Sources of Law - Essay Example

Sources of Law Introduction The law is a set of rules that are prescribed or formulated by a controlling ity, and that has a binding force. It is the control brought about by the enforcement of the law. It is said by Bastiat that the purpose of law is not to promote justice, but to prevent injustice from happening (qtd. in Connelly). It does this by force. The sovereign of the nation or ruler is the one who makes the law with the intention to protect his, her, or their lives, rights, liberty, and property. In countries such as England, which has a monarchy system of government, the law is made by the King. For the Unites States of America, as a democracy, the sovereignty is with the people. Since everyone in the US is equal under the law and that we all have an inviolable right to contract, the Constitution was used as a tool that allowed the citizens to come together to exercise their sovereignty and right to contract to delegate only limited and specific power an authority to the Federal Government. In effect, whatever the Federal Government does that is against the constitution is unlawful because the authority of the Federal Government comes from the Constitution, which makes the people the main sovereign of the United States. Aside from the Constitution, there are many other sources of Law in the American legal system. This essay aims to identify and differentiate the different sources of law (Johnson). Legislative Law Legislative law is a general rule that is said verbally to be enacted by a lawmaking body such as the Congress. This explains what is required, permitted, or prohibited behavior before the action is made. The United States Constitution is a Legislative law. It also includes the constitutions of each state, and the federal and state civil and criminal statutes and regulations. The term legislature actually means any form of law making, but in this case only means this particular way of law making (Connelly). Constitution. This is the written tool that is created by the people of the United States or of a specific state as the absolute rule for all actions and decisions from all departments and officers of the government with regard to everything covered by the constitution. The constitution controls these things until it is changed through amendment by the authority that created it, and to oppose any act or ordinance of that department or officer is invalid. This is the main source of the US federal and state government, and it identifies the rights of individuals concerning the state, and in the constitution, the relationship between the federal government and the state. It is usually written general language with small specificity to allow lawmakers to create laws within the parameters governed by the constitution. These last through generations of the country’s lifespan and are difficult to amend. To achieve this, 75% of the state legislatures have to agree to the amendment (Connelly). Statutes. These are formal written enactments. It can be made by the federal, state, city, or county legislative body. These are more specific than the Constitution and are created to solve a big problem. There are two kinds of statutes: either civil or criminal. These can be amended through the same process that created it, making it easier to repeal it than a Constitution (Connelly). Regulations. A regulation is used to implement policies used in a statute. This is an order with the force of the law created or issued by the executive authority of government. It is otherwise known as an executive order. These are issued by executive branches to serve as guidelines to the actions and decisions of the agency and its employees, and to make sure everyone follows the law. The legislative body gives the executive agency authority to create and enforce regulations by providing an enabling statute (Connelly). Judge or Court made Law: Common Law or Case Law These are decisions made by courts in particular and specific cases. It comes from specific facts that are used by the court to resolve disputes between parties involved. Usually, judges make these laws from interpretations of rulings based in similar cases done in the past. These earlier similar cases serve as a guide as to how to resolve the current case or the legal action to be taken in the individual case. These prior, similar cases are called the precedent. The decisions made in the precedent are used to infer a rule. This means that a court is required to follow the precedent created by the same or a higher court in the same jurisdiction with very similar material facts. This is called binding authority. Essentially, it means that cases that are alike are treated alike to create consistency and stability in the law. The court of appeals consists of any court that takes in appeals from decisions coming from trial courts or lower appeal courts. They have a twofold job of either authoritatively settling the current controversy it is judging (res judicata), and as precedent. In case there are facts that differ from the precedent in which it could lead to a different outcome, the court can distinguish the current case from the precedent. This can lead to a creation of new rules. Higher courts of appeals such as the U. S. Court of Appeals and the U. S. Supreme Court can also overrule cases. When this happens, the previous case’s decision in settling that controversy is not affected, but it can no longer be used as an authoritative precedent.The court of appeals can also reverse the judgment of a lower court if it reached a wrong decision. If there is no precedent, decisions from other jurisdictions can be used as persuasive authority, but are not considered to be binding authority on the court (Connelly). Other Sources of Law Depending on the place, there are many other possible sources of law that have varying power and weight in a court. Writings from legal scholars, academic writings, interpretations of legislation, edicts from a monarch, and even Laws from religion can be a source of law (Johnson). One example of another source of law is the Sharia law. This is derived from the teachings found in the Qu’ran, which is the Muslim holy book, and Sunna, which is the Islamic culture and practice taken from the life of the Prophet Mohammed. The Sharia law exists and is practiced because there is no separation of the Church and the State under Islamic law (Johnson). In Sharia, there are categories of offenses. These are the offenses that have a specific punishment according to the Qu’ran called hadd punishments, those that are resolved by a judge’s decision, and those resolved with something similar to the saying an eye for an eye, a tooth for a tooth. The five hadd crimes are: unlawful sexual intercourse (premarital and adulterous sex), falsely accusing someone of unlawful sexual intercourse, wine drinking (and other forms of alcohol), theft, and highway robbery. The traditional punishments for these are flogging, stoning, amputation, exile, and execution. Many Muslim countries do not really resort to these punishments anymore, favoring lesser penalties as sufficient. The sharia law is followed in varying extents in different Muslim nations. Some adopt dual governments while others utilize Governments under God which follow more of the Sharia than other sources of Law. Some countries such as Azerbaijan, Tajikistan, Chad, Somalia and Senegal have completely secularized their constitutions with the sharia only influencing the local customs (Johnson). Works Cited Connelly, Allison. “The sources of the Law.” University of Kentucky College of Law. UK College of Law, n. d. Web. 21 Nov 2012. . Johnson, Toni. “Islam: Governing under Sharia.” Council on Foreign Relations. Council on Foreign Relations, 24 Oct 2011. Web. 21 Nov 2012. . Read More