Legal Environment In Business And Ethical Frameworks

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Chapter 1 Introduction to Law and Legal Systems

L E A R N I N G O B J E C T I V E S

After reading this chapter, you should be able to do the following:

1. Distinguish different philosophies of law—schools of legal thought—and explain their

relevance.

2. Identify the various aims that a functioning legal system can serve.

3. Explain how politics and law are related.

4. Identify the sources of law and which laws have priority over other laws.

5. Understand some basic differences between the US legal system and other legal

systems.

Law has different meanings as well as different functions. Philosophers have considered issues of justice and law for

centuries, and several different approaches, or schools of legal thought, have emerged. In this chapter, we will look at

those different meanings and approaches and will consider how social and political dynamics interact with the ideas

that animate the various schools of legal thought. We will also look at typical sources of “positive law” in the United

States and how some of those sources have priority over others, and we will set out some basic differences between

the US legal system and other legal systems.

1.1 What Is Law?

Law is a word that means different things at different times. Black’s Law Dictionarysays that law is “a

body of rules of action or conduct prescribed by controlling authority, and having binding legal force. That

which must be obeyed and followed by citizens subject to sanctions or legal consequence is a law.” [1]

Functions of the Law

In a nation, the law can serve to (1) keep the peace, (2) maintain the status quo, (3) preserve individual

rights, (4) protect minorities against majorities, (5) promote social justice, and (6) provide for orderly

social change. Some legal systems serve these purposes better than others. Although a nation ruled by an

authoritarian government may keep the peace and maintain the status quo, it may also oppress minorities

or political opponents (e.g., Burma, Zimbabwe, or Iraq under Saddam Hussein). Under colonialism,

European nations often imposed peace in countries whose borders were somewhat arbitrarily created by

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those same European nations. Over several centuries prior to the twentieth century, empires were built by

Spain, Portugal, Britain, Holland, France, Germany, Belgium, and Italy. With regard to the functions of

the law, the empire may have kept the peace—largely with force—but it changed the status quo and

seldom promoted the native peoples’ rights or social justice within the colonized nation.

In nations that were former colonies of European nations, various ethnic and tribal factions have

frequently made it difficult for a single, united government to rule effectively. In Rwanda, for example,

power struggles between Hutus and Tutsis resulted in genocide of the Tutsi minority. (Genocide is the

deliberate and systematic killing or displacement of one group of people by another group. In 1948, the

international community formally condemned the crime of genocide.) In nations of the former Soviet

Union, the withdrawal of a central power created power vacuums that were exploited by ethnic leaders.

When Yugoslavia broke up, the different ethnic groups—Croats, Bosnians, and Serbians—fought bitterly

for home turf rather than share power. In Iraq and Afghanistan, the effective blending of different groups

of families, tribes, sects, and ethnic groups into a national governing body that shares power remains to be

seen.

Law and Politics

In the United States, legislators, judges, administrative agencies, governors, and presidents make law,

with substantial input from corporations, lobbyists, and a diverse group of nongovernment organizations

(NGOs) such as the American Petroleum Institute, the Sierra Club, and the National Rifle Association. In

the fifty states, judges are often appointed by governors or elected by the people. The process of electing

state judges has become more and more politicized in the past fifteen years, with growing campaign

contributions from those who would seek to seat judges with similar political leanings.

In the federal system, judges are appointed by an elected official (the president) and confirmed by other

elected officials (the Senate). If the president is from one party and the other party holds a majority of

Senate seats, political conflicts may come up during the judges’ confirmation processes. Such a division

has been fairly frequent over the past fifty years.

In most nation-states (as countries are called in international law), knowing who has power to make and

enforce the laws is a matter of knowing who has political power; in many places, the people or groups that

have military power can also command political power to make and enforce the laws. Revolutions are

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difficult and contentious, but each year there are revolts against existing political-legal authority; an

aspiration for democratic rule, or greater “rights” for citizens, is a recurring theme in politics and law.

K E Y T A K E A W A Y

Law is the result of political action, and the political landscape is vastly different from nation to nation.

Unstable or authoritarian governments often fail to serve the principal functions of law.

E X E R C I S E S

1. Consider Burma (named Myanmar by its military rulers). What political rights do you

have that the average Burmese citizen does not?

2. What is a nongovernment organization, and what does it have to do with government?

Do you contribute to (or are you active in) a nongovernment organization? What kind of

rights do they espouse, what kind of laws do they support, and what kind of laws do they

oppose?

[1] Black’s Law Dictionary, 6th ed., s.v. “law.”

1.2 Schools of Legal Thought L E A R N I N G O B J E C T I V E S

1. Distinguish different philosophies of law—schools of legal thought—and explain their

relevance.

2. Explain why natural law relates to the rights that the founders of the US political-legal

system found important.

3. Describe legal positivism and explain how it differs from natural law.

4. Differentiate critical legal studies and ecofeminist legal perspectives from both natural

law and legal positivist perspectives.

There are different schools (or philosophies) concerning what law is all about. Philosophy of law is also

called jurisprudence, and the two main schools arelegal positivism and natural law. Although there are

others (see Section 1.2.3 “Other Schools of Legal Thought”), these two are the most influential in how

people think about the law.

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Legal Positivism: Law as Sovereign Command

As legal philosopher John Austin concisely put it, “Law is the command of a sovereign.” Law is only law,

in other words, if it comes from a recognized authority and can be enforced by that authority,

or sovereign—such as a king, a president, or a dictator—who has power within a defined area or territory.

Positivism is a philosophical movement that claims that science provides the only knowledge precise

enough to be worthwhile. But what are we to make of the social phenomena of laws?

We could examine existing statutes—executive orders, regulations, or judicial decisions—in a fairly precise

way to find out what the law says. For example, we could look at the posted speed limits on most US

highways and conclude that the “correct” or “right” speed is no more than fifty-five miles per hour. Or we

could look a little deeper and find out how the written law is usually applied. Doing so, we might conclude

that sixty-one miles per hour is generally allowed by most state troopers, but that occasionally someone

gets ticketed for doing fifty-seven miles per hour in a fifty-five miles per hour zone. Either approach is

empirical, even if not rigorously scientific. The first approach, examining in a precise way what the rule

itself says, is sometimes known as the “positivist” school of legal thought. The second approach—which

relies on social context and the actual behavior of the principal actors who enforce the law—is akin to the

“legal realist” school of thought (see Section 1.2.3 “Other Schools of Legal Thought”).

Positivism has its limits and its critics. New Testament readers may recall that King Herod, fearing the

birth of a Messiah, issued a decree that all male children below a certain age be killed. Because it was the

command of a sovereign, the decree was carried out (or, in legal jargon, the decree was “executed”).

Suppose a group seizes power in a particular place and commands that women cannot attend school and

can only be treated medically by women, even if their condition is life-threatening and women doctors are

few and far between. Suppose also that this command is carried out, just because it is the law and is

enforced with a vengeance. People who live there will undoubtedly question the wisdom, justice, or

goodness of such a law, but it is law nonetheless and is generally carried out. To avoid the law’s impact, a

citizen would have to flee the country entirely. During the Taliban rule in Afghanistan, from which this

example is drawn, many did flee.

The positive-law school of legal thought would recognize the lawmaker’s command as legitimate;

questions about the law’s morality or immorality would not be important. In contrast, the natural-law

school of legal thought would refuse to recognize the legitimacy of laws that did not conform to natural,

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universal, or divine law. If a lawmaker issued a command that was in violation of natural law, a citizen

would be morally justified in demonstrating civil disobedience. For example, in refusing to give up her

seat to a white person, Rosa Parks believed that she was refusing to obey an unjust law.

Natural Law

The natural-law school of thought emphasizes that law should be based on a universal moral order.

Natural law was “discovered” by humans through the use of reason and by choosing between that which is

good and that which is evil. Here is the definition of natural law according to the Cambridge Dictionary of

Philosophy: “Natural law, also called the law of nature in moral and political philosophy, is an objective

norm or set of objective norms governing human behavior, similar to the positive laws of a human ruler,

but binding on all people alike and usually understood as involving a superhuman legislator.” [1]

Both the US Constitution and the United Nations (UN) Charter have an affinity for the natural-law

outlook, as it emphasizes certain objective norms and rights of individuals and nations. The US

Declaration of Independence embodies a natural-law philosophy. The following short extract should

provide some sense of the deep beliefs in natural law held by those who signed the document.

The Unanimous Declaration of the Thirteen United States of America

July 4, 1776

When in the Course of human events, it becomes necessary for one people to dissolve the political bands

which have connected them with another, and to assume among the powers of the earth, the separate and

equal station to which the Laws of Nature and of Nature’s God entitle them, a decent respect to the

opinions of mankind requires that they should declare the causes which impel them to the separation.

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their

Creator with certain unalienable Rights, that among these are Life, Liberty and the Pursuit of Happiness.

That to secure these rights, Governments are instituted among Men, deriving their just powers from the

consent of the governed.…

The natural-law school has been very influential in American legal thinking. The idea that certain rights,

for example, are “unalienable” (as expressed in the Declaration of Independence and in the writings of

John Locke) is consistent with this view of the law. Individuals may have “God-given” or “natural” rights

that government cannot legitimately take away. Government only by consent of the governed is a natural

outgrowth of this view.

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Civil disobedience—in the tradition of Henry Thoreau, Mahatma Gandhi, or Martin Luther King Jr.—

becomes a matter of morality over “unnatural” law. For example, in his “Letter from Birmingham Jail,”

Martin Luther King Jr. claims that obeying an unjust law is not moral and that deliberately disobeying an

unjust law is in fact a moral act that expresses “the highest respect for law”: “An individual who breaks a

law that conscience tells him is unjust, and who willingly accepts the penalty of imprisonment in order to

arouse the conscience of the community over its injustice, is in reality expressing the highest respect for

law.…One who breaks an unjust law must do so openly, lovingly, and with a willingness to accept the

penalty.” [2]

Legal positivists, on the other hand, would say that we cannot know with real confidence what “natural”

law or “universal” law is. In studying law, we can most effectively learn by just looking at what the written

law says, or by examining how it has been applied. In response, natural-law thinkers would argue that if

we care about justice, every law and every legal system must be held accountable to some higher standard,

however hard that may be to define.

It is easier to know what the law “is” than what the law “should be.” Equal employment laws, for example,

have specific statutes, rules, and decisions about racial discrimination. There are always difficult issues of

interpretation and decision, which is why courts will resolve differing views. But how can we know the

more fundamental “ought” or “should” of human equality? For example, how do we know that “all men

are created equal” (from the Declaration of Independence)? Setting aside for the moment questions about

the equality of women, or that of slaves, who were not counted as men with equal rights at the time of the

declaration—can the statement be empirically proven, or is it simply a matter of a priori knowledge? (A

priori means “existing in the mind prior to and independent of experience.”) Or is the statement about

equality a matter of faith or belief, not really provable either scientifically or rationally? The dialogue

between natural-law theorists and more empirically oriented theories of “what law is” will raise similar

questions. In this book, we will focus mostly on the law as it is, but not without also raising questions

about what it could or should be.

Other Schools of Legal Thought

The historical school of law believes that societies should base their legal decisions today on the examples

of the past. Precedent would be more important than moral arguments.

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The legal realist school flourished in the 1920s and 1930s as a reaction to the historical school. Legal

realists pointed out that because life and society are constantly changing, certain laws and doctrines have

to be altered or modernized in order to remain current. The social context of law was more important to

legal realists than the formal application of precedent to current or future legal disputes. Rather than

suppose that judges inevitably acted objectively in applying an existing rule to a set of facts, legal realists

observed that judges had their own beliefs, operated in a social context, and would give legal decisions

based on their beliefs and their own social context.

The legal realist view influenced the emergence of the critical legal studies (CLS) school of thought. The

“Crits” believe that the social order (and the law) is dominated by those with power, wealth, and influence.

Some Crits are clearly influenced by the economist Karl Marx and also by distributive justice theory

(see Chapter 2 “Corporate Social Responsibility and Business Ethics”). The CLS school believes the

wealthy have historically oppressed or exploited those with less wealth and have maintained social control

through law. In so doing, the wealthy have perpetuated an unjust distribution of both rights and goods in

society. Law is politics and is thus not neutral or value-free. The CLS movement would use the law to

overturn the hierarchical structures of domination in the modern society.

Related to the CLS school, yet different, is the ecofeminist school of legal thought. This school

emphasizes—and would modify—the long-standing domination of men over both women and the rest of

the natural world. Ecofeminists would say that the same social mentality that leads to exploitation of

women is at the root of man’s exploitation and degradation of the natural environment. They would say

that male ownership of land has led to a “dominator culture,” in which man is not so much a steward of

the existing environment or those “subordinate” to him but is charged with making all that he controls

economically “productive.” Wives, children, land, and animals are valued as economic resources, and legal

systems (until the nineteenth century) largely conferred rights only to men with land. Ecofeminists would

say that even with increasing civil and political rights for women (such as the right to vote) and with some

nations’ recognizing the rights of children and animals and caring for the environment, the legacy of the

past for most nations still confirms the preeminence of “man” and his dominance of both nature and

women.

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K E Y T A K E A W A Y

Each of the various schools of legal thought has a particular view of what a legal system is or what it

should be. The natural-law theorists emphasize the rights and duties of both government and the

governed. Positive law takes as a given that law is simply the command of a sovereign, the political power

that those governed will obey. Recent writings in the various legal schools of thought emphasize long-

standing patterns of domination of the wealthy over others (the CLS school) and of men over women

(ecofeminist legal theory).

E X E R C I S E S

1. Vandana Shiva draws a picture of a stream in a forest. She says that in our society the

stream is seen as unproductive if it is simply there, fulfilling the need for water of

women’s families and communities, until engineers come along and tinker with it,

perhaps damming it and using it for generating hydropower. The same is true of a forest,

unless it is replaced with a monoculture plantation of a commercial species. A forest may

very well be productive—protecting groundwater; creating oxygen; providing fruit, fuel,

and craft materials for nearby inhabitants; and creating a habitat for animals that are

also a valuable resource. She criticizes the view that if there is no monetary amount that

can contribute to gross domestic product, neither the forest nor the river can be seen as

a productive resource. Which school of legal thought does her criticism reflect?

2. Anatole France said, “The law, in its majesty, forbids rich and poor alike from sleeping

under bridges.” Which school of legal thought is represented by this quote?

3. Adolf Eichmann was a loyal member of the National Socialist Party in the Third Reich and

worked hard under Hitler’s government during World War II to round up Jewish people

for incarceration—and eventual extermination—at labor camps like Auschwitz and

Buchenwald. After an Israeli “extraction team” took him from Argentina to Israel, he was

put on trial for “crimes against humanity.” His defense was that he was “just following

orders.” Explain why Eichmann was not an adherent of the natural-law school of legal

thought.

[1] Cambridge Dictionary of Philosophy, s.v. “natural law.”

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[2] Martin Luther King Jr., “Letter from Birmingham Jail.”

1.3 Basic Concepts and Categories of US Positive Law L E A R N I N G O B J E C T I V E S

1. In a general way, differentiate contract law from tort law.

2. Consider the role of law in supporting ethical norms in our society.

3. Understand the differing roles of state law and federal law in the US legal system.

4. Know the difference between criminal cases and civil cases.

Most of what we discuss in this book is positive law—US positive law in particular. We will also consider

the laws and legal systems of other nations. But first, it will be useful to cover some basic concepts and

distinctions.

Law: The Moral Minimums in a Democratic Society

The law does not correct (or claim to correct) every wrong that occurs in society. At a minimum, it aims to

curb the worst kind of wrongs, the kinds of wrongs that violate what might be called the “moral

minimums” that a community demands of its members. These include not only violations of criminal law

(see Chapter 6 “Criminal Law”) but also torts (see Chapter 7 “Introduction to Tort Law”) and broken

promises (see Chapter 8 “Introduction to Contract Law”). Thus it may be wrong to refuse to return a

phone call from a friend, but that wrong will not result in a viable lawsuit against you. But if a phone (or

the Internet) is used to libel or slander someone, a tort has been committed, and the law may allow the

defamed person to be compensated.

There is a strong association between what we generally think of as ethical behavior and what the laws

require and provide. For example, contract law upholds society’s sense that promises—in general—should

be kept. Promise-breaking is seen as unethical. The law provides remedies for broken promises (in breach

of contract cases) but not for all broken promises; some excuses are accepted when it would be reasonable

to do so. For tort law, harming others is considered unethical. If people are not restrained by law from

harming one another, orderly society would be undone, leading to anarchy. Tort law provides for

compensation when serious injuries or harms occur. As for property law issues, we generally believe that

private ownership of property is socially useful and generally desirable, and it is generally protected (with

some exceptions) by laws. You can’t throw a party at my house without my permission, but my right to do

whatever I want on my own property may be limited by law; I can’t, without the public’s permission,

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operate an incinerator on my property and burn heavy metals, as toxic ash may be deposited throughout

the neighborhood.

The Common Law: Property, Torts, and Contracts

Even before legislatures met to make rules for society, disputes happened and judges decided them. In

England, judges began writing down the facts of a case and the reasons for their decision. They often

resorted to deciding cases on the basis of prior written decisions. In relying on those prior decisions, the

judge would reason that since a current case was pretty much like a prior case, it ought to be decided the

same way. This is essentially reasoning by analogy. Thus the use of precedent in common-law cases came

into being, and a doctrine of stare decisis (pronounced STAR-ay-de-SIGH-sus) became accepted in

English courts. Stare decisis means, in Latin, “let the decision stand.”

Most judicial decisions that don’t apply legislative acts (known as statutes) will involve one of three areas

of law—property, contract, or tort. Property law deals with the rights and duties of those who can legally

own land (real property), how that ownership can be legally confirmed and protected, how property can

be bought and sold, what the rights of tenants (renters) are, and what the various kinds of “estates” in

land are (e.g., fee simple, life estate, future interest, easements, or rights of way). Contract law deals with

what kinds of promises courts should enforce. For example, should courts enforce a contract where one of

the parties was intoxicated, underage, or insane? Should courts enforce a contract where one of the

parties seemed to have an unfair advantage? What kind of contracts would have to be in writing to be

enforced by courts? Tort law deals with the types of cases that involve some kind of harm and or injury

between the plaintiff and the defendant when no contract exists. Thus if you are libeled or a competitor

lies about your product, your remedy would be in tort, not contract.

The thirteen original colonies had been using English common law for many years, and they continued to

do so after independence from England. Early cases from the first states are full of references to already-

decided English cases. As years went by, many precedents were established by US state courts, so that

today a judicial opinion that refers to a seventeenth- or eighteenth-century English common-law case is

quite rare.

Courts in one state may look to common-law decisions from the courts of other states where the reasoning

in a similar case is persuasive. This will happen in “cases of first impression,” a fact pattern or situation

that the courts in one state have never seen before. But if the supreme court in a particular state has

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already ruled on a certain kind of case, lower courts in that state will always follow the rule set forth by

their highest court.

State Courts and the Domain of State Law

In the early years of our nation, federal courts were not as active or important as state courts. States had

jurisdiction (the power to make and enforce laws) over the most important aspects of business life. The

power of state law has historically included governing the following kinds of issues and claims:

 Contracts, including sales, commercial paper, letters of credit, and secured transactions

 Torts

 Property, including real property, bailments of personal property (such as when you

check your coat at a theater or leave your clothes with a dry cleaner), trademarks,

copyrights, and the estates of decedents (dead people)

 Corporations

 Partnerships

 Domestic matters, including marriage, divorce, custody, adoption, and visitation

 Securities law

 Environmental law

 Agency law, governing the relationship between principals and their agents.

 Banking

 Insurance

Over the past eighty years, however, federal law has become increasingly important in many of these

areas, including banking, securities, and environmental law.

Civil versus Criminal Cases

Most of the cases we will look at in this textbook are civil cases. Criminal cases are certainly of interest to

business, especially as companies may break criminal laws. A criminal case involves a governmental

decision—whether state or federal—to prosecute someone (named as a defendant) for violating society’s

laws. The law establishes a moral minimum and does so especially in the area of criminal laws; if you

break a criminal law, you can lose your freedom (in jail) or your life (if you are convicted of a capital

offense). In a civil action, you would not be sent to prison; in the worst case, you can lose property

(usually money or other assets), such as when Ford Motor Company lost a personal injury case and the

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judge awarded $295 million to the plaintiffs or when Pennzoil won a $10.54 billion verdict against Texaco

(see Chapter 7 “Introduction to Tort Law”).

Some of the basic differences between civil law and criminal law cases are illustrated in Table 1.1

“Differences between Civil and Criminal Cases”.

Table 1.1 Differences between Civil and Criminal Cases

Civil Cases Criminal Cases

Parties Plaintiff brings case; defendant must answer or lose by default

Prosecutor brings case; defendant may remain silent

Proof Preponderance of evidence Beyond a reasonable doubt

Reason To settle disputes peacefully, usually between private parties To maintain order in society

To punish the most blameworthy

To deter serious wrongdoing

Remedies Money damages (legal remedy) Fines, jail, and forfeitures

Injunctions (equitable remedy)

Specific performance (equity)

Regarding plaintiffs and prosecutors, you can often tell a civil case from a criminal case by looking at the

caption of a case going to trial. If the government appears first in the caption of the case (e.g., U.S. v.

Lieberman, it is likely that the United States is prosecuting on behalf of the people. The same is true of

cases prosecuted by state district attorneys (e.g., State v. Seidel). But this is not a foolproof formula.

Governments will also bring civil actions to collect debts from or settle disputes with individuals,

corporations, or other governments. Thus U.S. v. Mayer might be a collection action for unpaid taxes,

or U.S. v. Canada might be a boundary dispute in the International Court of Justice. Governments can be

sued, as well; people occasionally sue their state or federal government, but they can only get a trial if the

government waives its sovereign immunity and allows such suits. Warner v. U.S., for example, could be a

claim for a tax refund wrongfully withheld or for damage caused to the Warner residence by a sonic boom

from a US Air Force jet flying overhead.

Substance versus Procedure

Many rules and regulations in law are substantive, and others are procedural. We are used to seeing laws

as substantive; that is, there is some rule of conduct or behavior that is called for or some action that is

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proscribed (prohibited). The substantive rules tell us how to act with one another and with the

government. For example, all of the following are substantive rules of law and provide a kind of command

or direction to citizens:

 Drive not more than fifty-five miles per hour where that speed limit is posted.

 Do not conspire to fix prices with competitors in the US market.

 Do not falsely represent the curative effects of your over-the-counter herbal remedy.

 Do not drive your motor vehicle through an intersection while a red traffic signal faces

the direction you are coming from.

 Do not discriminate against job applicants or employees on the basis of their race, sex,

religion, or national origin.

 Do not discharge certain pollutants into the river without first getting a discharge

permit.

In contrast, procedural laws are the rules of courts and administrative agencies. They tell us how to

proceed if there is a substantive-law problem. For example, if you drive fifty-three miles per hour in a

forty mile-per-hour zone on Main Street on a Saturday night and get a ticket, you have broken a

substantive rule of law (the posted speed limit). Just how and what gets decided in court is a matter of

procedural law. Is the police officer’s word final, or do you get your say before a judge? If so, who goes

first, you or the officer? Do you have the right to be represented by legal counsel? Does the hearing or trial

have to take place within a certain time period? A week? A month? How long can the state take to bring its

case? What kinds of evidence will be relevant? Radar? (Does it matter what kind of training the officer has

had on the radar device? Whether the radar device had been tested adequately?) The officer’s personal

observation? (What kind of training has he had, how is he qualified to judge the speed of a car, and other

questions arise.) What if you unwisely bragged to a friend at a party recently that you went a hundred

miles an hour on Main Street five years ago at half past three on a Tuesday morning? (If the prosecutor

knows of this and the “friend” is willing to testify, is it relevant to the charge of fifty-three in a forty-mile-

per-hour zone?)

In the United States, all state procedural laws must be fair, since the due process clause of the Fourteenth

Amendment directs that no state shall deprive any citizen of “life, liberty, or property,” without due

process of law. (The $200 fine plus court costs is designed to deprive you of property, that is, money, if

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you violate the speed limit.) Federal laws must also be fair, because the Fifth Amendment to the US

Constitution has the exact same due process language as the Fourteenth Amendment. This suggests that

some laws are more powerful or important than others, which is true. The next section looks at various

types of positive law and their relative importance.

K E Y T A K E A W A Y

In most legal systems, like that in the United States, there is a fairly firm distinction between criminal law

(for actions that are offenses against the entire society) and civil law (usually for disputes between

individuals or corporations). Basic ethical norms for promise-keeping and not harming others are reflected

in the civil law of contracts and torts. In the United States, both the states and the federal government

have roles to play, and sometimes these roles will overlap, as in environmental standards set by both

states and the federal government.

E X E R C I S E S

1. Jenna gets a ticket for careless driving after the police come to investigate a car accident

she had with you on Hanover Boulevard. Your car is badly damaged through no fault of

your own. Is Jenna likely to face criminal charges, civil charges, or both?

2. Jenna’s ticket says that she has thirty days in which to respond to the charges against

her. The thirty days conforms to a state law that sets this time limit. Is the thirty-day

limit procedural law or substantive law?

1.4 Sources of Law and Their Priority L E A R N I N G O B J E C T I V E S

1. Describe the different sources of law in the US legal system and the principal institutions

that create those laws.

2. Explain in what way a statute is like a treaty, and vice versa.

3. Explain why the Constitution is “prior” and has priority over the legislative acts of a

majority, whether in the US Congress or in a state legislature.

4. Describe the origins of the common-law system and what common law means.

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Sources of Law

In the United States today, there are numerous sources of law. The main ones are (1) constitutions—both

state and federal, (2) statutes and agency regulations, and (3) judicial decisions. In addition, chief

executives (the president and the various governors) can issue executive orders that have the effect of law.

In international legal systems, sources of law include treaties (agreements between states or countries)

and what is known as customary international law (usually consisting of judicial decisions from national

court systems where parties from two or more nations are in a dispute).

As you might expect, these laws sometimes conflict: a state law may conflict with a federal law, or a

federal law might be contrary to an international obligation. One nation’s law may provide one

substantive rule, while another nation’s law may provide a different, somewhat contrary rule to apply. Not

all laws, in other words, are created equal. To understand which laws have priority, it is essential to

understand the relationships between the various kinds of law.

Constitutions

Constitutions are the foundation for a state or nation’s other laws, providing the country’s legislative,

executive, and judicial framework. Among the nations of the world, the United States has the oldest

constitution still in use. It is difficult to amend, which is why there have only been seventeen amendments

following the first ten in 1789; two-thirds of the House and Senate must pass amendments, and three-

fourths of the states must approve them.

The nation’s states also have constitutions. Along with providing for legislative, executive, and judicial

functions, state constitutions prescribe various rights of citizens. These rights may be different from, and