What is a legal system

The concept of legal systems and types. The legal system of society: the concept and structure

For many centuries, people have been trying to findthe most effective way to regulate them. In the process of these searches, many solutions have been found, ranging from violence and ending with popular assemblies. The problem was that all such solutions were not sufficiently effective. However, the answer was still found. To date, there is no better regulator of public relations than law. The development of this social phenomenon is so great that law has become the basis of entire structures, one of which is the legal system. In the theory of state and law there are many opinions and theoretical developments on this topic. In the article, we will try to analyze, and also provide the notion of legal systems, to characterize their structures.

What is the legal system?

It should be noted that the concept of legal systemsvaries depending on the scientific approach and the principles of the particular law school. In addition to this, the legal peculiarities of a specific state are of great importance. But in this article we will be based on the information of the national school of the theory of state and law. To date, the general concept of the legal system is that it is a structure inherent in each specific state and consisting of three elements: the system of law, the rights of realization, legal culture. The concept presented is the most «classical», if one can say so. In other states, the understanding of this structure can be modified due to the legal characteristics of the country itself. In this article, for an example, we characterize the structure and concept of the Russian legal system.

Confusion of terms

Very often the concepts of «legal system» and «systemrights «are confused.In this case, one must be extremely careful.In spite of the fact that the terms are identical, from a logical point of view their meaning in the legal field of knowledge is absolutely the opposite.To differentiate them, one must understand: the legal system is only one of the elements of the legal system. Confusion also arises when the notion of the legal system and the legal family is analyzed, but the peculiarities of these structures will be discussed later in this article, but it should be noted that legal families are structures whose elements are national legal systems of different states. Thus, to overcome the lack of understanding of a term you need to know what meaning it carries in science.

The legal system, the concept, the characteristic of whichwill be presented in this article further, is completely differently comprehended by various scientists in the national school of the theory of state and law. There are only three basic approaches, namely:

1. Adherents of the first approach argue that the legal system of society, the concept and structure of which are presented in this article, is the totality of all acts of state rule-making without exception. In other words, only the form of expression and fixing of norms is considered. Here the importance of hierarchy of normative acts and their legal force plays.

2. The second approach characterizes the legal system not only through the prism of positive law, but also through some accompanying elements of legal reality. As a rule, legal ideology and judicial practice are among the accompanying elements. On the expanses of the Russian Federation, this approach did not find much support.

3. The third can be called the most standard. According to him, the entire legal field of the state is included in the concept of the legal system. The main legal systems are, in fact, key features of the state. Thus, any legal elements directly relate to the legal system.

From which follows the conclusion. The presence of so many theories suggests that scientists are still trying to develop the most standard concept of legal systems.

Elements

The concept and types of legal systems are completely dependentfrom their structural elements. There are many scientific approaches to understanding the structure of this or that legal structure. However, as a rule, three main elements are distinguished, which are present absolutely in all systems. These include: the system of law, legal culture and the realization of law. Each of the elements presented has its own effect on social relations, in other words, they regulate all social processes in their own way. In addition, it should be noted that all elements, in turn, are also structured.

Concept of the system of law

Earlier we pointed out that the legal system of society,the concept and structure of which is presented in this article, strongly depends and even in some cases is confused with the notion of «system of law». It should be remembered that the latter is one of the structural elements of the national legal system. In addition, this element displays the internal structure of the law in general. In other words, the legal system is a legal hierarchy of existing norms. But you should not confuse this hierarchy with the system of normative acts. Because the NAP is a positive law, and for the system of law all norms and customs sanctioned by the state power are important. Thus, the legal system, the concept and structure of which are presented in the article, is characterized by the internal structure of the elements of law-realization, namely, the system of law.

Structure of the system of law

It should be noted that the system of law isstructure of mutually complementary elements. That is, its analysis goes «from above», from the most significant or large structures, to the smallest elements. The analysis of the system is easy to carry out because in almost any state it is the same. Thus, the following elements stand out: the branch of law, the institution and the rule of law.

1. If we take into account the legal system of the Russian Federation, then the branches of law are a set of legal norms and institutions that are united by a common subject of regulation. In other words, the branches regulate homogeneous social relations. An example of the branch of law are civil, criminal, housing, family law, and so on.

2. Institutions of law are the constituent elements of the branches. But they, in turn, consist of similar legal norms. The need for institutes arises in those cases when a social phenomenon is regulated by a large number of norms. An excellent example of the institution can be called a marriage contract in family law.

3. The rule of law is the «smallest» element of the system of law. However, this fact does not detract from its significance. The law regulates the subject of legal regulation.

Legal culture of society

The concept of legal systems, or rather, the structure of thiscategory, includes such an element as the legal culture of society. It should be noted that this is one of the main structural components of the national law of any country, and in particular of the Russian Federation. Legal culture first of all indicates the development of the population and its relation to law in general. This is manifested in the degree of law and order. After all, legal culture manifests itself in specific behavioral traits. In people’s belief in the effectiveness of legal norms. Thus, the legal culture of a society is a certain kind of system of values, legal ideas, skills, traditions and behavioral stereotypes that are acceptable in certain social groups. Typically, these factors are used in these groups for the internal regulation of relations between its members.

Manifestation of the legal culture of society

That social relations are subordinatetrends of certain cultural norms, specific types of their direct manifestation were developed. After all, legal culture, in fact, does not mean anything, if it does not have a real effect. There are four main types of its manifestation, namely:

— legal institutions, norms;

It should be noted that the publiclegal culture also depends on the development of the legal infrastructure of the state, effective legal activity and legislation, which must first of all comply with constitutional norms.

Realization of the right

The legal system of society, the concept and structurewhich is presented in the article, contains in its composition such an important element as the implementation of the law. In fact, this part of the system is responsible for the actual implementation of the constitution, laws and other regulations in the Russian Federation. In the theoretical sense, the realization of law is the actual imposition of the norms of legal acts of the state on its citizens, for the implementation of the provisions of these acts in real life. In order to improve the effectiveness of the legal norms of this or that branch, special forms of legalization have been developed in the theory of law.

Forms of implementation of national law

In the classical version, scientists distinguish three main forms of the realization of law, namely:

1. Use, that is, the realization by the subjects of the law of their opportunities. In other words, the use of personal powers.

2. Execution is the activity for the implementation of binding norms, when the subject of law acts according to the strict requirements of the law.

3. Compliance is a passive category. It manifests itself in preserving the legal regime in force in the state and refraining from committing offenses.

Thus, through the norms presented, Russian citizens can support the legal system of the state by their active or passive actions.

Legal families

It should be noted that the legal system,the concept and structure of which are presented in the article, is unique. Therefore, in the world there are absolutely identical structures of this type. Nevertheless, if you compare these categories, you can see some unchanging features. Thus, scientists have found out that in several legal systems one can find general patterns. In order to somehow characterize a number of similar systems, such categories as legal families were invented. Thus, the legal family is the key concept of comparative jurisprudence, which is a collection of similar national legal systems in a certain territory. As a rule, a single family includes systems that combine common sources, the history of formation, structure, functions, etc. To date, the following types of legal families are distinguished, namely:

— religious legal family;

— family of traditional law.

Conclusion

So, in the article we have discovered the concept of the systemlegal regulation in the Russian Federation. To date, this problem is one of the key in the theory of state and law. Because the developments in this direction will help improve the effectiveness of law as the main regulator of legal relations in our state.

Chapter 1 Introduction to Law and Legal Systems

Learning Objectives

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

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 Dictionary says 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.” Black’s Law Dictionary, 6th ed., s.v. “law.”

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 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 The basic entities that comprise the international legal system. Countries, states, and nations are all roughly synonymous. State can also be used to designate the basic units of federally united states, such as in the United States of America, which is a nation-state. (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 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.

Key Takeaway

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.

Exercises

1.2 Schools of Legal Thought

Learning Objectives

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 The authority within any nation-state. Sovereignty is what sovereigns exercise. This usually means the power to make and enforce laws within the nation-state. —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 Legislative directives, having the form of general rules that are to be followed in the nation-state or its subdivisions. Statutes are controlling over judicial decisions or common law, but are inferior to (and controlled by) constitutional law. —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, 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.” Cambridge Dictionary of Philosophy, s.v. “natural law.”

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

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.

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

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.

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.

Key Takeaway

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).

Exercises

1.3 Basic Concepts and Categories of US Positive Law

Learning Objectives

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, 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 A prior judicial decision that is either binding or persuasive, and as such, provides a rule useful in making a decision in the case at hand. in common-law cases came into being, and a doctrine of stare decisis Latin, for “let the decision stand.” By keeping within the rule of a prior judicial decision, a court follows “precedent” by letting the prior decision govern the result in the case at hand. (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 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:

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

Some of the basic differences between civil law In contrast to criminal law, the law that governs noncriminal disputes, such as in lawsuits (as opposed to prosecutions) over contract disputes and tort claims. In contrast to common law, civil law is part of the continental European tradition dating back to Roman law. and criminal law That body of law in any nation-state that defines offenses against society as a whole, punishable by fines, forfeitures, or imprisonment. cases are illustrated in Table 1.1 «Differences between Civil and Criminal Cases».

Table 1.1 Differences between Civil and Criminal Cases

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 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:

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?)

Key Takeaway

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.

Exercises

1.4 Sources of Law and Their Priority

Learning Objectives

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 Formal agreements concluded between nation-states. (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 The founding documents of any nation-state’s legal system. 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.

Statutes and Treaties in Congress

In Washington, DC, the federal legislature is known as Congress and has both a House of Representatives and a Senate. The House is composed of representatives elected every two years from various districts in each state. These districts are established by Congress according to population as determined every ten years by the census, a process required by the Constitution. Each state has at least one district; the most populous state (California) has fifty-two districts. In the Senate, there are two senators from each state, regardless of the state’s population. Thus Delaware has two senators and California has two senators, even though California has far more people. Effectively, less than 20 percent of the nation’s population can send fifty senators to Washington.

Many consider this to be antidemocratic. The House of Representatives, on the other hand, is directly proportioned by population, though no state can have less than one representative.

Each Congressional legislative body has committees for various purposes. In these committees, proposed bills are discussed, hearings are sometimes held, and bills are either reported out (brought to the floor for a vote) or killed in committee. If a bill is reported out, it may be passed by majority vote. Because of the procedural differences between the House and the Senate, bills that have the same language when proposed in both houses are apt to be different after approval by each body. A conference committee will then be held to try to match the two versions. If the two versions differ widely enough, reconciliation of the two differing versions into one acceptable to both chambers (House and Senate) is more difficult.

If the House and Senate can agree on identical language, the reconciled bill will be sent to the president for signature or veto. The Constitution prescribes that the president will have veto power over any legislation. But the two bodies can override a presidential veto with a two-thirds vote in each chamber.

In the case of treaties, the Constitution specifies that only the Senate must ratify them. When the Senate ratifies a treaty, it becomes part of federal law, with the same weight and effect as a statute passed by the entire Congress. The statutes of Congress are collected in codified form in the US Code. The code is available online at http://uscode.house.gov.

Delegating Legislative Powers: Rules by Administrative Agencies

Congress has found it necessary and useful to create government agencies to administer various laws (see Chapter 5 «Administrative Law»). The Constitution does not expressly provide for administrative agencies, but the US Supreme Court has upheld the delegation of power to create federal agencies.

Examples of administrative agencies would include the Occupational Safety and Health Administration (OSHA), the Environmental Protection Agency (EPA), and the Federal Trade Commission (FTC).

It is important to note that Congress does not have unlimited authority to delegate its lawmaking powers to an agency. It must delegate its authority with some guidelines for the agency and cannot altogether avoid its constitutional responsibilities (see Chapter 5 «Administrative Law»).

Agencies propose rules in the Federal Register, published each working day of the year. Rules that are formally adopted are published in the Code of Federal Regulations, or CFR, available online at http://www.access.gpo.gov/nara/cfr/cfr-table-search.html.

State Statutes and Agencies: Other Codified Law

Statutes are passed by legislatures and provide general rules for society. States have legislatures (sometimes called assemblies), which are usually made up of both a senate and a house of representatives. Like the federal government, state legislatures will agree on the provisions of a bill, which is then sent to the governor (acting like the president for that state) for signature. Like the president, governors often have a veto power. The process of creating and amending, or changing, laws is filled with political negotiation and compromise.

On a more local level, counties and municipal corporations or townships may be authorized under a state’s constitution to create or adopt ordinances. Examples of ordinances include local building codes, zoning laws, and misdemeanors or infractions such as skateboarding or jaywalking. Most of the more unusual laws that are in the news from time to time are local ordinances. For example, in Logan County, Colorado, it is illegal to kiss a sleeping woman; in Indianapolis, Indiana, and Eureka, Nebraska, it is a crime to kiss if you have a mustache. But reportedly, some states still have odd laws here and there. Kentucky law proclaims that every person in the state must take a bath at least once a year, and failure to do so is illegal.

Judicial Decisions: The Common Law

Common law Judicial decisions that do not involve interpretation of statutes, regulations, treaties, or the Constitution. consists of decisions by courts (judicial decisions) that do not involve interpretation of statutes, regulations, treaties, or the Constitution. Courts make such interpretations, but many cases are decided where there is no statutory or other codified law or regulation to be interpreted. For example, a state court deciding what kinds of witnesses are required for a valid will in the absence of a rule (from a statute) is making common law.

United States law comes primarily from the tradition of English common law. By the time England’s American colonies revolted in 1776, English common-law traditions were well established in the colonial courts. English common law was a system that gave written judicial decisions the force of law throughout the country. Thus if an English court delivered an opinion as to what constituted the common-law crime of burglary, other courts would stick to that decision, so that a common body of law developed throughout the country. Common law is essentially shorthand for the notion that a common body of law, based on past written decisions, is desirable and necessary.

In England and in the laws of the original thirteen states, common-law decisions defined crimes such as arson, burglary, homicide, and robbery. As time went on, US state legislatures either adopted or modified common-law definitions of most crimes by putting them in the form of codes or statutes. This legislative ability—to modify or change common law into judicial law—points to an important phenomenon: the priority of statutory law over common law. As we will see in the next section, constitutional law will have priority over statutory law.

Priority of Laws

The Constitution as Preemptive Force in US Law

The US Constitution takes precedence over all statutes and judicial decisions that are inconsistent. For example, if Michigan were to decide legislatively that students cannot speak ill of professors in state-sponsored universities, that law would be void, since it is inconsistent with the state’s obligation under the First Amendment to protect free speech. Or if the Michigan courts were to allow a professor to bring a lawsuit against a student who had said something about him that was derogatory but not defamatory, the state’s judicial system would not be acting according to the First Amendment. (As we will see in Chapter 7 «Introduction to Tort Law», free speech has its limits; defamation was a cause of action at the time the First Amendment was added to the Constitution, and it has been understood that the free speech rights in the First Amendment did not negate existing common law.)

Statutes and Cases

Statutes generally have priority, or take precedence, over case law (judicial decisions). Under common-law judicial decisions, employers could hire young children for difficult work, offer any wage they wanted, and not pay overtime work at a higher rate. But various statutes changed that. For example, the federal Fair Labor Standards Act (1938) forbid the use of oppressive child labor and established a minimum pay wage and overtime pay rules.

Treaties as Statutes: The “Last in Time” Rule

A treaty or convention is considered of equal standing to a statute. Thus when Congress ratified the North American Free Trade Agreement (NAFTA), any judicial decisions or previous statutes that were inconsistent—such as quotas or limitations on imports from Mexico that were opposite to NAFTA commitments—would no longer be valid. Similarly, US treaty obligations under the General Agreement on Tariffs and Trade (GATT) and obligations made later through the World Trade Organization (WTO) would override previous federal or state statutes.

One example of treaty obligations overriding, or taking priority over, federal statutes was the tuna-dolphin dispute between the United States and Mexico. The Marine Mammal Protection Act amendments in 1988 spelled out certain protections for dolphins in the Eastern Tropical Pacific, and the United States began refusing to allow the importation of tuna that were caught using “dolphin-unfriendly” methods (such as purse seining). This was challenged at a GATT dispute panel in Switzerland, and the United States lost. The discussion continued at the WTO under its dispute resolution process. In short, US environmental statutes can be ruled contrary to US treaty obligations.

Under most treaties, the United States can withdraw, or take back, any voluntary limitation on its sovereignty; participation in treaties is entirely elective. That is, the United States may “unbind” itself whenever it chooses. But for practical purposes, some limitations on sovereignty may be good for the nation. The argument goes something like this: if free trade in general helps the United States, then it makes some sense to be part of a system that promotes free trade; and despite some temporary setbacks, the WTO decision process will (it is hoped) provide far more benefits than losses in the long run. This argument invokes utilitarian theory (that the best policy does the greatest good overall for society) and David Ricardo’s theory of comparative advantage.

Ultimately, whether the United States remains a supporter of free trade and continues to participate as a leader in the WTO will depend upon citizens electing leaders who support the process. Had Ross Perot been elected in 1992, for example, NAFTA would have been politically (and legally) dead during his term of office.

Causes of Action, Precedent, and Stare Decisis

An old saying in the law is that the law does not deal in trifles, or unimportant issues (in Latin, de minimis non curat lex). Not every wrong you may suffer in life will be a cause to bring a court action. If you are stood up for a Saturday night date and feel embarrassed or humiliated, you cannot recover anything in a court of law in the United States, as there is no cause of action (no basis in the positive law) that you can use in your complaint. If you are engaged to be married and your spouse-to-be bolts from the wedding ceremony, there are some states that do provide a legal basis on which to bring a lawsuit. “Breach of promise to marry” is recognized in several states, but most states have abolished this cause of action, either by judicial decision or by legislation. Whether a runaway bride or groom gives rise to a valid cause of action in the courts depends on whether the state courts still recognize and enforce this now-disappearing cause of action.

Your cause of action is thus based on existing laws, including decided cases. How closely your case “fits” with a prior decided case raises the question of precedent.

As noted earlier in this chapter, the English common-law tradition placed great emphasis on precedent and what is called stare decisis. A court considering one case would feel obliged to decide that case in a way similar to previously decided cases. Written decisions of the most important cases had been spread throughout England (the common “realm”), and judges hoped to establish a somewhat predictable, consistent group of decisions.

The English legislature (Parliament) was not in the practice of establishing detailed statutes on crimes, torts, contracts, or property. Thus definitions and rules were left primarily to the courts. By their nature, courts could only decide one case at a time, but in doing so they would articulate holdings, or general rules, that would apply to later cases.

Suppose that one court had to decide whether an employer could fire an employee for no reason at all. Suppose that there were no statutes that applied to the facts: there was no contract between the employer and the employee, but the employee had worked for the employer for many years, and now a younger person was replacing him. The court, with no past guidelines, would have to decide whether the employee had stated a “cause of action” against the employer. If the court decided that the case was not legally actionable, it would dismiss the action. Future courts would then treat similar cases in a similar way. In the process, the court might make a holding that employers could fire employees for any reason or for no reason. This rule could be applied in the future should similar cases come up.

But suppose that an employer fired an employee for not committing perjury (lying on the witness stand in a court proceeding); the employer wanted the employee to cover up the company’s criminal or unethical act. Suppose that, as in earlier cases, there were no applicable statutes and no contract of employment. Courts relying on a holding or precedent that “employers may fire employees for any reason or no reason” might rule against an employee seeking compensation for being fired for telling the truth on the witness stand. Or it might make an exception to the general rule, such as, “Employers may generally discharge employees for any reason or for no reason without incurring legal liability; however, employers will incur legal liability for firing an employee who refuses to lie on behalf of the employer in a court proceeding.”

In each case (the general rule and its exception), the common-law tradition calls for the court to explain the reasons for its ruling. In the case of the general rule, “freedom of choice” might be the major reason. In the case of the perjury exception, the efficiency of the judicial system and the requirements of citizenship might be used as reasons. Because the court’s “reasons” will be persuasive to some and not to others, there is inevitably a degree of subjectivity to judicial opinions. That is, reasonable people will disagree as to the persuasiveness of the reasoning a court may offer for its decision.

Written judicial opinions are thus a good playing field for developing critical thinking skills by identifying the issue in a case and examining the reasons for the court’s previous decision(s), or holding. What has the court actually decided, and why? Remember that a court, especially the US Supreme Court, is not only deciding one particular case but also setting down guidelines (in its holdings) for federal and state courts that encounter similar issues. Note that court cases often raise a variety of issues or questions to be resolved, and judges (and attorneys) will differ as to what the real issue in a case is. A holding is the court’s complete answer to an issue that is critical to deciding the case and thus gives guidance to the meaning of the case as a precedent for future cases.

Beyond the decision of the court, it is in looking at the court’s reasoning that you are most likely to understand what facts have been most significant to the court and what theories (schools of legal thought) each trial or appellate judge believes in. Because judges do not always agree on first principles (i.e., they subscribe to different schools of legal thought), there are many divided opinions in appellate opinions and in each US Supreme Court term.

Key Takeaway

There are different sources of law in the US legal system. The US Constitution is foundational; US statutory and common law cannot be inconsistent with its provisions. Congress creates statutory law (with the signature of the president), and courts will interpret constitutional law and statutory law. Where there is neither constitutional law nor statutory law, the courts function in the realm of common law. The same is true of law within the fifty states, each of which also has a constitution, or foundational law.

Both the federal government and the states have created administrative agencies. An agency only has the power that the legislature gives it. Within the scope of that power, an agency will often create regulations (see Chapter 5 «Administrative Law»), which have the same force and effect as statutes. Treaties are never negotiated and concluded by states, as the federal government has exclusive authority over relations with other nation-states. A treaty, once ratified by the Senate, has the same force and effect as a statute passed by Congress and signed into law by the president.

Constitutions, statutes, regulations, treaties, and court decisions can provide a legal basis in the positive law. You may believe you have been wronged, but for you to have a right that is enforceable in court, you must have something in the positive law that you can point to that will support a cause of action against your chosen defendant.

Exercises

1.5 Legal and Political Systems of the World

Learning Objective

Other legal and political systems are very different from the US system, which came from English common-law traditions and the framers of the US Constitution. Our legal and political traditions are different both in what kinds of laws we make and honor and in how disputes are resolved in court.

Comparing Common-Law Systems with Other Legal Systems

The common-law tradition is unique to England, the United States, and former colonies of the British Empire. Although there are differences among common-law systems (e.g., most nations do not permit their judiciaries to declare legislative acts unconstitutional; some nations use the jury less frequently), all of them recognize the use of precedent in judicial cases, and none of them relies on the comprehensive, legislative codes that are prevalent in civil-law systems.

Civil-Law Systems

The main alternative to the common-law legal system was developed in Europe and is based in Roman and Napoleonic law. A civil-law or code-law system is one where all the legal rules are in one or more comprehensive legislative enactments. During Napoleon’s reign, a comprehensive book of laws—a code—was developed for all of France. The code covered criminal law, criminal procedure, noncriminal law and procedure, and commercial law. The rules of the code are still used today in France and in other continental European legal systems. The code is used to resolve particular cases, usually by judges without a jury. Moreover, the judges are not required to follow the decisions of other courts in similar cases. As George Cameron of the University of Michigan has noted, “The law is in the code, not in the cases.” He goes on to note, “Where several cases all have interpreted a provision in a particular way, the French courts may feel bound to reach the same result in future cases, under the doctrine of jurisprudence constante. The major agency for growth and change, however, is the legislature, not the courts.”

Civil-law systems are used throughout Europe as well as in Central and South America. Some nations in Asia and Africa have also adopted codes based on European civil law. Germany, Holland, Spain, France, and Portugal all had colonies outside of Europe, and many of these colonies adopted the legal practices that were imposed on them by colonial rule, much like the original thirteen states of the United States, which adopted English common-law practices.

One source of possible confusion at this point is that we have already referred to US civil law in contrast to criminal law. But the European civil law covers both civil and criminal law.

There are also legal systems that differ significantly from the common-law and civil-law systems. The communist and socialist legal systems that remain (e.g., in Cuba and North Korea) operate on very different assumptions than those of either English common law or European civil law. Islamic and other religion-based systems of law bring different values and assumptions to social and commercial relations.

Key Takeaway

Legal systems vary widely in their aims and in the way they process civil and criminal cases. Common-law systems use juries, have one judge, and adhere to precedent. Civil-law systems decide cases without a jury, often use three judges, and often render shorter opinions without reference to previously decided cases.

Exercise

1.6 A Sample Case

Preliminary Note to Students

Title VII of the Civil Rights Act of 1964 is a federal statute that applies to all employers whose workforce exceeds fifteen people. The text of Title VII says that

(a) it shall be an unlawful employment practice for an employer—

This is a case from our federal court system, which has a trial or hearing in the federal district court, an appeal to the Sixth Circuit Court of Appeals, and a final appeal to the US Supreme Court. Teresa Harris, having lost at both the district court and the Sixth Circuit Court of Appeals, here has petitioned for a writ of certiorari (asking the court to issue an order to bring the case to the Supreme Court), a petition that is granted less than one out of every fifty times. The Supreme Court, in other words, chooses its cases carefully. Here, the court wanted to resolve a difference of opinion among the various circuit courts of appeal as to whether or not a plaintiff in a hostile-working-environment claim could recover damages without showing “severe psychological injury.”

Harris v. Forklift Systems

510 U.S. 17 (U.S. Supreme Court 1992)

JUDGES: O’CONNOR, J., delivered the opinion for a unanimous Court. SCALIA, J., and GINSBURG, J., filed concurring opinions.

JUSTICE O’CONNOR delivered the opinion of the Court.

In this case we consider the definition of a discriminatorily “abusive work environment” (also known as a “hostile work environment”) under Title VII of the Civil Rights Act of 1964, 78 Stat. 253, as amended, 42 U.S.C. § 2000e et seq. (1988 ed., Supp. III).

Teresa Harris worked as a manager at Forklift Systems, Inc., an equipment rental company, from April 1985 until October 1987. Charles Hardy was Forklift’s president.

The Magistrate found that, throughout Harris’ time at Forklift, Hardy often insulted her because of her gender and often made her the target of unwanted sexual innuendoes. Hardy told Harris on several occasions, in the presence of other employees, “You’re a woman, what do you know” and “We need a man as the rental manager”; at least once, he told her she was “a dumbass woman.” Again in front of others, he suggested that the two of them “go to the Holiday Inn to negotiate [Harris’s] raise.” Hardy occasionally asked Harris and other female employees to get coins from his front pants pocket. He threw objects on the ground in front of Harris and other women, and asked them to pick the objects up. He made sexual innuendoes about Harris’ and other women’s clothing.

In mid-August 1987, Harris complained to Hardy about his conduct. Hardy said he was surprised that Harris was offended, claimed he was only joking, and apologized. He also promised he would stop, and based on this assurance Harris stayed on the job. But in early September, Hardy began anew: While Harris was arranging a deal with one of Forklift’s customers, he asked her, again in front of other employees, “What did you do, promise the guy…some [sex] Saturday night?” On October 1, Harris collected her paycheck and quit.

Harris then sued Forklift, claiming that Hardy’s conduct had created an abusive work environment for her because of her gender. The United States District Court for the Middle District of Tennessee, adopting the report and recommendation of the Magistrate, found this to be “a close case,” but held that Hardy’s conduct did not create an abusive environment. The court found that some of Hardy’s comments “offended [Harris], and would offend the reasonable woman,” but that they were not “so severe as to be expected to seriously affect [Harris’s] psychological well-being. A reasonable woman manager under like circumstances would have been offended by Hardy, but his conduct would not have risen to the level of interfering with that person’s work performance.

“Neither do I believe that [Harris] was subjectively so offended that she suffered injury.…Although Hardy may at times have genuinely offended [Harris], I do not believe that he created a working environment so poisoned as to be intimidating or abusive to [Harris].”

In focusing on the employee’s psychological well-being, the District Court was following Circuit precedent. See Rabidue v. Osceola Refining Co., 805 F.2d 611, 620 (CA6 1986), cert. denied, 481 U.S. 1041, 95 L. Ed. 2d 823, 107 S. Ct. 1983 (1987). The United States Court of Appeals for the Sixth Circuit affirmed in a brief unpublished decision…reported at 976 F.2d 733 (1992).

We granted certiorari, 507 U.S. 959 (1993), to resolve a conflict among the Circuits on whether conduct, to be actionable as “abusive work environment” harassment (no quid pro quo harassment issue is present here), must “seriously affect [an employee’s] psychological well-being” or lead the plaintiff to “suffer injury.” Compare Rabidue (requiring serious effect on psychological well-being); Vance v. Southern Bell Telephone & Telegraph Co., 863 F.2d 1503, 1510 (CA11 1989) (same); and Downes v. FAA, 775 F.2d 288, 292 (CA Fed. 1985) (same), with Ellison v. Brady, 924 F.2d 872, 877–878 (CA9 1991) (rejecting such a requirement).

This standard, which we reaffirm today, takes a middle path between making actionable any conduct that is merely offensive and requiring the conduct to cause a tangible psychological injury. As we pointed out in Meritor, “mere utterance of an…epithet which engenders offensive feelings in an employee,” does not sufficiently affect the conditions of employment to implicate Title VII. Conduct that is not severe or pervasive enough to create an objectively hostile or abusive work environment—an environment that a reasonable person would find hostile or abusive—is beyond Title VII’s purview. Likewise, if the victim does not subjectively perceive the environment to be abusive, the conduct has not actually altered the conditions of the victim’s employment, and there is no Title VII violation.

But Title VII comes into play before the harassing conduct leads to a nervous breakdown. A discriminatorily abusive work environment, even one that does not seriously affect employees’ psychological well-being, can and often will detract from employees’ job performance, discourage employees from remaining on the job, or keep them from advancing in their careers. Moreover, even without regard to these tangible effects, the very fact that the discriminatory conduct was so severe or pervasive that it created a work environment abusive to employees because of their race, gender, religion, or national origin offends Title VII’s broad rule of workplace equality. The appalling conduct alleged in Meritor, and the reference in that case to environments “‘so heavily polluted with discrimination as to destroy completely the emotional and psychological stability of minority group workers,’” Id., at 66, quoting Rogers v. EEOC, 454 F.2d 234, 238 (CA5 1971), cert. denied, 406 U.S. 957,32 L. Ed. 2d 343, 92 S. Ct. 2058 (1972), merely present some especially egregious examples of harassment. They do not mark the boundary of what is actionable.

We therefore believe the District Court erred in relying on whether the conduct “seriously affected plaintiff’s psychological well-being” or led her to “suffer injury.” Such an inquiry may needlessly focus the fact finder’s attention on concrete psychological harm, an element Title VII does not require. Certainly Title VII bars conduct that would seriously affect a reasonable person’s psychological well-being, but the statute is not limited to such conduct. So long as the environment would reasonably be perceived, and is perceived, as hostile or abusive, Meritor, supra, at 67, there is no need for it also to be psychologically injurious.

This is not, and by its nature cannot be, a mathematically precise test. We need not answer today all the potential questions it raises, nor specifically address the Equal Employment Opportunity Commission’s new regulations on this subject, see 58 Fed. Reg. 51266 (1993) (proposed 29 CFR §§ 1609.1, 1609.2); see also 29 CFR § 1604.11 (1993). But we can say that whether an environment is “hostile” or “abusive” can be determined only by looking at all the circumstances. These may include the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance. The effect on the employee’s psychological well-being is, of course, relevant to determining whether the plaintiff actually found the environment abusive. But while psychological harm, like any other relevant factor, may be taken into account, no single factor is required.

Forklift, while conceding that a requirement that the conduct seriously affect psychological well-being is unfounded, argues that the District Court nonetheless correctly applied the Meritor standard. We disagree. Though the District Court did conclude that the work environment was not “intimidating or abusive to [Harris],” it did so only after finding that the conduct was not “so severe as to be expected to seriously affect plaintiff’s psychological well-being,” and that Harris was not “subjectively so offended that she suffered injury,” ibid. The District Court’s application of these incorrect standards may well have influenced its ultimate conclusion, especially given that the court found this to be a “close case.”

We therefore reverse the judgment of the Court of Appeals, and remand the case for further proceedings consistent with this opinion.

Note to Students

This was only the second time that the Supreme Court had decided a sexual harassment case. Many feminist legal studies scholars feared that the court would raise the bar and make hostile-working-environment claims under Title VII more difficult to win. That did not happen. When the question to be decided is combined with the court’s decision, we get the holding of the case. Here, the question that the court poses, plus its answer, yields a holding that “An employee need not prove severe psychological injury in order to win a Title VII sexual harassment claim.” This holding will be true until such time as the court revisits a similar question and answers it differently. This does happen, but happens rarely.

Case Questions

1.7 Summary and Exercises

Summary

There are differing conceptions of what law is and of what law should be. Laws and legal systems differ worldwide. The legal system in the United States is founded on the US Constitution, which is itself inspired by natural-law theory and the idea that people have rights that cannot be taken by government but only protected by government. The various functions of the law are done well or poorly depending on which nation-state you look at. Some do very well in terms of keeping order, while others do a better job of allowing civil and political freedoms. Social and political movements within each nation greatly affect the nature and quality of the legal system within that nation.

This chapter has familiarized you with a few of the basic schools of legal thought, such as natural law, positive law, legal realism, and critical legal studies. It has also given you a brief background in common law, including contracts, torts, and criminal law. The differences between civil and criminal cases, substance and procedure, and the various sources of law have also been reviewed. Each source has a different level of authority, starting with constitutions, which are primary and will negate any lower-court laws that are not consistent with its principles and provisions. The basic differences between the common law and civil law (continental, or European) systems of law are also discussed.

Exercises

In the following situations, which source of law takes priority, and why?

Self-Test Questions

The source of law that is foundational in the US legal system is

“Law is the command of a sovereign” represents what school of legal thought?

Which of the following kinds of law are most often found in state law rather than federal law?

Where was natural law discovered?

Wolfe is a state court judge in California. In the case of Riddick v. Clouse, which involves a contract dispute, Wolfe must follow precedent. She establishes a logical relationship between the Riddick case and a case decided by the California Supreme Court, Zhu v. Patel Enterprises, Inc. She compares the facts of Riddick to the facts in Zhu and to the extent the facts are similar, applies the same rule to reach her decision. This is

Moore is a state court judge in Colorado. In the case of Cassidy v. Seawell, also a contract dispute, there is no Colorado Supreme Court or court of appeals decision that sets forth a rule that could be applied. However, the California case of Zhu v. Patel Enterprises, Inc. is “very close” on the facts and sets forth a rule of law that could be applied to the Cassidy case. What process must Moore follow in considering whether to use the Zhu case as precedent?

legal systems

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Definition

A legal system is a procedure or process for interpreting and enforcing the law.

Overview

There are hundreds of legal systems in the world. At the global level, international law is of great importance, whether created by the practice of sovereign states or by agreement among them in the form of treaties and other accords. Some transnational entities such as the European Union have created their own legal structures. At the national level there are over 180 sovereign states in the United Nations Organization. Many of these are federal, and their constituent parts may have their own additional laws.

But, despite this great variety, it is important to begin by emphasizing the division between religious legal systems and secular legal systems. Each holds quite different views as to law, in its source, scope, sanctions, and function. The source of religious law is the deity, legislating through the prophets. Secular law, however, is made by human beings. In a religious legal system disputes are usually adjudicated by an officer of that religion, so the same person is both judge and priest. In a secular system, by contrast, the office of judge is separate, and is often reinforced by guarantees of judicial independence.

Nowadays there are few countries whose legal system is exclusively religious. By contrast, a large number of countries have secular systems, and this feature may be built into their legal structure, as in the 1958 French and the 1993 Russian constitutions, or the very first words of the First Amendment to the American Constitution: ‘Congress shall make no law respecting an establishment of religion’.

A number of other countries have dual systems. In such a system, religious rules govern, and religious courts adjudicate on matters such as marriage, divorce, and family relationships. However, a secular system with state courts covers the wider fields of public and commercial law. This was the position in England until the 1850s, and is the case today in Israel, India, and Pakistan. In these dual jurisdictions, the proportion of human activity governed by one or the other system may depend on the stage of economic and political development of the country in question.

Constitutions

Constitutions differ widely. Some handle serious internal ethnic, linguistic, and religious differences, while others are written for a homogeneous population. Some are largely restricted to a set of justifiable rules of law, while others contain manifesto-like proclamations A few are contained in no given text or texts, notably in Andorra, Israel, New Zealand and the United Kingdom.

Typically there are only a few generalizations that may be made across various constitutions. First, constitutions aspire to regulate the allocation of powers, functions, and duties among the various agencies and officers of government and to define the relationship between these and the public. Second, no constitution, however well designed, can protect a a political system against effective usurpation. Third, in many countries the holders of power ignore the constitution more or less entirely. Fourth, even where constitutions work, none is complete: each operates within a matrix of compromise, custom or caselaw. Fifth, most begin by identifying (at least on paper) the constituent authority (such as ‘the people’) and often invoke the deity (i.e. Canada, Germany, Greece, Ireland, Pakistan, Switzerland). Sixth, they usually separate the legislative, executive and judicial organs of state. Seventh, they usually contain, or incorporate, a Bill of Rights. Eighth, they often provide some method for annulling laws and other instruments which conflict with the constitution, including the Bill of Rights. Ninth, they address the international scene only in generalities and, in practice, confer wide powers on the (federal) executive. Finally, they deal with the status of international law by either according or denying it direct internal effect.

Adoption and amendment

Federalism

In federal constitutions, listed powers are often allotted to the center governing structure, with other powers being left to the constituent parts. In practice the main powers of defense, taxation, and commerce go to the center, while education and healthcare may go to the constituent parts. The constituent parts are protected, at least in theory, by representation within the center governing structure (i.e. United States Congress) and by their own powers of governance in their territories.

General Constitutional Features

Although constitutions vary greatly in length, usually the greatest detail is devoted to the legislature and to the executive and the relations between them. Federal systems naturally have a bicameral legislature. But so also do many unitary systems, with the lower house directly elected and the upper composed of those perhaps representing rural interests (France) or possessing special skills (Ireland). In most countries (but not the USA) the lower house can ultimately override the upper.

Two widespread patterns are those of the presidential and those of the parliamentary system. The first fuses ceremonial and political power into one office, with its incumbent elected directly and quite separately from the legislature: it is thus quite possible (and in the USA, common) for the President to be of one party and a majority of the legislature of another. It separates executive and legislative powers so that neither body can dissolve the other: the President is removable only for serious crimes, in which the legislature acts as a tribunal. The President nominates Ministers for confirmation by the legislature, but there is no collective cabinet responsibility. The President usually has a veto over legislation, which may be overridden only by special parliamentary majority. On the other hand, the crucial power to tax remains with the legislature.

The new Russian structure embodies several of these features, but expands the presidency in a number of ways. First, following a tradition going back to the Tsars, the office of the President is given wide power to rule by edict (ukaz). Apart from the need to comply with the constitution and with federal legislation, this power seems virtually unlimited. Second, the President appoints the prime minister (with the consent of the lower House) and may dismiss the government. As in the US, the Russian President may veto legislation, but can then be overridden by special majority. Finally, the President can dissolve the lower House and call new elections if it thrice rejects his or her candidate for premier, or if it passes a motion of no-confidence in the government.

Some systems are a mixed parliamentary/presidential structure. For instance in France the President is far from being merely a titular Head of State. Since 1962 he or she is directly elected by the people, appoints the premier, has emergency powers, and signs the regulations emanating from the executive’s very extensive lawmaking functions. In association with the government he or she can present bills to the people to enact by referendum, thereby bypassing the Parliament, and can dissolve the National Assembly and call new elections.

The Judiciary

The United States is virtually alone in allowing a federal court of general jurisdiction to decide matters of constitutionality. Normally such questions are for a Supreme Court or special Constitutional court. France innovation allows bills to be referred to the judiciary only after they have passed through Parliament and before they are promulgated by the President. In England a court can examine the validity of a duly enacted statute unless it conflicts with the law of the European Community; the same may be true of Scottish courts, although some say they could examine UK statutes for conformity with the Act of Union 1707. Under the United Kingdom’s Human Rights Act, courts within the United Kingdom are able to declare a statute incompatible with the rights enshrined in the Act. This does not invalidate or render the statute ineffective: it is then up to the executive and ultimately the legislature to decide what to do about the offending legislation.

Emergency powers

The greater the constitutional commitment to a Bill of Rights, the more difficult it is to frame emergency powers. On the one hand the executive must be permitted to take emergency action; on the other the emergency power should not be capable of being used to subvert both the legislature and the Bill of Rights. The usual safeguard is to forbid the executive to use emergency powers to suspend, or curtail the power of, either of the other branches of government.

In the UK a permanent statute permits the government to proclaim a state of emergency, but regulations are subject to Parliamentary scrutiny. Special powers to deal with threats to security in Northern Ireland have been enumerated in statute. The statutes restrict freedom of association and confer wide powers of arrest without warrant and, in Northern Ireland, limit the use of release on bail and jury trial. These statutes are subject to annual renewal by Parliament.

Human Rights

Common Law and Civil Law

Most modern legal systems may be describes as either common law, civil law, or a mix of the two.

A purely common law system is created by the judiciary, as the law comes from case law, rather than statute. Thus a common law system has a strong focus on judicial precedent. A pure civil law system, however, is governed by statutes, rather than by case law.

Common law is typically found in places once occupied by the British, such as: Ireland, the United States, Canada, Australia, New Zealand, India, Pakistan, Kenya, Uganda, Zambia, Nigeria and Ghana.

Civil law is typically found in places once occupied by the French, such as: Belgium, the Netherlands, Mauritius, Quebec, Louisiana, Italy, Egypt, Algeria, Tunisia, Morocco, Sub-Saharan Africa, and Spain. and Latin America.

‘Mixed’ Systems

In the first group are countries with a ‘mixed’ system influenced by both civil and common law. The older uncodified civil law of Holland is the basis of the Roman-Dutch law of South Africa, Zambia, Namibia, Lesotho, Swaziland, Botswana and Sri Lanka; it is marked by a rich juristic literature stemming from Hugo Grotius (de Groot) in the 17th century. But their long contacts with Britain mean that their public law and systems of court procedure owe much to the common law.

Scotland, Louisiana, Mauritius and Quebec are examples of a private law based on older civil and customary rules (uncodified in Scotland) struggling to endure in a common-law environment. Israel has a system all its own, where the older Ottoman and British mandate layers are now overriden by a modern system. It has no single constitutional document, but much of the modern law combines the broad legislative simplicity of the great codes of civil law with the careful transparency of the common-law judgment.

Criminal Law

Criminal law often has its own unique sort of rules and procedures for defining crimes, providing sanctions, establishing guilt in court, and creating punishments and rehabilitation.

Whatever their origin, most legal systems agree on certain basic premises. First, that no one can be guilty of a crime unless the offense is defined as such beforehand, and the conviction arrived at by a lawful procedure. Inherent in this is the requirement of clarity in criminal law, a prohibition against its retrospective effect, and certain notions of ‘fair trial’ and the availability of legal representation. Second that no one can be prosecuted twice for the same thing. Third, it is a crime to attempt a crime, or to conspire with others to commit one. Fourth, an alleged criminal needs to have a certain mental state in order to be convicted of the crime.

Most systems accept that criminal liability is not to be imputed to certain classes of people: the very young or persons under severe mental illness. Systems also recognize a number of mitigating circumstances such as self-defense or provocation.

Private Law

Private law is the name commonly given to that vast area dealing with the legal relations between persons. It covers matters of pure status (marriage, divorce, kinship and so on); matters involving assets of some sort (property, succession, contracts); and commercial activities in the wider sense. Its essential feature is that the participants are presumed to be juridically equals (unlike the public law structure where relations are hierarchical) so that one cannot give orders to another, unless so authorized under some previous contractual or family arrangement. Private law serves to cut down the cost of legal transactions by providing a set of patterns which citizens may use if they wish. But private parties are also free to modify these patterns (i.e. modifying a contract before it is signed).

Ultimately, private law deals with persons, property, obligations and liability.

Persons

Private law defines who counts as a person able to enter into legal relations and deals with their legal capacity (so as to protect the very young or the mentally ill). These natural persons may set up other ‘artificial’ legal persons, such as associations, foundations, and corporations.

All these persons may own property and hold it for its own sake (house, clothes etc) or as a business or investment (office blocks, factories, shares, savings accounts). Only the socialist systems attempted to prevent this second function of property by forbidding private persons to own ‘the means of production’. The property involved may be tangible, and is often characterized as immovable and movable (or under common law, realty and personalty). Property may also be intangible, such as debts, copyrights, and patents. If the owners have full legal capacity, they may normally deal with their property as they please, subject to rules of public policy (such as zoning regulations). They can deal with their property during their lifetime or by will, although many systems ensure that some of the deceased’s property goes to near relatives.

Obligations

Persons may incur obligations voluntarily by entering into a contract (i.e. employment, purchasing a house, borrowing on the security of a mortgage, taking out an insurance policy, etc). They also incur the obligation imposed by tort law to compensate others for certain harms.

Liability

The structure of private law is governed by liability. If a party does not perform its part of an obligation, it may face liability for such a failure.

LEGAL SYSTEM: MEANING AND TYPES

To a fresh law student hearing the word ‘common law’ would read ambiguous meaning. It is only those that have been a little knowledgeable in the legal field that would understand the meaning of the phrase ‘common law’. The pertinent question then is how do we arrive at the legal meaning of common law. This question and many others are what would be put to rest in this paper. This paper would make us understand what a legal system is, five types of legal system would be listed and two will be expatiated upon.

What is a Legal System?

A system has been defined as considered principles or procedures of classification. Legal has also been defined as something of or relating to law; falling within the province of law. Thus, from the above definition of ‘legal’ and ‘system’, a legal system can be defined as the principles or procedures for the classification of laws, matters or procedure relating to them. It can also be defined as a body of rules including the principles, rules or doctrines associated with them that have the force of law in a given society.

It should be noted that from a technical standpoint, there are as much legal systems as there are sovereign independent countries. For example, Nigeria has its own legal system which has been said to ‘consist of each totality of laws or the legal rules and machinery which operate within Nigeria as a sovereign and independent African country. However, on a larger scale sovereign countries are grouped into larger legal system classifications due to them sharing similar fundamental characteristics.

The grouping of countries into legal system doesn’t necessarily mean that all their laws are identical. These individual systems are grouped into larger classifications because they share similar fundamental principles. For example, one similar characteristic of common law legal system is the doctrine of judicial precedent.

Now that the concept of legal system has been expatiated I will now proceed to list five legal systems in the world today. They are:

• Socialist legal system.

As initially stated, further emphasis will be laid on two of these legal systems. Thus, common law and civil law will be subsequently expatiated upon.

Common Law Legal System

The common law legal system is one which revolves around the principle of stare decisis which means ‘let the decision stand’. It is further explained as a golden rule which states that decisions of higher courts are binding on lower courts and decisions of courts of coordinate jurisdiction are for all intents and purposes binding between them.

Historical Development Of The Common Law Legal System

The period of the historical development of common law can be traced to the Norman conquest of the British isles in 1066 AD. Before the Norman conquest, the indigenous British peoples had their indigenous customary laws. In 1154 Henry II became king. He had the practice of sending Judges from his central court to hear disputes throughout the realm. When these judges returned from their tour, they would discuss the various customary laws they had encountered in their journeys. The judges would then agree on which of these customs were more reasonable and they would then be applied in subsequent disputes throughout the realm. This is why the common law is usually described as having judge made laws. Judges made law operated as the primary source of law until parliament acquired the powers to make statutes. It should however be noted that most of these statutes are in line with the fundamental tenets of the judge made laws.

The common law legal system was transferred by England to her colonies. This they did with the aid of reception laws. One of the reception statutes in Nigeria is S.32 of the Interpretation Act which provides that the rules of common law, doctrines of equity and statutes of general application that were applicable before 1st January 1900 shall be applicable in Nigeria. Countries that practise common law include: Nigeria, United states of America(excluding Louisiana), Canada(excluding Quebec), India and most other former British colonies.

Features Of The Common Law Legal System

1. It operates the doctrine of judicial precedent. In the case of Global transport vs free enterprises Nig ltd, judicial precedent was described as meaning that decisions of courts of superior record are binding and the decisions of courts of coordinate jurisdiction are for all intents and purposes binding between them.

2. The method of adjudication is adversarial in contrast to inquisitorial. This means that judges are not expected to leave the bench and come into the field.

3. Unlike civil law, most of the laws in common law legal system are not codified.

4. Also, the jury system originated in common law. It is however not practised in Nigeria.

5. Unlike the civil law its judges are not career judges. Before a person can be a judge in a common law legal system he has to have been a practising lawyer for a while. This can be seen in the provisions of S.250(3) CFRN 1999 provides that for a person to be judge of the high court, he must have been a legal practitioner for not less than 10 years.

6. In the common law, judges make law through their various decisions.

The Civil Law Legal System

Civil law legal system is one which originated from the Roman empire and whose primary feature is codification. Also, in comparison to common law, the doctrine of judicial precedents does not apply in civil law courts. Historically, civil law encompasses the legal ideas and systems derived from the code of Justinian but heavily overlaid by Napoleonic, Germanic, Canonical, feudal and local practises as well doctrinal strains such as natural law, codification and legal positivism.

Historical Development Of Civil Law Legal System

The civil law legal system takes the Roman law as its major inspiration and in particular the code of Justinian. The Justinian Code provided a sophisticated model for contracts, rules of procedure, family law, wills and a strong monarchical constitutional system.

Roman law continued uninterrupted in the Byzantine empire until its fall in the 15th century. It spread due to the fact that it became adopted by most of the former territories of the Byzantine empire and the Western European powers. It also spread because its students were the only trained lawyers.

Consequently, Roman law was applied as secondary law when the local laws were not adequate. Eventually, the works of glossators and commentators led to the development of the common body of laws that were adopted in continental Europe. Most European countries finally promulgated these laws as their positive law and codified it. An example is the Napoleonic code of France. Countries that practise civil law include France, Germany, Norway, Netherlands and most of the rest of continental Europe.

Features Of The Civil Law Legal System

1. The influence of scholars on the evolution of civil law is very significant. It is usually said that while common law is judge made, civil law is university made.

2. The laws in civil law legal systems are largely codified. Codification is the compilation of laws into a single document according to subject matter.

3. The doctrine of judicial precedent doesn’t apply in civil law.

4. The judiciary in civil law is made up of career judges in contrast to common law where judges have to be initially lawyers.

5. Another feature is that in civil law the administration of justice is inquisitorial in contrast to the adversarial nature of common law.

Author: Olanrewaju Olamide

Olamide is an avid reader who believes that no knowledge is wasted. If he is not surfing the internet, he would be doing something else to get more information, whatever that is.

22 thoughts on “ LEGAL SYSTEM: MEANING AND TYPES ”

Very Interested Event?

This isn’t everything. I was hoping to see something on Customary law, that’s one form of legal system I haven’t fully grasped. But in all, this article is a lifesaver, very explicit!

Thanks a lot. I would work on adding it to the post.

You said legal system is a principles or procedure of classification of law. Why do you use “or” in that context. I learn that is an aggregate of administerin justice

I don’t really get you.

Please i have a question which i want u to help me out with. Discuss the he nature and feature of Nigerian legal system citing relevant examples and provisions of the law.

Can you write on internal conflict of laws??

A question on discuss the complexity of Nigeria legal system. How can that question be answered.

Is that the entire question?

I have a question
Please kindly help me elaborately explore the distinctions between common law and equity drawing from the relevant historical antecedent

To what extent is the concept of stare decisis still relevant to present day Nigerian legal system??

It is very very relevant. Judicial precedent underpins the entire Nigerian legal system.

Oh. I’ve never come across this term, especially in a legal context. In a general context, essentiallism entails the feature of something that make it unique. Since I don’t want to mislead you, did your lecturer give you any note or reading material related to essentialism?

bI I would like to know the two basic classification of law? I keep getting confused

legal system

1 legal system

2 legal system

EN

legal system
The organization and network of courts and other institutions, procedures and customs, officers and other personnel concerned with interpretation and enforcement of a country’s law or with advice and assistance in matters pertaining to those laws. (Source: OCT / RHW)
[http://www.eionet.europa.eu/gemet/alphabetic?langcode=en]

Тематики

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