An Introduction To The American Legal System (Third Edition) Chapter 1 Terms

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positive law

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law is a set of rules promulgated and enforced by government

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Natural law

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law that is presumed to flow from man's "natural" condition, that is, the social condition existing prior to the emergence of government. = sometimes used to refer to universal principles of morality and justice

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legislature

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In a representative democracy, law is made by elected representatives serving in a

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substantive legitimacy

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refers to the content of law based on fair, just, and reasonable principles

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procedural legitimacy

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refers to how the law is enacted and applied it is ---- if it is enacted applied and enforced according to procedures that people regard as fair, just, and reasonable

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constitution

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the fundamental law. It sets forth the structure and powers of government as well as the rights of citizens vis-a-vis that government

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statute

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a law enacted y a legislature that is generally applicable within the jurisdiction of that legislature

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ordinance

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a law enacted by a local governing body such as a city council or a county commission these deal principally with matters of local concern

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executive order

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an order issued by a president, governor, county executive, or mayor relating to matters over which the executive official has authority.

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treaty

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a legally binding agreement between countries

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regulation

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a rule promulgated by a regulatory agency

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judicial decision

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a decision by a court of law enunciating a principle of law

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libertarian view of law

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argued by John Stuart Mill; the law should be limited to protecting the security of the individual and should not enforce traditional notions of morality

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critical legal studies

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Marxist, anarchists, and radicals of various persuasions generally see law, at least in capitalist society, as a tool of oppression and agent of inequality. From the Marxist perspective, law in a capitalist society is little more than a cloak for the power of the ruling class.

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private enterprise vs

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public good vs

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freedom vs

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equality vs

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privacy vs

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crime control vs

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private property vs

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environmental protection vs

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national security vs

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freedom of the press vs

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public order vs

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the right of public assembly vs

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freedom of expression vs

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decency and civility vs

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majority rule vs

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minority rights vs

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roman law

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formally began with the introduction of the twelve tables in the mid fifth century

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lex talionis

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law of retaliation

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Code of justinian

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In the early sixth century A.D., the byzantine emperor commissioned the legal scholar Tribonian to produce a systematic codification of the roman law. The result was the Corpus Juris Civilis, or Body of Civil Law

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Napoleonic Code

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promulgated under Napoleon Bonaparte in 1804 as a codification of all the civil and criminal laws of france. Based on the code of Justinian

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English common law

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dates from the eleventh century: a patchwork of local laws and customs, often applied by feudal courts, and church law enforced by ecclesiastical courts

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Magna Carta

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a series of promises that the King would follow the dictates of the law in dealing with his subjects and vassals. this document established the principle that government is subject to the rule of law which is the essential idea upon which the united states constitution is based

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precedents

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judicial decisions that shape the law

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stare decisis

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"to stand by that which is decided"

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plantiff

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the party initiating the legal action

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defendant

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the party against whom legal action is brought

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felonies

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punishable by death in the 1600s

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misdemeanors

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punishable by less severe sanctions

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civil suit

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case in which the plaintiff was the aggrieved party; the defendant was the party accused of the wrongful act.

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breach of contract

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occurred when a party to a contract violated the terms of the agreement

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tort

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a wrongful act that did not violate any enforceable agreement but nevertheless violated a legal right of the injured party

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habeas corpus

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Literally meaning "you have the body" ... a device by which a court of law would require a person to show just cause for holding another person in custody

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adversarial system of justice

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a system of administering justice in which opposing parties contend with one another to achieve a favorable outcome. In this system, the role of the judge is one of neutral referee

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sovereignty

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the right to rule

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Inns of Court

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a place of formal legal education in london

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blackstone's commentaries

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published in 1769: a codification of the principles of common law

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declaration of independence

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authored by Thomas Jefferson. outlined the colonies' grievances against the King and asserted the right of revolution

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Articles of Confederation

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an agreement made after the American Revolution that loosely held together the colonies

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federalism

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a system in which soveriegnty is exercised by the national government and the states

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distributive articles

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the first three articles of the constitution: define the structure and powers of congress, the executive, and the judiciary

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judicial review

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the power of the federal courts to rule on the constitutionality of legislation: nowhere explicitly enumerated in the constitution

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bill of rights

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the first ten amendments to the constitution

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the fourteenth amendment

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places broad restrictions on the power of states to infringe upon the rights and liberties of citizens

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procedural due process

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embraces government's obligation to provide fair notice and a fair hearing to individuals before depriving them of life liberty or property

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substantive due process

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under this, government is barred from enforcing policies that are irrational, unfair, unreasonable, or unjust, even if such policies do not run counter to other specific constitutional prohibitions

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doctrine of incorporation

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under this, the supreme court has held that most of the provisions of the bill of rights are embraced within the terms liberty or due process and are thus applicable to the states

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statutory construction

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the task of assigning concrete meaning to statutory provisions that may allow for different interpretations

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trial courts

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exist primarily to make factual determinations, apply settled law to established facts, and impose sanctions

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appellate courts

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must interpret the federal and state constitutions and statutes

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decisional law

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law as developed by courts in deciding cases