1. Laws and Their Ethical Foundation
Chapter 1

2. What is Law? Laws—enforceable rules of conduct in society
Reflect the culture and circumstances that create them
Grouped into an organized form called CODE
Similarities can be found when you compare one civilization’s codes with the codes of other civilizations
Many of our law codes today are based on 4,000 year old codes created by Hammurabi, King of Babylon

3. Stages in the Growth of Law
Most societies go through four distinct stages in forming their legal systems:
Individuals take revenge for wrongs done to them
A powerful leader or other form of central authority substitutes an award of money or goods for revenge
The leader or authority gives power to a system of courts
The leader or central authority acts to prevent an punish wrongs

4. Stage 1
Injuries inflicted on one human being by another are matters for personal revenge
Those who are wronged feel that justice can be done only through personally punishing the wrongdoers.
Example:
Gang wars

5. Stage 2
To achieve peace, the powerful leader or authority forces the injured parties to take awards of money or goods as a substitute for revenge
Sovereign—the leader or authority

6. Stage 3
The sovereign sets up a system of courts and gives them appropriate powers
Elders or priests usually preside over these courts
Sovereign presides over most important matteres

7. Stage 4
The sovereign goes from being a passive authority working only to resolve disputes to try to prevent breaches of peace BEFORE they occur
Enforces a set of laws and matching punishments

8. Common Law
Law based on the current standards and customs of the people
Usually formed from the rules used by judges to settle people’s disputes

9. Positive Law
Law dictated from a sovereign or other central authority to prevent disputes and wrongs from occurring in the first place

10. English Common Law
Before common law developed, feudal barons acted as judges within their territories
Disputes were settled on the basis of local customs and enforced by the baron’s power
Laws differed from region to region
Difficult for people to follow
Difficult for central government to maintain control

11. English Common Law King’s Bench
King Henry II appointed a number of judges from a group of trusted nobles
Gave them the power to order that wrongdoers pay with money or goods to the parties they injured
In good-weather months, the judges would “ride circuit” and hold court in the villages
In bad-weather months, the judges would meet in London to hear cases on appeal
Local “baron courts” could decide minor cases
King’s court always had JURISDICTION, or power to decided a case, over the most important cases

12. English Common Law Jury
King Henry recognized that it was important to decide the court cases in harmony with the customs of the people
Judges were instructed to choose citizens from each region to help interpret that region’s customs for the court

13. English Common Law Advantages:
Uniform web of custom-based law developed across England
Achieves uniformity while maintaining an ability to adapt to changes in society
Model for legal systems worldwide, including the United States

14. English Common Law Disadvantages:
Rigid adherence to proper form—a misplaced period or misspelled word would nullify, or void, the effect of a document
Courts were limited to granting the remedy of damages—reactive—had to wait until something happened
If the injured person was a noble, they could get around the common law
A chancellor would hear the case under different rules
Could issue an INJUNCTION which stops something from being done

15. English Common Law
King realized that need for equitable remedies for all citizens
Created a system of equity courts
Had power to issue injunctions or to compel specific actions
United States courts are generally merged
Law courts and equity courts
Can award damages or issue orders or both

16. Roman Civil Law
Early Romans lived by laws developed through centuries of customs
Customary laws were handed down through generations
Inherited aspect of their society as it had evolved from its earliest days
Only applied to Roman citizens—CIVIL LAW

17. Roman Civil Law Romans were divided into two classes:
Patricians—elite class who ruled Roman society
Plebeians—common people
Pontiffs—a group of Patrician men made decisions and ruled in questions of customary law
Patricians had some advantage in the legal decisions made by the pontiffs

18. Roman Civil Law The Twelve Tables
Documented the centuries-old customary laws
Became the foundation of Roman law as we know it
Transferred established customary law into a written form
Focused on specific facets that lead to or could lead to dispute or disagreement
Addressed technical aspects of legal procedure so that a citizen had a guide to the proper ways to pursue legal action

19. Roman Civil Law
As the Roman Empire grew it faced challenges regarding non-citizens as Roman law only applied to Roman citizens
This lead to the development of:
Law of Nations—body of laws that applied to all people, foreigners and non-citizens as well as citizens
Based on the common principles and reasoning that civilized societies and humankind were understood to live by and share
Natural Law—a category of law based on the principles shared by all living creatures, humans as well as animals (pro-creation, physical defense against attack)

20. Roman Civil Law Justinian Code
Emperor Justinian sought to unify the Roman Empire
Formed a commission of jurists to compile all existing Roman law into one body which could serve to convey the historical tradition, culture, and language of Roman Law throughout the empire
Original Parts:
Digest—collection of all classical jurists’ writings on law and justice
Code—outlined actual laws of the empire, citing imperial constitutions, legislation, and pronouncements
Institutes—smaller work that summarized the Digest, intended as a textbook for students of law

21. U.S. Law U.S. legal system is modeled after English Common Law
Ability to adapt to changes in societal customs
Create a uniform set of laws encompassing those changes
Exception:
Louisiana—settled by the French—original laws based on Roman Civil Law

22. Sources of Law Constitutions Statutes Case Law
Administrative Regulations

23. Constitutions
Documents that set forth the framework of government and its relationship to the people it governs
Constitutional Law--When constitutions are adopted or amended, or when courts interpret constitutions
We are governed by the U.S. constitution and the constitution of our state
Highest sources of law—”supreme law of the land”
Any federal, state, or local law is not valid if it conflicts with the federal Constitution
State constitutions are supreme to all other state laws

24. Constitutions
Concerned primarily with defining and allocating certain powers in our society
Allocate powers:
Between the people and their governments
Bill of Rights
Between state governments and the federal government
Interstate vs Intrastate
Among the branches of government
System of checks and balances—executive, legislative, judicial

25. Statutes Statutes—laws created by state and federal legislatures
Ordinances—laws created by town or city council or by a county board of commissioners
Effective only within the boundary of the local governments that enacted them

26. Case Law Created by the judicial branch of government
Usually made after a trial has ended and one of the parties has appealed the result to a higher court
Appeal based on legal rulings made by the lower court in deciding the case
When the appellate court publishes its opinion on a case, that opinion may state new rules to be used in deciding the case and others like it
Referred to as CASE LAW at either the state or federal level
STARE DECISIS—Latin for “let the decision stand”
Lower courts must follow established case law in deciding similar cases

27. Administrative Regulations
Administrative Agencies—governmental bodies formed to carry out particular laws
Created by state, federal, and local legislatures
Controlled by the executive branch of government
Have some legislative and limited judicial powers
Create rules and regulations
Hold hearings, make determinations of fact, apply law to particular cases

28. Conflicts
Laws created by different levels of government sometimes conflict
Legal rules are used to determine which statement of the law is superior to the other and should be enforced
SUPREMECY
federal law prevails over state law
State law prevails over local law
Constitutional law prevails over statutory law
Statutory law prevails over administrative law
Higher court’s decisions prevail over lower courts

29. Constitution and Validity
Any federal, state, or local statute, case law, or administrative decision is not valid if it conflicts with the federal Constitution
When any type of law is declared invalid by a state or federal court because it conflicts with a constitution, it is said to be UNCONSTITUTIONAL
Supreme court has the final say within the federal system
People have the power to amend constitutions if they disagree with the courts’ interpretation

30. Statutes and Validity
Statutes or ordinances must be constitutional to be valid
Courts also examine the statutes and ordinances involved to see whether or not the law’s enactment exceeded the scope of powers of the body that authored it

31. Case Law and Validity
A case law decision by a court holding a statute invalid is not always the end of the issue
Legislative bodies have the power to nullify a court’s interpretation of a statute or ordinance by rewriting the statute
Administrative agencies can also revise their regulations when challenged

32. Types of Law Civil Law Criminal Law Procedural Law Substantive Law
Business Law

33. Civil Law
A group of laws that make up for wrongs against individual persons
Police do not get take action in civil conflicts
If a defendant loses a civil case, that defendant is liable
Also applies if one person is injured by another
TORTS—civil offenses against people or organizations

34. Criminal Law Crime—offense against society, not an individual
Criminal Law—acting in the name of all people, the government investigates an alleged wrongdoing
If a crime has been committed and the person responsible can be found, the government will prosecute
Conviction can result in a fine, imprisonment, and in some states, execution
Criminal cases may also be a civil offense and the victim may sue the wrongdoer

35. Procedural Law Deals with methods of enforcing legal rights and duties
How and when police can make arrests
Methods used in a trial procedure
Determines whether equitable remedies, such as an injunction, are available
Examples
STARE DECISIS
Rules for determining the supremacy of conflicting law

36. Procedural Law Types Criminal procedure Civil procedure
Defines the process for enforcing the law when someone is charged with a crime
Civil procedure
Used when someone violates civil law

37. Substantive Law Defines rights and duties
Concerned with all rules of conduct EXCEPT those dealing with enforcement
Defines offenses:
Murder
Theft
Breach of contract
Negligence

38. Business Law Rules that apply to business transactions and situations
Involve a merchant and a consumer
Mainly concerned with civil law (especially contracts)
Uniform Business Laws
Uniform Commercial Code
Widely adopted uniform business law
Governs areas such as sale of goods, certain aspects of banking, and leases of goods

39. Ethics and the Law
Ethics—a practice of deciding what is right or wrong in a reasoned, impartial manner
A decision must affect you or others in a significant way (stakeholders)
Must be reasoned out by referring to a written authority that provides consistency
Law
Religious texts
Must be impartial
Same ethical standards should apply to everyone

40. Basic Forms of Ethical Reasoning
Consequences
Right or wrong is based only on the results of the action
Acts that produce good consequences are good
Acts that produce bad consequences are bad
Looks for alternative ways to alter the current situation
Attempts to forecast the consequences that will arise from each alternative
Evaluates possible consequences and selects the alternative that will produce the most good
Subjective—define the good and the receiver

41. Basic Forms of Ethical Reasoning
Rule-Based
Acts are either right or wrong
Good consequences do not justify wrong or bad acts
Standard for judging acts comes from:
Recognized authority
Religious source
law
Human reasoning
Universalizing—picturing everyone else doing the action and asking if the result would be irrational, illogical, or demeaning

42. Ethics Reflected in Law
The government, empowered by the U.S. Constitution, seeks to ensure that the federal law making system provides the greatest good for the greatest number
Consequences-based ethics
Constitution also seeks to protect the well-being of minorities that might be taken advantage of by the wrong actions of the majority
Bill of Rights and other civil rights laws
Rules-based ethics

43. Ethics Reflected in Law
Conclusion—we are obligated to obey the law
Consequences-based—when a law is violated, many more people are injured than benefited
Rules-based—we say we have agreed to obey the law but violate it, we are breaking our promise

44. Ethics Reflected in Law
Scofflaws—people who continually violate minor laws
Do not respect the law
Risk of being caught vs Benefits they obtain
Integrity—capacity to do what is right in the face of temptation or pressure to do otherwise
Civil Disobedience—an open, peaceful, violation of law to protest its alleged, or supposed, injustice
St. Augustine “It seems to me that an unjust law is no law at all”
Object is to make the legal system more just
Participants are often eager or willing to be arrested in order to test the validity of the law in court