CHAPTER 1 Critical Legal Thinking and the U.S. Constitution

Law - A Definition

Sources of Law

Trial by Ordeal

When Moses stood on Mount Sinai and received a body of law contained in the Torah (the Bible,or the Old Testament), its origins were clear to all who accepted its mandates. Even so, the Bible relates that Moses and the divine code of law he attempted to enforce encountered stiff opposition on a number of occasions. Thus it is understandable how law from less lofty origins can be ignored, opposed, and violated.

Law & Justice,

By Howard Abadinsky

I. LAW - a definition:

Difficult to define.

Lawyers and judges: What they practice and what

courts do.

Immanuel Kant (1724-1804) Faulted lawyers for

being unable to agree on

definition of the subject matter of

their profession.

Kant proceeded to construct his own definition, which was not universally accepted

Society is possible only on the basis of order and law

can be conceived of as simply a body of rules

governing a social order.

BUT - at what point do social rules and customs, the

norms of society, become LAW

Law appears to have four components:

1. norms

2. regularly enforced by coercion

3. by persons authorized by society

4. as stipulated by courts of law

Top

A. SOURCES OF LAW

1. Natural Law (the law of nature) Binding on all

human societies.

a. Greece, 4th century BC or BCE. Discovered that

societies which could not easily be dismissed

as primitive cherished different and even

conflicting customs. And the search was on for

universal principals of conduct, based upon

human nature, that might underlie the variety of

customs and serve as a criteria for their

assessment.

b. Rome, Christian framework (Thomas Aquinas

(1225-1274), William Blackstone (1723-1780)

and the Bill of Rights (1791).

2. Rational Law A system of modern or rational law

involves the application of general principles to

specific facts

Western society uses two basic systems for

implementing a system of rational law: the

common law and civil law.

a. The Common Law1066 Conquest of Anglo-Saxons

by the Normans 1086 A census throughout the

realm to make a record of the names of towns,

number of persons, cattle, and houses as well as

the customs and norms of the population.

(Doomsday Book)

Gradually the Norman kings fashioned these

local customs into a single body of general

principles.

Juries

Writs and Orders

Common law notion that a judicial decision

serves a dual function:

(1) res judicata (final conclusive judgment)

(2) stare decisis et non quieta movere

"stand by the decision and do not disturb

what is settled"

Remedies

b. Equity A concern for fairness. It is not enough to

act in accord with the letter of the law, one must

also act fairly. Petition the King, asking him to

intercede in the name of justice on behalf of a

petitioner.

Referred to king's chancellor, a combination

executive secretary and chief of staff. He was

usually an educated clergyman with a staff of

scribes. "Keeper of the king's conscience."

Chancery courts or courts of equity

No juries

Maxims Chancellor's decisions were often

contrary to law

Difficult to predict

16th century - decisions began to be

published

18th century - as much fixed by

decisions and as much formed into

technical legal rules as the rules of the

common law.

Remedies

c. Courts of Law and Courts of Equity in the United

States. U.S. Constitution (Article III, Section 2 -

federal judicial has power to hear cases arising

both in law and in equity.

Top

II. TRIAL BY ORDEAL The ordeal is a primitive

form of trial used to determine the guilt or

innocence of the accused, the result being

regarded as a divine or preterhuman judgment.

It is a device for regulating the primitive law of

force, under conditions of comparative fairness.

The concept that victory would inure to the right

was a belief that was subsequently engrafted to

the concept of the ordeal.

divine intervention

earliest - wagers of battle or other bilateral

ordeals

later - man, alleging innocence and facing his

creator on trial by ordeal

Tremendous impact of religion on the daily lives

of the people who rely on it. Without

understanding the belief of divine intervention

seen and believed as punishing the guilty and

vindicating the innocent, the concept of trial by

ordeal cannot be understood in terms of justice.

a. Ordeals by Fire and Heat

boiling water

red-hot iron

ploughshares

b. Ordeals by Water and the association of innocence

with lightness.

c. Ordeal by Direct Appeal to God

Ordeal of the cross

Top