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Summary Of Law Essay, Research Paper

Summary of law:

Rules

By, or for, society

Opposite of anarchy

Provide benefits (stability, fairness, protection)

Common will or elite design

Enforced by coercion (punishment)

Allocates resources

Is a special process

Involves certain people to carry it out

Weber Law

Law is a set of rules

Laws are punishable; they can be enforced through coercion

Laws are enforced by persons assigned to this job

Laws are given consistency and predictability through courts

Rational Law

What weber s definition is know as

Man made law as a tool for governing self

The rules we live under and by

What if we disagree with the law?

You can disagree, but obey

You can disagree and not follow the law because it violates higher principles, or NATURAL laws

Natural law traits

Consist of basic, universal principles regarding human behavrio

Principles rest on morality (can be religious)

Generally agreed upon consensus

Higher than manmade law; does not depend upon a gov t for it legitimacy

Still involved anytime somebody violates Rational Law

Anti abortion trespassers

Civil rights protesters marched, even with judicial order against it

Those that harbored fugitive slaves

Rational law tradition (2 systems)

Civil law (continental europe)

Foundation of law is a written code

Judges decide based on code

Common law (us and england)

Was unwritten and depeneded on precedent and tradition. Cases ought to be decided the way similar cases had been decided in the past

In old england, the unwritten decisions were passed down from judge to judge

America introduces codifcation to COMMON LAQ

Writing the law down lets more people read and know the law

Codification makes a map to decide issues of law

Map is good guide but it doesn t deal with every contingency

Process of legal reasoning (3 steps)

1. find a case similar to the one you have

2. find what rules of law was in the case

3. apply that rule of law to present case

State vs Pendergrass (1837) NC criminal case

Assault and battery

Schoolteacher whipped a student with a switch

Decision

Authority of the teacher equals the authority of a parent

Parents have power to correct kids behavior with moderate physical correction

Teachers may administer moderate correction

MODERATE CORRECTION= cannot result in permanent injury and the teacher cannot use authority to cover malice

Joyner vs Joyner (1862)

Mrs joyner wants to divorce her husband

Husband whipped, switched, and verbally abused his wife

Decision

What were the circumstances of the punishment

The wife must be subject to her husband

Every man must govern his household

Look to genesis in the bible to see how a man must act

Law gives power to the husband over the wife

COVERTURE a doctrine over women at the time of the decision.

Feme sole- applied to a wowan on her own

Femme covert- applied to a married woman

COVERTURE says that a husband and a wife are united as on in marriage and the only one existing for legal purposes is the man

State vs Black 1864

Wife commit quarrel with the husband

Hsuband pulls wife to the floor but restrains himself and does not strike her

Decision

Law will not invade the domestic forum or go behind the curtain.

State vs Rhodes 1868

Assault and battery the husband strikes 3 blows with a switch the size of his fingers

Decision

If the subject had not been the wife, the incident would have been batter without a ???

Court ssaid it was not exactly like BLACK since the husband was provoked in BLACK

Permanent injury is still wrong

A moderate correction that does not produce permanent pain or injury is ok. It no longer must be determined if malice is a factor or not.

State v marbry 1870

Man threatens his wife with a knife and attempts to strike her with it. She gets away and no permanent ijury is incurred.

Decision

Permanent pain and injury stands as precedent

In this case, the husband tried to stab his wife so he should be guilty

Precedent is 2 faced. If precedent is supportive, a lawyer binds self to the precedent. If the precedent is contrary, the lawyer makes the argument that it doesn t apply because the current instance is different.

State v Oliver 1874

Intoxicated husband threatens to whip his wife and whips her hard

He is found guilty (there were witnesses, one of which had to restrain the husband) but appeals

Decision

All of the old cases were decided properly

How can a man assault his wife without malice or cruelty present

The conviction stands

The precedent is held, but seen in a new light

PRECEDENT

Legal system is conservative and rooted in the past

The system is not static. It is ever changing

Precedent is a framework and therefore limiting.

Arguments are made based on precedent

It sets the situation into the alternative universe of the law

The Nature of law and values

Professionalism and Values

Lawyers are bound to the rules of their profession

Ideally, personal and professional values are the same.

Realistically, this is impossible

What happens when they conflict?

Rules of professionalism are supposed to take priority

Reading

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