LEGL 215 Lecture Notes - Lecture 1: Procedural Law, Substantive Law, Syllogism
43 views4 pages
Key points - Ch. 1 Introduction to law and legal reasoning
NATURAL LAW AND POSITIVE LAW
Natural Law: A system of universal moral and ethical principles that are inherent in human
nature and that people can discover by using their natural intelligence (e.g.
, murder is wrong;
parents are responsible for the acts of their minor children).
Positive Law: The conventional, or written, law of a particular society at a particular point in
, the U.S. Constitution, the Texas Securities Act, the Internal Revenue Code, and
published judicial decisions).
Jurisprudence: The study of different schools of legal philosophy and how each can affect
judicial decision making.
Natural Law Theory presupposes that positive law derives its legitimacy from natural law
and holds that, to the extent that natural law and positive law differ, natural law must prevail.
Legal Positivism holds that there is no higher law than that created by legitimate
governments and that such laws must be obeyed, even if they appear unjust or otherwise at
odds with natural law.
The Historical School emphasizes the evolutionary process of law by concentrating on the
origin and history of a legal system and holds that law derives its legitimacy and authority
through the test of time.
Legal Realism contends that positive law cannot be applied in the abstract; rather, judges
should take into account the specific circumstances of each case, as well as economic and
The Sociological School views law as a tool for promoting social justice.
PRIMARY SOURCES OF AMERICAN LAW
There are four primary sources of domestic law:
(1) Constitutions, setting forth the fundamental rights of the people living within the United
States or a given state, describing and empowering the various branches of government,
and prescribing limitations on that power;
(2) Statutes, enacted by Congress or the legislature of a given state and ordinances
adopted by a given locality; A given state statute may be based on a uniform law (e.g.
Uniform Commercial Code) or on a model act (e.g.
, the Model Business Corporations Act).
However, each state is free to depart from the uniform law or model act as it sees fit.
(3) Administrative Rules and Regulations promulgated by federal, state, and local
(4) Common law, the body of judicial decisions that interpret and enforce any of the
foregoing as well as those relationships among individuals or between individuals and their
society which are not subject to constitutional, statutory, or administrative law.