1.2 Sources of Law

People learn about the law their entire lives. But, of course, not all instruction about the “right” way to be in the world reflects “the law.” From caretakers, teachers, community elders, employers, and others who are in positions of influence, people learn right from wrong, acceptable from unacceptable actions, and all manner of rules and customs. Some of this guidance is learned through observation and emulation, while other instruction is more formalized. For example, employers often have very firm ideas about how their employees should behave, both at work and in their personal lives. Those ideas may be conveyed through employers’ codes of ethics, employee handbooks, or organizational cultures.

Of course, actions that are considered “wrong” or are considered to be inappropriate behavior are not necessarily violations of the law. They simply may represent social norms. For example, it is generally not acceptable to ask strangers about their incomes. It is not illegal to do such a thing, but it is considered impolite. Imagine that you are interviewing for a position for your dream job. Can you imagine asking your potential employer how much money they make? It would not be illegal for the employer to refuse to hire you based on your lack of social skills. However, it would be illegal for the employer not to hire you based solely on your race.

So what is the difference? One type of “right from wrong” is based on societal norms and cultural expectations. The other type of “right from wrong” is based on a source recognized as holding legitimate authority to make, and enforce, law within our society. These two types of rules in our society—social norms and laws—are both important frameworks by which people organize their lives.

Social customs may be violated on pain of embarrassment or ostracism. Someone may choose to ignore social customs, but there are usually negative social or professional consequences to doing so. A person who violates social customs may be said to be a boor, or people may try to avoid that person because their actions and comments make others uncomfortable. However, no legal repercussions exist for violating social customs.

Violations of law are different. Violating the law carries penalties, such as liability or loss of liberty, depending on the type of violation. While we may generally decide whether or not to conform to social customs, we are compelled to obey the law under threat of penalty.

Law can generally be classified as public law or private law. Public lawLaw that applies to everyone. applies to everyone. It is law that has been created by some legitimate authority with the power to create law, and it applies to those within its jurisdiction. In the United States, the lawmaking authority itself is also subject to those laws, because no one is “above” the law. If the law is violated, penalties can be levied against the violator. These penalties are imposed from some recognized source of authority, like the judiciary. Of course, people in the United States may participate in many law-creating activities. For instance, they may vote in elections for legislators, who, in turn, create legislation. Likewise, if people have a legal claim, their case may be heard by the judiciary, which in turn may create common law or may provide a new interpretation of a statute.

Not all law is public law. Private lawLaw that is legally binding on parties who agree to it such as a contract. is typically understood to be law that is binding on specific parties. For instance, parties to a contract are involved in a private law agreement. The terms of the contract apply to the parties of the contract but not to anyone else. If the parties have a contract dispute, they will be able to use a dispute resolution method, such as litigation, to resolve it. This is because both parties of the contract recognize the judiciary as a legitimate authority that can resolve the contract dispute. However, regardless of the resolution, the terms of the contract and the remedy for breach will apply only to the parties of the contract and not to everyone else.

Consider Washington state’s Voluntary Self-Exclusion programs that allow people to voluntarily self-exclude from legal gambling, including playing the lottery and playing in licensed card rooms. These voluntary self-exclusion programs are by contract and self-initiated by those who would be excluded. There are real legal consequences to participating in these programs if the conditions of the contracts are breached, including inability to claim a winning valued at more than $600 for the lottery exclusion program. Other states have initiated similar programs.

Some law is procedural and some law is substantive. Procedural lawThe legal rules that must be followed by government officials in the execution of law. describes the legal rules that must be followed. In other words, it details the processes that are legally required. For instance, the U.S. government must generally obtain a warrant before searching someone’s private home. If the process of obtaining the warrant is ignored or performed illegally, then procedural law has been violated. Many procedural laws are codified in statutes, such as the Federal Rules of Civil Procedure or the Federal Rules of Evidence. Each state also has their own rules for the same purposes.

Substantive lawThe actual substance of the law or the merits of the claim, case, or action. refers to the actual substance of the law or the merits of the claim, case, or action. Substantive law embodies the ideas of legal rights and duties and is captured by our different sources of law, like statutes, the Constitution, or common law. Laws can have both procedural and substantive components, such as the requirement to read the Miranda warnings when a person is subject to custodial interrogation.

Another important classification is the difference between civil law and criminal law. (Be careful with this distinction. Civil law is also a term used to distinguish legal systems from the common law). Criminal law is law related to conduct that is prohibited by the government. Civil law is all law that is not criminal law. The differences between civil law and criminal law are many. In criminal law, the violation of law is an injury to the public. In civil law, the injury is understood to be suffered by the plaintiff. A criminal charge is prosecuted by the government, while a civil claim is pursued by a plaintiff. An attorney is provided in a criminal case if the defendant cannot afford one, but in a civil case, the plaintiff is responsible for providing their own attorney. In a criminal case, the burden of proof is beyond a reasonable doubt, but in a civil case, the burden of proof is merely by a preponderance of the evidence. Penalties for violating criminal law include possible incarceration or even loss of life. In civil law, however, incarceration and loss of life are never potential penalties. Most civil violations are redressed through monetary penalties.

Congress may not act outside of its enumerated powers. Many people wrongfully believe that Congress can do anything. That is simply not true. Look at Article I, Section 8, of the U.S. Constitution for the enumerated powers of Congress. Remember that any power not granted to the federal government by the U.S. Constitution is reserved to the states. This means that if Congress passed a law in an area that was actually reserved to the states to regulate, Congress would have acted outside the scope of its powers. If challenged, the law would be struck down as unconstitutional.

Notice that jurisdiction matters when thinking about law. Since all states are different jurisdictions from one another, they each have different legislative bodies. Unsurprisingly, then, many U.S. states have state statutes that are very different from each other. For instance, in Oregon, certain terminally ill patients may legally commit suicide under the state’s Death with Dignity Act. However, in many other states, such an act would be illegal.

Consider the underlying impetus for anything to “become law.” Often lobbyists are involved, or grassroots organizations that want to see the law changed. Sometimes charismatic lawmakers seem to single-handedly spearhead changes in law. But keep in mind that decisions about laws are not made in a vacuum. Lawmakers routinely seek out expert advice and information about the topics under consideration so that they can make the best decisions for their constituencies that they represent about any future change in law.

What might drive some changes in law? Science, or something else?

Common lawJudge-made law. is judge-made law. Common law is a feature of most countries previously colonized by Great Britain, where it originated. In continental Europe, an alternative system called civil lawA system of law in which only the legislature creates law. developed, where judges do not have the power to create law through interpretation. In civil-law jurisdictions, only the legislature may create law. (Do not be confused by the two different meanings of the term “civil law.” In common law jurisdictions, “civil law” simply means all law that is not criminal law.) A jurisdiction is an area where power may be exercised.

In a common law system, when an appellate court hears cases and writes opinions, rules of law are created, formed, and shaped. After a particular legal issue has been decided in a jurisdiction, there is a high probability that subsequent cases that present the same legal issue will use the same rule of law generated from already-decided cases regarding the same legal issue. This policy is known as stare decisis“Let what has already been decided stand.” It is the principle that courts should follow precedents., or “let the decision stand.” This is how precedentExisting interpretation of law, based on prior decisions. is formed, though precedents may shift or change over time. Precedents also may be entirely overturned, though that is rare. Precedents and stare decisis allow us to anticipate the behavior of others and to gauge the legality of our own actions. However, in some cases, the judge distinguishes the facts from prior cases so that precedents need not be followed. This is done when the facts at bar (that is, in the current case being decided) are sufficiently different from the facts in the prior case or cases that gave rise to the precedents.

Common law is an important source of law in those many areas that are reserved to the states to regulate. A state may exercise its police powersThe general power of states to regulate for the health, safety, morals, and welfare of the public. to regulate the safety, health, morals, and welfare of its citizens, for example. The laws implemented in these areas may give rise to laws in divergent areas, such as property law (e.g., zoning regulations), so-called vice lawsLaws targeted at regulating or prohibiting vice activities or businesses engaged in vice activities, such as gambling, sex work, the consumption of alcohol, and pornography. (e.g., restrictions on vice business activities in certain areas or during certain days), and domestic relations (e.g., laws relating to marriage and adoption). It’s also important to note that precedents vary among different jurisdictions because precedents created by one jurisdiction are not binding in other jurisdictions.

Administrative agencies may be created by the legislative or the executive branches of government. At the federal level they are often created by Congress, and at the state level they are often created through the state legislative bodies. Administrative agencies may be thought of as a delegation of congressional authority to area experts in particular fields so that those experts can engage in limited lawmaking, adjudicative procedures, and investigations within their particular purview. Laws created by administrative agencies are called rules or regulationsCreated by administrative agencies and have the force of law.. Administrative agencies are created by enabling legislationStatutes created by Congress to create individual administrative agencies., which sets forth the agencies’ jurisdictional boundaries, rule-making procedures, and other information relating to agencies’ scopes of power.