Introduction to law in american society ps 380
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Introduction to Law in American Society PS 380. Dr. Troy Gibson. Chapter 1 Law, Courts, and Politics. I. Courts and Government Courts = 3 rd branch, but distinctive (law degree, formal procedures, it’s own language).

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Introduction to Law in American Society PS 380

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Introduction to law in american society ps 380

Introduction to Law in American SocietyPS 380

Dr. Troy Gibson


Chapter 1 law courts and politics

Chapter 1Law, Courts, and Politics

I. Courts and Government

Courts = 3rd branch, but distinctive (law degree, formal procedures, it’s own language).

A. Course: We will examine the judicial system’s relationship with each of the following:

  • Constitution

  • Federalism

  • President’s role

  • Legislatures

  • Elections

  • Political Parties

  • Interest Groups


Introduction to law in american society ps 380

8. Public Opinion

  • Legal Institutions

  • Many components other than courtrooms (lawyers, judges, plaintiffs, defendants, witnesses, jurors, investigators, etc.)

  • Legal System (Fig 1-1).

  • Inner Ring: Institutions of Law (3 branches of government; tell us what the law is and how fast it should change). Actors here are lawgivers.

  • Middle Ring: Interpreters of Law – composed of actors who serve as gatekeepers (lawyers, judges, judicial elections, law schools) between the inner and outer rings. These actors control the entry and exit of litigation (law suits).


Introduction to law in american society ps 380

  • Outer ring – consumers of the law. All of those who seek legal solutions to their perceived problems. That is, anyone who desires something from a legal process; could be interest groups or individuals, businesses or governments.

  • These rings operate within the context of the larger political, economic, and cultural environment. As this context changes, the legal system may move (though slowly).

    C. Courts as Political Institutions – courts do not exist in a vacuum, no matter how much we think courts are or should be immune from “politics.” Since courts also determine what the law is (via interpretation), they are inherently political institutions because discretion is built into the judiciary as it is in other government institutions. But there are differences:

  • Passive, not active – must wait on cases before they get to decide things

  • Less able to avoid decision-making (e.g., politically charged issues); can’t “punt” as easily.

  • Majoritarian politics is less directly influential over courts.


Introduction to law in american society ps 380

  • Information is limited and narrow, not broad and open. Comes mostly through two disputing parties; not open forums comprised of groups, stakeholders, voters, etc.

  • Courts and Controversy

    “There is almost no political question in the U.S. that is not resolved sooner or later into a judicial question.” - Tocqueville

  • Courts have emerged as principle players in public policy debates.

  • Three headings of legal-policy debates:

  • Social policies (e.g., segregation)

  • Criminal justice issues (e.g., death penalty)

  • Civil justice issues (e.g., tort reform)

    C. Liberal and Conservative positions (T 1-1)


Introduction to law in american society ps 380

Chapter 2: Law and Legal Systems

  • What is Law? Body of rules enacted by public officials in a legitimate manner and backed by force of state.

  • Philosophy of Law – What is the ultimate ground of law?

  • Legal Positivism – Law is utterly dependent upon human beings; it is malleable; it carries with it no inherent moral or ethical underpinnings. “Law is not only posited (that is, selected) through decision, but also is valid by the power of decision (thus contingent and changeable” (Luhmann, 1987). Law has only a subjective basis.

  • Natural Law – Natural law theory asserts that there are laws that are immanent in nature, to which enacted laws, morally, should correspond as closely as possible. An unjust law is not a true law. natural law theory attempts to identify a moral compass to guide the lawmaking power of the state. Law has an objective basis.

  • Special Revelation – similar to natural law, but argues that natural law itself flows from a divinely revealed body of law communicated to humans from above.

    Implications: If the ground of law is man’s subjective decision, then what of its authority? If the ground is natural revelation or special revelation, then what of the authority of those laws that are seen as disharmonious with that revelation?


Introduction to law in american society ps 380

Law and Justice – justice is associated with normative values; not winning, not pragmatism (prohibition).

  • Legal Systems (Table 2-1)

  • Civil Law (Roman) – oldest law family.

  • Starts with the code (compilation of law) - expresses rules of law as general principles phrased in abstract language. Dissimilar to U.S. Law books (court decisions).

  • Judges and lawyers emphasize the code and not concrete cases (deductive reasoning from the code to the decision). No precedent use. Small working library!

  • Judges and not lawyers dominate hearings (witnesses and questions)

  • Judges are bureaucrats, not practicing lawyers

  • No juries. Mixed tribunals (judges and citizens) are used for serious crimes.


Introduction to law in american society ps 380

  • Most widely used system in Europe; LA uses it in civil cases (Napoleonic Code)

  • Socialist law – birthed in revolution; focus on changing society and creating the new socialist state, not maintaining order. Russia/China.

  • Rejects common law and civil law assertions that law is basis of society.

  • Goal – protection of the state (not private property).

  • Law is to be educational, targeting the new socialist society (crime=failure of state, not individuals).

    C. Islamic Law – only law family directly tied to an organized religion’s beliefs (other systems may be tied to religious beliefs if religious simply refers to a comprehensive system of beliefs or worldview).

  • Exhaustive – all aspects of life

  • Source – God (Allah), through the Koran and the Sunna dictated and written by Muhammad.

  • Judges receive legal & religious training.

  • Lawyers are not independent of legal system/gov’t.

  • Juries not allowed

  • Courts do NOT make policy.


Introduction to law in american society ps 380

  • Common Law – rooted in medieval England; meaning common to all (applies to entire land rather than particular villages).

  • History – over time, became stagnate and inflexible. Was totally reactive and never proactive.

    1. Soon, concerns over equity (broad principles of justice and reason) emerged and moved common law toward changing conditions and new legal practices. For example, the practice of injunctions was underdeveloped (proactive).

  • Common law was slow to develop (unlike civil law).

    B. Americans adopted this system.

    C. Characteristics in American context

  • Judge-Made law. Judges were the primary instruments of law-making until late 19th century (wills, property, contracts, etc.).

  • Precedent – staredecisis is the practice of letting previous decisions stand. “Broad rules and policy directives emerge only over time through the accumulation of court decisions.”


Introduction to law in american society ps 380

  • Uncodified Rules and Regulations – no place to find the official statement of the WHOLE law. Law emerges through court decisions.

  • Adversary system – we also have an adversary system (not inquisitorial), where judges are passive/neutral and lawyers run the show (prosecute cases/question/call witnesses).

    Discussion: Which is better, inquisitorial or adversarial? (page 36).

  • Eight Layers of U.S. Law

  • Federalism: power divided between national and state. Federal/state/local order of hierarchy.

  • Multiple Sources of Law –

  • Constitutions

  • Statutes


Introduction to law in american society ps 380

  • Administrative Regulations (Administrative law)

  • Judicial Decisions – courts don’t make law, but they find it in previous decisions.

  • Public and Private law

  • Public law involves government (e.g., International law).

  • Private law involves relationships between private citizens

  • Tort law – legal wrongdoing to another person (e.g., injuries)

  • Contracts (including divorce)

  • Property – (wills, estates, etc.)

  • Civil and Criminal law

  • Civil suit involves dispute between private parties (focus on deciding who has been harmed).


Introduction to law in american society ps 380

  • Criminal suits involves a violation of a government penal laws (focus on harm to society). Sometimes a single action results in both (OJ-homicide and wrongful death).

  • Substantive and Procedural Law

  • Substantive – law that defines legal rights (what). Tells us what our rights are and that they are to be respected by others and protected by the state (e.g. contracts and criminal laws).

  • Procedural – establishes methods of enforcing legal rights (how). Rules of court and constitutional due process. Designed to ensure the fair and orderly administration of justice.

  • Remedies

  • Declaratory judgment (defining rights of parties)

  • Restitution – recovering of damages (compensatory or punitive)

  • In equity cases, litigants seek injunctions (no law has been violated, yet).

    H. Doctrines of Access


Introduction to law in american society ps 380

  • Jurisdiction – right of a court to hear a case

  • Real dispute (not contrived)

  • Standing – plaintiff must demonstrate real injury/harm in order to sue.

  • Interpreting the Law

  • Ideally, judicial process is to consider what the law is and not what policy should be. Average citizen things in terms of the latter (abortion).

  • Why interpretation (judges have discretionary choice)?

  • Meaning of words (establishment, interstate commerce)

  • Conflicting laws – (different courts, federalism, states, statements in constitution). Often, courts use “tests” to balance these conflicts (e.g., Lemon test).

  • Gaps in law – law and circumstance imbalance (DNA evidence in criminal cases)


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