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Lecture 1

01:790:340 Lecture 1: Law And Society Midterm - Final notes


Department
Political Science
Course Code
01:790:340
Professor
Jefferson Decker
Lecture
1

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Sources of Law January 21st, 2016
Sources of Law in the Ancient Mediterranean
Book of Exodus: Biblical story of the prophet Moses as the escape of the Hebrew
people from Egypt; part of what Christians call the “Old Testament” – the stuff that
happened before the birth of Jesus Christ
Tells the story of the Hebrews who are enslaved in Egypt under the pharaoh – eventually
escape through the Red Sea to find a new life
Key figure is Moses
Foundling babies, burning bushes, plagues, the parting of the Red Sea
Law-giving at the foot of Mt. Sinai
Commandments vs. Ordinances
How some laws were laid out after they cross the Red Sea and don’t know
what to do next + what to do with law
oThe 10 commandments – thou shalt not kill, honor thy mother and
father, thou shalt not steal…etc.
God gives the commandments to Moses and Moses gives the instructions to the people
then eventually the commandments get given.
God makes himself known to the people with smoke, fire, lightning, trumpets after the 3
days.
After the commandments, God talks about ordinances for the Hebrews.
The ordinances are specific punishments if you do something wrong/do what God tells
you not to do
Specific kinds of punishments that are meant to be meated out in the real world of
community/polity that is going to be set up once they find a permanent place to live
Sources of Law in Early-Modern England
Thomas Hobbes (1588-1679) Leviathan
Idea that law is a sort of “social contract”
Same reasoning imbues the founding documents of the United States
“In a state of nature, we are all free- but also we are always at war with one
another.”
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oNasty, brutish, and short. We don’t have a government that runs a
society that tells us what to do and what not to do. No social institutions
to mediate the natural tendencies of human beings
oWe need a sovereign power…
oWe have ultimate freedom in the state of nature but it is a very bad thing
for us because we kill until we are killed
To survive and prosper, people need to contract away some of that freedom for
the sake of the “common-wealth.”
oPlace the power to maintain order and defend the realm from foreign
enemies in the hands of one man or one council
Leviathan single unity made up of all the people
Giant king in the picture that is made up of all the people
in the common-wealth  join together and listen to the
laws that are being enforced
Bees and Ants get along harmoniously! They are living in a state of nature and
they, naturally, without any ability to communicate, they seem to get along just
fine. Why can’t people be like that?
oHobbes says people aren’t as awesome of creatures as bees. We have
reason and rationality that makes it prone to emotions like jealousy and
desire to be leaders/dominate the other people in society. We don’t get
along like bees in a hive.
Knowing that ultimate freedom doesn’t work, we need to find someone to be obedient to.
We choose to sacrifice some of our freedoms for safety. We transfer some kind of
power/authority to somebody else
Pledge obedience to laws of the land that are out there
Create a power above all of us that makes up all of us
Law comes from an establishment of a social contract made by the people and the
sovereign. The people have obligations to obey and the sovereign has the obligations to
keep the commonwealth out of harms way
Sovereign establishes order and protects the people
Law comes from an exercise in reason. People realizing that they are much better off
with a government than without. People realizing/reasoning they are much better off
surrendering some of their freedom to have a longer/less brutish life. (as opposed to
Mount Sinai)
Divine right of kings political/religious doctrine of royal and political legitimacy
Exodus = origins of law in stories about divine revelation. Law is legitimate because God
gave us the laws in the middle of a performance of terrifying divine power.
Hobbes = origins of law in stories about a social contract. Law is legitimate because, if
we thought about it rationally, the alternative would be far worse.
He’s writing through a civil war. Need to prove why we need to still trust a king. The
bloody civil war is proof of what could happen…
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The Common Law + Alternatives January 26th, 2016
Common Law Legal Systems
US employs something called a common law legal system.
Common law systems used primarily in Britain and its English-speaking
former colonies  every sort of society that isn’t a completely failed state has
some kind of means of laying out rules/regulations of how to behave
oDifferent ways of doing this.
oThis can mean that different set of kind of legal institutions and
different roles of court personnel in the court room. Judges, lawyers,
and other figures in the legal process have different institutional roles in
the US than they do in other countries
oA way of thinking about law/solving disputes that arise between people
De-naturalize the US legal system…
Reasoning under the common law…
System originated in the 11th century, when King William the Conqueror tried
to assert his authority over his conquest by setting up his own courts
oA kind of invention in England to solve a particular historical problem
in governance a long time ago.
oWilliam has a problem. He is trying to rule a bunch of people that have
been there for awhile and have different linguistic/cultural barriers. One
of the ways he tries to gradually assert his power over England is by
setting up courts.
Set up courts around the realm in England that are staffed
appointed by the king. Sets up an elaborate system where if
people have a complaint/problem/unable to resolve it in a
previous local country court they can set something up with the
king
Binding the people to him. Get permission from the king
to fix their problem  Clever way/soft power
Process of state-formation where you gradually over time
create a bureaucracy as a kind of unity
Judges not only decide cases but explain their reasoning, through “commentaries” and
then written opinions  those opinions then form the “precedent” that other judges use
to help decide future cases and lawyers read to understand the law
The collection of commentaries and previous decisions that common law judges have
produced…the opinions form something that is called precedent (decisions that precede
the case at hand that can guide judges on how best to solve it)
When a judge in a common law legal system needs to decide a case with a complicated
principle, judges don’t look in some kind of code book/rule book on how to dispose of a
case like this. They go to past precedence what did past judges say with subsequent
similar facts and how did they solve it
Logic and reasoning by example/looking to what other judges did in similar situations
with similar issues
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