1: Schools of Jurisprudential Thought
A just law is a man-made code that squares with the moral law . . . . An unjust law is a code that is out of harmony with the moral law. . . . An unjust law is a human law that is not rooted in eternal and natural law.”
The Positivist School
Ø Natural Law view.
Ø Positivist view.
Ø Historical view.
Ø Legal Realism view.
Natural Law School
Assumes that law, rights and ethics are based on universal moral principals inherent in nature discoverable through the human reason.
The oldest view of jurisprudence dating back to Aristotle.
The Declaration assumes natural law, or what Jefferson called “the Laws of Nature.”
Natural Law: Rev. Martin Luther King, Jr.
Letter from the Birmingham Jail, April 16, 1963. “[T]here are two types of laws: just and unjust laws.A just law is a man-made code that squares with the moral law . . . . An unjust law is a code that is out of harmony with the moral law. . . . An unjust law is a human law that is not rooted in eternal and natural law.”
The Positivist School
Law is the supreme will of the State that applies only to the citizens of that nation at that time.
Law, and therefore rights and ethics, are not universal.
The morality of a law, or whether the law is “bad or good,” is irrelevant.
The Historical School
Emphasizes the evolutionary process of law
Concentrates on the origins of the legal system
Law derives its legitimacy and authority from standards that have withstood the test of time.
Follows decisions of earlier cases
Legal Realism
Jurisprudence that holds law is not simply a result of the written law, but a product of the views of judicial decision makers, as well as social, economic, and contextual influences.
Sources of American Law
Sources of American Law
U.S. and StateConstitutions.
Statutory Law—federal, state and local.
Administrative regulations and decisions.
Case Law and Common Law Doctrines.
The Common Law Tradition
American law is based largely on English Common Law which was based largely on traditions, social customs, rules, and cases developed over hundreds of years.
At common law, there were two separate court systems with two different types of remedies:
COURTS OF LAW(monetary relief), and
COURTS OF EQUITY(non-monetary relief) based on “notions of justice and fair dealing.”
Courts of Law
Also called “king’s courts” where judges were appointed by the king.
Remedies limited to those provided at law, i.e., land, chattel, money.
Judges resolved disputes by application of rules of law to the facts of the case before the court.
Courts of Equity
Also called courts of chancery in Delaware.
Equitable relief was sometimes available in instances where a strict application of the law to the facts of the case compelled a result that was legal but unjust.
Equitable Maxims.
Legal and Equitable Remedies Today
Today federal and state courts of general jurisdiction have consolidated remedies at law and remedies at equity.
Generally, the same court can fashion a remedy that includes both damages and equitable or injunctive relief.
Stare Decisis
Stare decisis is a Latin phrase meaning “to stand on decided cases.”
Makes the law stable and predictable.
Increases judicial efficiency by relieving courts of having to reinvent legal principles for each case brought before them.
Stare Decisis and Precedent
Stare decisis is “judge made law” based on precedent.
Precedents are judicial decisions that give rise to legal principles that can be applied in future cases based upon similar facts.
Precedents and other forms of positive law, such as statutes, constitutions, and regulations, are referred to as binding authority and must be followed.
Cases of “First Impression”
In cases of “first impression” where there is no precedent, the court may refer to positive law, public policy, and widely held social values in order to craft the best new precedent.
Stare Decisis and Legal
Reasoning
Method used by judges to reach a decision.
Many courts and attorneys frame decisions and briefs using the IRAC format:
Issue (What is the question to be resolved?)
Rule (What law governs this matter?)
Application (Apply the law to the facts)
Conclusion (Decision or Verdict)
Types of Legal Reasoning
Deductive Reasoning: Makes use of syllogism, a type of logical relationship involving a major premise and a minor premise.
Linear Reasoning: Proceeds from point to point, with the final point being the conclusion.
Reasoning by Analogy: Analysis that compares facts of present case with facts of similar previously-decided cases.
The Common Law Today
Common law today governs transactions not covered by statutory law.
Restatements of the Law
American Law Institute
Summarize the common law of most states
Classifications of Law
Every type of law will be either:
Civil or Criminal, and either
Substantive or Procedural, and either
Public or Private.
Cyber law is law applied to internet transactions.
Civil vs. Criminal
Civil law defines the rights between individuals or individuals and governments.
Criminal law defines an individual’s obligations to society as a whole.
Substantive vs. Procedural
Substantive law defines or creates the rights and obligations of persons and governments.
Procedural law provides the steps one must follow in order to avail oneself of one’s legal rights or enforce another’s legal obligations.
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