Chapter Two Flashcards
(58 cards)
Query: where does the law come from?
The government & levels of government
Law
rules of conduct promulgated by the gov that define the types of conduct that are either prohibited or required
Types of Us Law
Constitution Statutes Case Law Administrative law Executive Order Treaty ( federal only )
Functions of Law
Protect life & property Safeguard basic human rights Social control Resolve conflicts Maintain social morality Regulate economics
Constitution functions
Set out structure and powers of government
Protect the rights of the people
Jurisprudence
a philosophical approach to the study of law
Natural Law
a legal philosophy whose proponents think there are ideal laws that can be discovered through careful thought and humanity’s inmate sense of right and wrong
Structure and powers of gov
Separation of powers
Checks & balances
Federalism
(Found in articles of the constitution)
Protection of individual rights
Individual rights found in the amendments
27 amendments
State Constitutions
States have their own constitutions
Can provide more rights
Cannot provide fewer rights
Subordinate to federal
Statutes facts
Constitutions are very general Need more concrete laws Organized into codes Criminal code, motor vehicle code Federal, state, and local codes
Legal positivism
a legal theory whose proponents believe that the validity of a law is determined by the process through which it was made rather than by the degree to which it reflects natural law principles
not related to morality
the law is what the gov says it is
Legal formalism
a legal theory that views the law as a complete and autonomous system of logically consistent principles within which judges find the correct result by simply making logical deductions
Legal realism
a legal philosophy whose proponents think that judges decide cases based on factors other than logic and preexisting rules, such as economic and sociological factors
Originalism
an approach to constitutional interpretation that narrowly interprets the text of the constitution in a manner that is consistent with what most people understood those words to mean at the time that they were written
Evolutionary approach
an approach to constitutional interpretation in which judges seek to determine the underlying purpose that the drafters had in mind at the time they wrote the law and the modern day option that best advances that purpose
Constitutional law
a body of principles and rules either explicitly stated in or inferred from the US Constitution and those of the individual states
Confederation
a form of gov in which independent units form an alliance but retain most of their power, delegating only a limited amount of power to a central authority
Case law
law made by the judicial branch
Judges write an opinion
Referred to as a case
If it is a high court - the opinion becomes law
Courts make law when they interpret a statute
Courts also make law in areas where there are no statutes
Some parts of the US law are case law only
Sovereign powers
the power of a government to do the things that are traditionally considered necessary to govern, such as making and executing laws
Common law
an area of the law that is based solely on case law or created by courts (no statutes)
Separation of powers
the division of governmental power among the legislative, executive, and judicial branches
Checks & balances
division among governmental branches so that each branch acts as a check on the power of the other two
Administrative regulations
agencies created by legislative bodies manage certain areas of law they pass rules and regulations quasi judicial have hearings and issue rulings
