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Evolution of Law: Common vs. Positive Legal Systems

Understand the evolution of law, differences between common and positive law, and the origins of the legal system. Learn about English Common Law, Napoleonic Code, and equity courts.

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Evolution of Law: Common vs. Positive Legal Systems

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  1. Our Laws 1-1 Our Laws and Legal System 1-2 Types of Laws 1-3 Ethical Bases for Laws Lessons Lesson 1-1 Slide 1 CHAPTER 1

  2. Lesson 1-1

  3. Types of Laws Explain the stages in the evolution of law Describe the differences between common law and positive law Describe the difference between law courts and equity courts GOALS Lesson 1-1 Slide 3 Lesson 1-1

  4. Lesson 1-1

  5. Laws are enforceable rules of conduct in a society They reflect the culture and circumstances that create them The need for law has not changed significantly over our recorded history Lesson 1-1 WHAT IS LAW? Considering this information what is your answer to What’s Your Verdict – “What is Law”

  6. Lesson 1-1 The professors in What’s Your Verdict? were correct. The need for law has not changed much over recorded history. People still make the same mistakes and still need the same protections from the conduct of others.

  7. Most societies go through four distinct stages in forming their legal systems: Lesson 1-1 Stages in the Growth of Law Individuals take revenge for wrongs done to them Awards of money or goods are substituted for revenge Court systems are formed A central authority figure intervenes to prevent and punish wrongs

  8. In any society, laws should be both predictable and flexible. Lesson 1-1 Common Law vs. Positive Law Law based on the current standards or customs of the people is called common law. Law that are set down by a sovereign or other central authority to prevent disputes and wrongs from occurring is called positive law.

  9. Lesson 1-1

  10. The world’s two great systems of law are: Lesson 1-1 OUR LEGAL SYSTEM’S ORIGIN English Common Law Roman Civil Law • Louisiana is the only state in the United States that is based on a civil law system • All other 49 states are based on the English common law

  11. Lesson 1-1 The laws in these codes are typically only changed by the central government, not by the judges who administer them. Only one state the United States—Louisiana—has a civil law system. The legal system used in the other 49 states is based on the English common law. Therefore, in What’s Your Verdict?, LaBonne was correct.

  12. Lesson 1-1 Napoleonic Code The area of the United States that is now the state of Louisiana was claimed for France by the explorer Lasalle in 1 682. French settlers brought many French influences to the state of Louisiana—customs, food, language, and law. Louisiana’s legal system was developed using the French Code Napoléon (or Napoleonic Code) as a foundation. However, over the years Louisiana has modified its laws to correspond with those of the other 49 states. The Napoleonic Code was derived from Germanic customs and Roman law as modified by the French Republic in the late 1700s. The Napoleonic Code also was the model for the civil law codes of Italy, the Netherlands, Spain, and the Canadian Province of Quebec.

  13. The judicial process described in the example the “Kings Bench” was repeated over and over again A web of custom-based common law developed and this process is called the English common law system Lesson 1-1 English Common Law Advantages

  14. Differs from a traditional system of common law in its uniformity Because of its uniformity it is able to adapt to changes in society The system of law in the United States is based on English common law Lesson 1-1 English Common Law System

  15. The English common law courts carefully followed precedent, which means the courts used prior cases as a guide for deciding similar new cases Lesson 1-1 EQUITY: An Alternative

  16. Lesson 1-1 English Common Law Disadvantages • Following precedent resulted in a rigid adherence to proper form • Courts had to wait until the harm actually occurred before it could take action

  17. Lesson 1-1 EQUITY COURTS • The king sensed a need for access to equitable remedies for all citizens • A system of equity courts was created and was placed under the chancellor’s control • The chancellor might issue a decree so something could be done or and injunction to prohibit something from being done

  18. Lesson 1-1 EQUITY COURTS TODAY • Today in the United States, law courts and equity courts are generally merged • Consequently, most American courts can award damages or issue orders, or both

  19. Lesson 1-1 Slide 19

  20. Lesson 1-1 Slide 20

  21. THINK ABOUT LEGAL CONCEPTS Lesson 1-1 Slide 21 1. Substitution of damages for revenge is the first stage in the evolution of law. True False? or The first stage is that individuals take revenge for wrongs done to them; see page 5

  22. THINK ABOUT LEGAL CONCEPTS Lesson 1-1 Slide 22 2. The two systems of law in use today are the English common law and the…….? a. American Constitution b. French legal code c. Roman civil law d. None of the above The world’s two great systems of law are the English common law and the Roman civil law

  23. THINK ABOUT LEGAL CONCEPTS Lesson 1-1 Slide 23 3. An organized group of laws is referred to as a code. or True False?

  24. THINK ABOUT LEGAL CONCEPTS Lesson 1-1 Slide 24 4. Louisiana is the only one of our 50 states whose legal system was not originally based on the English common law system? or True False? Louisiana’s legal system was developed using the French Code Napoleon or Napoleonic Code as a foundation; see page 6

  25. THINK ABOUT LEGAL CONCEPTS Lesson 1-1 Slide 25 5. Most American law courts can use either damages or an injunction or both as remedies in civil cases? or True False? In the United States, law courts and equity courts generally are merged so most American courts can award damages or issue orders or both; see page 8

  26. THINK CRITICALLY ABOUT EVIDENCE Lesson 1-1

  27. GOALS Lesson 1-2 Lesson 1-2 Types of Laws Explain how constitutional, statutory, case, and administrative laws are created Explain how to resolve conflicts between constitutional, statutory, case, and administrative laws Describe the differences between criminal and civil, substantive and procedural law, and business and other forms of law

  28. Lesson 1-2

  29. Lesson 1-2 SOURCES OF OUR LAWS Laws in this country are created at all three levels of government: • Federal • State • Local

  30. Lesson 1-2 LAWS AT EACH LEVEL The laws at each level consist mainly of: • Constitutions • Statutes • Administrative Regulations • Case Law

  31. Lesson 1-2 CONSTITUTIONS A constitution is a document that sets forth the framework of a government and its relationship to the people it governs Constitutional law is made when constitutions are adopted or amended, or when courts interpret constitutions

  32. Lesson 1-2 YOUR GOVERNANCE You are governed by both the Constitution of the United States and the constitution of your state.

  33. Lesson 1-2 FEDERAL AND STATE The Supreme Court of the United States is the final interpreter of the federal government Each state supreme court is the final authority on the meaning of its state constitution

  34. Lesson 1-2 ALLOCATION OF POWERS Federal and state constitutions are concerned primarily with defining and allocation certain powers in our society

  35. Lesson 1-2 PEOPLE AND GOVERNMENT The federal Constitution allocates powers between people and their government with its first ten amendments which are the…… Bill of Rights

  36. Lesson 1-2 ALLOCATION OF POWERS The federal Constitution allocates powers: Between the people and their governments Between state governments and the federal government Among the branches of the government

  37. Lesson 1-2 The Bill of Rights reserves the rights of citizens and protects them from actions of their governments. This is the section of the federal Constitution referred to in What’s Your Verdict?

  38. Lesson 1-2 FEDERAL AND STATE The constitution gives the federal government the power to regulate both foreign and interstate commerce – between two states The power to regulate intrastate commerce – within one state, is left with that state

  39. Lesson 1-2

  40. Lesson 1-2

  41. Lesson 1-2 GOVERNMENT BRANCHES State and federal constitutions allocates powers among the three government branches: executive, legislative, and judicial This allocation of powers creates a system of checks and balances among the branches to ensure that no one branch becomes too powerful

  42. Lesson 1-2 STATUTES The federal Constitution created the Congress of the United States State constitutions created the state legislatures These federal and state legislatures are composed of representative of the citizens and they enact laws called statutes What is your answer to What’s Your Verdict?

  43. ORDINANCES Lesson 1-2 Slide 43 All states delegate some legislative authority to local governments – towns, cities, and counties Legislation created at the local level is usually called an ordinance These laws are effective only within the boundary of the local governments that enacted them

  44. CASE LAW Lesson 1-2 Slide 44 The judicial branch of governments creates case law. Case law is usually made after a trial has ended and one of the parties has appealed the result to a higher court The appellate court may published an opinion on the case and state new rules to be used in deciding similar cases – this creates case law

  45. STARE DECISIS Lesson 1-2 Slide 45 The effectiveness of case law arises out of the doctrine of stare decisis which is Latin for “to adhere to decided cases

  46. STARE DECISIS Lesson 1-2 Slide 46 The doctrine of stare decisis requires that lower courts follow established case law in deciding similar cases It generally does not bind supreme courts; however case law doctrines are carefully established and seldom revoked

  47. Lesson 1-2

  48. ADMINISTRATIVE REGULATIONS Lesson 1-2 Slide 48 Federal, state, and local legislatures all create administrative agencies, which are government bodies formed to carry out particular laws. Examples include …… • federal Social Security Administration • the states division of motor vehicles • county zoning commissions

  49. LEGISLATIVE POWERS Lesson 1-2 Slide 49 Administrative agencies are given some legislative powers and limited judicial powers Legislative powers gives agencies authority to create administrative laws called rules and regulations Judicial powers gives agencies authority to hold hearings, make determinations of fact, and apply the law to particular cases

  50. Lesson 1-2

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