Chapter 1
Chapter 1
Chapter 1
to Law
and the
Legal System
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The ph rase "equal justice under law" refers to the goal of the U.S. cou rt system to treat all persons fairly.
What ls Law?
T
"The law
must be stable,
but it must not
stand still."
- Roscoe Pound
Street Law
on line
Problem 1.1
List 10 of your daily activities (for examp le, waking up , eating, and go ing
to school). Next to each item, list a ny laws that affect that activity. What is
the purpose of each law that yo u identified? Would you chan ge any of these
laws? Why or why not?
WARNING
OR
F6JO
CHAPTER
What Is Law?
Shipwrecl~ed
Sailors
T hree sailors on an ocean going freighter
were cast adrift in a life raft after their ship
sank during a storm in the Atlantic Ocean . The
ship went down so suddenly that there was no
time to send out an SOS. As far as the three
sailors knew, they were the only survivors. They
had no food or water in the raft. And they had
no fishing gear or other equipment that might
be used to get food from the ocean.
After recovering from the shock of the shipwreck, the three sailors began to discuss their
situation. Dudley, the ship's navigator, figured
that they were at least one thousand miles
from land and that the storm had blown them
far from where any ships would normally pass.
Stephens, the ship's doctor, indicated that
without food they could not live longer than
30 days. The only nourishment they could
expect was from any rain that might fall from
time to time. He noted, however, that if one of
the three died before the others, the other two
could live a while longer by eating the body of
the third.
On the twenty-fifth day, the third sailor,
Brooks, who by this time was extremely weak,
suggested that they all draw lots and that the
loser be killed and eaten by the other two .
Both Dudley and Stephens agreed. The next
day, lots were drawn and Brooks lost. At this
point, Brooks objected and refused to consent.
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UNIT
Problem 1.2
a. Should Dudley and Stephens be tried for
murder?
Female participation in
traditionally male activities
is on the rise . How does this
photo reflect society's changing laws and values?
CHAPTER
What Is law?
"Liberty
means responsibility. That is
why most men
dread it."
-George
Bernard Shaw
Americans tend to think that laws can be passed to solve all of their
problems. In 1919, the U.S. Constitution was amended to prohibit the
manufacture and sale of alcoholic beverages in this country. The
Eighteenth Amendment was passed in response to a significant
national problem. However, prohibition of alcohol was extremely
difficult to enforce, and 14 years later it was repealed by another
constitutional amendment. (The text of the entire Constitution is
provided on pages 570- 599.) Today, legislators try to deal with the
nation's devastating drug problem by passing a wide variety of laws.
Peo ple disagree on what role the law can play in solving this problem.
We know from experience, however, that there is a limit to what laws
can reasonably be expected to do.
Problem 1.3
For each of the following laws , indicate whether moral, econom ic,
political , or social valu es are involved . Explain your responses .
f,
Human Rights
Human rights are the rights all people have just because they are
human beings. To advocate human rights is to demand that the
dignity of all people be respected. Both government and private
individuals can violate human rights. Human rights app ly in people's
homes, schools, and workplaces. In fact they apply everywhere. We
have our human rights from the moment we are born until the
moment we die.
The Universal Declaration of Human Rights (UDHR) is a statement of basic human rights and standards for government that has
been agreed to by almost every country in the world. (The text of the
entire UDHR is provided on pages 600-607.) First written and
adopted by the United N ations (UN) in 1948 under the leadership of
Eleanor Roosevelt, it proclaims that all people have the right to liberty, education, political and religious freedom, and economic
well-being. The Declaration also bans torture and says that all people
have the right to participate in their government process. Today these
rights are promoted, recognized, and observed by every country that
belongs to the UN.
UNIT
"The people's
good is the highest law."
- Cicero
The Covenant on Economic, Social and Cultural Rights also provides for the right to a job, safe working conditions, an adequate
salary, and the right to own property. Some believe the right to a clean
environment should be added to the Covenants, while others are calling for a right to economic development for poor countries. The
United States has signed and ratified the Covenant on Civil and
Political Rights, and has signed but not ratified the Covenant on
Economic, Social and Cu ltural Rights.
There are other important human rights treaties covering specific
areas of human rights, including genocide, discrimination against
women, and the rights of children. Even when the United States signs
these human rights treaties, it often restricts their enforcement within
the country. This is done by announcing that the United States is
CHAPTER
What Is Law?
Problem 1.4
You have been selected to join a group of space pioneers who w ill establi s h a colony on a distant planet. In order to create the best possible society,
you and your group decide to make a li st of the human rights that all space
colonists should have.
c. Why do you think some of the rights you listed are more important than
others?
d. Do any of the rights you li sted conflict with one another? If so, which
ones? Why?
e. Compare your list of rights with the rights li sted on pages 600-607, the
Universal Declaration of Human Rights . Which ones did you include?
Which ones did you not includ e?
f. Are all the human rights you listed also legal rights? When does a
human right becom e a legal right?
Human rights are standards countries can use when writing laws.
Sometimes human rights becon1e law in a country when the government signs an international treaty guaranteeing such rights. Human
rights also can become law if they are included in a constitution or if
the legislature of a country passes laws protecting or guaranteeing
these rights. Even though they may not refer to them as human rights,
there are many provisions that protect human rights in our
Constitution and Bill of Rights and in federal, state, and local laws.
Many of the human rights documents-including the Universal
Declaration of Human Rights-mention cultural rights, and it is universally accepted that all people have a right to their own culture. But
what does this mean when culture comes into conflict with universally accepted human rights? The practice of female infanticide, or
killing female babies, might be accepted in one culture, but the world
community condemns it as a violation of human rights, the right to
life. So cultural rights, like many other rights, are not absolute.
10
UNIT
Problem 1.5
a. Assume the following take place in the
United States. Decide if each is a human
rights violation . lfit is, identify the article
of the UDHR that is at issue .
CHAPTER
What Is Law?
11
Balancing Rights
with Responsibilities
The emphasis on rights in the United States has led some people
to criticize the country for being too concerned with rights, while
neglecting responsibilities. Some say that "with every right there
comes a res ponsibility" and urge people to act more res ponsibly
toward one another, their families, and their communities.
Critics cite the United States's emphasis on individual rights as evidence of "radical individualism," which has resulted in a self-centered
focus and the loss of a sense of community. Americans justifiably
have great respect for laws extending rights to women, minorities, and
persons with disabilities-all of whom were previously excluded from
full participation in society.
While individual rights are important, they must be matched by
social responsibilities, these critics say. For example, if people wish to
be tried by juries of their peers, they must be willing to serve on such
juries. If they want to be governed by elected officials who respond to
their values and needs, they must not only vote but also get involved
in other ways: attend election forums, work for candidates, and run for
positions on school boards, city councils, and community associations.
Many laws also require people to act responsibly. For example, parents
must provide their children with adequate food, shelter, and clothing;
drivers must obey traffic laws; and all workers must pay taxes.
Other critics of the emphasis on rights in the United States point
out that just "because you have a legal right to do (or not to do) something does not mean it is the right thing to do." For example, the
First Amendment sometimes gives peo ple the right to say hateful and
abusive things to others, as its function is to protect freedom of
speech. However, it does not make such speech right.
The Apathetic
Bystanders
C atherine " l<itty" Genovese was attacked
and stabbed to death in 1964 in a hi gh ly
populated area of Queens, New York. During
the half-hour ordeal, 38 people heard l<itty's
screams for help and watched from their
windows. Twice the killer was scared off by
the sound of voices and the realization that
he was being watched. However, both times,
when it became obvious that nobody was
going to call the police, the killer returned to
finish off his victim. Rather than g ive any aid
to l<itty, s uch as calling the police or an ambulance, all 38 bystanders chose to pull their
shades, draw their blinds, and ignore Kitty's
urgent pleas for help as her life was taken by
the deranged attacker.
Problem 1.6
a . Why do you think the bystanders took no
action?
I{inds of Laws
Laws fall into two major groups: criminal and civil. Criminal laws
regulate public conduct and set out duties owed to society. A criminal
case is a legal action that can only be brought by the government
against a person charged with committing a crime. Criminal laws have
penalties, and offenders are imprisoned, fined, placed under supervision, or punished in some other way. In the U.S. legal system, criminal
offenses are divided into felonies and misdemeanors. The penalty
for a felony is a term of more than one year in prison. For a misdemeanor, the penalty is a prison term of one year or less. Felonies, such
as murder or robbery, are more serious crimes. Less serious crimes,
such as simple assault or minor theft, are called misdemeanors.
Civil laws regulate relations between individuals or groups of individuals. A civil action is a lawsuit that can be brought by a person
who feels wronged or injured by another person. Courts may award
the injured person money for the loss, or they may order the person
who committed the wrong to make amends in some other way. An
example of a civil action is a lawsuit for recovery of damages suffered
in an automobile accident. Civil laws regulate many everyday situations, such as marriage, divorce, contracts, real estate, insurance,
consumer protection, and negligence.
Sometimes behavior can violate both civil and criminal laws and
can result in two court cases. A criminal case is brought by the government against a defendant, the person accused of committing the
crime. A civil case is brought by the plaintiff-the person or company
harmed-against the defendant.
CHAPTER
What Is Law?
13
"Reason is
the life of law."
- Sir Edward Coke
14
UNIT
Problem 1.7
Matt and l<enj i decide to skip schoo l. They take l<enji's brother's car
wit hout telling him and drive to a loca l s hoppin g center. Ignorin g the sign
"Parki ng for Ha ndicapp ed Persons Only," they le ave the car and e nter a n
electronics shop.
After looking around, they buy a portable CD p laye r. Then they buy
some sandwic hes from a street vendor and walk to a nearby park. While
eating, they discover that the CD player does not work. In the ir hurry to
return it, they leave their trash on the park bench .
W hen Matt a nd l<enji get back to the shopp in g ce nter, they notice a large
dent in one side of their car. Th e dent appears to be the resu lt of a driver's
carelessness in backing out of the next space . They also notice that the car
has been broken into and that the car stereo has been removed.
They ca ll the police to report t he accident and theft. When the police
arrive, they seize a small , clear bag containing illegal drugs from behind the
car's back seat. Matt and l<enji are arrested.
a. List all the things you think Matt a nd l<enji did wrong.
Our Constitutional Frameworl'The U.S. Constitution is the highest law of the land. Drafted more
than two hundred years ago, this remarkable document is the
longest-lasting written constitution in the world. It sets forth the
basic framework of our government. It also lists the government's
powers, the limits on those powers, and the people's freedoms that
cannot be taken away by the government. (The text of the entire
Constitution is provided on pages 570-599.)
Integral to the Constitution is the principle oflimited government.
Before the U.S. Constitution was written and ratified, the individual
states were reluctant to give up power to the national government.
After all, a revolution had just been fought against the government of
the king of England to preserve individual liberty and the freedom to
govern without interference. As a result, the Constitution created a
national government of limited powers, with authority to pass laws
only in the areas specifically listed in Article I of the Constitution.
Those who criticize the power and reach of the federal government
today often cite these historic reasons for limiting its power.
Perhaps nothing is more important in the Constitution than the
division of lawmaking power among the three branches of government: the executive, the legislative, and the judicial. This division is
known as the separation of powers. The executive branch, which
includes the president and federal agencies, is primarily responsible
for enforcing the law. However, the executive branch often issues
CHAPTER
What Is Law?
15
rules and executive orders that have the force of law. The legislative
branch, or Congress, uses lawmaking power when it passes laws, or
statutes. The judicial branch, or judiciary-the courts-clarifies, and
in some instances establishes laws thro ugh its rulings. These rulings
may interpret a provision of the Constitution, a statute, or a rule
issued by an executive agency.
The three branches of government are ind ependent, but each has
the power to restrain the other branches in a system of checks and
balances. The system was designed to prevent one branch from
becoming too powerful and abusing its power. Examples of checks
and balances include congressional investigations of actions by the
president or other executive officials, the prosecution in court of
members of Congress or the executive branch for violating the law,
and impeachment. Another check is the president's power to veto
(refuse to approve) laws passed by Congress.
One of the most visible and important checks of one branch on
another is the co urts' power of judicial review. Judicial review
enables a court to declare unenforceable any law passed by Congress
or a state legislature that conflicts with the nation's highest law, the
Constitution. For example, Congress might pass a law prohibiting
media criticism of elected officials. If challenged in court, this law
would be declared invalid and unconstitutional because it violates the
freedom of press guaranteed in the First Amendment. In general, the
courts can declare a law unconstitutional either because (1) the government has passed a law which the Constitution does not give it the
power to pass or (2) the government has passed a law that violates
somebody's rights. Judicial review also gives the co urts the power to
declare an action of the executive or legislative branch to be unconstitutional. For example, the courts can strike down a regulation
improperly issued by an executive branch agency. The co urts may
also prevent Congress from taking away the president's power to
grant pardons.
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UNIT
CHAPTER
What Is Law?
17
''All religions,
laws, morals and
political systems
are but necessary
means to preserve
social order. "
- Chien
Tu-Hsiu
Problem 1.8
Examine each of the following situations and determine for eac h w heth er
it invo lves the principl e of se paration of powers, checks and balances, judicial review, federali sm, or so m e combination of these principles . Specify the
prin cipl e or principl es invo lved a nd explain your a nswer.
a. A state law requires that a prayer be sai d eac h day in publi c schoo ls . The
courts rule that the law violates a First Amendment clause that prohibits the government from establishing a reli gion .
c. Because a pri so n is ve ry old and overcrowded, a state court ord ers the
state legislature to spend $10 million on a new prison.
18
UNIT