Introduction to Law summary

1. Introduction to Law
The focus will mainly be on american law, which is part of the
common/case law tradition
A simple chronological timeline;
Hammurabi; first written codes of law (Babylon)
Solon;
Early law-making in Greece (600-700 BC)
Classical Jur.;
First philosophers writing about law (100 BC
300 AD)
Justinian;
Ordered to compile all the law books into one (100 AD)
-Dark Ages -Napoleon; Napoleonic Law, which basically was the first one to
thoroughly
follow Justinians way of law making (1804)
Western Legal Tradition;
Distinction between legal institutions and other types of institutions
Existence and training of lawyers
Concept of Law
Nature of legal doctrine
Civil Law and Common/Case Law
The American law system Common/Case Law tradition.
There are five important differences between the common law tradition and the
civil law tradition.
In the common/case law tradition, the three powers (Trias Politica) are
divided as stated in the constitution;
Article I;
Legislative power which lies with congress.
Article II;
Executive power which lies with the President of the US
of America.
Article III;
Judiciary power which lies with the Supreme court.
The building blocks of Common law are cases, or in other words, the
precedents and in Civil Law, the building blocks are the text- and Law
books which support the Law system.
In Civil Law, every courts decision counts the same and only the Supreme
court, which can be questioned when case is not interpreted in the right
way according to the parties involved, can overrule these decisions; but
this hardly happens. In Common/Case law, The Supreme court overrules
the lower level courts, which means that any decisions (precedents) made
by the supreme court, should be followed in similar cases that occur later.
In Common/Case Law;
Remedy Right
In Civil Law;
Right Remedy
And the last difference is that Common/Case Law uses a jury who decides
on the facts of the case and decided whether one is guilty or not guilty and
the judge will decide on the law. In the Common Law system, the
prosecutor (even public prosecutor) and the defendant are on the same
level in stance. Civil law does not have a jury, so the judge decides
whether there are enough facts to verdict someone and the judge decides

on the law. In Civil law, the level from high to low is Judge, (public)
prosecutor and then the defendant.

Cases in Week 17
Study Article I of the Constitution and the case of United States vs. Lopez.
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Here Article I of the Constitution; this article is about the establishment of

the legislative power in congress, which includes the several sections on
The House of Representatives and The Senate.
Now the case of US vs. Lopez, small summary of legal issue/question and
the verdict;
Lopez brought a gun to school with the intention to deliver it to someone
else for 40 dollars. The case here is whether congress had the right to base
their decision on the Commerce Clause. Congress stated that a shooting at
a school is bad for the economy and henceforth chose to base their
defence on this Clause. The court decided that the Law was
unconstitutional, since the law would balance power in the Trias Politica too
much to one side.

Study Article II of the Constitution and the case of Hamdi vs. Rumsfeld.
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Here Article II of the Constitution; this article is about the establishment of

the executive power in the President of the United States of America.
Now the case of Hamdi vs. Rumsfeld, small summary;
Hamdi, an American citizen who travelled to Saudi Arabia and later on to
Afghanistan, was captured in Afghanistan by US military on the suspicion
of being a threat to the fatherland. The case here was that he was
considered to be a hostile combatant and because of that, he was rejected
a fair trial. He was not able to reject his hostile combatant status and thus
he sued under the supreme court that this was not accurate, since he was
born in the US and thus had an American citizenship status. Though no
single opinion of the Court commanded a majority, eight of the nine
justices of the Court agreed that the Executive Branch does not have the
power to hold a US citizen indefinitely without basic due process
protections enforceable through judicial review. He was released without a
prosecution.

Study Article III of the Constitution and the case of Bush vs. Gore.
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Here Article III of the Constitution; this article is about the establishment of
the judicial power in the Supreme court and the lower courts.
Now the case of Bush vs. Gore, small summary;
This case was about the elections in which it was unclear how the Florida
elections were counted. The Florida Supreme court decided that the count
was in favour of Gore, which Bush then took to the Supreme court, whom
decided that the Florida Supreme Court was in the wrong to revoke the
earlier countings. The verdict was; In the circumstances of this case, any
manual recount of votes seeking to meet the December 12 safe harbor

deadline would be unconstitutional under the Equal Protection Clause of

the Fourteenth Amendment. Florida Supreme Court reversed the verdict
and remanded.

2. Law and Morality

Is law by definition a set of rules which complies with a (minimum) moral
standard? Or is the question whether some rule qualifies as a rule of law only
determined by formal requirements, i.e. that is promulgated by an authority
invested with the power to create law?
These questions are central to the debate between the natural law theory and
legal positivism
Natural Law Theory;
Is mainly about implementing rules into law, which feel
good by nature. It is
more of an informal view on law, in which rules and law do
give the right
guidelines, but can or should be adjusted when it does not
feel right by
nature.
A few important things about the theory, is that there is a connection between
law and morality, which is quite straightforward, but it also means that we cannot
apply or exercise law without moral basis. The questions that come up due to this
theory are all content based criteria, which imply that the legal positivists do not
see law in this way; there should be little room for interpretation, if it comes down
to exercising and applying law. Henceforth, as an example; Nazi law is not
considered law, since it was based on immoral standards or in other words;
contrary to our basic intuition of justice.
Legal Positivism;
do we

Here the question at stake is; when is a rule a legal rule? How
determine its a social law or a legal one? Here the test is to

look at the origin

of the rule (rule of recognition) and if the rule was created on
the base of a
source of law, the law is legal. (but it does not say anything
about the moral
content of the law).
So Legal Positivism (Hart) is a formal way of looking at law, in which once again,
the Nazi law as an example, we do not look at the moral issues at stake, but we
just look at whether the base of the rule is a source of law. So under the legal
positivism, Nazi law is indeed considered law, since we do not look at the moral
issues at stake.

Another field of law in which these questions on the relationship between law and
morality come to surface, is the realm of the individual/civil/human rights. In the
constitution of the United States, the citizens of the US are initially protected
against the Federal Government and the State Governments and in the
determination of the contents and limits of these rights, the case law of the
Supreme Court plays an important role. These cases are often highly
controversial, as the Supreme Court gets the task to determine whether certain
rights/amendments or so are being bend to the limit or are not used or applied as
they were intended to do.

Cases that correspond with the chapter;

Grutter vs. Bollinger in which we need to study the fourteenth amendment.
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Michigan Law School denied the admission of Grutter, who then sued the
school for that she believed they had discriminated against her on the
base of her race, which would have been in violation with the fourteenth
amendment (which is about citizens equal rights and protection against
the law and under the law).
Grutter lost the case, since the school did not discriminated against her
and the admission programme of the school is indeed lawful.
The Supreme Court decided;
University of Michigan Law School admissions program that gave special
consideration for being a certain racial minority did not violate the
Fourteenth Amendment.
Some extra information;
The school did indeed took race into account, but that was not the only
factor that they considered to be important in an appliance.

Locke vs. Davey in which we need to study the first amendment.

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The first amendment to the United States Constitution prohibits the

government in making any laws that are more in favour of any religion,
making any laws that would restrict certain religious groups of their
freedom or making any laws that would restrict people from their freedom
of speech. In this case, an institute in Washington prohibited some
students from getting a scholarship to get a degree in devotional theology.
The Supreme Court decided that this decision was not unconstitutional,
since the Washington institution had no substantial interest in funding such
devotional degrees.
Extra information;

1. Here the establishment is that the state or federation may not be

involved in the support of any religious activities; it demands it to be
neutral.
2. Is the free exercise of these people at stake? No, they refused it not on
the basis of religious beliefs, but they have the right to refuse certain
scholarships, which basically means that he could indeed study
theology, but he would not get a scholarship.
3. The free exercise clause also states that the government should respect
every religious belief.
Ashcroft vs. American Civil Liberties Union in which we need to study the first
amendment.
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See the case above to read about the first amendment.

This case was about the child online protection act (COPA) and whether it
was in violation with the first amendment or not. The act prohibited
watching porn for everyone who is under the age of 18, hence they want to
protect children from seeing certain photos or videos. The Supreme Court
found that COPA was indeed in violation with the first amendment.

3. Criminal Law
The criminal law is the most conspicuous part of the law. These cases often
receive a lot of media attention. There are three basic topics that will be
addressed;
Substantive criminal law.
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This basically is about the requirements for criminal liability. This term
refers to the types of behaviour that are qualified as a crime, as well as the
other requirements which have to be fulfilled before it can be concluded
that a person is liable in criminal terms. In American Law, it is important to
distinguish two different kinds of definition if it comes down to crimes; the
federal legislature and the state legislature. Certain behaviour might be
illegal in one state but can be perfectly legal in another.
When someone committed a crime, two important elements are kept in
mind;
Actus reus and Mens rea.
Actus reus; Actus reus refers to the guilty act of a person. If the person is
considered to be guilty beyond the reasonable doubt and shows the other
element of Mens rea, then a
person can be considered as guilty.
Mens rea;
Mens rea is another word for the guilty mind of a person. If
the person who committed the crime is both actus reus (guilty act) and
had the intention of committing this crime (guilty mind), only then can
someone be considered as guilty.

This all of course comes with the requirement that there are no defences
and the person considered is not insane.

Law on Punishment.
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Criminal law is special in comparison to other fields of law, since it

empowers the state to impose sanctions that can have serious impact on
the life, freedom and the property of a citizen.
In the United States, some crimes can be sanctioned with the death
penalty in several states and next to that you have the imprisonment and
fines used as criminal sanctions. Cruel punishments shall not be inflicted,
since it would be in violation with the eighth amendment.

Criminal procedure.
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The substantive criminal law needs to be applied in specific cases. The law
on the criminal process (otherwise known as criminal procedural law)
indicates the authorities involved and determines the procedures to be
followed.
There are a lot of important principles covered in here, namely; due
process, presumption of innocence, burden of proof on the prosecution,
protection against unreasonable searches and seizures, the exclusionary
rule, the Miranda rights, the right against self-incrimination, the right to
counsel, the right to confront hostile witnesses, the right to a speedy and
public trial and the right to trial by jury.
American court system in which there are federal courts, which include the
District Courts, Circuit Courts of Appeals and the Supreme Court. These
courts are composed of judges appointed by the president and the senate.
On the state level there are also trial courts, courts of appeal and supreme
courts. The judges throughout the US are ought to be impartial and
independent, which is a generally accepted principle.
There are three kinds of juries; a trial jury, a grand jury and a jury of
inquest.

Cases that correspond to this week;

J.E.B. vs. Alabama and we need to study the fourteenth amendment.
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In this case, J.E.B. sued for child support in the state of Alabama. In this
case, the jury was selected in such a way that there were only women on
the jury (almost only women). The Supreme Court decided over this case
and stated that this action was indeed in violation with the equal
protection clause of the fourteenth amendment;
Intentional discrimination on the basis of gender by state actors in the use
of peremptory strikes in jury selection violates the equal protection clause
of the 14th Amendment.

Kyllo vs. United States and we need to study the fourth amendment.
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The fourth amendment;

The Fourth Amendment (Amendment IV) to the United States
Constitution is the part of the Bill of Rights that prohibits
unreasonable searches and seizures and requires any warrant to be

judicially sanctioned and supported by probable cause. This is very

straightforward
In this case, the United States police or investigation department used a
thermal imaging device to detect heat signatures inside the house Kyllo,
who was suspected to grow marijuana inside his garage. According to
Kyllo, this was in violation with the fourth amendment, namely that the
police needed a warrant to do this search. The Supreme Court ruled that
this thermal imaging of a home indeed constitutes a fourth amendment
search and thus can only be done with a warrant.
Eventually, Kyllo did plead guilty for a part, since the thermal imaging
evidence could not hold in court anymore.

Coker vs. Virginia and we need to study the eighth amendment.

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The eighth amendment;

The Eighth Amendment (Amendment VIII) to the United States Constitution
prohibits the federal government from imposing excessive bail, excessive
fines, or cruel and unusual punishments, including torture.
The case here was that Coker was imprisoned on the conviction of first
degree murder, rape and robbery. He escaped from prison and went into a
home nearby to steal a vehicle. In this home, he raped the woman who
lived there and eventually stole the vehicle.
Coker was convicted on the crime of rape and together with his other
earlier convictions, he was sentenced to death.
The Supreme Court ruled held that the Eighth Amendment to the United
States Constitution forbade the death penalty for the crime of rape. Thus
he got a life sentence punishment.