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TYPES OF LAW

The content of law may be categorized as substantive or procedural. Substantive law consists of rights, duties, and prohibitions administered by courts—which behaviors are to be allowed and which are prohibited (such as prohibition against murder or the sale of narcotics). Procedural law refers to rules concerning just how substantive laws are to be administered, enforced, changed, and used by players in the legal system (such as filing charges, selecting a jury, presenting evidence in court, or drawing up a will).

A distinction is also made between public law and private law. Public law is concerned with the structure of government, the duties and powers of officials, and the relationship between the individual and the state. Administrative law, constitutional law, and criminal law are all examples of public law. Private law is concerned with both substantive and procedural rules governing relationships between individuals (the law of torts or private injuries, contract, property, will, inheritance, marriage, divorce, adoption, and the like).

Another familiar distinction is between civil law and criminal law. Civil law, as private law, refers to rules and procedures governing the conduct of individuals in their relationships to others. Violations of civil statutes, called torts, are private wrongs for which the injured individual may seek redress in the courts for the harm he or she experienced. In most cases, some form of payment is required from the offender to compensate for the injury he or she has caused. Similarly, one company may be required to pay another a sum of money for failing to fulfill the terms of a business contract. The complainant firm is thus compensated for the loss it may have suffered from the other company’s neglect or incompetence. Criminal law is concerned with the definition of crime and the prosecution and penal treatment of offenders. Although a criminal act may cause harm to some individual, crimes are regarded as offenses against the state or “the people.” A crime is a public wrong rather than an individual or private wrong. It is the state, not the harmed individual, that takes action against the offender. Furthermore, the action taken by the state differs from that taken by the plaintiff in a civil case. For example, if the case involves a tort, or civil injury, compensation equivalent to the harm caused is levied. In the case of crime, some form of punishment is administered, including one or more of the following: a fine, probation, or incarceration. Occasionally, a criminal action may be followed up by a civil suit, such as in a sexual assault case in which the victim may seek financial compensation in addition to criminal sanctions.

A distinction is also made between civil law and common law. In this context, civil law refers to legal systems whose development was greatly influenced by Roman law, a collection of codes compiled in the Corpus Juris Civilis (Code Civil). Civil-law systems are codified systems, and the basic law is found in codes. These are statutes that are enacted by national parliaments. France is an example of a civil-law system. The civil code of France, which first appeared in 1804, is called the Code Napoleon and embodies the civil law of that country. By contrast, common law is based not on acts of parliament but rather on case law, which relies on precedents set by judges to decide a case (Bennion, 2009). Thus, it is “judge-made” law as distinguished from legislation or “enacted law.”

In the United States, law may be further divided into the following branches: constitutional law, case law, statutory law, executive orders, and administrative law. As noted earlier, constitutional law is a branch of public law. It determines the political organization of the state and its powers while also setting certain substantive and procedural limitations on the exercise of governing power. Constitutional law consists of the application of fundamental principles of law based on that document, as interpreted by the U.S. Supreme Court. Case law derives from the opinions ofjudges in cases decided in the appellate courts. Statutory law is legislated law—law made by legislatures. Executive orders are regulations issued by the executive branch of the government at the federal and state levels. Finally, administrative law is a body of law created by administrative agencies in the form of regulations, orders, and decisions. These various categories of laws will be discussed and illustrated later in the text.

 
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