Legal Foundation and Global Environment
Chapter 1
LEGAL FOUNDATION AND
GLOBAL ENVIRONMENT
Why do we stop at red lights or what is the “LAW”?
I. Overview
One of the first objectives of this opening chapter centers around illustrating attempts by great thinkers to answer the unanswerable. How law and ethics are defined by any one individual is ultimately related to his or her personal view of the larger global issues including morality, religion, and philosophy as well as the social sciences. When painting the picture entitled "What is law?," the broadest brush possible must be used. The interweaving of all these disciplines into one area of study, generically called jurisprudence, is what makes law study so formidable, complex, and perplexing. By the same token, those difficulties are what make it so challenging and stimulating. The study of law must start with open channels for new ideas not only from the mind, but also from the heart. Law and its various mechanisms is not just a set of rules of conduct but rather the end product of how society has decided to help or hurt its members. It is no wonder that the fascination with law and law studies is at its zenith today. Students have come to appreciate that law represents the embodiment of the social environment we all live and work in. By analogy, compare the legal environment to the water in which the life of the sea takes place. Big fish may eat little fish and so forth, but if the water itself is contaminated, all its inhabitants suffer. So too must the law be constantly examined for its societal safety. Law must be clean based on solid moral underpinnings and proper ethics. Where it fails, the legal environment may become polluted.
The categorization of schools of jurisprudence starts with a comparison of the old and the new. The traditional schools of thought find their roots in ancient history. The Natural School of jurisprudence is not only a school of thought vis-a-vis law but also finds proponents throughout many religions of the world. It is still considered one of the foundations of legal thinking today and is espoused by many, including Justice Clarence Thomas. The Historical School of jurisprudence was founded in large part by Friedrich Karl von Savigny who felt law was a product of a nation's history. Advocates of a more proactive role for law may find comfort in the Sociological School of jurisprudence. Members of that school see law as a tool to be used in social engineering. Compare that philosophy with the views proffered by members of the Command School of jurisprudence. Advocates of this school are usually members of the ruling class or royalty. Absolute monarchies are an anathema to participatory democracy because such forms of government are really only dictatorships-by-birth.
In spite of the divergent views espoused by the traditional schools of jurisprudence, the schools have a common denominator. They are all rooted on some sort of morality-based foundation. The modern schools of jurisprudence have stepped away from this commonality by finding justification for their points of view in economics, political science, or sociological agendas. The efficacy of these newer theories is untested by the litmus test of time and continues to be a source of spirited and sometimes raucous debate.
One interesting aspect of all schools of jurisprudence is that their proponents try to establish norms of ethical behavior. Ethics is derived from the Latin word ethicus, meaning moral. In that sense all these systems represent ways of finding moral foundations upon which a system of law can be built. These moral systems have, in turn, been sought to be identified by a number of notable scholars ranging from Karl Marx, John Stuart Mill, and Immanuel Kant to John Locke. In all these systems, a methodology is set forth by establishing guideposts for behavior. If these guideposts are universally accepted, the odds are very high that they will no longer be "advisory" but rather "required by law." The process by which moral-based ethical behavior is first desired, then expected, and finally mandated is really the evolution of law. Hopefully with each new generation, the law will evolve in a positive sense, which will best balance the legitimate interests of all parties concerned, both public and private. It is when these interests conflict that sometimes insurmountable problems arise. When the “guideposts” are only advisory and individuals ignore them or interpret them in conflicting ways we find major problems like the ones found in the Enron or WorldCom scandals. How society handles these problems might be relegated to the procedures established under the “law.” This might cause discomfort for many individuals, especially employees. What we should do as a society might be answered as we proceed through this course.
Your role as a student of law is to try to develop a sensitivity to how complicated the administration of law is in our society today. This course is not designed to act as a substitute for professional law school training. It is designed to help you appreciate the value and importance of law and ethics in both your personal and business behavior. The law is too complex and perplexing, but imagine a world without it. Imagine a world of Cimmerian darkness—a world described by Homer in the Eighth Century B.C. as a region of perpetual gloom.
II. Hypothetical Multi-Issue Essay Question
John Driver is a truck driver for a major office supply company located in Wilmington, DE. His job on this bright Spring day is to deliver computer paper to a large insurance company in Philadelphia, PA. He is to proceed along Interstate 95 to the appropriate exit in Northeast Philadelphia where he is to turn right at the exit and travel three miles along Route 73 to the Insurance Company’s main office building. As he gets to the exit along Route 95 he realizes lunchtime is approaching and he decides to pull off the road and take his lunch at a tavern located about six blocks off of Route 73. When he orders his lunch, he decides he is not hungry but is very thirsty. He therefore orders 10 alcoholic beverages which he proceeds to consume in 15 minutes. Before he orders the last two, which are happily served by the bartender on duty, he falls off the bar stool which is clearly seen by the server. He leaves the bar and starts to drive his truck back to the appropriate route when he accidentally hits an elderly woman crossing the street in a marked crosswalk who does recover fully from her injuries but only after much rehabilitation and great costs. She wants to know who she should sue and why. Who should she sue? What does the “law” say? What is the “law” or where do we find it?
III. Outline
What Is Law?
Law consists of rules with binding legal force that regulate the conduct of individuals, businesses, and other organizations within society. It is intended to protect persons and their property from unwanted interference from others. The law must be obeyed subject to sanctions or legal consequences.
Functions of Law
Facilitating orderly change
Facilitating planning
Keeping the peace
Maintaining the status quo
Maximizing individual freedom
Promoting social justice
Providing a basis for compromise
Shaping moral standards
Qualities of the Law
Fairness
The American legal system is one of the most comprehensive, fair, and democratic systems of law ever developed and enforced
Flexibility
The American legal system is generally responsive to cultural, technological, economic, and social changes
Other Characteristics of the Law
Certainty
The American Legal system is said to be predictable and stable.
Knowability
The American Legal System promotes rules the meanings of which
are accessible.
Reasonableness
The American Legal System is intended to promote rules that are
generally accepted as proper, necessary, and just.
Schools of Jurisprudential Thought
Analytical school—Believes law is shaped by logic
Command school—Believes law is a set of rules developed and enforced by the ruling party
Critical legal studies school—Believes legal rules are unnecessary and that legal disputes should be solved using rules of fairness
Historical school—Believes law is an aggregate of social traditions and customs
Law and economics school—Believes promoting market efficiency should be the central concern of legal decision making
Sociological school—Believes law is a means of achieving and advancing certain sociological goals
Natural school—Believes law is based on what is “correct”
English Common Law
Common law
Developed by judges who issued their opinions when deciding a case. The principles became precedent for later judges deciding similar cases.
Law court
A court that developed and administered a uniform set of laws decreed by the kings and queens after William the Conqueror. Legal procedure was emphasized over merits.
Court of Chancery (equity court)
Court that granted relief based on fairness
Merchant court
Courts established to administer the “law of merchants”
Sources of Law
Codified law—Organization of statutes (written laws from the legislatures).
Constitutions—Supreme law of the land.
Executive orders—Order issued by the executive branch.
Judicial decisions—Individual lawsuit decisions issued by courts.
Regulations and administrative orders—Rulings and orders of administrative agencies.
Treaties—Agreements with foreign governments becoming part of the law.
↓ ↓ ↓
Constitutions
The U.S. Constitution established the structure of the federal government
Legislative
Executive
Judicial
The constitution and treaties take precedence over all other laws
Treaties
A treaty is a compact made between two or more nations
Codified Law
Statute
Written law enacted by the legislative branch of federal and state governments that establishes certain courses of conduct that must be adhered to by covered parties
Ordinances
Laws enacted by local government bodies such as cities and municipalities, counties, school districts, and water districts
Administrative Agency Rules and Regulations
The legislative and executive branches of federal and state governments are empowered to establish administrative agencies to enforce and interpret statutes enacted by Congress and state legislatures
Many agencies regulate business
Executive Orders
An executive order is an order issued by a member of the executive branch of government
Judicial Decisions
A judicial decision is a decision about an individual lawsuit issued by federal and state courts
Doctrine of Stare Decisis
Based on the common law tradition, past court decisions become precedent for deciding future cases
Precedent is a rule of law established in a court decision. Lower courts must follow the precedent established by higher courts
Stare decisis—Latin for “to stand by the decision”—means adherence to precedent
Critical Legal Thinking
Critical legal thinking is the process of specifying the issue presented by a case, identifying the key facts in the case and the applicable law, and then applying the law to the facts to come to a conclusion that answers the issue presented.
Common vs. Statutory Law
Common Law
1. Case-by-case method
2. Court’s role is important à need flexibility
3. “Stare decisis” à similar fact patterns à precedent is important but remember changing social forces
4. Problems:
a. Conflicting precedent
Try to determine which cases are the closest to the case in question
b. Bad precedent à can be ignored especially where the original reason for the rule no longer exists
Statutory Law
1. Statutes used where common law could not work or where changes in the common law are needed
2. Procedural formalities must be followed in order to pass statutes
3. Statutory Law vs. Common Law
- comes from formal legislative -comes from judicial interpretation
steps
- more susceptible to political pressures - not as susceptible to political pressures
(lobbying)
- to avoid problem legislature can refuse - judges and court system must act
to act whenever there is a case
- statutes can be quite broad - cases only deal with specific fact
pattern
4. Statutory interpretation is important.
Civil law vs. criminal law
Civil law
1. Involves damages
2. Individual vs. individual
3. Preponderance of the evidence
Criminal law
1. Involves punishment
2. Society is involved
3. Beyond a reasonable doubt
IV. Objective Questions
Terms:
1. That which must be obeyed and followed by citizens subject to its sanction or legal consequences; a body of rules of action or conduct prescribed by controlling authority, and having binding legal force is called _______________.
2. A follower of the Sociological School of jurisprudence who believes that the purpose of law is to shape social behavior is known as a(n) _______________.
3. The Natural School of Law adheres to the position that law should be based on what is correct. This is also referred to as a _______________ ________________ of law.
4. "Battered woman's syndrome," and the "reasonable woman standard" are two legal doctrines which are evolving out of a new school of jurisprudential thought known as _______________ _______________ _______________.
5. The famous case of Brown v. Board of Education overturned the old _______________ _______________ _______________ doctrine that condoned separate school facilities based on race.
6. The school of jurisprudential thought that believes promoting market efficiency should be the central concern of legal decision making is known as the _______________ _______________ ________________ school.
7. Because there were many unfair results due to the limited remedies allowed in the early English Law Courts, a second set of courts called the _______________ _______________ were established in England.
8. The highest source of law found in the U.S. is found in the _______________.
9. Under the U.S. Constitution, with the consent of the Senate, the President may enter into _______________ with other nations.
10. Adherence to precedent (a rule of law established in court decisions) is known by the Latin term _______________ _______________, meaning to stand by the decision.
11. A _______________ is the party who originally brought a lawsuit. A _______________ is the party against whom the suit was brought.
True/False:
1. ____ The Law and Economics school professes that market efficiency should be the ultimate goal of legal decision making.
2. ____ The Court of Chancery provided for only limited law remedies in the early English court system.
3. ____ The Critical Legal Studies movement is widely accepted and very influential.
4. ____ The law includes constitutions, statutes, court decisions, and administrative regulations.
5. ____ One of the functions of the law is to limit individual freedoms.
6. ____ Under our jury system, the same results will occur in the interpretation of the same criminal statute.
7. ____ The Analytical School of Jurisprudence maintains that the law is an aggregate of social traditions and customs that have developed over the centuries.
8. ____ The rules of the Law Merchant were based on common trade practices and usage.
9. ____ Treaties are classified as having a higher standing in our system of laws than federal, state, or local enactments.