BMGT 380 UMUC Week 1 Personal Jurisdiction Discussion: Law Answers 2021

BMGT 380 UMUC Week 1 Personal Jurisdiction Discussion: Law Answers 2021

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BMGT 380 UMUC Week 1 Personal Jurisdiction Discussion

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Introduction to Law and Legal Systems
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Government Regulation and the Legal Environment of Business (2012). Saylor Academy.
Chapter 1
Introduction to Law and Legal Systems
After reading this chapter, you should be able to do the following:
1. Distinguish different philosophies of law?schools of legal thought?and explain their relevance.
2. Identify the various aims that a functioning legal system can serve.
3. Explain how politics and law are related.
4. Identify the sources of law and which laws have priority over other laws.
5. Understand some basic differences between the US legal system and other legal systems.
Law has different meanings as well as different functions. Philosophers have considered issues of
justice and law for centuries, and several different approaches, or schools of legal thought, have
emerged. In this chapter, we will look at those different meanings and approaches and will consider
how social and political dynamics interact with the ideas that animate the various schools of legal
thought. We will also look at typical sources of ?positive law? in the United States and how some of
those sources have priority over others, and we will set out some basic differences between the US
legal system and other legal systems.
1.1 What Is Law?
Law is a word that means different things at different times. Black?s Law Dictionary says that law is
?a body of rules of action or conduct prescribed by controlling authority, and having binding legal
force. That which must be obeyed and followed by citizens subject to sanctions or legal consequence is
a law.?Black?s Law Dictionary, 6th ed., s.v. ?law.?
Functions of the Law
In a nation, the law can serve to (1) keep the peace, (2) maintain the status quo, (3) preserve
individual rights, (4) protect minorities against majorities, (5) promote social justice, and (6) provide
Introduction to Law and Legal Systems
for orderly social change. Some legal systems serve these purposes better than others. Although a
nation ruled by an authoritarian government may keep the peace and maintain the status quo, it may
also oppress minorities or political opponents (e.g., Burma, Zimbabwe, or Iraq under Saddam
Hussein). Under colonialism, European nations often imposed peace in countries whose borders were
somewhat arbitrarily created by those same European nations. Over several centuries prior to the
twentieth century, empires were built by Spain, Portugal, Britain, Holland, France, Germany,
Belgium, and Italy. With regard to the functions of the law, the empire may have kept the peace?
largely with force?but it changed the status quo and seldom promoted the native peoples? rights or
social justice within the colonized nation.
In nations that were former colonies of European nations, various ethnic and tribal factions have
frequently made it difficult for a single, united government to rule effectively. In Rwanda, for
example, power struggles between Hutus and Tutsis resulted in genocide of the Tutsi minority.
(Genocide is the deliberate and systematic killing or displacement of one group of people by another
group. In 1948, the international community formally condemned the crime of genocide.) In nations
of the former Soviet Union, the withdrawal of a central power created power vacuums that were
exploited by ethnic leaders. When Yugoslavia broke up, the different ethnic groups?Croats, Bosnians,
and Serbians?fought bitterly for home turf rather than share power. In Iraq and Afghanistan, the
effective blending of different groups of families, tribes, sects, and ethnic groups into a national
governing body that shares power remains to be seen.
Law and Politics
In the United States, legislators, judges, administrative agencies, governors, and presidents make law,
with substantial input from corporations, lobbyists, and a diverse group of nongovernment
organizations (NGOs) such as the American Petroleum Institute, the Sierra Club, and the National
Rifle Association. In the fifty states, judges are often appointed by governors or elected by the people.
The process of electing state judges has become more and more politicized in the past fifteen years,
with growing campaign contributions from those who would seek to seat judges with similar political
In the federal system, judges are appointed by an elected official (the president) and confirmed by
other elected officials (the Senate). If the president is from one party and the other party holds a
majority of Senate seats, political conflicts may come up during the judges? confirmation processes.
Such a division has been fairly frequent over the past fifty years.
Introduction to Law and Legal Systems
In most nation-states (as countries are called in international law), knowing who has power to
make and enforce the laws is a matter of knowing who has political power; in many places, the people
or groups that have military power can also command political power to make and enforce the laws.
Revolutions are difficult and contentious, but each year there are revolts against existing politicallegal authority; an aspiration for democratic rule, or greater ?rights? for citizens, is a recurring theme
in politics and law.
Law is the result of political action, and the political landscape is vastly different from nation to nation.
Unstable or authoritarian governments often fail to serve the principal functions of law.
1. Consider Burma (named Myanmar by its military rulers). What political rights do you have that the
average Burmese citizen does not?
2. What is a nongovernment organization, and what does it have to do with government? Do you
contribute to (or are you active in) a nongovernment organization? What kind of rights do they
espouse, what kind of laws do they support, and what kind of laws do they oppose?
1.2 Schools of Legal Thought
1. Distinguish different philosophies of law?schools of legal thought?and explain their relevance.
2. Explain why natural law relates to the rights that the founders of the US political-legal system
found important.
3. Describe legal positivism and explain how it differs from natural law.
4. Differentiate critical legal studies and ecofeminist legal perspectives from both natural law and
legal positivist perspectives.
There are different schools (or philosophies) concerning what law is all about. Philosophy of law is
also called jurisprudence, and the two main schools are legal positivism and natural law.
Introduction to Law and Legal Systems
Although there are others (see Section 1.2.3 ?Other Schools of Legal Thought?), these two are the most
influential in how people think about the law.
Legal Positivism: Law as Sovereign Command
As legal philosopher John Austin concisely put it, ?Law is the command of a sovereign.? Law is only
law, in other words, if it comes from a recognized authority and can be enforced by that authority, or
sovereign?such as a king, a president, or a dictator?who has power within a defined area or
territory. Positivism is a philosophical movement that claims that science provides the only
knowledge precise enough to be worthwhile. But what are we to make of the social phenomena of
We could examine existing statutes?executive orders, regulations, or judicial decisions?in a fairly
precise way to find out what the law says. For example, we could look at the posted speed limits on
most US highways and conclude that the ?correct? or ?right? speed is no more than fifty-five miles per
hour. Or we could look a little deeper and find out how the written law is usually applied. Doing so, we
might conclude that sixty-one miles per hour is generally allowed by most state troopers, but that
occasionally someone gets ticketed for doing fifty-seven miles per hour in a fifty-five miles per hour
zone. Either approach is empirical, even if not rigorously scientific. The first approach, examining in a
precise way what the rule itself says, is sometimes known as the ?positivist? school of legal thought.
The second approach?which relies on social context and the actual behavior of the principal actors
who enforce the law?is akin to the ?legal realist? school of thought (see Section 1.2.3 ?Other Schools
of Legal Thought?).
Positivism has its limits and its critics. New Testament readers may recall that King Herod, fearing
the birth of a Messiah, issued a decree that all male children below a certain age be killed. Because it
was the command of a sovereign, the decree was carried out (or, in legal jargon, the decree was
?executed?). Suppose a group seizes power in a particular place and commands that women cannot
attend school and can only be treated medically by women, even if their condition is life-threatening
and women doctors are few and far between. Suppose also that this command is carried out, just
because it is the law and is enforced with a vengeance. People who live there will undoubtedly
question the wisdom, justice, or goodness of such a law, but it is law nonetheless and is generally
carried out. To avoid the law?s impact, a citizen would have to flee the country entirely. During the
Taliban rule in Afghanistan, from which this example is drawn, many did flee.
The positive-law school of legal thought would recognize the lawmaker?s command as legitimate;
questions about the law?s morality or immorality would not be important. In contrast, the natural-law
Introduction to Law and Legal Systems
school of legal thought would refuse to recognize the legitimacy of laws that did not conform to
natural, universal, or divine law. If a lawmaker issued a command that was in violation of natural law,
a citizen would be morally justified in demonstrating civil disobedience. For example, in refusing to
give up her seat to a white person, Rosa Parks believed that she was refusing to obey an unjust law.
Natural Law
The natural-law school of thought emphasizes that law should be based on a universal moral order.
Natural law was ?discovered? by humans through the use of reason and by choosing between that
which is good and that which is evil. Here is the definition of natural law according to the Cambridge
Dictionary of Philosophy: ?Natural law, also called the law of nature in moral and political
philosophy, is an objective norm or set of objective norms governing human behavior, similar to the
positive laws of a human ruler, but binding on all people alike and usually understood as involving a
superhuman legislator.?Cambridge Dictionary of Philosophy, s.v. ?natural law.?
Both the US Constitution and the United Nations (UN) Charter have an affinity for the natural-law
outlook, as it emphasizes certain objective norms and rights of individuals and nations. The US
Declaration of Independence embodies a natural-law philosophy. The following short extract should
provide some sense of the deep beliefs in natural law held by those who signed the document.
The Unanimous Declaration of the Thirteen United States of America
July 4, 1776
When in the Course of human events, it becomes necessary for one people to dissolve the political
bands which have connected them with another, and to assume among the powers of the earth,
the separate and equal station to which the Laws of Nature and of Nature?s God entitle them, a
decent respect to the opinions of mankind requires that they should declare the causes which
impel them to the separation.
We hold these truths to be self-evident, that all men are created equal, that they are endowed by
their Creator with certain unalienable Rights, that among these are Life, Liberty and the Pursuit
of Happiness. That to secure these rights, Governments are instituted among Men, deriving their
just powers from the consent of the governed.?
Introduction to Law and Legal Systems
The natural-law school has been very influential in American legal thinking. The idea that certain
rights, for example, are ?unalienable? (as expressed in the Declaration of Independence and in the
writings of John Locke) is consistent with this view of the law. Individuals may have ?God-given? or
?natural? rights that government cannot legitimately take away. Government only by consent of the
governed is a natural outgrowth of this view.
Civil disobedience?in the tradition of Henry Thoreau, Mahatma Gandhi, or Martin Luther King Jr.?
becomes a matter of morality over ?unnatural? law. For example, in his ?Letter from Birmingham
Jail,? Martin Luther King Jr. claims that obeying an unjust law is not moral and that deliberately
disobeying an unjust law is in fact a moral act that expresses ?the highest respect for law?: ?An
individual who breaks a law that conscience tells him is unjust, and who willingly accepts the penalty
of imprisonment in order to arouse the conscience of the community over its injustice, is in reality
expressing the highest respect for law.?One who breaks an unjust law must do so openly, lovingly,
and with a willingness to accept the penalty.?Martin Luther King Jr., ?Letter from Birmingham Jail.?
Legal positivists, on the other hand, would say that we cannot know with real confidence what
?natural? law or ?universal? law is. In studying law, we can most effectively learn by just looking at
what the written law says, or by examining how it has been applied. In response, natural-law thinkers
would argue that if we care about justice, every law and every legal system must be held accountable
to some higher standard, however hard that may be to define.
It is easier to know what the law ?is? than what the law ?should be.? Equal employment laws, for
example, have specific statutes, rules, and decisions about racial discrimination. There are always
difficult issues of interpretation and decision, which is why courts will resolve differing views. But
how can we know the more fundamental ?ought? or ?should? of human equality? For example, how do
we know that ?all men are created equal? (from the Declaration of Independence)? Setting aside for
the moment questions about the equality of women, or that of slaves, who were not counted as men
with equal rights at the time of the declaration?can the statement be empirically proven, or is it
simply a matter of a priori knowledge? (A priori means ?existing in the mind prior to and
independent of experience.?) Or is the statement about equality a matter of faith or belief, not really
provable either scientifically or rationally? The dialogue between natural-law theorists and more
empirically oriented theories of ?what law is? will raise similar questions. In this book, we will focus
mostly on the law as it is, but not without also raising questions about what it could or should be.
Other Schools of Legal Thought
Introduction to Law and Legal Systems
The historical school of law believes that societies should base their legal decisions today on the
examples of the past. Precedent would be more important than moral arguments.
The legal realist school flourished in the 1920s and 1930s as a reaction to the historical school. Legal
realists pointed out that because life and society are constantly changing, certain laws and doctrines
have to be altered or modernized in order to remain current. The social context of law was more
important to legal realists than the formal application of precedent to current or future legal disputes.
Rather than suppose that judges inevitably acted objectively in applying an existing rule to a set of
facts, legal realists observed that judges had their own beliefs, operated in a social context, and would
give legal decisions based on their beliefs and their own social context.
The legal realist view influenced the emergence of the critical legal studies (CLS) school of thought.
The ?Crits? believe that the social order (and the law) is dominated by those with power, wealth, and
influence. Some Crits are clearly influenced by the economist Karl Marx and also by distributive
justice theory (see Chapter 2 ?Corporate Social Responsibility and Business Ethics?). The CLS school
believes the wealthy have historically oppressed or exploited those with less wealth and have
maintained social control through law. In so doing, the wealthy have perpetuated an unjust
distribution of both rights and goods in society. Law is politics and is thus not neutral or value-free.
The CLS movement would use the law to overturn the hierarchical structures of domination in the
modern society.
Related to the CLS school, yet different, is the ecofeminist school of legal thought. This school
emphasizes?and would modify?the long-standing domination of men over both women and the rest
of the natural world. Ecofeminists would say that the same social mentality that leads to exploitation
of women is at the root of man?s exploitation and degradation of the natural environment. They would
say that male ownership of land has led to a ?dominator culture,? in which man is not so much a
steward of the existing environment or those ?subordinate? to him but is charged with making all that
he controls economically ?productive.? Wives, children, land, and animals are valued as economic
resources, and legal systems (until the nineteenth century) largely conferred rights only to men with
land. Ecofeminists would say that even with increasing civil and political rights for women (such as
the right to vote) and with some nations? recognizing the rights of children and animals and caring for
the environment, the legacy of the past for most nations still confirms the preeminence of ?man? and
his dominance of both nature and women.
Introduction to Law and Legal Systems
Each of the various schools of legal thought has a particular view of what a legal system is or what it
should be. The natural-law theorists emphasize the rights and duties of both government and the
governed. Positive law takes as a given that law is simply the command of a sovereign, the political
power that those governed will obey. Recent writings in the various legal schools of thought emphasize
long-standing patterns of domination of the wealthy over others (the CLS school) and of men over
women (ecofeminist legal theory).
1. Vandana Shiva draws a picture of a stream in a forest. She says that in our society the stream is
seen as unproductive if it is simply there, fulfilling the need for water of women?s families and
communities, until engineers come along and tinker with it, perhaps damming it and using it?

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