Basic Forms of Ethical Reasoning

O ConsequencesO Right or wrong is based only on the results of

the actionO Acts that produce good consequences are goodO Acts that produce bad consequences are bad

O Looks for alternative ways to alter the current situation

O Attempts to forecast the consequences that will arise from each alternative

O Evaluates possible consequences and selects the alternative that will produce the most goodO Subjective—define the good and the receiver

Basic Forms of Ethical Reasoning

O Rule-BasedO Acts are either right or wrongO Good consequences do not justify wrong or

bad actsO Standard for judging acts comes from:

O Recognized authorityO Religious sourceO law

O Human reasoningO Universalizing—picturing everyone else doing

the action and asking if the result would be irrational, illogical, or demeaning

Ethics Reflected in LawO The government, empowered by the U.S.

Constitution, seeks to ensure that the federal law making system provides the greatest good for the greatest numberO Consequences-based ethics

O Constitution also seeks to protect the well-being of minorities that might be taken advantage of by the wrong actions of the majorityO Bill of Rights and other civil rights lawsO Rules-based ethics

Ethics Reflected in LawO Conclusion—we are obligated to

obey the lawO Consequences-based—when a law is

violated, many more people are injured than benefited

O Rules-based—we say we have agreed to obey the law but violate it, we are breaking our promise

Ethics Reflected in LawO Scofflaws—people who continually violate minor

lawsO Do not respect the lawO Risk of being caught vs Benefits they obtain

O Integrity—capacity to do what is right in the face of temptation or pressure to do otherwise

O Civil Disobedience—an open, peaceful, violation of law to protest its alleged, or supposed, injusticeO St. Augustine “It seems to me that an unjust law is no

law at all”O Object is to make the legal system more justO Participants are often eager or willing to be arrested

in order to test the validity of the law in court