Intro to Law textbook notes on pages 1-17

Introduction: The Nature and Functions of Law

A. Prefatory Comments

• If you want to know why an institution is the way it is, you need to know what it is designed to accomplish. It is silly to attempt to fix an institution without knowing what it should be doing in the first place. This includes the institution of the law.
• Figuring out what the law is supposed to do is called "Jurisprudence." This is not a Jurisprudence textbook, it is a textbook for noobs. But we're going to try to make you figure it out anyway. Noob.

B. Definitions of Law

• Figuring out what the law is for is hard because nobody agrees except on the most basic of principles (which we will not mention by name). We will however, include a list of many conflicting descriptions of the law! Not only that, but Classic descriptions, which span from 51 BC to 1939 AD. These descriptions seem to be cherry-picked to contradict each other.
• That list wasn't really contradictory. They just emphasized different things. Re-read the list.
• Modern Opinion. These are less contradictory, and most seem to express the idea that without laws we would all just eat each other. There is a particularly ironic one from Martin Luther King, Jr. (Why not Modern Definitions, I wonder?)
• Can I make a paragraph entirely of questions? Also, as a lawyer, do you think you should have a soul?
• The answers to all those questions are sort of in this book. Please don't forget them.

Chapter 1: Law and the Process of Classification

A. The Meaning and Importance of Classification

• Law exists to make people behave. For some (unstated) reason, this cannot be done on an individualized basis; it has to be generally applicable. In order to be generally applicable, we must treat individuals as parts of general categories which will have varying legal rights and responsibilities. Part of the job of the legal system is to put things into categories and explain how things in those categories ought to behave... I mean, do behave.
• Even though you took the SAT and got into college, you might not know what "to classify" means. We're going to spend a paragraph constructing a clever metaphor to explain it for you.
• The law has lots of classifications for people, but the people in question are sometimes rather difficult to classify. This causes problems.
• You're going to have to spew a lot of really convincing bullshit when it comes to this classification thing. Start practicing now.
• Besides the fact that real people are hard to classify, there are a couple other things to know. The first is that laws can also be classified as Permissible and Impermissible thanks to the constitution. The second is that our constitutions likes to treat people equally, which is bloody difficult when classifications mean by definition that you treat them differently.
• Judges are the ones who label laws permissible or impermissible. There are lots of reasons they can do so.
• But lets get back to that equality thing. Basically, classification is OK as long as it serves some good legal objective; the ends justify the means.
• "The constitutional norm of equality under the law does not prohibit classifications which treat people differently, but it does demand that such classifications be justified by some goal other than the unequal treatment itself, and that the classifications serve that goal in some direct or even essential way."
• Let's give you an example of something really unfair, because the problem you are having, I'm sure, is trying to come up with an unfair law. In any case, whether a law is unfair or not is one of the main questions of constitutional law.

B. Some Basic Distinctions and Classifications of the Law

• Most legal definitions are too technical for you to understand, noob. Let's look at some nice, general classifications instead:

1. International Law and Municipal Law

• International law deals with laws between nations, while municipal law deals with law within nations. International law consists mostly of agreements between nations.
• Nations consider themselves sovereign, which makes the idea of international law odd, since there is no higher authority involved. (Apparently the law is by nature hierarchical?) In any case, either sovereignty or international law is a suspect concept.
• Municipal law consists of the laws that apply within a sovereign state.
• PS The Commonwealth of Kentucky and all the other "sovereign states" of the union don't count. Federal law trumps 'em.

2. Civil Law and Common Law

• Most legal systems fall into one of these two categories. (Common law includes equity).
• Civil law stems from the Roman Empire.
• Some civil law countries: Continental Europe (though only loosely in the frozen north), Latin America, Japan, and sorta South Africa.
• Civil law sort of holds in Islamic countries and Russia.
• Chinese law was sort of like Russian law until the Cultural Revolution. During the 60s and 70s law was treated as a reactionary institution not truly necessary in a socialist society.
• Things changed in the 80s because of international trade, though mediation is still preferred to litigation.
• Louisiana has some civil law practices mixed with common law. So do Puerto Rico and Quebec.
• Common law stemmed from medieval England.
• Some common law countries: US, England, Scotland, Ireland, Canada, Australia, and New Zealand. India kinda sorta too.
• "Few generalizations can be made with respect to the legal systems of the black African counties." Um...
• Civil law systems put primacy on the laws and statutes; Common law systems put primacy on the judicial precedents.
• Civil law=inquisitorial, common law=adversarial

3. Public Law and Private Law

• Private Law= Contracts, Torts, and Property (and later, Commercial Law, Trusts and Estates, Corporations, Securities Law and Labor Law).
• Public Law=Con Law, Administrative Law, Taxation, and Trade Regulation
• Procedure counts as public law because it deals with the rules for public organs. This includes Civil Procedure, Evidence, Conflict of Laws, Federal Jurisdiction, and Criminal Law/Procedure.

4. Substantive Law and Adjective Law

• These divisions cut across public and private law. Substantive law is the what; adjective law is the how.

5. Legislation, Case Law, and Customary Law

• Legislation=documents by the legislature=statute or code. Codes are compilations of statutes?
• Executive and administrative law occur as executive orders and administrative regulations, respectively. It is like statutory law.
• Case law comes from the precedents set by the courts, aka judges.
• Judges are bound by legislation unless it is unconstitutional. However, judges may interpret case law however they please unless a court of higher jurisdiction tells them otherwise.
• Legislation and case law interact when interpreting vague or ambiguous legislation. The court with the equivalent jurisdiction decides the case law- SC and the Constitution, Ohio SC and Ohio constitution, unless the little guys do something the big guys don't allow.
• Customary law is kind of law, maybe. It's the law that exists without being handed or written down- like exogamous unilineal descent groups. Basically, it is law without a state to force it. International law could fall into this category.
• Customary practices have a tendency to greatly inform case law in America.

6. Separation of the Legislative, Executive, and Judicial Powers

• America loves separation-of-powers!
• The legislature can draft laws that deal with classes of people and indefinite numbers of situations. Congress has the ability to enact "private laws" that (1) except named individuals from immigration or naturalization laws; (2) grant individuals compensations beyond the Federal Tort Claims act; and (3) waive claims that the Fed Gov't has against individuals under a general law. Most state legislatures are forbidden this power by their state constitutions.
• An executive act is the exercise of gov't power to accomplish some public purpose, like construct a highway. Under our "government of laws," these acts are restricted by many legal rules and regulations.
• Judicial power is used to settle controversies between entities. Judicial acts usually apply to concrete and discrete incidents, and unlike executive acts are almost entirely focused on resolving conflict.
• Each of the three branches has its fingers in each of the other branches businesses, quite legally. Some of these were written into the constitution, while others have developed over time.