Presentation Transcript

1. introduction to Law

   Chapter 1
2. The Law and Change In the U.S., the founders wrote the constitution with the idea that as society changed and the needs of society changed, the laws could also change and be adaptive to the needs of the time.
3. Jurisprudence Jurisprudence is the study of the law. We can study the law by studying its various parts (structure) and the parts’ functions (how they work).
4. Legal System The Purpose of Law The Writing of Law The Structure of Law
5. Body Analogy Just as the body is divided up into parts (e.g., the eye, the heart, the liver, etc.) and just as each parts have a specific function or purpose, so the law, too, can be divided up into parts and each law serves a specific function.
6. Laws are rules Laws are similar to the rules one was given as a child within one’s family or in school. For instance, “do not run in the hallways,” “if you want to ask a question, first raise your hand and wait to be given permission to speak,” “no eating in the car.” Every law ought to serve some purpose.
7. 5 Principles of law 1) The Harm Principle 2) The Parent Principle 3) The Morality Principle 4) The Donation Principle 5) The Static Principle
8. The Harm Principle Some laws are created with the purpose to prevent one person from causing harm (damages) to one or more persons. Criminal and tort laws (negligence laws) are laws with the purpose of preventing/deterring persons from from inflicting harm (damages) on others. These laws also punish persons who have been shown to have harmed others (caused damages to others) .
9. The Parent Principle ParensPatriea: Latin for “Father of the people”. This refers to when the government takes on the role of a parent to the people. The government act toward the people as a parents would act towards their children. The purpose of these laws is so that people will not hurt themselves. These laws are controversial because they seem to go against one’s liberty. The parent principle assumes that the government know best what is in my self interest.
10. Morality Principle This is also a controversial source of law. Legislature sometimes uses religious (undisclosed) or moral reasoning to enact laws. These laws attempt to steer behavior towards what the law-makers belief is morally right and to discourage behavior the law-makers belief is morally wrong.
11. The Donation Principle Laws that are guided by the donation principle try to help those who are less fortunate in society. These laws are supported by arguments from need, social justice, fairness, and human rights.
12. The Static Principle Static laws are laws that have more to do with helping society run smoothly. They are administrative laws and licensing laws.
13. How the Law is Written The healthcare industry has many laws; it is highly regulated. Laws tell us what we can do and what we cannot do. Laws can be a set of instructions
14. Writing Styles of Laws 1. Apodictic 2. Casuistry 3. Definitional
15. Apodictic Apodictic: laws that are written as straight forward, absolute, and necessary commands. For instance “thou shall not kill.” The problems with apodictic laws are that they are absolute and do not leave room for interpretation or exceptions, and that they do not state the consequences of breaking the law (i.e., they proscribe no punishment).
16. Casuistry Casuistry laws are written as conditionals. Conditional are “if…then…” statements. The part of the sentence that comes after the “if” is called the antecedent and the part of the sentence that comes after the “then” is the consequent. Casuistry laws include the punishment or the consequences of performing a prohibited action. For instance, “if you strike and kill a slave, the slave’s wife must go free.” The problem with casuistry laws are that they are too specific.
17. Definitional Laws Definitional laws try to resolve the specificity problem of casuistry laws. They can also be conditionals, but instead of referring to an individual, specific event, it refers to a KIND or Type of event. To do this it has to define the event by providing the necessary and sufficient properties. For instance, “murder is the killing of another person, with malice and aforethought” According to this definition kill in self-defense would not be murder.
18. The Structure of Law Who has the authority to write laws? What are courts and what role do they lay in the law? Who decides how the law if enforce?
19. The US Constitution The Constitution did 3 things: 1. It limited the power of government to protect individual liberties 2. It created the federal government: legislative branch, executive branch, and the judicial branch. 3. It determined the relationship between the federal government and state governments.
20. Preamble The preamble of the Constitutions sets out the fundamental purpose, principles, and goals of the constitution. “We the people, in order to form a more perfect union, establish Justice, insure domestic Tranquility, provide for the common defense, promote the general Welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this constitution for the United states of America.”
21. The Purpose of the Constitution 1. Establish a more perfect Union 2. Establish Justice 3. Insure domestic Tranquility 4. Provide for the common defense 5. Promote the general Welfare 6. Secure the blessings of liberty to ourselves and our posterity
22. Constitution 7 Articles Articles 1,2,and 3: Establishes the federal government. Articles 4 and 5: The relationship between states and states and the federal government. Article 5: How to amend the constitution. Article 7: How to ratify the constitution.
23. Article 1: Created the Legislative Branch Legislative branch: there was a controversy about how states would be represented. On the one hand, if it was based on population, then small states would always be in the minority. On the other hand, it seemed counterintuitive that states with very small population would get the same representative power as states with very large populations. To resolve the dilemma two chambers were created, House of representative and the senate. One represented a state based on population and the other equally.
24. Legislative Branch The legislative branch creates laws. Laws might also be referred to as statutes, ordinances or acts. Common laws are laws developed by judges through court decisions and for which no legislative laws exist. Few common laws exists today and common law cannot be used for criminal cases.
25. Article 2: Created the Executive Branch The executive branch is the President and his role is to carry out the day-to-day operations of the country. The executive branch has the power to execute laws. After a law is passed the President ensures that the law is executed properly (i.e., carrying out the law).
26. Article 3: Created the Judicial Branch The judicial branch (courts) functions to make sure that government and society adhere to the law and to settle disputes about the law (the interpretation and meaning of the law). In interpreting the law courts refer common law which is based on prior decisions of previous judges and courts. This concept is called precedence. Precedence, therefore, is the rationale for interpretation of ambiguous laws. Inferior courts must follow precedence of superior courts, hence the importance of the Supreme Court.
27. Checks and Balances The cement of Checks and Balances, makes sure that no branch of government can get too powerful before its power is used. The executive branch cannot create laws. The legislative branch can create and pass laws, yet the executive branch has the power to veto laws created by congress.
28. Check and Balances The balance element of Checks and Balances, makes sure that no branch of government can get too powerful after its power is used. For instance, if legislative branch creates a law and the executive branch does not veto, the judiciary branch can repeal the law as unconstitutional after the law is in place.
29. Article 4: Relationship between the federal and state governments The constitutions states that each state is free to act as a sovereign entity as long as its actions and laws are not contrary or inconsistent with federal laws and as long as they do not interfere with another states autonomy. In healthcare the federal governments enacts laws that usually provide the minimum requirements; states can also legislate their own laws that create more stringent regulations. As a public health administrators, you have to be knowledgeable about both federal and state laws.