Chapter 1Laws and Their Ethical Foundation

Laws and Legal SystemsWhat is Law?

• Enforceable rules of conduct in a society, reflecting the culture and circumstances that create them. Laws may be grouped into an organized form referred to as a code. (i.e. criminal law, property law, business law, family law, personal injury law, labor law, and others) Codes of different civilizations are often very similar.

Stages in the Growth of Law: Most societies go through four stages

1. Individuals are free to take revenge for wrongs done to them

2. A leader acquires enough power to be able to force revenge-minded individuals to accept an award of goods or money instead.

3. The leader gives this power to a system of courts

4. The leader or central authority acts to prevent and punish wrongs that provoke individuals to seek revenge.

Common Law versus Positive Law:

• Common Law (case law or precedent) : Law based on the current standards or customs of the people.

• Examples: Negligence, Marriage, The First Amendment, Property & Criminal Statutes

• Positive Law: Law dictated from above (i.e. the sovereign) to prevent disputes and wrongs from occurring

• Positive Law (human law): Law dictated from above (i.e. the sovereign) to prevent disputes and wrongs from occurring

• Examples: enactments (ruling), judicial orders (unbiased decision by a court ), executive decrees, and administrative regulations

Check Point

1. What is Law? 2. How many stages do most societies go

through? 3. Is Common Law the same as Positive Law?

What is the Origin of the U.S. Legal System?

• English common law and Roman civil law• Roman civil law: is typically only changed by

the central gov’t, not by the judges who administer them. (Louisiana)

• English common law: based upon a uniform web of custom based common law developed across the whole of England. Maintains uniformity while maintaining an ability to adapt to changes in society.

• Equity: An Alternative to Common Law: Following precedent helps to provide stability in the law. However, if overdone, it can have the disadvantage of requiring a rigid adherence to proper form.

• Another disadvantage of early common law was that courts could only grant the remedy of damages. This meant that harm actually had to occur before the courts could take action and is why equity was needed to allow for injunctions before harm occurred.

Check Point

1. What is the Origin of the U.S. Legal System?

2. What is the difference between English common law and Roman civil law?

3. What is another alternative to Equity?

1-2 Types of Laws

What Are the Sources of Law?

• Constitutions: document that sets forth the framework of government and its relationship to the people it governs. When constitutions are adopted or amended, or when courts interpret constitutions, constitutional law is made. Constitutions are the highest sources of law with the federal constitution being the “supreme law of the land”.

• Constitutions allocate powers in our society between (1) the people and their governments, (2) state governments and the federal government, and (3) among the branches of the federal government.

• Statutes: laws enacted by legislatures for their citizens on the federal and state levels. Pieces of legislation created by town or city council or county board or commissions are typically referred to as ordinances and are only effective within the boundary of the local government that enacted them.

• Case Law: Usually occurs after a trial has ended and one of the parties has appealed the result to a higher court. The effectiveness of case law arises out of the doctrine of stare decisis. (Latin for “let the decision stand”). Lower courts must follow established case law in deciding similar cases. However, the doctrine of stare decisis generally does not bind supreme courts.

Check Point

1. What is a constitution?

2. Give 3 ways that the Constitutions allocate powers in our society ?

What Happens When Laws Conflict?

• Federal law prevails over state law and state law prevails over local law. Constitutional law prevails over statutory law and statutory law over administrative law. Higher courts prevail over lower courts.

Check Point

1. Can Higher Courts prevail over Lower Courts? 2. Can Constitutional law prevails over statutory law?

3. Can statutory law over administrative law ?

What Are the Main Types of Laws?

• Civil and Criminal Laws: Civil law refers to the group of laws that allows individuals to seek legal remedies for wrongs done to them. Criminal laws refer to crimes against society rather than individuals.

• Procedural and Substantive Laws: procedural law sets forth how rights and responsibilities can be legally exercised and enforced through the legal system. In contrast, substantive law defines rights and duties and is concerned with rules of conduct (i.e. murder, theft, breach of contract, and negligence, etc.)

Check Point

1. How many main types of laws do we have? 2. Name them?

1-3 Ethical Bases for Laws

• Ethics and the Law: deciding what is right and wrong in a reasoned, impartial manner. All too often ethics are not considered when business decisions are made because of the idea of profit maximization.

Basic Forms of Ethical Reasoning

• Consequences-Based Ethical Reasoning: looks for alternative ways to alter the current situation. It then attempts to forecast the consequences that will arise from each alternative. Finally it selects the alternative that will generate the greatest good.

• Rule-Based Ethical Reasoning: the acts themselves are judged as right or wrong by an authority figure or human reasoning. In universalizing you picture everyone doing the action and deciding if the result would be irrational, illogical, or demeaning? If so the action is considered ethically wrong.

• Ethics Reflected in Laws: based upon the majority rules concept. The rights of minorities are protected by the Bill of Rights (first ten amendments to the Constitution)

• Fidelity bond: insurance that pays the employer money in the case of theft by employees.

• Scofflaws: people who break minor laws and usually lacking in personal integrity.

• Civil disobedience: an open, peaceful, violation of a law to protest its alleged or supposed injustice.

• Dr. Martin Luther King, Jr. as well as others concluded that civil disobedience is ethical when:

• A written law is in conflict with ethical reasoning• No effective political methods are available to

change the law• The civil disobedience is nonviolent• The civil disobedience does not advance a

person’s immediate self-interest• The civil disobedience is public and one willingly

accepts the punishment for violating the law

Check Point

1. How many Basic Forms of Ethical Reasoning did we just go over?

2. Name them?