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Law:Logic,SourcesClassifications

Law:Logic,SourcesClassifications

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I. RULES – BASIC PATTERNS

A. “Permissive” and “Prohibitive” Systems

1. A “permissive” system is based on the premise that the only legal actions are those specifically permitted by law.» Everything not expressly permitted is prohibited.» Laws gives permission

2. A “prohibitive” system is based on the premise that the onlyillegal actions are those specifically prohibited by law» Everything not expressly prohibited is permitted.» Laws prohibit

B. Two Types of Rules :

1. “Thou shalt not . . . .

2. “Thou shalt . . . .» In a prohibitive system, “thou shalt” rules must be

precededby a “thou shalt not. . . . .” rule.

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C. A Statute-Drafting Problem

1. Statutes are written to govern future actions and events

a. It is impossible to predict the future with absolute certainty

b. Statutes can be written anywhere from extremely preciseto extremely general

2. Extremely precise statutes have problems

a. It may be relatively easy to avoid violations but still obtainthe result intended to be prohibited» E.G. “designer drugs”

b. Changing conditions can render precise statutes obsolete

3. Extremely general statutes have problems

a. It may be very difficult to determine what all is covered

b. Constitutional “due process” requires that persons beable to determine in advance what acts are prohibited

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II. LEGAL LOGIC

A. Syllogism:

1. Major premise (normally a statement of the/a law)2. Minor premise (normally a statement of fact)3. Conclusion (logical result of applying the first two [ law to fact ] )

The result is not always reasonable

EXAMPLE: Assume killing a human being is a capital offense (possibledeath penalty). Also assume this is subject to the generalrule that attempting a crime carries the same penalty assucceeding.

Major Premise: Timur is a human being.

Minor Premise: Timur attempted to kill Timur.

Conclusion: Timur can be given the death penalty.

Why does that not make sense?

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B. Analogy:

1. Something is like another thing (at least in some way)

a. “Can not compare apples and oranges” Why not?

b. Compare? Elephants and Mice?Trees and horses?

2. “Precedent” (in Common Law) is using prior court decisions todetermine “the law” for a present case

a. To be usable precedent, the prior case must:(1) Have similar facts(2) Have similar legal issues

b. Similarity and difference is determined using analogy

c. A constant question = how far must the facts or legalissues be generalized before they are analogous?

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3. When trying to determine if precedent exists

a. Carefully analyze the basis/reasons for the prior decision

– If the key factor in an oranges case was that the item was a fruit, is it precedent for a later apple case?

– If the key factor was the color of the outer layer of the item, is it precedent for an apple case?

4. Things to argue about:

a. What, exactly, was the key factor(s) in the prior decision?

b. Is the analogous factor most significant in the problem, or are there other factors that should have greater weight?

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C. Another use of “precedent” – Establishing & applying a general rule

Inference = determining a general rule from a sampling of individual events

1. Find a number of cases dealing with similar facts and legal issues

2. Summarize (generalize) the result of those cases into a single rule that explains/includes all of them

3. Apply that general rule to the problem case, using deductive logic

4. This is more like “scientific” logic – general “laws” of physics are inferred from a number of experimental observations

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III. Influence of History

A. Context influences development and application of rules

1. Historical

2. Political

3. Social

B. Broad background of U.S. law

1. European history/culture/religion after Roman Empire(See “Fabulous Eleventh Century” from website)

2. Colonialism & Trade

3. Relationship between individual and group

C. More specific

1. English colonies, “rights” of English citizens2. Western expansion3. Industrialization

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IV. LAW SOURCES

A. Major “Sources” of Law in U.S.

1. U.S. Constitution

2. Federal statutes, treaties, regulations

3. State Constitutions and state statutes

4. Agencies (bureaucracy) state and federal

5. Common Law

A “statute” is a law enacted bya legislative body.(Note the three “t”s!)

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B. U.S. Constitution

1. Is the “supreme law of the land”

2. Delegates to Congress, President, a limited number of subjects upon which they can act

3. Provides that itself and laws, treaties, etc., adopted pursuant to it are the “supreme law of the land”

C. Federal statutes, treaties, regulations

1. Federal law can only be on those subjects permittedby the Constitution (as interpreted by SupremeCourt).

2. Everything else is left to the states or the people

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D. State Constitutions and state law

1. State legislature can pass laws on any subject not restricted by a constitution (very, very few of those)

2. State law controls the most basic (everyday, pervasive)subjects, such as:

Contract Tort (personal injury)Property Crime

3. Local governments (city, county, precinct, mosquito control district, etc., can adopt law on specific subjects.

4. “State law” is not limited to statutes

E. Agencies (bureaucracy) state and federal

1. Authorized to issue rules on subjects within their area

2. Frequently the most detailed, and most difficult to find

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F. Common Law

1. “Precedent” and stare decisis

2. Prior court decisions with similar facts and similar legalissues guide decisions in new cases

3. Most basic law in the U.S. is found here

4. The oldest, most pervasive legal rules are found only in court decisions

5. Contrast “Civil Law” Systems

a. Court decisions are not “precedent”

b. Basic law is included in “Civil Code” (statute)

c. Judges apply the Code rules to cases, consulting only expert commentary on Code (or not)

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IV. TWO KINDS OF LAW IN U.S. — Common Law, Enacted Law

A. Distinctions (where “the law” is made and found)

1. “Enacted law” consists of rules adopted by some empowered governmental body or agency

a. Statutes (“statutory law”) = adopted by legislative body

(1) Congress (federal)(2) Legislatures of states

(3) Local government bodies (a/k/a “ordinances”) (4) Administrative agencies (a/k/a “regulations”)

b. Enacted as distinct pieces of law

c. Normally compiled into some type of rational arrangement, usually referred to as a “code”

2. U.S. enacted law ASSUMES the existence of Common Law

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2. “Common Law” is a many-century accumulation of court decisions

a. Inherent limitations:

(1) Necessarily retroactive (2) Court can only decide case before it (3) Cannot “enact” rule intended to bind all persons in

the future

b. BUT courts are aware that decisions will be followed in later

cases (subject to precedent rules)

(1) One consideration is how a decision may be applied

in the future – major concern in writing a decision

(2) US Supreme Court may take application into account

more than being concerned about “proper” decision

of the current case

c. “Common Law” subjects are the most fundamental rules(Contract, tort, property, agency, etc.)

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3. How they work together

a. Common Law

(1) Retroactive, determining legal consequences of past acts

(2) Is flexible, can change with the times/circumstanceson a case-by-case basis

(3) Slight variations in facts can change the result

(4) Can not effectively deal with broad issues/problem

b. Statutory law

(1) Prospective only, specifies result if events happen later

(2) Is not very flexible, change only by legislature

(3) Enacted to produce standard result in standardized factsituations

(4) Especially suited to establishing rules for complicatedproblem categories

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SOME “CLASSIFICATIONS” CRIMINAL

Deals with “offences against society”

a. Plaintiff is government

b. Government (prosecutor)

controls litigation

c. Victim has no real say in prosecution or sentencing

d. “Compensate” society by suffering punishment, retribution

CIVIL

Deals with relationships and claims between persons and entities not acting in a governmental capacity

a. Normally between indivi-duals and/or private companies

b. Governments can be involved when not acting as a government (e.g. buying office supplies)

c. Not a very clear distinction in many areas subject to

significant regulation

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PROCEDURAL

Establishes the processes through which laws are made and enforced

a. One must follow proper procedures if one wants a particular result

b. If procedural rules not are followed, result is not legal

c. Criminal procedures favor the defendant

d. Civil procedure rules are intended to be balanced

e The entity/group that made the procedural rule can waive it

SUBSTANTIVE

Everything not procedural are substantive.

a. Establishes the rights and obligations of individuals, entities, governments

b. Not following substantive

laws may result in civil or

criminal liability

c. Substantive laws cannot be waived by a court, but they can be amended or repealed by a government body