Chapter One:An Introduction to Law

Law is pervasive. It interacts with and influences the political, economic, and social systems of every civilized society. It permits, forbids, or regulates practically every known human activity and affects all persons either directly or indirectly. Law is, in part, prohibitory:certain acts must not be committed. Law is also partly mandatory:certain acts must be done or be done in a prescribed way. Finally, law is permissive:individuals may choose to perform or not to perform certain acts.

1. DEFINITION OF LAW

A fundamental but difficult question regarding law is this:what is it? Numerous philosophers and jurists（legal scholars）have attempt ed to define it. American jurists and Supreme Court Justices Oliver Wendell Holmes and Benjamin Cardozo defined law as predictions of the way that a court will decide specific legal questions. William Blackstone, an English jurist, on the other hand, defined law as“a rule of civil conduct prescribed by the supreme power in a state, com manding what is right, and prohibiting what is wrong”.

2. FUNCTIONS OF LAW

At a general level the primary function of law is to maintain stability in the social, political, and economic system while simultaneously permitting change. The law accomplishes this basic function by performing a number of specific functions, among them dispute resolution, protection of property, and preservation of the state.

Therefore, a second crucial function of law is to protect the owner's use of property and to facilitate voluntary agreements（called contracts）regarding exchanges of property and services. Accordingly, a significant portion of law, as well as this text, involves property and its disposition, including the law of property, contracts, sales, commercial paper, and business associations. A third essential function of the law is preservation of the state. In our system, law ensures that changes in leadership and the political structure are brought about by political actions such as elections, legislation, and referenda, rather than by revolution, sedition, and rebellion.

3. CLASSIFICATION OF LAW

Because the subject is vast, classifying the law into categories is helpful. Though a number of classifications are possible, the most useful categories are（1）common law and civil law, （2）substantive and procedural, （3）public and private, and（4）civil and criminal Basic to understanding these classifications are the terms right and duty. A right is the capacity of a person, with the aid of the law, to require an-other person or persons to perform, or to refrain from performing, a certain act. Duty and right are correlatives:no right can rest upon one person without a corresponding duty resting upon some other person or, in some cases, upon all other persons.

（1）common law and civil law

In this particular juxtaposition, these terms are used to distinguish two distinct legal systems and approaches to law. The use of the term‘common law'in this context refers to all those legal systems which have adopted the historic English legal system. Foremost amongst these is, of course, the US, but many other Commonwealth, and former Commonwealth, countries retain a common law system. The term‘civil law'refers to those other jurisdictions which have adopted the European continental system of law, which is derived essentially from ancient Roman law but owes much to the Germanic tradition.

The usual distinction to be made between the two systems is that the former, the common law system, tends to be case centred and, hence, judge centred, allowing scope for a discretionary, ad hoc, pragmatic approach to the particular problems that appear before the courts; whereas the latter, the civil law system, tends to be a codified body of general abstract principles which control the exercise of judicial discretion. In reality, both of these views are extremes, with the former overemphasising the extent to which the common law judge can impose his discretion and the latter underestimating the extent to which continental judges have the power to exercise judicial discre tion. It is perhaps worth mentioning at this point that the European Court of Justice（ECJ）, which was established, in theory, on civil law principles, is in practice increasingly recognising the benefits of establishing a body of case law.

（2）substantive and procedural law

Substantive law creates, defines, and regulates legal rights and duties. Thus, the rules of contract law that determine when a binding contract is formed are rules of substantive law. This book is principally concerned with substantive law. On the other hand, procedural law establishes the rules for enforcing those rights that exist by reason of substantive law. Thus, procedural law defines the method by which one may obtain a remedy in court.

（3）public and private law

Public law is the branch of substantive law that deals with the government's rights and powers in its political or sovereign capacity and in its relation to individuals or groups. Public law consists of constitutional, administrative, and criminal law. Private law is that part of substantive law governing individuals and legal entities（such as corporations）in their relations with one another. Business law is primarily private law.

FIGURE 1:Classification of Law

（4）civil and criminal law

The civil law defines duties the violation of which constitutes a wrong against the party injured by the violation. In contrast, the criminal law establishes duties the violation of which is a wrong against the whole community. Civil law is a part of private law, whereas criminal law is a part of public law（The term civil law should be distinguished from the concept of a civil law system）.

In a civil action, the injured party sues to recover compensation for the damage and injury he has sustained as a result of the defendant's wrongful conduct. The party bringing a civil action（the plaintiff）has the burden of proof, which he must sustain by a preponderance（greater weight）of the evidence. Whereas the purpose of criminal law is to punish the wrongdoer, the purpose of civil law is to compensate the injured party. The principal forms of relief the civil law provides are a judgment for money damages and a decree ordering the defendant to perform a specified act or to desist from specified conduct.

A crime is any act or omission that public law prohibits in the interest of protecting the public and that the government makes punishable in a judicial proceeding brought（prosecuted）by it. The government must prove criminal guilt beyond a reasonable doubt, which is a significantly higher burden of proof than that required in a civil action. The government prohibits and punishes crimes upon the ground of public policy, which may include the safeguarding of the government itself, human life, or private property. Additional purposes of criminal law include deterrence and rehabilitation.

FIGURE 2:Comparison of Civil and Criminal Law

Case Study

Kuehn v. Pub Zone

（SUPERIOR COURT OF NEW JERSEY, APPELLATE

DIVISION,2003）

Facts:Maria Kerkoulas owned the Pub Zone bar. She knew that several motorcycle gangs frequently visited the tavern. From her own experience, she knew that some of the gangs, including the Pagans，were dangerous and liked to attack customers for no reason. Kerkoulas posted a sign prohibiting any motorcycle gangs from entering the bar while wearing“colors”; that is, insignia of their gangs. She believed that gangs without their colors were less likely to violence, and experience proved her right.

Rhino, Backdraft, and several other Pagans, all wearing colors, pushed their way past the tavern's bouncer and approached the bar. Although Kerkoulas saw their colors, she allowed them to stay for one drink. They later moved towards the back of the pub, and Kerkoulas believed they were leaving. In fact, they followed a customer named Karl Kuehn to the men's room, where, without any provocation, they savagely beat him. Kuehn was knocked unconscious and suffered numerous fractures of facial bones. He was forced to undergo various surgeries.

Kuehn sued the Pub Zone. The jury awarded him $300,000 in damages. However, the trial court judge overruled the jury's verdict. He granted a judgment for the Pub Zone, meaning that the tavern owed nothing. The judge ruled that the pub's owner could not have foreseen the attack on Kuehn and had no duty to protect him from an outlaw motorcycle gang. Kuehn appealed, and the appeals court's decision follows：

Issue:Did the Pub Zone have a duty to protect Kuehn from the Pagans'attack?

Decision:Yes, the Pub Zone had a duty to protect Kuehn. The decision is reversed, and the jury's verdict is reinstated.

Reasoning:Whether a duty exists depends on the foreseeability of the harm, its potential severity, and the defendant's ability to prevent the injury. A court should also evaluate society's interest in the dispute.

A business owner generally has no duty to protect a customer from acts of a third party unless experience suggests that there is danger. However, if the owner could in fact foresee injury, she is obligated to take reasonable safety precautions.

Kerkoulas knew that the Pagans engaged in random violence. She realized that when gang members entered the pub, they endangered her customers. That is why she prohibited bikers from wearing their colors-a reasonable rule. Regrettably, the pub failed to enforce the rule. Pagans were allowed to enter wearing their colors, and the pub did not call the police. The pub's behavior was unreasonable and it is liable to Kuehn.

Exercise one:choose the right answers.

The case is called Kuehn v. Pub Zone. Karl Kuehn is the（defendant/plaintiff）, the person who is suing. The Pub Zone is being sued, and is called the（defendant/plaintiff）. In this example, the plaintiff's name happens to appear first, but that is not always true. When a defendant（loses/wins）a trial and files an appeal, some courts reverse the names of the parties for the appeal case.

The Facts section provides a background to the lawsuit. Lawsuits always begin in（a trial court/a court of appeal）. The（losing/winning） party often appeals to（a court of appeals/trial court）. The trial judge ruled in favor of Pub Zone, but in the appellate decision, Kuehn won.

Issue section is very important. It tells you what the court had to decide-and why you are reading the case.

The Decision section describes the court's answer to the issue. A court's decision is often referred to as its holding. The court rules that the Pub Zone did have a duty to Kuehn. The court（reverses/reinstates）the trial court's decision, meaning it declares the lower court's ruling wrong and void. The judges（reinstate/reverse）the jury's verdict. In other cases, an appellate court may（remand/reverse）the case; that is, send it back down to the lower court for a new trial or some other action. If this court had agreed with the trial court's decision, the judges would have（affirmed/reversed）the lower court's ruling, meaning to uphold it.

Exercise two:MATCHING QUESTIONS

Match the following terms with their definitions.

___A. Statute

___B. Administrative agencies

___C. Common law

___D. Stare decisis

___E. United States Constitution

1. Law created by judges.

2. Let the decision stand.

3. A law passed by Congress or a state legislature.

4. The supreme law of the land.

5. The IRS; the FCC; the FTC.

Exercise three:TRUE/FALSE QUESTIONS

1. T F The idea that current cases must be decided based on earlier cases is called legal positivism.

2. T F Civil lawsuits are brought to court by the injured party, but criminal cases must be prosecuted by the government.

3. T F Congress established the federal government by passing a series of statutes.

4. T F The federal government has three branches:executive, legislative, and administrative.

5. T F Law is diff erent from morality, but the two are closely linked.