Lawyering-
Exam: legal system, case briefs, legal institutions, common law, legal reasoning, legislation, law & morality
Legal system-an operating set of legal institutions, procedures, and rules
-various legal systems within civil law i.e. France, Germany, Italy, etc.
Legal tradition-not a set of rules but rather the historically conditioned ideas about the role of law in society, the proper organization and operation of a legal system, and about the way law is or should be applied
A. Four principle legal traditions:
Civil Law system
Roman origin, spread by empire, fundamentally secular, Justinian codified Corpus Juris Civilis, 533 A.D.(restatement of then existing law), was lost for many centuries but revived in 11th ce
Recodified in every country:
i. Napoleonic Code 1804, first modern code, to make sense to regular people and relieve need for judges/attorneys, not just restatements, trying to improve station of majority of citizens
ii. German Civil Code of 1896-belief in goodness of German people, ought to be preserved & passed on
Civil law-essentially statutory, one judge-not bound by what another judge says in civil law
Judge rulings must come from the legal code (stating the law) and cannot cite another judge as reason for certain ruling
Islamic Law system
Prophet Muhammed d. 632 A.D., wrote Quran (basis for Islamic law)
One base document with continual interpretations guided by history and culture
Quran has no secular aspect, it can cover everything
Several related sources
i. Sunna-customs guided by prophet Muhammed as observed at the time and then written down and passed on generations
ii. Ijma-consensus among legal scholars on a particular issue or problem when Quran could not answer the problem, it’s not necessary for the mass of people to agree with it (only legal scholars agreement needed)
iii. Quiyas-reasoning by analogy, b/c even Ijma cannot cover every legal question
Spread by empire as well
Will not adapt b/c of the change in time, no modern edition
Common Law system
Second millennium, spread by empire
Secular in most aspects (the US system, AU, New Zealand)
Based on feudalism and good administration, courts, lawyers and judges enacting w/system
Idea that each similar dispute ought to be treated the same way (look to like cases to determine what the outcome ought to be in current cases)
Socialist Legal system
19th century in origin, 20th century creation
Spread by empire, various sources
i. Karl Marx Communist Manifesto, Fredrich Engels-Socialism: Utopian and Scientific, Vladimir Lenin-State and Revolution
Central premise is state ownership
Belief that civil law and common law do represent ideologies
(Chinese Legal system-included by some)
Becoming more important b/c of their place in the world today
Is there some higher law than all these systems?
For Muslims, obviously not, b/c everything is included in the Quran
For others, is morality a higher manner to guide action?
Even though our system is secular, is that entirely true?
B. Case Briefs
Case-general term for an action, cause, suit, or controversy, at law or in equity
-a ? contested before a ct of justice
-aggregate of facts which furnishes occasion for the exercise of jurisdiction of a court of justice.
-judicial proceeding for determination of controversy btwn parties wherein rts are enforced/protected, or wrongs are prevented/redressed
-any proceedin
derstand and write it down
Synthesis: Comparing critical elements of each case in a series
formulate general principle that explains each decision
OR compare/evaluate inconsistent approaches of diff. cts or same ct over time (Bridges gap btwn brief & outline)
Brief cases, understand legal rules, think about rules in context of facts of cases and context of problem presented-finally apply rules
First sentence: state the issue, then articulate law/legal principles, explain how law applies to new facts, give prediction to answer problem
C. LEGAL INSTITUTIONS
Sovereignty: the legitimate authority to govern, in the U.S. power to govern is given by the people
States put together from their respective constitutions, the preamble then constitution (set forth powers given to federal gov.) i.e. Congress has ability to regulate interstate commerce
10th Amendment: everything not given to fed gov in constitution is given to the states to govern themselves
– patents/trademarks, bankruptcy, foreign affairs, etc. (federal gov)
– family laws, adoption, divorce (state gov)
– grey areas exist: edu (traditional state gov) but no child left behind (fed gov)
– Fed gov got involved in education b/c said wouldn’t give $$$ to states for highways if they didn’t allow no child left behind policy
Municipalities: county/city gov. powers are delegated by the states (not from people like fed gov)
