Foundations of Law

Lecture 1

1. Introduction

Law can be defined as:

i. a binding custom or practice of a community: a rule of conduct or action prescribed or

formally recognized as binding or enforced by a controlling authority

ii. the whole body of such customs, practices, or rules

iii. the control brought about by the existence or enforcement of such law

Law has several aims. They are all concerned with making society more stable and enabling
people to flourish. Some of these aims are:

i. To set an official framework of compulsion. The law forbids certain ways of behaving, like
murder, libel, parallel parking, etc, and requires others, like paying income tax. If people
disobey the rules, the law threatens them with something unpleasant, like being punished or
having to pay compensation. The idea is that within this framework of do´s and dont´s people
can live more securely.

ii. To provide facilities for people to make their own arrangements. Laws guarantee to people
who buy and sell goods, make wills, take employment, form companies, etc that the state will
if necessary enforce these arrangements.

iii. To settle disputes about what the law is and whether it has been broken

iv. To settle what the system of government is to be.

2. Outline of topics to be covered

i. General introduction

ii. What is law? Philosophy of law. Public law and private law. The Universal Declaration of
Human Rights, the International Covenant on Civil and Political Rights and the International
Covenant on Economic, Social and Cultural Rights

iii. The different types of legal systems (Romano-Germanic, Common Law, Muslim law, etc)

iv. The profession of law, the law and the lawyer, becoming a lawyer (law school, licence to
practice law, etc), what lawyers do (provider of legal services, advisor, counselor, negotiator)

v. Ethics (introduction, history of ethical rules, model codes and model rules, specifics
(disclosure, defining the practice of law, confidentiality, conflicts of interest, solicitation, fees,
misconduct, accounts, malpractice))

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vi. Sources of law

vii. Trial and appellate courts

viii. Procedure in civil cases

ix. The law of criminal procedure

x. Criminal law

xi. Torts, personal injury and compensation

xii. Contracts and commercial law

xiii. The law of property

xiv. Family law

xv. Intellectual Property Law

xvi. Administrative law and procedure

3. Origins of man-made laws

i. Customary laws

Before writing comes to a society, its laws are customary. But customs without writing tend to
be local and variable.

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Unless they are in the permanent form that writing gives them they seldom spread over a wide
area or remain unchanged for long.

Written laws, cut in clay or stone, first appear in the middle east around 3000 BC. This would
impress their subjects and spread a sense of security.

Some of the earliest laws of which bits survive are the laws of Eshunna (about 1900 BC) and
Hammurabi of Babylon (about 1750 BC).

ii. The first written laws

Hammurabi´s laws contain nearly three hundred sections. The king is the source of justice.
Judges decided disputes, but with an appeal to the king. Though the laws refer to the favour of
various gods, they are secular in character: they deal with such matters as contracts, crimes,
property, marriage, divorce and trial procedure. Clearly Babylon was at this time already an
organised state with a government.

Hammurabi´s laws are generally called a code. His laws however do not contain the whole
law of Babylon. Rather they reduce some customs to a written form but leave others
untouched. But when customs are put into writing, their character alters. They can no longer
change gradually as they did before, because they are now set in a fixed form of words, a text.
If there was previously a dispute about what the custom was, writing settles it.

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For instance, one of Hanmmurabi´s laws lays down that if a son strikes his father, his hand is
to be cut off. So, if there was previously a doubt about what the proper punishment was, this
law settled it. But it also made the punishment difficult to change. Suppose it was later felt
that to cut off the son´s hand was too severe. In that case the text of the law stood in the way
of reducing the penalty, say, to a fine.

There is some doubt whether Hammurabi intended to change the customary law. But there
can be no doubts about the laws of Solon, the Greek statesman who in the sixth century BC
was given the power to make laws for his strife-torn city of Athens. His laws cancelled debts
for which the peasants had pledged their land or bodies. For the future, he forbade loans on
the security of a debtor´s body, and so brought serfdom to an end. These were radical
changes, and were seen as such.

Written laws, then, can serve as propaganda for a ruler, can tell subjects where they stand
(provided they can read or can get someone to read for them) and can be used to introduce
reforms.

iii. Greece

The reason why Greece has a special place in the history of civilization is not merely that
most departments of literature and the visual arts were there raised to levels which later ages
agreed to regard as classical, that is, as permanent standards of excellence. It is also because
the Greeks were the first people in Europe, among whom reflective thought and argument
became a habit of educated men; a training for some, and a profession or vocation for others.
They studied man himself, his nature, and his place in the order of things, the character of
human society, and the best way of governing it. It was among the Greeks that the objective
discussion of man´s relation to law and justice became an activity of the educated mind and
was recorded in a literature which has been part, ever since, of a more or less continuous
European tradition.

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Aristotle characterised man as a creature tending by his nature to a civic existence. Man was
a social animal. Living in society helps man to achieve self sufficiency, which is good. But
this characteristic of man as a being impelled by his natural instinct to live in an ordered
community with his fellows does not make him similar to other kinds of gregarious animals
like bees. Man has perception of good and bad, right and wrong, and the other moral qualities.

Aristotle focuses on the character of law as being a kind of order: good law means good order.
But law has compulsive force, he says, being the rational product of mind and consideration.

When questioned what is law, Pericles answered that those measures are laws, which the body
of the people in assembly has approved and has inscribed, laying down the conduct to be
observed or to be avoided. However, Alcibiades pointed out the inadequacy, or inaccuracy of
this definition. The authority of the people cannot be essential to the meaning of law, because

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in an oligarchy, too, all the decrees of the dominant group in council also carry the name of
law, and this goes even for a tyranny, since a tyrant´s statute also is called law. But note that
this conversation, whether envisaging the decrees of a democracy, an oligarchy, or a tyranny,
presents a law as essentially a command or prohibition issued by a political authority.

Aristotle recognised the necessity for laws to be adapted to the different characters and
circumstances of the people they were to govern. Plato suggested that the dominant element in
a state tends to make laws benefitting itself. Each form of government enacts the laws with a
view to its own advantage, thus consecrating the legislation that which is for their – the ruler´s
– advantage, and the man who deviates from this law they chastise as a law-breaker and a
wrongdoer. Socrates concludes that justice is in fact the interest of the stronger.

A central problem of jurisprudence is whether a law, in order to be recognised as such, need

conform only to formal criteria, or whether its validity depends also on its not infringing some
permanent, higher, natural standard. In Greek literature this issue is raised in the mid fifth
century Athenian tragedy, in the Antione of Sphocles, where it is presented in the form of a
celebrated drama. A civil war has divided two brothers. The brothers battle for control of
Thebes. Both perish. One brother is buried as a hero. The other brother is deemed a traitor to
his people and the king forbids his burial. He is left to rot on the battle field. No one is to
touch his remains. But this also, according to Greek religious ideas, prevents his soul from
finding the repose which only burial can ensure.

In this scene, King Creon has just learned that Antigone, the dead brother´s sister has defied
his laws by providing a proper burial for her disgraced brother. She is arrested and the king
asks her whether she knew of his order, and, if so, why she disobeyed it. She replies:

….these laws were not ordained of Zeus,

And she who sits enthroned with gods below,
Justice, enacted not these human laws.
Nor did I deem that thou, a mortal man,
Could'st by a breath annul and override
The immutable unwritten laws of Heaven.
They were not born today nor yesterday;
They die not; and none knoweth whence they sprang…

The Greeks reveal a belief in the idea of something transcending positive laws, something
which is naturally right and proper, something classifiable as natural law or justice. Aristotle
enunciated the theoretical distinction between that which is naturally just and that which is
just only in consequence of having been prescribed by positive law. Further, certain
relationships were felt to involve natural rights and duties, though without asserting the
invalidity of conflicting positive laws. The family relationship was seen as carrying with it the
natural duty of children to give honourable burial to parents and to support them in old age,
just as the parents had been under a natural duty to sustain their children in infancy. The rights
of intestate succession were attributed to the natural circumstances of blood relationship.

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Plato emphasises the conferring of general benefits as the proper role of law. Thus laws would
deal with various departments of crime, property, succession, contract, etc. However he
assigned to law not merely the regulation of conditions inherent in human society, but also the
deliberate training of that society towards an ideal state of perfection. The Greek state of
Sparta is thought to have been his inspiration in this regard.

Thus he states that the first generation of rulers is to be selected by the legislator, who will
also divide the remaining population into the second class (soldiers) and the third (common
people). Thereafter an official myth will be propagated, according to which these three
categories correspond to a divinely preordained classification. The further breeding in the
ruler class is to be governed by rigorous eugenic regulation, by which weaklings will be either
avoided or eliminated. The education of young people is to be subject to the most minute
regulation, with certain modes of music excluded from the curriculum as tending to encourage
softness or frivolity, the body is to be trained to endure hardship, the spirit to show courage,
the formation of the intellect is to be aimed at producing rulers who will be philosophers, etc.

Plato delves on the topic of the rule of law. He states ``For wherever in a state the law is
subservient and impotent, over that state I see ruin impending; but wherever the law is lord
over the magistrates, and the magistrates are servants to the law, there I decry salvation and
all the blessings that the gods bestow on states´´. Aristotle says ``we do not permit a man to
rule, but the law´´ (as a man tends to rule for his own benefit and thus becomes a tyrant). He
further says that the laws, if rightly enacted, ought to be sovereign, with discretion left to
rulers only in matters of detail which general laws cannot cover exhaustively.

Justice, Aristotle thought, ``can only exist between those whose mutual relationships are
regulated by law, and law exists among those between whom there is a possibility of injustice,
for the administration of the law means the discrimination of what is just and what is unjust.
Justice, he wrote, is of two kinds: ``distributive´´ and ``corrective´´.

Distributive justice means that which is exercised in the distribution of honour, wealth and the
other divisible assets of the community, which may be allotted among its members in equal or
unequal shares. Thus equals are to be treated equally, and unequals unequally.

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Corrective justice is not legislative justice, but rather what we might call judicial justice, the
justice of the courts. Corrective justice is putting right something that has gone wrong,
restoring an equilibrium where the just balance has been disturbed.

Pericles says that despite a hierarchy of rank based on merit, as regards the law, all men are
on an equal footing so far as concerns their private disputes. Thus it was forbidden to enact
laws aimed at particular individuals. Everyone was equal before the law.

The administering of punishment in the most primitive age was probably instinctive and
unreflecting, the product of a victim´s feelings and those of his kin, or, in cases grave enough
to draw the whole society into the process, the product of a sense of outrage or danger.
However, Plato stated that punishment had two aspects: the corrective, tending to force the
wrongdoer to mend his ways; and the deterrent, tending to discourage others from imitating
him.

The Greek mind addressed also the relation of punishment to the wrongdoer´s state of intent.
In the late seventh century BC Athens recognised degrees of homicide related to the state of
mind of the person causing the death: these degrees distinguished premeditated murder,
unintentional killing in an athletic contest or something like killing under provocation, and
killing in self defence.

4. Who is a lawyer? Famous lawyers in history

As soon as the law, written or unwritten, is at all complicated, there are people in every
society who make it their business to become expert in it. In societies without a strong central
authority wise men and women, who have a reputation for knowing the law, are consulted on
difficult points. They were the first lawyers.

In a centralised state, where the ruler is powerful, it is not so easy to get independent advice
about the law and see that it is followed. How can the ruler be prevented from twisting the law
to suit himself? Physical force is usually on his side. What is needed is not the odd wise
individual with a knowledge of the law, but a body of specialists who have some political
clout.

Rome was the first city and state where specialists of this sort engaged. Initially the specialists
dealt with and interpreted both sacred law (how to appease the Gods) and secular law (how to
secure peace among men). In the course of time, secular lawyers became more prominent.
They gave opinions to people who consulted them, helped them to draft documents, advised
them on the proper way to litigate, and taught students both privately and in public. They
advised the magistrates and the royalty. Some argued cases in court and wrote books about
the law. Thus the practise of law evolved.

Over the next 1500 years specialised universities spread and university trained lawyers were
made judges and advisers. Roman law and Common law traditions have led to modern codes
(not unlike the Napoleon´s Code of 1804 dealing with private law). In the last 150 years

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university trained lawyers have gained influence and case laws made by judges have become
equally important.

Two famous lawyers from history:

5. Ten important caselaws from the US legal system1

Every year, the Supreme Court of the United States issues decisions on dozens of cases, but
rarely do average people feel -- or at least notice -- a Court ruling's impact on their daily lives.
Here are 10 cases, however, that most likely affect you in a tangible way every single day.

i. West Coast Hotel Co. v. Parrish (1937)

Basics: Elsie Parrish worked as a chambermaid at the Cascadian Hotel in Wenatchee,

Washington. Her pay was $12 a week, which was less than the $14.50 a week required by the
state's minimum wage law for women. (There was no minimum wage for men.) Parrish sued
her employer, and after the state supreme court decided in her favor, the hotel owners
appealed to the US Supreme Court.

Ruling: The Court ruled 5 to 4 in favor of Parrish, upholding the constitutionality of

minimum wage legislation and reversing previous rulings by the Court that had struck down
minimum wage laws, the previous one just a year earlier.

Impact: Helped lead to the passage of The Fair Labor Standards Act of 1938, which
established a national minimum wage.

Effects: You don't have to work for 35 cents an hour.

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10 US Supreme Court Cases That Affect You Every Day

http://www.paralegaltraining.net/blog/10-supreme-court-cases-that-affect-you-every-day

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ii. Skinner v. Oklahoma (1942)

Basics: Oklahoma's Habitual Criminal Sterilization Act of 1935 allowed for sterilization to be
part of sentencing for individuals convicted three or more times of "felonies involving moral
turpitude" (meaning white collar crimes were excluded). Jack Skinner, having been convicted
once for chicken stealing and twice for armed robbery, was sentenced to sterilization, and his
appeal made it to the Supreme Court.

Ruling: The Court ruled unanimously that the Act violated the Equal Protection Clause of the
Fourteenth Amendment because white collar criminals received preferential treatment.

Impact: The ruling largely ceased punitive sterilization and helped shed a negative light on
eugenics (its use by the Nazis certainly didn't help its popularity). At the time, not only were
habitual criminals subject to sterilization, but also the mentally ill and handicapped, people
with physical deformities, epileptics, the deaf and blind, and racial groups like Native
Americans and African Americans -- often without their knowledge. Thirty-three states had
sterilization programs, and over 65,000 people were sterilized during the 20th century, about
two-thirds of them before Skinner.

How It Affects You: Tens or possibly hundreds of thousands of people (possibly someone
you know) may have been born who otherwise might not have had the chance.

iii. Hernandez v. Texas (1954)

Basics: Mexican laborer Pete Hernandez was tried and convicted of murder by an all-white
jury in Jackson County, Texas. His lawyers appealed, claiming that he didn't receive a fair
trial because persons of Mexican descent were systematically excluded from jury duty in the
county. (A Mexican American had not served on a jury in the county in over 25 years.) The
Texas appeals court ruled that Mexican Americans were considered Caucasians and thus were
adequately represented on juries. The fact that no one with a Hispanic last name had not
served on a jury in over two decades was deemed a coincidence.

Ruling: The Supreme Court unanimously ordered a retrial of Hernandez, with jury selection
open to all races, stating that exclusion of a particular race or ethnicity violates the Fourteenth
Amendment's guarantee of "equal protection of the laws."

Impact: Two weeks before Brown v. Board of Education (see below), this decision
established that the equal protection rights of the Constitution apply to all races. Until then,
the majority of civil rights cases had focused on African-American rights.

How It Affects You: States must apply the law equally to everyone (including you) and can't
give preferential treatment to one person or class of persons over another. Except celebrities.

iv. Brown v. Board of Education (1954)

Basics: Oliver Brown and 12 other parents in Topeka, Kansas filed a class-action lawsuit
requesting the desegregation of public schools in the district. The district court ruled in favor
of the board of education, stating that the segregated educational facilities for black and white
students were legal because they were "separate but equal," as required by the 1896 Supreme
Court ruling in Plessy v. Ferguson. The case was brought to the Supreme Court and combined

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with four other similar cases challenging segregation in other states. The Kansas case,
however was the only one of the five in which the separate facilities weren't substantially
unequal in quality.

Ruling: The Supreme Court unanimously reversed the ruling in Plessy v. Ferguson, stating
that enforced segregation is inherently unequal and violates the Fourteenth Amendment's
equal protection clause.

Impact: Schools in the 17 states that required segregation and the others that allowed it (only
16 expressly forbade it) were integrated, paving the way for racial integration in public
transportation and other areas of life.

How It Affects You: You can freely interact with people who don't look like you.

v. Griswold v. Connecticut (1965)

Basics: Estelle Griswold was the Executive Director of the Planned Parenthood League of
Connecticut. She gave information, instruction and medical advice to married people on
contraception devices and materials, in violation of a Connecticut law forbidding the use (or
facilitation of the use) of "any drug, medicinal article or instrument for the purpose of
preventing conception." As such, she and a colleague were arrested and fined.

Ruling: By a count of 7 to 2, the Supreme Court nullified the Connecticut law because it
violated a right to privacy that's implied in the Constitution.

Impact: Griswold set the precedent for the 1972 case Eisenstadt v. Baird, which extended the
right to use contraception to unmarried people, but beyond the contraception issue, the ruling
asserted that the Constitution protects a right to privacy, opening the door for a range of
privacy cases, including Roe v. Wade.

How It Affects You: You don't have 20 kids.

vi. Loving v. Virginia (1967)

Basics: In 1958, interracial couple Mildred Jeter (who was black) and Richard Loving (who
was white) traveled from their Virginia home to Washington, DC, to get married, because
doing so in Virginia violated a state law against miscegenation. When they returned home,
they were arrested and ordered to leave the state or face jail time. They moved to DC and filed
a lawsuit in 1964 in hopes of returning to Virginia to see their family and friends.

Ruling: In a unanimous decision, the Court ruled that laws prohibiting marriage between
races are unconstitutional because they violate the Equal Protection Clause of the Fourteenth
Amendment.

Impact: The decision struck down anti-miscegenation laws in Virginia and 15 other states,
and the number of interracial marriages in the US has increased by more than seven-fold since
1970, now numbering over 2 million couples.

How It Affects You: You're free to hit on anyone in the club.

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vii. Stanley v. Georgia (1969)

Basics: Police searched the home of Robert Stanley looking for gambling paraphernalia, but
instead they founds pornographic film reels and charged him with possession of obscene
materials, a crime under Georgia law.

Ruling: The Court unanimously struck down Stanley's conviction on grounds that state laws
forbidding the mere possession in the home of materials deemed obscene violate freedoms
granted in the First and Fourteenth Amendments of the Constitution.

Impact: Stanley further established an individual's right to privacy (see also Griswold v.
Connecticut), even though obscenity doesn't enjoy protection under the First Amendment's
"free speech" and "free press" clauses.

How It Affects You: Your porn stash will only get you in trouble with your girlfriend.

viii. Miller v. California (1973)

Basics: Marvin Miller, owner of a large adult mail-order business, sent out a mass mailing,
but when an unwilling recipient of his brochures complained to police, Miller was arrested for
violating a California statute prohibiting the distribution of obscene material. Miller appealed,
claiming that the sale and distribution of obscene materials by mail is protected under the First
Amendment's freedom of speech.

Ruling: By a 5 to 4 vote, the Court ruled that obscene material cannot claim protection from
he First Amendment. Further, the justices outlined a definition for obscene material, stating
that it must meet three qualifications (AKA "the Miller test"): 1) the average person would
find that it appeals to the prurient interest; 2) it depicts or describes, in a patently offensive
way, sexual conduct or excretory functions specifically defined by applicable state law; and 3)
it lacks serious literary, artistic, political or scientific value.

Impact: By providing a definition of "obscene," Miller made it easier for states to prosecute
purveyors of allegedly obscene material, effectively shifting the burden from the Supreme
Court to the states. However, in reality, the increasingly loosened public morals of the
"average person" during the '70s, combined with vague stipulations such as "patently
offensive" and "serious literary, artistic, political or scientific value," meant that obscenity
convictions have been few and far between.

How It Affects You: Porn is abundant, arguably too much so.

ix. Sony Corp. of America v. Universal City Studios, Inc. (1984)

Basics: After Sony released its Betamax home video cassette technology in 1975, Universal
Studios and the Walt Disney Company sued, claiming that Sony should be held liable for any
copyright infringement committed by people using the technology to copy movies and TV
shows.

Ruling: By a 5 to 4 count, the Court ruled that the "time-shifting" (i.e., recording a TV
program for later viewing) ability of video recorders is a legitimate function, and thus Sony

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couldn't be held accountable if purchasers used the legitimate technology for illegitimate
purposes -- like infringing on the studios' copyrights.

Impact: Although by 1984, Betamax was already well on its way to being defeated in the
video tape format war by VHS, the ruling was a victory for home recording, which has grown
into big business even as VHS has declined.

How It Affects You: One word: TiVo.

x. Reno v. ACLU (1997)

Basics: As part of the Telecommunications Act of 1996, the Communications Decency Act
(CDA) sought to regulate pornographic content on the Internet by outlawing the transmission
or posting of "obscene or indecent" speech or images to persons under 18. A Philadelphia
federal court blocked that portion of the act, claiming it infringed on First Amendment rights
of free speech. The case went to the Supreme Court as Reno v. American Civil Liberties
Union, Janet Reno being the Attorney General of the United States at the time.

Ruling: In a unanimous vote, the Court ruled that the language in the CDA was too broad and
vague and infringed upon freedom of speech (granted, obscenity and child pornography still
aren't protected by the First Amendment).

Impact: Reno established that the Internet is entitled to the broad First Amendment
protections of traditional print media and not to the more limited protections of broadcast
media, which is regulated by the Federal Communications Commission.

How It Affects You: You weren't arrested for forwarding 2 Girls 1 Cup.

6. Is a doctor more important than a lawyer?

i. Analysis: The example of Uday Hussein of Iraq

ii. The Arab Spring Revolution

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7. The right to a fair trial in a court of law. The right to be represented by a lawyer.
Three distinct case studies:

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