Chapter 3 – Functions and Sources of Law

Definition of Law

• Rules of conduct promulgated and enforced by the government

Functions of Law

• Laws define society’s rules of conduct 
• Laws provide order and predictability

Sources of Law

• The legislative, executive, and judicial branches are all involved in making the law.
• Constitutional Law is a body of principles and rules that are either explicitly stated in, or inferred from the constitutions of the United States and those of the individual states.

Functions of the U.S. Constitution

• Establish the Organization of Government
  • Federal Government: 3 Branches (Separation of Powers; Checks and Balances)
    • Executive (Article I)
    • Legislative (Article II)
    • Judicial (Article III)
  • Division of Power between the Federal and State Governments: Federalism (10^th Amendment)
• Protect Individual Rights from Governmental Overreaching (Bill of Rights)

Separation of Powers

• The division of governmental power among the legislative, executive, and judicial branches.

Checks and Balances

• Division among governmental branches so that each branch acts as a check on the power of the other two, thereby maintaining a balance of power among the three branches.

Power of Judicial Review

• A court’s power to review statutes to decide if they conform to the federal or a state constitution.

Federalism

• A system of government in which the authority to govern is split between a single, nationwide central government and several regional governments that control specific geographical areas.

Bill of Rights and Doctrine of Incorporation

• Bill of Rights:  The first ten amendments to the U.S. Constitution.
• Doctrine of incorporation: In constitutional law, the application of the Fourteenth Amendment’s due process protections to incorporate the provisions of the Bill of Rights and make them applicable to the states.

Sources of Law

• Statutory Law is law enacted by a state legislature or by Congress.

Administrative Law

• Administrative law is comprised of rules and regulations created by administrative agencies.

Sources of Law

• Opinions, Decisions, Cases
• Creating and modifying common law
• Interpreting constitutions, statutes, regulations

Common Law

• Law created by courts
• Courts interpret and apply common law when no statute, regulation, or constitutional provision governs
• Doctrine of Stare Decisis applied

Stare Decisis

• The doctrine stating that normally once a court has decided one way on a particular issue, it and other courts in the same jurisdiction will decide the same way on that issue in future cases given similar facts unless they can be convinced of the need for change.

 Judicial Interpretation

• Courts interpret:
  • Constitutions
  • Laws created by legislature and the
  • Common law

Chapter 3 Answers

• What are the two primary functions of the US Constitution?
  • The two primary functions of the US Constitution are: 
    • To establish the organization of the government between the federal government and its three branches, and between the federal government and the state governments
    • To protect the individual rights against acts of intrusions of the government
• What article deals with the Legislature? With the Executive? With the Judiciary?
  • Article I deals with the Legislative branch of government.  Article II deals with Executive branch of government.  Article III deals with the Judiciary. 
• Which amendments states that the powers not specifically delegated to the federal government are reserved to the states?
  • The Tenth Amendment states that “the powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”
• Make a list of the rights protected by the first ten amendments
  • The Bill Rights can be found in the first ten amendments.  Among these rights are: freedom of religion, speech, press, assembly and petition, right to keep and bear arms, freedom from unreasonable searches and seizures, right to due process of law, right against self-incrimination and double jeopardy, right to speedy and public trial, right to trial by jury in civil cases, freedom from excessive bail, cruel and unusual punishments.
• What is the doctrine of separation of powers and how does it relate to our system of checks and balances?
  • Doctrine of separation of powers pertains to the separation of powers among the three branches of government which are the executive, legislative and the judiciary.  It is also known as the system of shared powers exercised by the separate branches of government (Currier and Eimermann 71).  The separation of powers relates to the system of checks and balances since the US Constitution is designed so that each branch of government may limit the power of the other branches of government (Currier and Eimermann 71).  The goal is to prevent a situation when the powers of government are concentrated on a single branch.
• What is the power of judicial review, why is it so important to our legal system?
  • The power of judicial review pertains to the inherent power of the courts to review the constitutionality or validity of a law passed by the legislative branch of government.  This is based on the idea that the power to determine the validity of the law is inherent in the court’s power to interpret any questions of the law.   It is so important in our legal system because it has been used by the courts to render null and void some laws passed by the legislature.  Thus, individuals who find themselves aggrieved by laws can go to the courts and question their constitutionality.
• What is the doctrine of incorporation, and why is it important for understanding our rights under the U.S. Constitution?
  • The doctrine of incorporation seeks to protect the rights of the individual against the abuse of authority that may be committed by the state governments.  Initially, the first ten amendments only seek to protect the rights of individuals against the abuses by the federal governments.  With the ratification of the Thirteenth, Fourteenth and the Fifteenth Amendments, the courts reasoned that the first ten amendments should be interpreted to have application also to state governments (Currier and Eimermann 73).   It is important because the rights mentioned under the first ten amendments should be interpreted to be available to an individual who seeks to sue the state government.
• John is upset with his neighbor because on weekends the neighbor plays loud music. John is so angry that he wants to sue his neighbor for violating his US Constitutional right to privacy.  Why will John not be able to win the lawsuit?
  • John will not be able to win the lawsuit because the right to privacy pertains to situations when an individual sues either the federal government or the state government for violating his right to privacy.  It does not envision a situation when an individual files a suit against another private individual.  This is also known as the state action requirement (Currier and Eimermann 73).
• Are the protections provided by the state constitutions the same as those given by the U.S. Constitution? Why might that matter?
  • Insofar as the protection of the individual rights is concerned, it can be argued that the state governments give more protection than the federal government (Currier and Eimermann 73).  The protection provided by the state government is material because it allows individuals to file suits against the state government for violation of their rights.  Individuals who feel that they are aggrieved by the state government does not have to go directly to the federal government to sue.  Rather, he can file the suit first before the state government. 
• Why do constitutions and statutes frequently include ambiguous language?
  • Federal and state constitutions and statutes are not designed to be detailed and to apply to every modern situation.  As such, the modern society may find the constitution and the statutes to be written in ambiguous language.
• How do courts become involved in the legislative process?
  • As stated, even the judiciary and the executive branch are indirectly involved in lawmaking.  In the same way, the courts can be involved in the legislative process as they interpret the validity of a law or determine the validity of a law.  For example, if a court finds that a law is unconstitutional, the courts are invalidating a law making it without any force and effect.  If the courts sustain a law, then they are supporting the said law. 
• How are statutes and administrative regulations similar? How do they differ?
  • Statutes and administrative regulations are generally considered as laws.  Administrative regulations are passed by the administrative agencies which are under the executive branch.  While the statutes are designed to be broader in scope, administrative regulations are narrower in scope (Currier and Eimermann 76). 
• What is an enabling act?
  • Administrative agencies have the power to execute the laws passed by Congress.  However, they must act within the scope of the authority provided to them by Congress.  The Enabling Act pertains to the scope of the authority given to the administrative agency by Congress.  Courts refer to the Enabling Act to determine whether the administrative agency acted within the scope of its authority or outside of its authority.
• Why are administrative agencies referred to as the fourth branch of government?
  • Since administrative agencies have legislative, executive and judicial functions they are considered as the fourth branch of government. 
• What is the common law?
  • Common laws are legal principles that have evolved through the years from the analysis of prior court decisions (Currier and Eimermann 78).  Courts refer to the common law when there is an absence of constitutional provision, statute, or administrative regulation that is applicable to a particular situation.
• What does it mean to say that the common law has been codified? That a statute is in derogation of the common law?
  • Codification of the common law refers to a situation when a common law has been enacted into a statute.  In this process, the legal principle formally becomes a part of the statutory laws.  On the other hand, the derogation of the common law pertains to a situation when a common law is changed through the enactment of a statute. 
• Why were equity courts created, and why special powers were they given?
  • Equity courts are the courts that were created to enjoin one of the parties to perform an action or require them to specifically perform a specific action (Currier and Eimermann 78).  The equity courts are created because there are situations when requiring the individual who caused the injury to pay damages is not sufficient to compensate for the injury he created. 
• Who has the final say as to what a statute means; the legislature or the courts?
  • In view of its constitutional authority to review statutes and laws, the courts have a great deal of power.  In a way, it has the final say on what a statute really means.  However, if the courts do not invalidate the law, the lawmakers can simply amend the statute to clarify its intent, which can also be considered as the final say on the meaning of a statute (Currier and Eimermann, 80). Thus, the sharing of powers represents the beauty of the U. S. Constitution.
• Who has the final say as to the constitutionality of a statute, the legislature or the courts?
  • Insofar as determining the constitutionality of a statute, the courts has the final say. Once the courts declare that a statute is unconstitutional, the legislative’s only recourse is to amend the constitution, pass a new law, wait for a change in court membership.