PLSC472:
Lesson 02: What is Law? Part I
Lesson 2
What is Law? Part I
A study of law should begin with an understanding of what law is and is not. Law is not the same thing as morality, although some people say it should be based upon it. Law is not the same thing as ethics, although they, too, can be closely related.
Law can be defined as a set of rules, established by the government, that tell you what you can and can't do, and for which there are penalties if the rules are violated. What purposes do the laws serve? And where do they come from?
Objectives
This lesson will help you to:
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Key Terms
Actual notice |
Implied rights |
Regulations |
Reading
Read online lesson commentary.
Scheb: An Introduction to the American Legal System
Chapter 1, Foundations of American Law, pages 3-28.
Chapter 3, Constitutional Law, pages 73-105.
U.S. Constitution, referenced sections, pages 451-469.
Commentary
A. The Crucible: The Adversarial System
Justice in America is sought in an adversarial system. That is, the parties argue and dispute, attacking and eliminating the arguments of their opponents—until what is left is the truth. The analogy is to a crucible in a laboratory. A compound is placed in the crucible, and heat is applied. The impurities are burned away, and what is left is a pure substance.
Why do we have such a system? There are quicker and more efficient ways to resolve disputes. But often, parties to a lawsuit care not so much about winning, as they care about being heard. They are often more passionate about a wrong being righted, than a person being punished. Essentially, there is a psychological satisfaction in having one's "day in court."
This system can be cumbersome. But it can also work surprisingly well—if the rules of engagement are followed. If attorneys, prosecutors, police, parties and judges do not follow the rules—of ethical conduct, of evidence, of procedure—then the system will become distorted and the results unfair. If the American legal system is allowed to operate as it was designed to, it can be particularly elegant and effective.
B. The Concept of Notice
Why do societies adopt systems of law? Why do we need law? The most logical answer is that law promotes an orderly society. When members of a society know what is expected of them, they can tailor their behavior accordingly.
One of the most profound concepts in American jurisprudence is due process. Your right of due process entitles you to all the steps or rights that the law allows (you are "due" all the "process" of the law). The constitutional right of due process ensures that you are given all your other constitutional rights.
A major component of due process is the concept of notice. Notice means many things, but includes the ideas that the government cannot pass laws in secret; that you are entitled to know the laws that apply to you, and that you are entitled to know what violation of law you are being charged with. Why are you entitled to notice? So that you can tailor your behavior accordingly.
There are two kinds of notice—actual notice and constructive notice. Actual notice means that you actually know what the law says. Whether you have read the law, been told of it, or read an account of it in the newspaper—you know about the law. When you have driven by a sign that says, "Speed Limit 45 MPH", you have gained actual notice of that law.
Since you are entitled to notice, does this mean that if you don't know the law it cannot be applied to you? Of course not. Remember the saying, "Ignorance of the law is no excuse?" No person can actually know all the law that exists. This brings us to the concept of constructive notice. You are expected to educate yourself about all the law that applies to you. If you take up the hobby of hunting, you are expected to learn all the laws that pertain to hunting and gun ownership. Even if you do not do so, knowledge of those laws is imputed to you. You are on constructive notice that those laws exist and apply to you.
In order for constructive notice to work, you need access to the laws that exist. Therefore, a requirement of notice is that the government publish all the laws that are passed. If the government has passed a law that is constitutionally sound and has published it, you have notice of that law—even if you do not actually know that the law exists.
C. The Interplay of Law, Morality, and Ethics
We have said that law, morality, and ethics are not the same thing. What, then, are the differences? How do they relate to one another?
We defined law as a set of rules, established by the government, that tell you what you can and can't do, and for which there are penalties if the rules are violated. Since the imposition of law is designed to promote an orderly society, it is important that the law set out guidelines for behavior that is proscribed or mandated. It is important that there be penalties assigned to undesired behavior; otherwise, no one would tailor his or her behavior to comply with it. Those penalties can include jail sentences and fines, in the case of acts deemed criminal, or monetary damages for acts resulting in civil liability.
In contrast, morality can be defined as a person's personal code; what he feels is right or wrong. It is an internal value rather than an externally applied rule. Imagine a society where everyone was ruled, not by the law, but by their internal sense of morality. Imagine the ways in which conservative and liberal sensibilities would collide. This would not be conducive to an orderly society, which is the primary objective of the law.
Most people would agree that homicide (the killing of a human being) is immoral. But not all incidents of homicide are illegal. The law excuses several forms of homicide, such as killing in self-defense, the imposition of a capital (death) sentence by the prison executioner, and the killing of an enemy combatant by a soldier in a time of war. But many people would say that these homicides, although legal, are immoral, because that is the standard of their personal code. Although there is a difference between law and morality, many people would say that law should be based upon a sense of morality. The difficult question becomes whose sense of morality?
In the area of criminal law there are two concepts, malum in se and malum prohibititum. Malum in se means "inherently evil." Malum prohibitum means evil because it is said to be. Most people would agree that premeditated murder is malum in se, inherently evil, and therefore should be illegal. But, is it more inherently evil to drive 30 miles per hour—rather than 25 miles per hour—down a typical residential street? If the posted speed limit is 25 miles per hour, you will get penalized for breaking the law by going 30. This is because such things are considered malum prohibitum. The law has declared 25 as the appropriate speed; therefore, it is illegal to go faster because it is prohibited—not because it is immoral. (Some would say that it is immoral to break the law, but that is a different issue.)
So law is different from morality, in that one is externally imposed while the other reflects an internal value system. Some things are considered (by some people) to be immoral, although they are not illegal. Some things are considered illegal, although (to some people) they are not immoral.
Where, then, do ethics fit into this analysis? Sometimes the word "ethics" is used as a synonym for "morality." When used in this sense there is no difference between them, and that is the end of the analysis.
But ethics can be given a different definition. Like law, ethics are externally imposed. Unlike law, they are generally not established or imposed by the government. For example, when an attorney joins the Bar Association of his state, he becomes subject to the ethics rules of that association. These rules of conduct are externally imposed, and there are definite penalties (such as suspension or disbarment) that accompany violations of them. However, an attorney will not go to jail for violating an ethics rule (unless the underlying action involves a criminal act). For example, an attorney will not go to jail for failing to keep his client informed of the progress of his legal matter; but in a severe case, he might face suspension of his license to practice law. These rules of ethics are not the same thing as rules of law. They are not the same thing as morality either (although they might be based on conduct that most people would consider immoral). For example, some state bar associations have ethics rules that regulate attorney advertising, and they may include procedures for submission of sample ads for approval by the bar association before the ads can be run. Many people (especially attorneys) would not find this to be an issue of morality at all. It is, rather, an issue of maintaining the professionalism of the legal profession.
D. The Purposes of Law in Society
So, the primary objective of law is to promote an orderly society. Just how does law promote this objective?
1. Reducing Recidivism
Recidivism means committing new crimes. Some people commit crimes repeatedly until they get caught, figuring they can get away with their behavior. They often think they will never get caught. For example, according to one study, shoplifters say they are caught an average of only once in every 48 times they steal. They are turned over to the police 50 percent of the time. Shoplifters steal an average of 1.6 times per week. Fifty-seven percent of adults and 33 percent of juveniles say it is hard for them to stop shoplifting even after getting caught. When they experience punishment, they sometimes stop their recidivist behavior. If not, their eventual incarceration will prevent them from repeating their crimes.
2. Deterrence
We are in an enlightened age where the U.S. Constitution forbids cruel and unusual punishment. However, it was not so very long ago that public hangings not only were the norm, but also were practically considered to be public entertainment. The chief value in having such displays was said to be their deterrent effect. It would be easy to envision that a world without the rule of law would be, well, lawless and chaotic. But it is hard to quantify the deterrent value of the law, since most wrongdoers feel that they will not get caught anyway. Fear of prosecution most likely deters some, but probably has no effect on others.
3. Encouraging Rehabilitation
The flip side of recidivism is rehabilitation. There is a role that the legal system can play in helping to rehabilitate persons who commit societal wrongs. A certain percentage of those who violate the law will take care never to do so again, and they rehabilitate themselves. Even habitual offenders can experience a personal epiphany and choose thereafter to comply with the law. Perhaps it can be said that the legal system is working at its best when it is not just punishing, but remolding offenders. There are thousands of programs working within and beyond the legal system to help with rehabilitation. These programs include such things as substance abuse programs, parenting interventions, and job retraining programs. These interventions operate partly under the thesis that societal pressures drive people to violate the law, and if those pressures can be eased or cured, the need to commit such acts will be gone.
"Research has shown that combining criminal justice sanctions with drug treatment can be effective in decreasing drug use and related crime. Individuals under legal coercion tend to stay in treatment for a longer period of time and do as well as or better than others not under legal pressure. Often, drug abusers come into contact with the criminal justice system earlier than other health or social systems, and intervention by the criminal justice system to engage the individual in treatment may help interrupt and shorten a career of drug use. Treatment for the criminal justice-involved drug abuser or drug addict may be delivered prior to, during, after, or in lieu of incarceration."
Drug Addiction Treatment Center: http://www.drug-addiction.com/drug_abuse_treatment.htm
4. Punishment and Revenge
There is a difference between punishment and revenge, but the distinction between them is sometimes not so clear. Punishment is usually viewed as earned and, therefore, rightly deserved; whereas, revenge is often considered to be mere retaliation. The historical roots of our legal system emerged primarily from a Judeo-Christian heritage that was based, in part, on "an eye for an eye;" the belief that justice requires that a wrongdoer be punished. Consider the divergent views on capital punishment. There are those who consider it to be a cause-and-effect relationship; that the death penalty is the natural and necessary outcome of certain extreme acts that society deems particularly heinous, such as first degree murder. Others feel that the death penalty is nothing more than society's bloodthirsty desire for revenge. Whether it is punishment or revenge, there is a societal need to see a quid pro quo, that is, a penalty imposed that is in proportion to the wrongdoing.
E. Sources of the Law
Earlier we discussed the idea that no one can have actual notice of all the law that exists. Have you ever considered how much law there is in this country and who is generating it? What are the sources of law in America?
1. Common Law
Before we were a nation, we were a colony. As English citizens, we followed English law. When we "threw off the yoke of the king"—that is, we succeeded in establishing our independence—we retained the law that we knew, which was the English common law. It became our common law. But we were not content with it, and began overwriting it with our own statutory law. Where a statute exists, that statute supersedes the common law. After more than two hundred years we have passed a great many statutes. But, even today, there are areas which are not addressed by any statute. Frequently, these areas involve model theories or innovative trends (such as the vast changes in society, and thus, the law, brought about by the establishment and growth of the Internet). When an issue is not adequately addressed by a statute, the courts frequently resort to the common law to resolve that issue. For example, in the case of Micek v. Flightsafety Int'l, Inc., the plaintiff claimed his former employer wrongfully terminated him because of his complaints of unsafe licensing practices. The court ruled that "[b]ecause Plaintiff cites to no statute as the basis for this claim, the Court construes it as a common law claim of retaliatory discharge, and agrees with FlightSafety [sic] that it ... must be dismissed...." Micek v. Flightsafety Int'l, Inc., 2006 U.S. Dist. LEXIS 101*33 (S.D. Ohio Jan. 4, 2006).
Thus, we originally inherited our law from England. But we have extensively modified it by passing our own laws. However, when the need arises, even today, we refer to the common law, when the issue cannot be resolved by reference to an existing statute.
E. Sources of the Law, continued
2. Constitutions
The founding document of our government and our legal system is the United States Constitution. The U.S. Constitution declares itself to be "the Supreme Law of the Land." Article VI, clause 2 states: "This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding (emphasis added)."
There is no higher man-made law in the United States. Even the United States Supreme Court (which is the highest court in this country) must abide by the articles and amendments of the U.S. Constitution. Any law created by Congress or any other legislative or administrative entity, the executive orders issued by the President, and regulations promulgated by administrative agencies must be able to withstand constitutional review.
Keep in mind that all fifty states have established constitutions, and they are also a significant source of state law. (The U.S. Constitution constitutes federal law, but since it is the supreme law of the land, even state constitutions must not be in direct conflict with it. But we will discuss this in more detail when we get to preemption.) Most states have modeled their state constitutions on the U.S. Constitution; however, there can be significant differences. For example, the U.S. Constitution does not include an express (actually stated) right to privacy (although one has been implied through judicial interpretation).
"The Constitution does not explicitly mention any right of privacy. In a line of decisions, however, going back perhaps as far as Union Pacific R. Co. v. Botsford, 141 U.S. 250, 251 (1891), the Court has recognized that a right of personal privacy, or a guarantee of certain areas or zones of privacy, does exist under the Constitution (emphasis in original)." Roe v. Wade, 410 U.S. 113,152(1973).
Some states, for example, Hawaii, have included in their state constitutions an express right of privacy. Article I, § 7 of the Hawaii Constitution states: "The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches, seizures and invasions of privacy shall not be violated; and no warrants shall issue but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the persons or things to be seized or the communications sought to be intercepted (emphasis added)."When we say that constitutions are a source of law, we are really speaking in two senses. First, the U.S. Constitution (or any state constitution) is a source of law because it contains articles and amendments that give us rights and establish prohibitions.
For example, the Sixth Amendment of the U.S. Constitution sets out our criminal trial rights, such as the right to a speedy and public trial. The Sixth Amendment of the U.S. Constitution states: "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed; which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defence [sic]." And the Eighth Amendment prohibits cruel and unusual punishment. "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." We can assert our claims to these rights through legal process.
Second, the U.S. Constitution becomes a source of law in the sense that a body of law (or jurisprudence) has arisen to deal with the issue of whether laws are or are not constitutional; which we refer to as constitutional law.
E. Sources of the Law, continued
3. Statutory Law
"Law" in its broadest sense refers to the entire system of jurisprudence, and includes all the sources of law which we are examining here. In a narrower sense, law means a statute. A statute is a law which has been passed by a legislative body, such as Congress (on the federal level), or a state legislature. A federal law is called a statute. A state law is called a statute. But a local law is called an ordinance.
E. Sources of the Law, continued
4. Case Law
Case law is judge-made law. When a judge has decided a case, his decision is rendered into a written judgment. If he wishes to clarify the reasons that he ruled the way he did, he will draft an opinion. If the opinion is published, it might have value as a guide for other judges handling similar cases. (This is the concept of precedent, which we will discuss later.) Collectively, these published opinions are called case law. In our system of government we have three branches, each of which has a single job to do. It is the job of the legislative branch (Congress, on the federal level) to create the laws; it is the job of the executive branch (the president and vice president) to enforce the laws; and it is the job of the judicial branch to interpret the laws. Therefore, it is not the job of the court to make law. How, then, can case law be called judge-made law?
When our government was still quite young, the landmark case of Marbury v. Madison, 5 U.S. 137 (1803), clarified the role of the courts in making law. In Marbury, it was successfully argued that, although it is the role of the legislature to make law, if the role of the judiciary is advisory only, then the notion of separation of powers is a sham, and there is no true purpose for the judicial branch.
"It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each. So if a law be in opposition to the Constitution; if both the law and the Constitution apply to a particular case, so that the court must either decide that case conformably to the law, disregarding the Constitution; or conformably to the Constitution, disregarding the law; the court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty."
Marbury v. Madison, 5 U.S. 137, 177 (1803)
In order for the decisions of the judicial branch to mean anything they have to have teeth—in other words, they have to be enforceable. They have to have the effect of law. Lawsuits are often brought because the statutory law needs to be interpreted in light of the given set of facts. In interpreting the statutory law and applying it to a new set of facts, the judge may broaden or reduce the scope of that law. Thus, new law (or a new application of the law) is created. This is case law.
However, there are limitations on the court's ability to create case law by interpretation. If a court goes too far, beyond mere interpretation, the court will be overturned for "impermissibly legislating"—that is, for usurping the role of the legislative branch to make law.
For example, during the 2000 presidential election in Florida, the margin of victory was a very small number of votes. Because of the close result and some possible discrepancies in vote counting, the Secretary of State for Florida requested the Florida Supreme Court to grant her an extension of time for certifying the election results so she could order hand recounts. Although the deadline for certifying the results was established by statute, the Florida Supreme Court did so. That decision was challenged on several points, one of which was that it violated separation of powers as an unconstitutional infringement by the judicial branch on the powers of the legislative branch. In Bush v. Gore, 531 U.S. 98, (2000), the court majority stated the question as follows: "The petition presents the following questions: whether the Florida Supreme Court established new standards for resolving Presidential election contests, thereby violating Art. II, § 1, cl. 2, of the United States Constitution [which reserves to state legislatures the authority to create methods for selecting electors](emphasis added)." Bush v. Gore, Id., at 103.
In a joint dissent (where they disagree with the majority opinion), Justices Ginsberg and Stevens stated, "disagreement with the Florida court's interpretation of its own State's law does not warrant the conclusion that the justices of that court have legislated." Id. at 136.
E. Sources of the Law, continued
5. Administrative Regulations
Congress has created a great many administrative agencies to assist the executive branch of our government (the president and vice president) in enforcing the laws passed by the legislative branch (Congress). Several examples would be the Food and Drug Administration (FDA), the Environmental Protection Agency (EPA), and the Securities and Exchange Commission (SEC). While Congress passes the laws that create these agencies (and the need for these agencies), the agencies are given a broad grant of power to create regulations to manage their operations and to enable them to do the jobs for which they were created. For example, in 1913, the U.S. Constitution was amended to include the 16th Amendment, which gave Congress the authority to enact an income tax. This created the need for the Internal Revenue Service to enforce that legislation. Congress did not, and certainly cannot, craft laws to manage every aspect of the operation of the IRS. The IRS was given the power to create regulations detailing, for example, what procedures would be in place for reporting income and collecting taxes, what sort of deductions would be allowed, under what circumstances extensions would be granted, etc. These regulations are embodied in the Internal Revenue Code.
The interesting thing about regulations is that they are not true laws, in the sense that they were not passed by a legislative body. But, remember, regulations have all the force and effect of law! This means that violating them can result in severe penalties, like fines and incarceration, just like violating statutory law.
F. The United States Constitution as the Supreme Law of the Land
The United States Constitution provides a structure upon which the American legal system is built. Pause for a moment and look at the First Amendment in the U.S. Constitution (provided in the back of your Scheb textbook). Notice how incredibly sparse the writing is. The First Amendment contains six of the most fundamental rights possessed by Americans, set out in only 45 words. If this were written today, imagine how lengthy it would be!
The U.S. Constitution is not an exhaustive list of rights. Like the framing of a house, it provides a structure of laws. Those are the "express rights"—those that are actually set out in the U.S. Constitution. As our society grew and evolved, other express rights were added by amendment, such as the 19th Amendment that granted women the right to vote.
Still other rights arose through interpretation of the sparse language of the U.S. Constitution. For example, the U.S. Constitution does not contain an express right to privacy, but that right has been recognized by the courts as inherent in other express rights.
While not specified in the Federal Constitution, the right of privacy has been recognized by the Supreme Court as a distinct constitutional right protecting privacy against unlawful governmental intrusion .... The right of privacy is rooted in and exists in the penumbra of, various specific constitutional provisions .... , such as the First Amendment's guaranty of free speech and press ... and of freedom of association ... , the Fourth Amendment's prohibition of unreasonable searches and seizures ..., and the Fifth Amendment's privilege against self-incrimination ....
Supreme Court's Views as to the Federal Legal Aspects of the Right of Privacy, Ernest H. Schopler, 43 L. Ed. 2d 871.
Rights arising through interpretation of the U.S. Constitution are called "implied rights." (Note that several state constitutions contain an express right of privacy.)
As stated previously, the U.S. Constitution is the foundational document of our legal system, especially since it sets out our system of government (three branches of government, etc.). But understanding the legal concepts, the rights granted by the U.S. Constitution, is critical as well, because they are the foundation for all American laws. A law that is declared in violation of the concepts of the U.S. Constitution is unconstitutional, and thus void.
Remember, that the U.S. Constitution is the supreme law of the land. The legal system is set up as a hierarchy, with courts at different levels and with the lower courts answering to the higher courts. To understand how the courts interact with one another, you must understand the concepts of precedent and stare decisis, and the concepts of mandatory precedent and persuasive precedent, which we will cover in the next lesson.
G. Due Process
As we noted near the beginning of this lesson, one of the most profound concepts in American jurisprudence is due process. Your right of due process entitles you to all the steps or rights that the law allows (you are "due" all the "process" of the law). The constitutional right of due process ensures that you are given all your other constitutional rights. For that reason, it may be the most important language in the U.S. Constitution.
There are two due process clauses in the U.S. Constitution. The Fifth Amendment states, in relevant part: "no person shall . . . be deprived of life, liberty, or property, without due process of law." This entitles you to due process protection whenever you are dealing with federal law. The Fourteenth Amendment states, in relevant part: "nor shall any state deprive any person of life, liberty, or property without due process of law." This entitles you to due process protection under state law.
Due process has been defined in many ways. Merriam-Webster's Dictionary of Law has defined it as "a course of formal proceedings (as judicial proceedings) carried out regularly, fairly, and in accordance with established rules and principles (called also procedural due process) [and] a requirement that laws and regulations must be related to a legitimate government interest (as crime prevention) and may not contain provisions that result in the unfair or arbitrary treatment of an individual (called also substantive due process) (emphasis in the original);" and further, "[t]he boundaries of due process are not fixed and are the subject of endless judicial interpretation and decision-making. Fundamental to procedural due process is adequate notice prior to the government's deprivation of one's life, liberty, or property, and an opportunity to be heard and defend one's rights to life, liberty, or property. Substantive due process is a limit on the government's power to enact laws or regulations that affect one's life, liberty, or property rights. It is a safeguard from governmental action that is not related to any legitimate government interest or that is unfair, irrational, or arbitrary in its furtherance of a government interest (emphasis omitted)."
So, the U.S. Constitution not only sets out our governmental structure, but it also grants express and implied rights, it provides a mechanism for ensuring those rights are applied, and creates a standard by which the law-making mechanisms are held true.
Reference Sources
Ashcroft, John D., and Ashcroft, Janet D., Law for Business, 13th Ed., West/ITP, 1999.
Bush v. Gore, 531 U.S. 98, (2000).
The Constitution of the United States
Drug Addiction Treatment Center
Lawrence v. Texas, 539 U.S. 558, 570 (2003)
Linder, Doug, Exploring Constitutional Conflicts: The Right of Privacy
Marbury v. Madison, 5 U.S. 137 (1803)
Micek v. Flightsafety Int'l, Inc., 2006 U.S. Dist. LEXIS 101*33 (S.D. Ohio Jan. 4, 2006).
Merriam-Webster's Dictionary of Law © 1996
The National Association of Shoplifting Prevention
Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833, 850 (1992)
Roe v. Wade, 410 U.S. 113,152(1973).
Schopler, Ernest H., Annotation: Supreme Court's Views as to the Federal Legal Aspects of the Right of Privacy, 43 L. Ed. 2d 871.
Union Pacific R. Co. v. Botsford, 141 U.S. 250, 251 (1891).
Assignment
Complete the Lesson 02 Quiz and submit it for grading.