Which Method of Knowing Is Dominant in the Legal System

Which source of law takes precedence in the following situations and why? In a nation, law can be used to (1) maintain peace, (2) maintain the status quo, (3) preserve individual rights, (4) protect minorities from majorities, (5) promote social justice, and (6) ensure orderly social change. Some jurisdictions serve these purposes better than others. While a nation ruled by an authoritarian government can keep the peace and maintain the status quo, it can also oppress minorities or political opponents (e.g., Burma, Zimbabwe, or Iraq under Saddam Hussein). Under colonialism, European nations often forced peace in countries whose borders were created somewhat arbitrarily by the same European nations. For several centuries before the twentieth century, empires were built by Spain, Portugal, Great Britain, Holland, France, Germany, Belgium and Italy. In terms of the functions of law, the empire may have kept the peace—largely by force—but it changed the status quo and rarely promoted Indigenous rights or social justice within the colonized nation. Both the Federation and the Länder have established administrative authorities. An authority has only the powers conferred on it by the legislator. Under this power, an authority will often make regulations (see Chapter 5 “Administrative Law”) that 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 bill passed by Congress and signed by the President. In each case (general rule and exception), the common law tradition requires the court to explain the reasons for its decision. In the case of the general rule, “freedom of choice” could be the main reason. In the case of the perjury exception, the efficiency of the judicial system and the requirements of citizenship could be invoked as grounds. Since the court`s “reasons” will be persuasive to some and not to others, there is inevitably some subjectivity in legal advice. That is, reasonable people will disagree on how convincing the reasoning that a court can offer for its decision is. Positivism has its limits and its criticisms. New Testament readers may recall that King Herod, fearing the birth of a Messiah, issued a decree that all male children under a certain age were to be killed. Because it was the order of a sovereign, the decree was executed (or, in legalese, the decree was “executed”). Suppose a group seizes power in a certain place and orders that women cannot go to school and can only receive medical treatment from women, even though their condition is life-threatening and women doctors are rare. Let us also suppose that this commandment is carried out simply because it is the law and is carried out with all its might.

The people who live there will undoubtedly question the wisdom, justice or goodness of such a law, but it is nevertheless a law and is generally enforced. To avoid the effects of the law, a citizen would have to flee the country completely. During the Taliban regime in Afghanistan, where this example comes from, many fled. After World War II, Lon L. Fuller advocated a secular and procedural form of natural law. He stressed that (natural) law must meet certain formal requirements (e.g. impartiality and public recognition). To the extent that an institutional system of social control does not meet these requirements, Fuller argued, we are less likely to recognize it as a legal system or to honor it. Therefore, the law must have a morality that goes beyond the social rules under which the laws are made. John Austin and Jeremy Bentham were the first legal positivists who tried to provide a descriptive account of the law describing the law as it is. Austin explained the descriptive orientation of legal positivism by saying, “The existence of law is one thing; His merit and merit is another. Whether or not this is the case is a question; Whether or not it conforms to a supposed standard is another question.

[37] For Austin and Bentham, a society is headed by a sovereign who has de facto authority. Thanks to the authority of the sovereign, laws emerge that are supported for Austin and Bentham by sanctions for non-compliance. Along with Hume, Bentham was an early and fervent supporter of the utilitarian concept and a passionate prison reformer, defender of democracy, and staunch atheist. Bentham`s views on law and jurisprudence were popularized by his pupil John Austin. Austin was the first holder of the chair of law at the new University of London in 1829. Austin`s utilitarian answer to the question “What is law?” was that law was “orders, aided by the threat of sanctions, from a ruler whom men are accustomed to obey.” [38] H. L. A.

Hart criticized Austin and Bentham`s early legal positivism because the theory of command did not take into account the individual`s respect for the law. There are also legal systems that differ considerably from the common law and civil law systems. Other communist and socialist legal systems (e.g. Cuba and North Korea) are based on assumptions very different from those of English common law or European civil law. Islamic and other religion-based legal systems bring different values and assumptions to social and business relations. Aristotle moves from this unrestricted discussion of justice to a nuanced view of political justice, through which he means something close to the subject of modern jurisprudence. Of political justice, Aristotle argues that it is partly derived from nature and partly a matter of convention. [19] This can be understood as a statement similar to the views of modern natural law theorists. But it must also be remembered that Aristotle describes a view of morality, not a legal system, and so his remarks on nature are based on morality promulgated as law, not on the laws themselves. There are various sources of law in the U.S. legal system.

The Constitution of the United States is fundamental; American law and common law must not conflict with its provisions. Congress creates the legal law (with the signature of the president), and the courts will interpret the constitutional law and the law. Where there is no constitutional or statutory law, the courts work in the common law domain. The same applies to the law in the fifty states, each of which also has a constitution or a fundamental law. It has now become common practice to identify Judge Oliver Wendell Holmes Jr. as the leading precursor of American legal realism (other influences include Roscoe Pound, Karl Llewellyn, and Judge Benjamin Cardozo). Karl Llewellyn, another founder of the American legal realism movement, also believed that the law is little more than a glue in the hands of judges who can shape the outcome of cases according to their personal values or political decisions. [50] Most court decisions that do not apply legislation (so-called laws) concern one of three areas of law: property, contract or tort. Property law deals with the rights and obligations of those who can legally own land (immovable property), how such property can be legally confirmed and protected, how property can be bought and sold, the rights of tenants and the different types of land “estates” (e.g. fee simple, life assets, future interest, easements or rights of way B. Contract law deals with the types of promises that courts should enforce. For example, should the courts enforce a contract where one of the parties was drunk, underage or mentally ill? Should the courts enforce a contract if one of the parties appears to have an unfair advantage? What types of contracts should be written to be enforced in court? The law on damages deals with the types of cases that involve a certain type of damage and/or prejudice between the plaintiff and the defendant in the absence of a contract.

So if you are slandered or a competitor lies about your product, your remedy would be a tort, not a contract. Iudex phrases were supposed to be mere interpretations of traditional customs, but – apart from which traditional customs applied in each case – quickly developed a more accurate interpretation that coherently adapted the law to new social needs. The law was then adapted to the development of institutions (legal concepts) while remaining in traditional mode. The praetors were replaced by a lay group of Prudentes in the 3rd century BC.