Scheb_IntroAmericanLegalSystem_Ch1[1]

Scheb_IntroAmericanLegalSystem_Ch1[1] - PART I FOUNDATIONS...

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PART I F OUNDATIONS OF THE L EGAL S YSTEM CHAPTER 1 F OUNDATIONS OF A MERICAN L AW CHAPTER 2 S TRUCTURES OF A MERICAN L AW
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L EARNING OBJECTIVES This chapter should enable the student to understand: • the functions of law in society • the forms and sources of law • how the English common law influenced the development of the American legal system • the ideas and experiences that led to formation of the U.S. Constitution • the supremacy of the U.S. Constitution and the Bill of Rights • the role of statutory law and judicial decision making • why courts, legislatures, and administrative agencies are important C HAPTER OUTLINE Introduction The Functions of Law in Society The Development of Law The Common Law Tradition The American Constitution Modern Statutes and Codification Administrative Regulation The Decisional Law Conclusion Summary of Key Concepts Questions for Thought and Discussion Key Terms For Further Reading 1 F OUNDATIONS OF A MERICAN L AW Courtesy of West Group.
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I NTRODUCTION American society is very much preoccupied with law. We have an elaborate system to make and enforce the law. A large professional class is engaged in the practice of law. Numerous academic institutions are devoted to teaching the law. There are thousands of publications dedicated to legal education, research, and advocacy. Our mass media and popular culture reflect the social preoccupation with law, in that we are exposed to a steady barrage of books, films, newspaper articles, television shows, and even radio programs dealing with the law. Despite this cultural preoccupation with the law, an essential question remains: What precisely is law ? Numerous definitions have been proposed, reflecting the variety of philo- sophical and theoretical orientations to the concept. Bearing in mind that any definition is imperfect, we begin with the following simple formulation: Law is a set of rules promulgated and enforced by government. 1 This formulation is often referred to as positive law, which the nineteenth-century English legal theorist John Austin defined simply as “the command of the sovereign.” Positive law is indeed the command of the sovereign, in that it is enunciated by government and backed by the coercive power of the state. But there is more to law than this. To be law, the command of the sovereign must take the form of a rule, a principle, or a directive that applies with equal force to everyone. 2 Moreover, to be accepted as legitimate, the law must be perceived as rational, fair, and just. Some would argue that for positive law to be legitimate, it must conform to a higher law. Higher Law Natural law is law that is presumed to flow from man’s natural condition, that is, the social condition existing prior to the emergence of government. Natural law is sometimes used to refer to universal principles of morality and justice; however, precisely what those principles are is subject to conflicting interpretations. In De Republica, the ancient Roman orator
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Scheb_IntroAmericanLegalSystem_Ch1[1] - PART I FOUNDATIONS...

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