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68 Cards in this Set

  • Front
  • Back
What is law?
body of rules, whether proceeding from formal enactment or from custom, which a particular state or community recognizes as binding on its members or subjects
Substantive law
the rules and regulations themselves (statutes, ordinances,etc)
procedural law
the means, methods, and steps (the processes) for promulgating, implmenting, and enforcing the rules and regulations
Where do laws come from? What is teh source of law?
Law is derives either from:
(1) human authority and institutions
(2) sources and authority apart from humankind and experience
different ways of classifying jurisprudence
common law
civil law
socialist law
Islamic law
Mosaic law
Canon law
precedent
principle or rule established in a legal case that a court or other judicial body may apply when deciding subsequent cases with similar issues or facts
sources of American law
Constitution
legal precedents
statutory law/ordinances
executive orders
treaties
administrative regulations
Constitutions generally....
-establishes a body politic
-identifies those for whom the Constitution was created
-sets forth the fundamental principles, values, and purposes of hte polity
-establishes the basic structures and institutions of civil govt
-identifies the legitimate powers and duties of civil govt
-describes the rights and citizens free from govt infringement
-outlines the mechanisms for creating and amending law, including the Constitution itself
common law
system of jurisprudence developed in England and transferred to the American colonies. As distinguished from civil or statutory law, the common law comprises the body of laws derives from principles, usages, rule of action, customs of immeorial antiquity, and previous decisions of judicial tribunals. The principle doctrine of common law is stare decisis which requires courts to adhere to legal principles set forther in prior cases decided by superior courts of the jurisdiction
principle doctrine of common law
stare decisis
strengths of precedent
stability/consistency/continuity because common law is deeply rooted in tradition
predictability
over a 1,000 years of experience and experimentation, common law reveals that which works and that which does not
reflects popular consent because it has been accepted and maintained for such an extended period of time
weakness of common law
inflexible and difficult to change
King Alfred the Great
Anglosaxon
began a common legal system as he unifed those living in England
wrote "Domboc" a book of laws
William the Conqueorer
French king from Normandy
Battle of Hastings--overthrows English government
post 1066--common law develops
Henri de Bracton
"On the Laws and Customs of English"--book of compilation of legal precedents
Sir William Blackstone
"Commentaries on the Laws of England"
one of the most important in study of Anglosaxon law
precedent categorized into different branches of law
comprehensive
accessible to broad audience
survey of common law
civil law
system of jurisprudence based on Roman law (and later Canon law) and found in much of the world once governed or influenced by the Roman Empire (except England). The authoritative source of law in a civil law system is written legal codes or statutes arrived at through legislation, edicts, and the like. The civil law judge applies the relevant code or statute
Emperor Justinian
established civil law
American legal system?
American operates under a sort of hybrid between common law and a code based system
ex. criminal law codes
criminal law
prohibits, prosecutes, and upon conviction, punishes conduct that the public (usually speaking through their legislatures) has defined as offenses against the public
civil law
concerned with civil rights and civil duties and their enforcement. All legal questions that do not involve crimes are matters of civil law. Civil law deals with non-criminal wrongs such as breach of contract, torts, divorce, etc
-->questions of LIABILITY
In a civil case, what is the standard of proof?
preponderance of evidence
= more likely than not
In a criminal case, what is the standard of proof?
proof beyond reasonable doubt
Why is the standard of proof higher in a criminal case?
greater degree of evidence necessary when someone could be deprived of their liberties--minimize error
absolute discretion
opposite of rule of law
Rule of law maxims
"we are a nation of laws, not of persons"
"no person is above the law"
The Law is King, Thomas Paine
"but where, say some, is the king of American?...[I]n American the law is king, for as in absolute government the king is law, so in free countries teh law ought to be king; and there ought to be no other"
Rule of law means:
(1) LAW, not the discretion of an individual or some governing group, is the supreme authority in society
(2) the power of the civil government is limited by law
(3) the limits imposed by law can be enforced through established procedures
What (2) dimensions make up rule of law?
SUBSTANTIVE
PROCEDURAL
substantive expression
rule of law is expressed substantively through dule enacted law. The highest expression of written law in our legal system is the US Constitution
What is the procedural expression of rule of law?
DUE PROCESS
Whenm is a citizen entitled to due process?
(1) Before civil government can exercise its powers adverse to one's interests (life, liberty, property) it must first provide a measure of due process
(2) There can be no criminal punishment or civil liability without the prescribed process of law. THe law must follow defined, pre-determined rules (or processes) in the course of reaching a particular outcome
(3) The greater the interests at stake, the most exacting the due process
Origins of due process
-elements as far back as the mosaic law (ex. Exodus 23: 1-3, 6-9)
-component of the Magna Carta (art 39-40), which imposed limits on the discretionary power of the king
-explicitly written into the 5th and 14th amendments of the Constitution
(3) features of Due Process
(1) Notice
(2) Hearing
(3) Legal equality
Notice
due process requires that there be adequate advance specification of what the law requires before the law can be applied adverse to one's interests
---the opportunity to be aware of the law
-no ex post facto laws (Const. Art. 1, Sec 9-10)
-vagueness doctrine
Hearing
due process requires that an individual be afforded the opportunity to be heard in one's defense before an impartial tribunal before being subjected to some penalty
Legal equality
due process requires that laws be applied in like manner to people in like situations (designed to control discretion and invidious discrimination)
--equal justice under the law
How do we make a hearing as fair as possible?
-jury of peers: act as a buffer between the powerful state and the individual
-right to public trial--public scrutiny serves as a check
-right to assistance of counsel
-right to a speedy trial
-separation of power between judge and jury
-right to confront one's accusors
Constitution Day
signed on Sept 17, 1787
ratified on June 21, 1788
implemented on March 4, 1789
Constitution
jurisdiction's expression of its fundamental, authoritative law. Made and/or ratified by those in whom the sovereign power of the civil states resides
Influences on the American constitutional tradition
the American constitutional and political traditions drew on diverse sources including Hebraic, biblical, Protestant, classical and civic republican, Enlightenment liberal, and English common law and constitutional sources. The english tradition was among the most immediate and influential
defining features of American constitutional tradition
-consent of the governed
-limited government
-representative government
-separation of powers
-rule of law--checking arbitrary discretion
-due process of law
-individual rights
-right to resist tyrannical government
themes and principles of the US Constitution
-popular sovereignty
-republicanism (consent of the governed, republic democracy)
-limited government
-rule of law/ due process
-diffusion of government powers
-individual rights and autonomy
--->fundamentally about restrictions of government power
Preamble
statement of purpose and creation of body politic
Article I
powers of the legislature
Article II
powers of executive
Article III
powers of the judiciary
Article VII
ratification process
Article V
amendment process
Article VI
powers of national government
-responsibility of debts
-supremacy of federal laws and treaties
-oaths of office
Federalists
supporters of the Constitution, preferred a strong central government

ex. Madison
Antifederalists
required the Bill of Rights to ratify, supported states rights

ex. Jefferson
9th Amendment
addresses potential danger of explicitly listing rights--enumeration of rights shall not be construed to deny rights to the people
12th Amendment
electoral college votes for President and Vice President
13th, 14th, 15th Amendments
post Civil War amendments, abolishes slavery
16th Amendment
gives Congress the power to collect income tax
17th Amendment
popular election of senators
19th Amendment
gives women the right to vote
22nd Amendment
places limits of number of terms a president can serve
26th Amendment
voting age
24th Amendment
prohibits poll tax
27th Amendment
most recent amendment, Congressional pay raises do not take effect until the following term
judicial review
power of the courts to declare unconstitutional --and hence null and unenforceable--any act of Congress, Presidential order, state law, or administrative regulation that the court deems to be in conflict with the Constitution
Why do we give the Supreme Court the power of judicial review?
Checks-and-balances; critics remark on the un-democratic nature, unelected justices have ability to overturn decisions made by democratically elected legislators
Where does the Supreme Court derive the authority of judicial review?
implied
-Supremacy clause
-Judiciary Act of 1789
Marbury v. Madison
Theory of Incorporation
the application of the Bill of Rights, selectively, to the states
1st Amendment
Freedom of:
-religion
-speech
-press
-assemblage
Intent of free exercise guarantee?
meant to prevent Congress from prohibiting or compelling religious worship