Chapter 1 The Nature of Law 1 Types and Classifications of Law a The Types of Law i Constitutions 1 2 Functions a Set up the structure of government for the political unit they control separation of powers federalism b Prevent other units of government from taking certain actions or passing certain laws ii Statutes legislature iii Common law 1 Laws created by elected representatives in Congress or a state 2 Uniform acts are model statutes drafted by private bodies of lawyers and or scholars a Aim is to promote state by state uniformity 1 Common law is law made and applied by judges as they decide cases not governed by statutes or other types of law a Exists only at the state level b Judges sometimes follow the decisions of other judges in similar cases called precedents i Doctrine of stare decisis let the decision stand 2 Case law reasoning is when the courts engage in making and applying common law rules iv Equity 1 Equity is a system of justice a Equitable remedies i Injunction a court order forbidding a party to do some act or commanding him to perform some act ii Specific performance whereby a party is ordered to perform according to the terms of her contract iii Reformation in which the court rewrites the contract s terms to reflect the parties real intentions iv Rescission a cancellation of a contract in which parties are returned to their pre contractual position v Administrative regulations and decisions 1 The two types of law made by administrative agencies are a Administrative regulations b Agency decisions vi Treaties 1 Treaties made by the president with foreign governments and approved by two thirds of the U S senate are the supreme Law of the Land and will invalidate inconsistent state and sometimes federal laws 1 The enactment of counties and municipalities are called vii Ordinances ordinances viii Executive orders 1 Executive orders are legal rules issued by a chief executive b Priority Rules i Rules for determining which law takes priority 1 Federal supremacy Federal law defeats conflicting state law 2 Constitutions defeat other types of law within their domain 3 When a treaty conflicts with a federal statute over a purely domestic matter the measure that is later in time usually prevails 4 Statutes defeat conflicting laws that depend on a legislative 5 Statutes and any laws derived from them by delegation defeat delegation for their validity inconsistent common law rules c Classifications of Law i Criminal and Civil Law 1 Criminal law is the law under which the government prosecutes someone for committing a crime a It creates duties that are owed to the public as a whole 2 Civil law mainly concerns obligations that private parties owe a It is the law applied when one private party sues another ii Substantive law and Procedural law 1 Substantive law sets the rights and duties of people as they to each other act in society 2 Procedural law controls the behavior of government bodies mainly courts as they establish and enforce rules of substantive law iii Public and private life 1 Public law concerns the powers of government and the relations between government and private parties a Examples include constitutional law administrative law and criminal law 2 Private law establishes a framework of legal rules that enables parties to set the rights and duties they owe each other a Examples include the rules of contract property and agency 2 Jurisprudence The philosophy of law Also sometimes used to refer to the collected positive law of some jurisdiction a Legal Positivism questions b Natural law i Legal positivism Legal positivists define law as the command of a recognized political authority ii Positivists see legal validity and moral validity as entirely separate iii Positivist judges usually try to enforce the law as written i The school of jurisprudence known as natural law takes issue with legal positivism by rejecting the positivist separation of law and morality c American legal realism i American legal realism American legal realism defines law as the behavior of public officials mainly judges as they deal with matters before the legal system d Sociological jurisprudence A general label uniting several different approaches that examine law within its social context Law is a process of social ordering reflecting society s dominant interests and values i Different sociological approaches ii The implications of sociological jurisprudence 1 Because its definition of law includes social values sociological jurisprudence seems to resemble natural law Most sociological thinkers however are concerned only with the fact that moral values influence the law and not with the goodness or badness of those values Thus it might seem that sociological jurisprudence gives no practical advice to those who must enforce and obey positive law 2 One practical implication A tendency to urge that the law must change to meet changing social conditions and values In other words the law should keep up with the times e Other schools of jurisprudence 3 The Functions of Law a Peacekeeping b Checking government power and promoting personal freedom c Facilitating planning and the realization of reasonable expectations d Promoting economic growth through free competition e Promoting social justice f Protecting the environment 4 Legal Reasoning Basically deductive The legal rule is the major premise the facts are the minor premise and the result is the product of combining the two a Case law reasoning i Courts find the appropriate legal rules in prior cases called precedents ii The standard for choosing and applying prior cases to decide present cases is the doctrine of stare decisis which states that like cases should be decided alike iii A valid distinction involves a widely accepted ethical or policy reason for treating the present case differently from its predecessor b Statutory interpretation Statutes are written in authoritative form i Plain meaning 1 If the statute s words have a clear common accepted meaning courts often employ the plain meaning rule This approach calls for the court to apply the statute according to the usual meaning of its words without concerning itself with anything else ii Legislative history and legislative purpose 1 Almost all courts resort to legislative history when the statute s language is ambiguous 2 May use is to determine what the legislature thought about the specific meaning of statutory language 3 May also use it to determine the overall aim end or
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