In this presentation, we will discuss the reasons for law, the purpose of law, the objectives of law.
At the end of this we will be able to:
• List components and objectives of the law
• Describe the US Constitution
• Describe statutory law in the legal system and
• Explain common law
One of the main purposes of the law is to have a justice system so that there is some harmony within the social system. The law will help us to create harmony within the social system through having some justice administered through the law and people being able to perceive that both the procedure and the consequences of the law are fair and applied universally. You would think this concept of law would be fairly straightforward at first glance, to look at the law and say well we want to put laws in place that are going to be fair to everybody and that are going to be just and therefore people will be able to adhere to the law and be able to agree with the law, but in practice the process becomes more difficult than we would think at first look.
One problem it is that we have to communicate law in words, in language, in order for people to be able to understand what is acceptable or not acceptable within the law and words themselves are not perfect so many of the problems with law that we talk about in terms of the making of the law, as well as the administering of the law, and interpreting the law, comes down to problems of language and that's why the legal system, and lawyers themselves, are very good with words, with making things language very definite.
The law can also be intentionally vague in some cases when the creators want to achieve different types of objectives. The fact that language is not a perfect form of expression leads to debates about the law and how to interpret it. for example, there is debate about whether the interpretation of the law should be applied using letter of the law, simply making sure that they're applying exactly what the law says and depending mostly on wording of the law and or prior precedents that have that have happened in order to make final decisions, or does the judge have more leeway and an obligation to have the idea of the law, the content of the law, or what they believe the spirit of the law is in order to make judgments on a particular case.
This kind of issue of how to interpret the law is going to be a type of thing that's very contentious because it really blurs the line between when we talk about the separation of duties between the judicial system and the legislative, the creators of the law and the people that are judging the law. That line between legislative and judicial gets very blurred when we start to lean too much to the type of toward the spirit of the law side of the spectrum because it becomes very easy for the legislative branch to then interpret the law in different ways and possibly in ways that are almost equivalent to making new laws.
In other words if the judicial branch can interpret very broadly the language of the laws and how to apply the language of the laws and even to possibly go against the language of the law in order to uphold the spirit of the law, then that's going to give a lot more leeway in making legal decision and it of blurs the line between the makers of the law and the interpretation of the law.
On the other hand, if we just go by the letter of the law, then we can see that there's going to be a lot of cases when law is created in such a way that where the law makers cannot see all the possible cases in which is will be used in the future, and we have to write law in such a way that it will encompass as many possibilities as possible. Therefore, we may encounter many types of situations that won't fit directly into the letter of the law as it was intended, and those cases will be very difficult to judge strictly going by the letter of the law. Like many debates framed as a duality the best place for interpreting the law is probably somewhere in the middle of the two extreme viewpoints, and the pendulum will swing between them both.
The idea of a constitution is that we have one fundamental law for a nation. We can compare the US constitutional system with some other types of governmental systems where we may just see a common law structure. A common law system is developed from a series of prior decisions that have been made on legal cases throughout history. The common law system attempts to be consistent with law and how it is applied.
A constitutional system will delineate and spell out some of the core concepts for the federal national law and that will be implemented or defined in the Constitution. When we think about constitutional law, as opposed to just the Constitution itself, constitutional law will include some of the other ideas within our normal law system derived from the original document but possible not stated directly,
In other words, we have the Constitution itself, that document that will define the national law, and then we have the constitutional law study which will include the interpretation, how are we going to apply the Constitution and the principles within it.
When we think about the time of the making of the Constitution in the US we must remember that the founders had been living under a system of very centralized control, with a very centralized governing body including a king, although we did have an idea of a common law system as well. When we left that system the founders did have fear of creating another very centralized system, but we do need to note that although a lot of the law that we put together in the constitutional law was derived from thinkers like a John Locke in terms of a natural rights type of system, we also have to recognize that there was a lot of in the making of the Constitution, James Madison being one of them, that did want a strong central government. There was a recognized need for some central government needs which could require strong central government. Social contract thinkers like before John Locke like Thomas Hobbes were advocates of a very strong centralized government in order to keep the peace. Thomas Hobbs thought it was more advantages to have a strong central government that has the ability to keep the peace because without one we return to a state of nature which was thought to be a violent place and not the state that we would want to be in. The idea of social contract theory was basically started with idea that we as citizens in society are giving up some of our freedom in order to have a more peaceful life through a more centralized government. This same social contract theory was adjusted a lot by Locke and many of the ideas are represented in our US Constitution.
There was this argument when we first create the Constitution of how much-centralized government we need. We need some centralized government in a republic to make it work but we're going to be somewhat skeptical of too strong of a centralized government.
Before the Constitution, we had the Articles of Confederation within the United States which was there to provide some central authority to hold the United States together. Remember that many of the states at that time thought of themselves as basically state first, nation second, and so there was a need to have some centralization in order to bind together, especially in terms of military defense against invasion. Defense against foreign problems is one of the major weaknesses there are in terms for the Articles of Confederation because one of the things that the Articles were not good at doing was to collect taxes. We will need a way to fund the centralized government and one of the major functions of the centralized government is defense.
We will see this link between strong defense and a strong central government throughout history as we have more need for defense in order to protect ourselves. When wars happen those are going the times when taxes will increase and often the size of the central government will increase at that point in time because centralization is needed in order to have quick action to mobilize defense.
We might think that defense would be something that we could do from a state to state level and just kind of pull together during times of war and that was the thought in much of the country at the time but the state-run militias or private militias have a lot of problems because it's difficult to organize them all together in one military goal. Part of the need for a national military has to do with the fact defense, from an economic perspective, is an example of a public good, it's one of those purer types of public goods. Being a public good means that defense non-rival and it's non-exclusive. In other words, the free market doesn't really deal well with these types of public goods. If the private market was to defend the nation from attack in order to preserve our freedom, then we cannot charge individuals for that service separately. If we defend the country from attack we have defended everybody whether they pay for the service or not, and therefore it's very difficult for a market to put together an organized defense system.
Market forces don't really apply because we end up with a free rider effect. This problem related to public goods and defense was recognized very early on and was one of the major reasons for a centralized government.
One of the major principles of the Constitution is the separation of powers into our three branches, the executive branch, the legislative branch, and the judicial branch. The separate branches will give us our checks and balances. The concept of checks and balances has become almost a cliché in the US, the term often simply meaning a good thing. Checks and balances are a good thing. Checks and balance are going to be a major component of the system and Constitution are going to set up those checks and balances as a way to restrict the growth of the of the central government. The idea of checks and balances is that if one component of the central government gets too much power, even in a democracy, lead to problems in that those people power may not want to abide by the democratic process at some point in time. We need to have some kind of checks and balances over the system so that that kind of process does not happen.
When considering the three branches of government we know that the legislation will be creating the law, the judge will be overseeing the interpretation of the law, and the executive will be executing or acting out the law. There is overlap within these branches
The constitutional document can be broken out into two major components, those being the articles, which are the original component of the Constitution, and will lay out the national government and the organization of government structure, and then the amendments are changes to the original articles. The amendments are additions.
When considering the Constitution, we often think of the Bill of Rights as one of the most common factors of the Constitution. The Bill of Rights is actually an amendment to the Constitution. When the Constitution is first created it was thought that it might be adding too much to include a bill of rights in the Constitution and that is may be better to leave that to the states, but later on, it was thought that the Bill of Rights was a crucial part of the constitution.
The Bill of Rights follows the concept of a natural law and these are the overarching laws that are applied to a natural law type of theme, concepts such as freedom of speech and the press are going to be within the Bill of Rights. States are prohibited from making laws that would not be in alignment with the constitution
Federal law is typically created by Congress and then signed into law by the president. Each state then has their own statutory law and the statutory laws within the state have to fit into the alignment of the federal laws of the Constitution.
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