Chapter 1 The Legal and International Foundations

Chapter 1Chapter 1

The Legal The Legal and International and International

FoundationsFoundations

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Chapter ObjectivesChapter Objectives1. Explain what is generally meant by

the term law.2. Describe the origins and importance

of the common law tradition.3. Identify the four major sources of

American law.4. List some important classifications of

law.5. Distinguish between national law and

international law.

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The Nature of LawThe Nature of LawLaw is a body of enforceable rules governing relationships among individuals and between individuals and their society.Three important schools of legal thought: Natural law tradition Legal positivism Legal realism

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Natural Law TraditionNatural Law TraditionOne of the oldest and most significant schools of legal thought.Those who believe in natural law hold there is a universal law applicable to all human beings and that this law is of a higher order than positive, or conventional law.

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Legal PositivismLegal PositivismA school of legal thought centered on the assumption that there is no law higher than the laws created by the government.Laws must be obeyed, even if they are unjust, to prevent anarchy.

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Legal RealismLegal RealismA popular school of legal thought during the 1920s and 1930s.Legal realists generally advocated a less abstract and more realistic approach to the law, an approach that would take into account customary practices and the circumstances in which transactions take place. The school left a lasting imprint on American jurisprudence.

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The Common Law The Common Law TraditionTradition

The Common Law originated in medieval England with the creation of the king’s courts, or curia regis, and the development of a body of rules that were applied throughout the land.

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Stare DecisisStare DecisisA doctrine under which judges “stand on decided cases,” or follow the rule of precedent, in deciding cases.Stare decisis is the cornerstone of the common law tradition.

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Legal and Equitable Legal and Equitable RemediesRemedies

Remedies at law: Money, property, land or something else of valueRemedies in equity: Remedies that are granted when the remedies

at law are unavailable or inadequateEquitable remedies include: Specific performance Injunction Contract rescission (cancellation)

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Equitable Principles and Equitable Principles and MaximsMaxims

Where there is equal equity, the law must prevail.One seeking the aid of an equity court must come to the court with clean hands.Equity will not suffer a wrong without a remedy.Equity regards substance rather than form.Equity aids the vigilant, not those who rest on their rights.Whoever seeks equity must do equity.Why would equity courts give credence to such general maxims rather than to a hard-and-fast body of law?

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Sources Of American Sources Of American LawLaw

Constitutional Law Statutory Law

Case Law andCommon Law DoctrinesAdministrative Law

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Sources of American Law Sources of American Law Which source of law takes priority in the following situations, and why? A federal statute conflicts with the U.S.

Constitution. A federal statute conflicts with a state

constitution. A state statute conflicts with the common law of

that state. A state constitutional amendment conflicts with

the U.S. Constitution. A federal administrative regulation conflicts with

a state constitution.

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Constitutional LawConstitutional LawThe law as expressed in the U.S. Constitution and the various state constitutions.The U.S. Constitution is the supreme law of the land.State constitutions are supreme within state borders to the extent that they do not violate the U.S. Constitution or a federal law.

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Statutory LawStatutory LawLaws or ordinances created by federal, state, and local legislatures and governing bodies.None of these laws can violate the U.S. Constitution or the relevant state constitutions.Uniform laws, when adopted by a state legislature, become statutory law in that state.

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Administrative LawAdministrative LawThe rules, orders, regulations, and decisions of federal, state, or local government administrative agencies.Federal administrative agencies are created by enabling legislation enacted by the U.S. Congress.Agency functions include: Rulemaking Investigation and enforcement Adjudication

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Administrative Administrative AgenciesAgenciesThe Constitution authorizes only the

legislative branch to create laws. Administrative agencies, however, which are not specifically referred to in the Constitution, make rules that are as legally binding as laws passed by Congress.Is there any way to avoid placing so much power in the hands of administrative agencies? Is there any practical alternative?

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Case Law and Case Law and Common Law DoctrinesCommon Law DoctrinesJudge-made law, including interpretations of constitutional provisions, of statutes enacted by legislatures, and of regulations created by administrative agencies.The common law, the doctrines and principles embodied in case law, governs all areas not covered by statutory law or agency regulations issued to implement various statutes.

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Classifications of LawClassifications of LawThe law may be broken down according to several classification systems, such as: Substantive vs. Procedural law Civil vs. Criminal law Federal vs. State law National vs. International law Private vs. Public law

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Online Legal ResearchOnline Legal ResearchThe world of legal research is rapidly changing. How has current technology changed

the methods of legal research?Describe what a law and legal research library might consist of in the future.

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National andNational and International Law International Law

Increasingly, businesspersons in the U.S. are engaging in transactions that extend beyond our national borders.National law vs. International law What’s the difference? Key difference is that national law can be

enforced by government authorities.What government can enforce international law?

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National LawNational LawDefinition: law that pertains to a particular nation.

Most nations today have either a common law system or a civil law system.

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Common Law SystemCommon Law SystemGenerally, those countries that were once colonies of Great Britain retained their English common law heritage after they achieved their independence.The doctrine of stare decisis is the cornerstone of the common law tradition.

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Civil Law SystemCivil Law SystemA legal system stemming from Roman “code law,” in which the primary source of law is a statutory code—an ordered grouping of legal principles enacted into law by a legislature or governing body.Precedents are not binding in a civil law system because they do not follow the doctrine of stare decisis.

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International LawInternational LawA body of written and unwritten laws observed by independent nations and governing the acts of individuals as well as governments.Sources of international law include: National laws Customs Treaties International organizations and

conferences

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Cultural DifferencesCultural DifferencesSuppose that John, the president of a U.S. bank, wants to take his top vice president, Carla, with him to a meeting overseas. John is advised that he would lose respect in the eyes of the overseas company if he took Carla, a woman, with him.List some of the pros and cons of taking Carla to the meeting that John should consider in making his decision.

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For ReviewFor Review1. What is the common law tradition?2. What is a precedent? When might

a court depart from precedent?3. What is the difference between

remedies at law and remedies in equity?

4. What is the Uniform Commercial Code?

5. What is the difference between civil law and criminal law?