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Chapter 1

BUL 4310 Chapter Notes - Chapter 1: American Law Institute, Statutory Law, Eye For An Eye


Department
Business Law
Course Code
BUL 4310
Professor
Philip Kabler
Chapter
1

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Business Law Robert Emerson
Chapter 1 Origin and Nature of Law
Law that which a judge will decide concerning matters properly brought before
him/her; any rule that society will enforce
Code in common law, a collection of statutes enacted by legislative bodies, including
Congress and state legislatures
Civil Law codified law based on the Romans; basis of legal system for almost all
European and Latin American nations
Common Law law as developed and pronounced by the courts in deciding cases (“case
law”)
lex talionis the law of retaliation (i.e. eye for an eye)
o Eventually became sanctioned by governments
o Law of damages is substituting monetary compensation for blood or retribution
Public law to proscribe kinds of behavior that society finds objectionable
o Constitutional, administrative, and criminal law
o Many forms of antitrust law, environmental law, labor law and securities
regulation
Private Law concerns an individual’s relationship with another relationship
Contract law governing agreements for disputes, a form of private law
Legal positivism vs. natural law
o Positivism command of a constituted political authority
o Natural higher law grounded in absolute moral rules
Schools of Jurisprudence
o Critical Legal Studies concepts to preserve the status quo while aiming for a just
decision-making process
Want more arbitrary, less malleable rules related to community values,
egalitarianism and actual fairness
o Historical School shaped by events, traditions and customs
o Law and Economics market efficient should be law’s primary focus
o Natural Law moral and ethics
o Positivism developed and enforced by governing authority
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o Utilitarianism greatest good for greatest number
Juries and contracts are assumed to be following public morality
Development of Civil Law (four landmark “codes”)
o Hammurabi (Babylonian, 1792-1750 B.C.) designed to promote “justice” but
based on lex talionis
o Solon (Athenian, 594 B.C.) established stable government operating under a
system of rules by consenting citizens who were equal under the law
o Justinian (Roman, A.D. 533) systemized civil law of Rome
o Napoleon (French, A.D. 1804) civil equality and jury trial
Civil Law
o Based primarily on Justinian and Napoleon codes
o Attempt to establish a body of rules in one systemized code, a single
comprehensive legislative enactment
o Case law (judicial decisions) are NOT a source of law
Common Law
o Disputes resolved on a case-by-case basis, binding arbiter of a dispute to the rule
elicited from the determination of an earlier, similar dispute
o The overall accumulation of judicial decisions, known as case law
o England has no written constitution
Precedent and Common Law
o Stare Decisis requirement that courts follow their own precedents (“stand by the
decision”); binds all lower courts of a jurisdiction to rulings by the highest court
Not absolute
o Congress can enact laws that modify the common law (statutes)
Equity and Common Law
o Equity system Norman kings created a system parallel to common law, but with
ultimate judicial responsibility going to the king
The “fair play” principles merged with common law in some regard (i.e. –
don’t delay filling, past behavior is considered)
Substantive Law and Procedural Law
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