Laws and Their Ethical Foundation

Laws and Their Ethical Foundation Chapter 1

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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)

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

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

Sources of Law • Constitutions • Statutes • Case Law • Administrative Regulations

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

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

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

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

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

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

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

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

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

Types of Law • Civil Law • Criminal Law • Procedural Law • Substantive Law • Business Law

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

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

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

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

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

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

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

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

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

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

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

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

Laws and Their Ethical Foundation