Introduction to Law
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This 6 page Class Notes was uploaded by Kirsten Notetaker on Wednesday September 14, 2016. The Class Notes belongs to at Lewis University taught by Dr. Bristow in Fall 2016. Since its upload, it has received 3 views. For similar materials see Forensic Psychology in Psychology at Lewis University.
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Date Created: 09/14/16
Medieval Justice Anglo-Saxon law defined crime as literally “breaking the peace.” This could be repaired with money. There were basically three ways to establish justice. “Murther” was a term to define one type of killing. A payment of money would bring back the peace. An “English Jury” was a group of 12 neighbors who could testify to the facts at hand. However they only told what they knew of the parties and rendered no verdict. Another procedure of combat (duellum) was instituted by William the Conqueror for both civil and criminal cases. The parties could hire a professional for the day to fight with less than deadly weapons. When one of the combatants cried “craven,” the losing party was deemed a perjurer and fined. In the case of a felony, the loser was hanged. Thus, local courts kept a yearly retainer on a qualified combatant to defend itself against potential claimants. The Writings of Locke, Voltaire, and Montesquieu are summed up in a few points. Divine right is a dogma without basis. Government grew out of nature itself – from reasonable motives and for the good of the people. Certain fundamental rights cannot be abolished – including property and the right of revolution. Baron de Montesquieu Influenced by the writings of John Locke, Montesquieu wrote, L’Espit des Lois (The Spirit of the Laws) (1748). His works influenced Catherine the Great; the Founding Fathers of the United States Constitution; and Alexis de Tocqueville, who applied Montesquieu's methods to a study of American society, in Democracy in America. God is described in Book 1 of The Spirit of the Laws, as creating nature and its laws; having done so, He vanishes, and plays no further explanatory role. In The Spirit of the Laws, Montesquieu addresses constitutional theory, and liberty and separation of powers. “Liberty is the right to do what the law permits.” Constitutional Theory In his classification of kinds of political systems, Montesquieu defines three main kinds: republican, monarchical, and despotic. As he defines them, Republican political systems vary depending on how broadly they extend citizenship rights -- those that extend citizenship relatively broadly are termed democratic republics, while those that restrict citizenship more narrowly are termed aristocratic republics. The distinction between monarchy and despotism hinges on whether or not "intermediate powers" (such as the nobility, the clergy, etc.) exist that can restrain the authority of the ruler: if so, the regime counts as a monarchy; if not, it counts as despotism. Driving each classification of political system, according to Montesquieu, must be what he calls a "principle". This principle acts as a spring or motor to motivate behavior on the part of the citizens in ways that will tend to support that regime and make it function smoothly. For democratic republics (and to a somewhat lesser extent for aristocratic republics), this spring is the love of virtue -- the willingness to put the interests of the community ahead of private interests. For monarchies, the spring is the love of honor -- the desire to attain greater rank and privilege. Finally, for despotisms, the spring is the fear of the ruler. A political system cannot last long if its appropriate principle is lacking. Liberty and separation of powers "Political liberty" is Montesequieu's concept of what we might call today personal security, especially insofar as this is provided for through a system of dependable and moderate laws. He distinguishes this view of liberty from two other, misleading views of political liberty. The first is the view that liberty consists in collective self-government -- i.e. that liberty and democracy are the same. The second is the view that liberty consists in being able to do whatever one wants without constraint. Not only are these latter two not genuine political liberty, he thinks, they can both be hostile to it. Political liberty is not possible in a despotic political system, but it is possible, though not guaranteed, in republics and monarchies. Generally speaking, establishing political liberty on a sound footing requires two things: The Separation of the Powers of Government: Montesquieu argues that the executive, legislative, and judicial functions of government should be assigned to different bodies, so that attempts by one branch of government to infringe on political liberty might be restrained by the other branches. He also notes that liberty cannot be secure where there is no separation of powers, even in a republic. The Framing of civil and criminal laws so as to ensure personal security: Montesquieu intends what modern legal scholars might call the rights to "robust procedural due process", including: the right to a fair trial; the right to be considered innocent until proven guilty; and proportionality in the severity of punishment. Pursuant to this requirement to frame civil and criminal laws appropriately to ensure political liberty (i.e., personal security), Montesquieu also argues against slavery and for the freedom of opinion and association. Following the American revolution, Montesquieu's work remained a powerful influence on many of the American founders, most notably James Madison of Virginia, the "Father of the Constitution". Montesquieu's philosophy that "government should be set up so that no man need be afraid of another" reminded Madison and others that a free and stable foundation for their new national government required a clearly defined and balanced separation of powers. Naturalist theory The philosophy that all persons know inherently the difference between right and wrong After the Revolution The states were guided by a document known as the Articles of Confederation Under the Articles, each state sent delegates as members of a congress who nominated and elected a president, pass laws, acted as judges in disputes amongst states, and negotiated treaties The president presided over congress and acted as ambassador to other nations The articles of Confederation and the congress were basically ineffective It had no enforcement power No judges No jails No means to collect monies to support a national army A permanent government came about due to the issue to allow states to continue to exist. Southern delegates believed that states should be abolished and one central government formed. This idea was rejected. It was determined that the government should be comprised of state governments and a national government with separate functions. State governments were to respond quickly to the needs of their citizens and their individual economies, while the national government was formed to protect the fundamental rights of all citizens and to ensure that states would not prohibit individual rights. Introduction to Law Branches of government Congress - the legislative branch Its power is to make statutory law Executive branch The president is elected indirectly by the people through an electoral college The president approves or rejects acts of congress by veto power However, a veto can be overridden by a significant majority of congress The president has the ultimate duty to enforce the laws of the country Judicial branch Interprets the laws Protects the constitution from violation by congress, president or the states A checks and balance system was established so no branch of government would obtain ultimate power. The Bill of Rights was established so that the government must deal with its citizens with standards of fundamental fairness. The following rights are specifically protected. These are: Freedom of speech, religion and press; peaceful assembly; petitions for governmental change. Right to bear arms. Freedom from unreasonable invasion of home by government for purposes of search and seizure of persons or property. Right not to be tried twice for the same crime. Right not to have persons or property seized without due process. Right to a speedy and public trial. Right to an impartial jury. Freedom from forced self-incrimination. Right to counsel in criminal prosecution. Freedom from cruel and unusual punishment. Right of the accused to know of the crime alleged. Right of the accused to confront the witness. Right of the states to govern on matters not addressed in the Constitution or its amendments. The influence of political theories The naturalist theory - the philosophy that all persons know inherently the difference between right and wrong. The positivist theory - the belief that there should be a superior governmental entity that is not subject to question or challenge. The sociological theory - follows the principle that government should adapt laws to reflect the current needs and beliefs of society. A need for balance The judiciary goal is to allow maximum personal freedom without detracting from the welfare of the general public. The rights of the people vs. the rights of the individual. Traditional Balance The goal of lawmaking authorities is to balance the need for consistency and stability against the need for a flexible and adaptive government. Enforcing legal principles of the Constitution vs. the need to adopt legal principles more reflective of current society. Modern Balance Both Traditional and Modern Balance are employed by judges when determining legal claims. Modern legal system – The primary source of all law is the Constitution and each branch of government plays an active role in creating the law of the nation. Statutory law – a Statute – is law created by the legislature. Judicial law - are opinions that have the effect of law and that are issued by members of the judiciary in legal disputes. Stare Decisis - means “Let the decision stand.” This method is used by the judiciary when applying precedent to the current situation. It demonstrates consistency in the legal system. Precedent - existing legal standards that courts look to for guidance when making a determination of a legal issue. Administrative law - regulations and decisions that explain and detail statutes. Such regulations and decisions are issued by administrative agencies. The Hierarchy of Law The U.S. Constitution - it is considered superior to all other law. Legislative acts of congress – Statutory Law - this law is composed of people elected by the people. Judiciary law - it has the authority to interpret legislation and to fill in gray areas where the law is unclear or nonexistent. Administrative law - administrative agencies issue regulations, however, congress has the right to eliminate an agency or regulations that are inconsistent with legislative objectives. The judiciary can overrule actions by an agency when the actions are unconstitutional.