Fundamentals of Criminology
Adam J. McKee, Ph.D.
Scott D. Bransford, Ph.D.
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Sources and Characteristics of the Law
The United States is a common law country. This means (among other things) that the laws of the United States are not presented in the form of static legal codes. Rather, they are an evolving body of law based in large part on the doctrines set forth by judges. This judge made law is presented in the cases that these judges decide. A salient feature of this system is that the law can change and adapt as old doctrines are applied to new factual situations as society changes over time.
Another salient feature of American law is the governmental system of dual federalism. Dual federalism refers to the fact that there are two levels of government: There is one complete system of government at the Federal level, and another complete system of government at the state level. This means that both levels of government have separate and distinct legal systems. There are some points where federal authorities have oversight in state law and legal practice, which can complicate the task of conducting legal research.
The dual court system in the United States is not equal in authority or workload. The vast majority of criminal cases (around 95% of them) are prosecuted in state courts. Some counties in the United States prosecute more cases in any given year than the entire federal court system.
There are several basic tasks common to all legal research projects, whether you are conducting research to answer a practice questions, to aid in the prosecution of a case, or to write an academic paper. The legal research process includes four basic steps:
1. identify the factual question
2. find law that applies to the question
3. analyze the law
4. communicate findings
Success in this process requires that you know the major sources of law (both primary and secondary), and how to find those sources. This text takes the unusual approach of assuming that you will not have access to a law library, and that you will be using online subscription services (such as LexisNexis) and supplemented with free Internet services. The major focus of legal research (and thus this text) is finding the law.
Throughout the process of learning to conduct legal research, you must also develop a competent legal vocabulary. As with any profession, law has its own jargon and terms of art. To understand the law once you find it, you need to be able to read and comprehend it. This requires a commitment to not only learn the process of legal research, but the special language that goes along with it. If you neglect this critical task, you will not become a competent legal researcher. Because of our common law tradition, many legal phrases are of Latin origin. This means that they will not be familiar terms; you must make the extra effort to commit these to memory. Perhaps more problematic for some students is the fact that legal documents tend to use everyday words in very special ways. Take care to note these special meanings that words take on in the legal context. One of the first legal research tools that you should master is the legal dictionary. There are many different versions of these, and several good ones are available online free.
It is important to realize that no single person knows the law. Paralegals, lawyers, and judges must know basic legal principles to do their jobs, but the law is far too dynamic and expansive to ever really know. What these professionals have in common is an ability to find the law that they need, to analyze it, and to apply it to factual situations.
Section 1.1: Sources and Characteristics of the Law
As previously discussed, dual federalism means that there are two distinct legal systems in the United States. There is a federal system complete with an executive branch that enforces the federal laws, a judicial branch that interprets the federal laws, and a legislative branch that makes the federal laws. Of course, in any common law jurisdiction, appellate judges play a large role in making laws as well. The government of every state mirrors these roles and processes. This means that to be a competent legal researcher, you must be able to navigate the myriad legal documents that both of these levels of government entities produce. In other words, you must learn to research the laws of the United States, as well as those of your individual state. There are no legal resources that cover all laws. You will need to master a separate set of resources to conduct legal research at each level of government.
No matter whether you are researching federal law or state law, you will note some important similarities that are common to the federal legal system and that of every state. These distinct legal systems are often referred to a parallel because they operate distinctly, but in very similar (sometimes overlapping) ways. Each of these systems derives its law from four basic sources: Constitutions provide the supreme law of the land. In addition, there are legislative enactments (statutes), administrative rules and regulations, and judicial decisions (case law).
Remember that where a conflict occurs between state and federal law, federal law prevails. This is because of the Supremacy Clause of the United States Constitution. Article VI of the federal Constitution states that: “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof…shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary not-withstanding.” When a state legislature passes a law that clashes with the Constitution, the U. S. Supreme Court has the power to declare that state law unconstitutional; this power is often referred to as the power of judicial review.
Each state and the federal government are founded in a singular document referred to as a constitution. The basic purpose of a constitution is to create and define the roles of government, and circumscribe the relationship of those governments with the people that they serve. The federal constitution establishes the federal government; it also establishes the powers and limits on those powers of the federal government in relation to the people. As a rule, the federal constitution only applies to the federal government. There are some very important exceptions, however, that apply federal constitutional principles to the states. From the legal researcher’s perspective, constitutions can be found in numerous places. They are usually published with the legal codes. For general research purposes, annotated constitutions can be valuable resources.
Perhaps the most important statement of the rights of the people in the United States is the Bill of Rights, a name given to the first ten Amendments to the Constitution. Because the Amendments were written after the main text of the document were drafted, there are always presented at the end of the document. The constitution begins with a statement of purpose known as the preamble, and the body of the constitution is usually referred to as the articles. It is important to understand the formatting of the constitution because legal materials will use a specific language when pointing to particular passages of the Constitution. The highest level of organization is the individual articles. These are usually set off in Roman numerals. The next level of heading are the sections. The sections are set off in the usual numbering system (1, 2, 3 and so forth). One article may have several sections. Each statement of particulars within a section is referred to as a clause. Think of amendments as additions to the constitution. The only method of changing the constitution of the United States is by amendment, so some amendments serve to change clauses in the original document.
Because of its fundamental importance to American law and government, the Constitution is published in many places. Importantly, it is published with the United States Code. This is important to the legal researcher because the Constitution is indexed with the Code. This allows the researcher to easily locate provisions of the Constitution by topic. In addition to the useful index feature, the published Constitution is annotated. This means that the editors have provided useful content for the researcher, such as references to cases that have interpreted particular clauses.
Legal researchers must remember that each state has a Constitution. In matters of state law, the state’s constitution will be the controlling source of law. Many civil liberties are guaranteed by both eh federal and state constitutions. As a matter of law, states can extend these protections beyond that which is required by the federal constitution. Most states will have constitutions published in several sources, just as the United States Constitution is. It is a good idea to locate an annotated constitution for your state. Most electronic databases will make these resources available for all states. This feature is also valuable for comparative research.
Blue Book: Citing the Constitution
To cite an Amendment to the Constitution of the United States, begin with the abbreviation “U.S. CONST.” Use the abbreviation “amend.” for the Amendment, and follow it with the number of the Amendment in Roman Numerals. Follow this with the section symbol, followed by the section number.
Example: U.S. CONST. amend. XIV, § 2.
To cite a particular article from the main body of the Constitution, begin with the abbreviation “U.S. CONST.” Follow that by the abbreviation “art.” followed by the article number expressed as a Roman numeral. Following this (separated by a comma) comes the section symbol followed by the section number. The final element is the abbreviation “cl.” for clause, followed by the particular clause being referenced.
Example: U.S. CONST. art. I, § 9, cl. 2.
Statutes result from legislative action. The exact process of a bill being proposed and enacted into law varies from jurisdiction to jurisdiction, but the results are very similar. Most statutes are organized by subject after passage by the legislature, resulting in a legal code. For this reason, statutory law is often referred to as code law. The Code for the United States is aptly named the United States Code (Abbreviated and cited as U.S.C.). Codes represent all of the laws passed by Congress and the legislatures of the various states. Specific subject areas within the code are referred to as that subject plus the word code. For example, the section of the code that deals with crimes is often referred to as the criminal code.
A primary difference between statutes and case law is that statutes are more generic; they were not designed to answer a specific legal question raised in an actual legal dispute. At the federal level, the United States Congress makes laws. Terms of Congress last for two years, and each term is given a number. For example, the 113th Congress of the United States ended its term in January of 2015. The congress is composed of two houses, the House of Representatives and the United States Senate. So the 113th Congress was established by elections to those two houses in 2012. A major purpose of each successive Congress is to pass new legislation.
All federal statutes begin as a proposal, known as a bill. The bill is introduced in either the House or the Senate and is quickly assigned a number. The number is preceded by H.R. if it was introduced in the House, and S if it was introduced in the Senate. The Bill will retain this number throughout the legislative process. These numbers are vital to the researcher concerned with the legislative history of a statute. The legislative history of a statute refers to the proceedings it went through before becoming law.
An important aspect of the legislative process is the work of committees. Both the Senate and the House have a number of committees that work on legislation concerning specific issues. Once a bill is introduced in either house, it goes before the committee that considers the bill’s subject matter. If the bill receives favorable treatment by its committee, it will be put to the full Senate or House for a vote. If the bill receives a majority vote in either house, it is then sent to the other house for consideration. Once the bill is approved by both houses, it is then sent to the President for approval. The President will then either approve or veto the bill. The President can also choose to ignore the bill, but as a matter of law, the bill is considered approved after ten days. If the president decides to veto the bill, it can only be enacted into law by a two-thirds majority vote from both houses of Congress. If the president approves the law by signing it, it becomes law at a particular time stated in the bill.
Administrative laws are regulations promulgated by administrative agencies. The authority to create these regulations that have the force of law comes from the delegated power of Congress to make laws. These agencies are usually created by legislative bodies to regulate areas that are very technical. For example, the Internal Revenue Service (IRS) notoriously has the power to establish regulations that have the force of law. Both the federal government and the governments of the states have established these sorts of agencies.
The development of the common law was accomplished through the decisions of judges. The importance of judges in specifying the exact nature of the law has been maintained from this common law tradition. The importance of judicial decisions in the development of the common law was so important that the terms case law and common law are sometimes used interchangeably. Under the common law tradition, nearly every law was judge-made law. In modern America, many areas of law have come to be dominated by legislatures. In most states, for example, criminal law is said to be “entirely a matter of statute.” Even when the letter of the law comes to us from statutory provisions, the legal context for understanding those statutes is still provided by case law.
The Interplay between Sources of Law
In researching a particular legal issue, you are likely to find that more than one primary source of law applies to any given factual situation. As a practical matter, statues and the cases that explain and clarify those statutes cannot be disentangled. The legal research process dictates that when you are researching constitutions, statutes, and administrative regulations, you must also determine if there are court cases that have considered the meaning of those statutes. In practice, the provisions of legislative enactments mean precisely what appellate judges say they mean. The newer the statute and the less severe the sanction for violating the statute, the fewer cases you will find that interpret the statute. The older the statute and the more severe the sanction for violating the statute, the more cases you will find interpreting it. Ancient common law offenses that tend to have harsh criminal penalties such as rape and murder will have many, many cases that interpret the provisions of the statute.
Modification History File Created: 08/08/2018 Last Modified: 06/13/2019
This work is licensed under an Open Educational Resource-Quality Master Source (OER-QMS) License.
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