Ch. 1: Introduction to Law Flashcards
Definition of law
“ A rule of civil conduct prescribed by the supreme power in a state, commanding what is right, and prohibiting what is wrong” (William Blackstone)
Functions of law
To maintain stability in the social, political, and economic system through dispute resolution, protection of property, and the preservation of the state, while simultaneously permitting ordered change.
Laws and morals
Are different but overlapping; law provides sanctions while morals do not.
Law and Justice
Are separate and distinct concepts; justice is the fair, equitable, and impartial treatment of competing interests with due regard for the common good.
Substantive law
Law creating rights and duties.
Procedural law
Rules for enforcing substantive law. Defines the method by which to obtain a remedy in court.
Public law
Law dealing with the relationship between government and individuals.
Private law
Law governing the relationships among individuals and legal entities.
Civil law
Law dealing with rights and duties, the violation of which constitutes a wrong against an individual or other legal entity.
- a wrong has been committed against the party injured by the violation.
- civil law is a part of private law.
Criminal law
Law establishing duties that, if violated, constitute a wrong against the entire community.
-part of public law.
Constitutional law
Fundamental law of a government establishing its powers and limitations.
All other law in the United States is subordinate to the federal constitution. No law, federal or state, is valid if it violates the federal constitution.
Common law
Body of law originating in England that serves as precedent for determination of later controversies.
Relies heavily on the judiciary as a source of law and on the adversary system for settling disputes.
Equity
Body of law based upon principles distinct from common law and providing remedies not available at law.
Legislative law
Statutes adopted by legislative bodies.
Treaties
Agreements between or among independent nations.
Executive orders
Laws issued by the President or by the governor of a state.
Administrative law
Law created by administrative agencies in the form of rules, regulations, orders, and decisions to carry out the regulatory powers and duties of those agencies.
Right
Legal capacity to require another person to perform or refrain from performing an act.
Public law is made out of
1)
2)
3)
Constitutional law
criminal law
administrative law
Private law consists of… 1) 2) 3) 4) 5) 6) 7) 8)
Contracts Sales Torts Property Agency Commercial Paper Partnerships
Can Sumaira Teach Pimps Apple, Cranberry, And Cucumber Picking
Judicial review
Authority of the courts to determine the constitutionality of legislative and executive acts.
In civil law…
Who takes action?
For what purpose?
What is the burden of proof?
-anyone can sue
-monetary compensation
-preponderance of the evidence (51%)
In criminal law…
Who takes action?
Purpose?
Burden of proof?
- state or federal government prosecuted an indictment.
- freedom or death; punishment, deterrence, rehabilitation, preservation of peace.
- beyond a reasonable doubt
Define adversary system
In an adversary system, the parties, not the court, most initiate and conduct litigation.
This approach is based on the belief that the truth is more likely to emerge from the investigation and presentation of evidence by two opposing parties, both might motivate by self interest, then from judicial investigation motivated only by official duty.
Civil law systems
- unlike the common law system, civil law is based on Roman law.
- depend on comprehensive legislative enactments (called codes) and an inquisitorial system of determining disputes.
Inquisitorial system
- The judiciary initiates legislation, investigates pertinent facts, and conducts the presentation of evidence.
- The civil law system prevails in most of Europe, Scotland, the state of Louisiana, the province of Quebec, Latin America, and parts of Africa and Asia.
Stare decisis
- “to stand by the decisions”
- courts adhere to and rely on rules of law that they or superior courts relied on and applied in prior similar decisions.
