Chapter 1 – Introduction to Law and Legal Systems
1.4 Sources of Law and Their Priority
Sources of Law
In the United States today, there are numerous sources of law. The main ones are (1) constitutions—both state and federal, (2) statutes, (3) agency rules and regulations, and (4) judicial decisions. In addition, chief executives (the president and the various governors) can issue executive orders that have the effect of law.
In addition to the above sources of United States laws, in international legal systems sources of law include treaties (agreements between states or countries) and what is known as customary international law (usually consisting of judicial decisions from national court systems where parties from two or more nations are in a dispute).
There are many sources of law, and it is possible for laws to sometimes conflict. For example, a state law may conflict with a federal law, or a federal law might be contrary to an international obligation. One nation’s law may provide one substantive rule, while another nation’s law may provide a different, somewhat contrary rule to apply. Not all laws, in other words, are created equal. To understand which laws have priority, it is essential to understand the relationships between the various kinds of law.
Constitutions
Constitutions are the foundation for a state or nation’s other laws, providing the country’s legislative, executive, and judicial framework. Among the nations of the world, the United States has the oldest constitution still in use. It is difficult to amend, which is why there have only been seventeen amendments following the first ten in 1789; two-thirds of the House and Senate must pass amendments, and three-fourths of the states must approve them.
The nation’s states also have constitutions. Along with providing for legislative, executive, and judicial functions, state constitutions prescribe various rights of citizens. These rights may be different from, and in addition to, rights granted by the U.S. Constitution. For example, the New Jersey Constitution serves as the foundational legal document that outlines the fundamental principles and structure of governance for the state of New Jersey. The current state of New Jersey Constitution is relatively young, adopted in 1947, and is the third Constitution that has been adopted in New Jersey. Like the federal Constitution, the state Constitution establishes the framework for the executive, legislative, and judicial branches, delineating their respective powers and responsibilities. The Constitution also includes state-specific provisions, and can offer the citizens of the state of New Jersey enhanced protection from its federal counterpart. As a living document, the New Jersey Constitution has been amended over time to address evolving societal needs and values.
Statutes
In Washington, DC, the federal legislature is known as Congress and has both a House of Representatives and a Senate. The House is composed of representatives elected every two years from various districts in each state. These districts are established by Congress according to population as determined every ten years by the census, a process required by the Constitution. Each state has at least one district; the most populous state (California) has fifty-two districts. Representation in the House of Representatives is therefore directly proportioned to population. In the Senate, there are two senators from each state, regardless of the state’s population. Thus, Delaware has two senators and California has two senators, even though California is much larger and has far more people.
Each Congressional legislative body has committees for various purposes, including to discharge the lawmaking function of Congress. In these committees, proposed bills are discussed, hearings are sometimes held, and bills are either reported out (brought to the floor for a vote) or killed in committee. If a Bill is reported out to the full legislative body, it may be passed by majority vote. Because of the procedural differences between the House and the Senate, bills that have the same language when proposed in both houses may become different after approval by each body. If the House passes a different version of a Bill than the Senate passes, a conference committee will then be held to try to match the two versions. If the House and Senate can agree on identical language, the reconciled Bill will be sent to the president for signature or veto. The Constitution prescribes that the president will have veto power over any legislation. But the two bodies can override a presidential veto with a two-thirds vote in each chamber.
If the President signs the Bill, the Bill then becomes a Statute, part of federal law. The statutes of Congress are collected in codified form in the U.S. Code. The code is available online at http://uscode.house.gov.
State legislatures also enact statutes. The purpose of a state statute is to establish laws that govern various aspects of life within a specific state’s jurisdiction. State statutes are legislative enactments passed by the state’s legislative bodies (sometimes called assemblies) and signed into law by the governor. The process of passing a statute in New Jersey shares some similarities with the federal legislative process but follows the specific process for legislative action set out in the state Constitution. Like the federal process, the state process of creating and amending, or changing, laws is filled with political negotiation and compromise.
On a more local level, counties and municipal corporations or townships may be authorized under a state’s constitution to create or adopt ordinances, which are like statutes, but at the local level. The purpose of an ordinance is to regulate matters within the local government’s jurisdiction. Ordinances are typically used to address local issues, policies, and regulations that are not covered by state or federal law. Examples of ordinances include local building codes, zoning laws, and misdemeanors or infractions such as skateboarding or jaywalking. They have the force of law within the geographic boundaries of the jurisdiction that passed them, and no force outside of those boundaries. For example, the Borough of Paramus New Jersey has laws prohibiting contracting on Sunday which require most retail establishments to be closed with the Borough (we’ll study this more later in this course). Although no other animal is specifically prohibited, if you live in the Borough of Catasaqua, Pennsylvania, it is illegal to keep a pig, hog, or swine.
Treaties
In the United States, a treaty is a formal and legally binding agreement between the U.S. government and one or more foreign governments or international organizations. Treaties require approval from the U.S. Senate before they can be ratified and become legally effective.
When the Senate ratifies a treaty, it becomes part of federal law, with the same weight and effect as a statute passed by the entire Congress.
Rules and Regulations by Administrative Agencies
Although the U.S. Constitution does not expressly provide for administrative agencies, Congress has found it necessary and useful to create government agencies to administer various laws, and the U.S. Supreme Court has upheld this delegation of power. Using a statute called an enabling act or enabling law, Congress can therefore grant authority to an administrative agency, to carry out specific actions or functions. Typically, the enabling statute defines the scope of authority, responsibilities, and limitations of the agency it empowers.
Examples of administrative agencies would include the Occupational Safety and Health Administration (OSHA), the Environmental Protection Agency (EPA), and the Federal Trade Commission (FTC). Congress does not have unlimited authority to delegate its lawmaking powers to an agency. Instead, it must delegate its authority with some guidelines for the agency and cannot altogether avoid its constitutional responsibilities.
In order to carry out the functions delegated to them, administrative agencies issue rules and regulations which are directives by that agency. A rule created by an agency is a general statement that guides the behavior, actions, or conduct of individuals, organizations, or entities subject to the agency’s jurisdiction. Rules are a form of administrative law that helps agencies fulfill their regulatory responsibilities. Rules are typically more specific and detailed than statutes and provide guidance on how to comply with legal requirements. Agencies propose rules in the Federal Register, published each working day of the year. Rules that are formally adopted are published in the Code of Federal Regulations, or CFR; the annual edition is published on the website GovInfo.
A regulation is a broader term that encompasses a range of directives issued by administrative agencies. Regulations can include rules, standards, policies, procedures and other types of requirements established by agencies to implement and enforce statutes. Regulations often have the force of law and carry legal consequences for non-compliance. They are a crucial tool for administrative agencies to carry out their statutory duties effectively.
Judicial Decisions: The Common Law
The role of the courts in making law is a central aspect of the judicial system within a legal framework. While the primary responsibility for creating laws lies with the legislative branch of government, courts also play a significant role in shaping and interpreting the law through their decisions and rulings. This process is often referred to as “judge-made law” or “common law.”
In the United States legal system, courts are called upon to make decisions that require the interpretation of statutes, regulations, treaties, or even the Constitution. In addition to making these interpretations when necessary, courts also decide cases where there is no statutory or other codified law or regulation to be interpreted. These decisions make up what is called the “common law.” For example, a state court deciding what kinds of witnesses are required for a valid will in the absence of a rule (from a statute) is making common law.
United States law comes primarily from the tradition of English common law. By the time England’s American colonies revolted in 1776, English common-law traditions were well established in the colonial courts. English common law was a system that gave written judicial decisions the force of law throughout the country. Thus, if an English court delivered an opinion as to what constituted the common-law crime of burglary, other courts would stick to that decision, so that a common body of law developed throughout the country. Common law is essentially shorthand for the notion that a common body of law, based on past written decisions, is desirable and necessary.
In England and in the laws of the original thirteen states, common-law decisions defined crimes such as arson, burglary, homicide, and robbery. As time went on, U.S. state legislatures either adopted or modified common-law definitions of most crimes by putting them in the form of codes or statutes. This legislative ability—to modify or change common law into judicial law—points to an important phenomenon: the priority of statutory law over common law. As we will see in the next section, constitutional law will have priority over statutory law.
Activity 1A
The sources of law are often referred to as the branches of government. Drag each description to the branch that it defines.
Student video on sources of law
“Sources of Law” created by Joshua Solovay
Priority of Laws
The Constitution as Preemptive Force in U.S. Law
As the supreme law of the U.S., the U.S. Constitution takes precedence over all statutes and judicial decisions, whether state or federal, that are inconsistent with the Constitution. For example, if Michigan were to decide legislatively that students cannot speak ill of professors in state-sponsored universities, that law would be void, since it is inconsistent with the state’s obligation under the First Amendment to protect free speech. Or if the Michigan courts were to allow a professor to bring a lawsuit against a student who had said something about him that was derogatory but not defamatory, the state’s judicial system would not be acting according to the First Amendment.
Statutes
Statutes must be consistent with the Constitution, but generally statutes have priority, or take precedence, over judge made law or agency rules and regulations. Historically, under common-law judicial decisions, employers could hire young children for difficult work, offer any wage they wanted, and not pay overtime work at a higher rate. But various statutes changed that. For example, the federal Fair Labor Standards Act (1938) forbids the use of oppressive child labor and established a minimum pay wage and overtime pay rules.
Treaties
A treaty or convention is considered of equal standing to a statute. Thus, when Congress ratified the North American Free Trade Agreement (NAFTA), any previous judicial decisions or s statutes that were inconsistent—such as quotas or limitations on imports from Mexico that were contrary to NAFTA commitments—would no longer be valid. Similarly, U.S. treaty obligations under the General Agreement on Tariffs and Trade (GATT) and obligations made later through the World Trade Organization (WTO) would override previous federal or state statutes. In these situations, the treaty takes priority because it is the most recent pronouncement of law, as long as the treaty is made through the Constitutional process.
Federal v. State
When there is a conflict between a law made by the federal government (like rules for the whole country) and a law made by a state (like rules just for that state), the federal law will take priority over state law due to the Supremacy Clause of the U.S. Constitution. At the same time, it is possible to have situations where state and federal laws can coexist or complement each other without conflict. In cases where federal and state laws cover different aspects of a particular issue, both laws may apply. For example, both New Jersey and the federal government have laws pertaining to the preservation of wetlands and endangered species. The federal law sets a baseline standard that applies everywhere in the U.S., while the state law provides extra protections tailored to New Jersey’s particular environment. Additionally, some legal matters are primarily under state jurisdiction, and state laws will naturally take precedence in those areas unless federal law explicitly preempts state regulation. For example, there is no federal law establishing an age to marry, so New Jersey’s state law regarding the minimum age for marriage controls the marriage age within New Jersey’s boundaries.
Causes of Action, Precedent, and Stare Decisis
No matter how wrong someone’s actions may seem to you, the only wrongs you can right in a court are those that can be tied to one or more causes of action. Positive law is full of cases, treaties, statutes, regulations, and constitutional provisions that can be made into a cause of action. If you have an agreement with Harold Hill that he will purchase seventy-six trombones from you and he fails to pay for them after you deliver, you will probably feel wronged, but a court will only act favorably on your complaint if you can show that his behavior gives you a cause of action based on some part of your state’s contract law.
An old saying in the law is that the law does not deal in trifles, or unimportant issues (in Latin, de minimis non curat les). Not every wrong you may suffer in life will be a cause to bring a court action. If you are stood up for a Saturday night date and feel embarrassed or humiliated, you cannot recover anything in a court of law in the United States, as there is no cause of action (no basis in the positive law) that you can use in your complaint. But, if you are engaged to be married and you are stood up at the altar, there are some states that actually do provide a legal basis on which to bring a lawsuit. Your cause of action is thus based on existing laws, including decided cases.
Decided cases can form legal precedent. Precedent refers to a legal principle or decision established in a previous court case that serves as a guide or rule for deciding similar cases in the future. Precedent plays a crucial role in the common law legal system, which relies on the accumulation of past court decisions to shape and interpret the law. How closely your case “fits” with a prior decided case raises the question of precedent. Several factors can impact whether a prior case is precedent, including how close the situation is to the legal issue in the case, and whether the Court deciding the precedential case is from the same jurisdiction.
The English common-law tradition placed great emphasis on precedent and what is called stare decisis. A court considering one case would feel obliged to decide that case in a way similar to previously decided cases. Written decisions of the most important cases had been spread throughout England and judges hoped to establish a somewhat predictable, consistent group of decisions. The English legislature (Parliament) was not in the practice of establishing detailed statutes on crimes, torts, contracts, or property. Thus, definitions and rules were left primarily to the courts. By their nature, courts could only decide one case at a time, but in doing so they would articulate holdings, or general rules, that would apply to later cases.
Suppose that one court had to decide whether an employer could fire an employee for no reason at all. Suppose that there were no statutes that applied to the facts: there was no contract between the employer and the employee, but the employee had worked for the employer for many years, and now a younger person was replacing him. The court, with no past guidelines, would have to decide whether the employee had stated a “cause of action” against the employer. If the court decided that the case was not legally actionable, it would dismiss the action. Future courts would then treat similar cases in a similar way. In the process, the court might make a holding that employers could fire employees for any reason or for no reason. This rule could be applied in the future should similar cases come up.
But suppose that an employer fired an employee for not committing perjury (lying on the witness stand in a court proceeding); the employer wanted the employee to cover up the company’s criminal or unethical act. Suppose that, as in earlier cases, there were no applicable statutes and no contract of employment. Courts relying on a holding or precedent that “employers may fire employees for any reason or no reason” might rule against an employee seeking compensation for being fired for telling the truth on the witness stand. Or it might make an exception to the general rule, such as, “Employers may generally discharge employees for any reason or for no reason without incurring legal liability; however, employers will incur legal liability for firing an employee who refuses to lie on behalf of the employer in a court proceeding.”
In each case (the general rule and its exception), the common-law tradition calls for the court to explain the reasons for its ruling. In the case of the general rule, “freedom of choice” might be the major reason. In the case of the perjury exception, the efficiency of the judicial system and the requirements of citizenship might be used as reasons. Because the court’s “reasons” will be persuasive to some and not to others, there is inevitably a degree of subjectivity to judicial opinions. That is, reasonable people will disagree as to the persuasiveness of the reasoning a court may offer for its decision.
Reading written judicial opinions are thus a good playing field for developing critical thinking skills by identifying the issue in a case and examining the reasons for the court’s previous decision(s), or holding. What has the court actually decided, and why? Remember that a court, especially the U.S. Supreme Court, is not only deciding one particular case but also setting down guidelines (in its holdings) for federal and state courts that encounter similar issues. Note that court cases often raise a variety of issues or questions to be resolved, and judges (and attorneys) will differ as to what the real issue in a case is. A holding is the court’s complete answer to an issue that is critical to deciding the case and thus gives guidance to the meaning of the case as a precedent for future cases.
Beyond the decision of the court, it is in looking at the court’s reasoning that you are most likely to understand what facts have been most significant to the court and what theories (schools of legal thought) each trial or appellate judge believes in. Because judges do not always agree on first principles (i.e., they subscribe to different schools of legal thought), there are many divided opinions in appellate opinions and in each U.S. Supreme Court term.
Activity 1C
Case Debate: Ladies Night?
“Ladies’ Night” is a promotional event used by bars and restaurants where they offer special discounts, deals, or incentives targeted specifically toward women. Events such as these are designed to attract a female clientele to these establishments. Coastline, a restaurant and bar in Cherry Hill, New Jersey, hosted a Ladies’ Night featuring free bar admission and reduced-price drinks for women. A man named David Gillespie went to the Coastline, and was charged five dollars for admission and full-price for drinks. He asked to be charged the reduced price, per the bar’s “Ladies’ Night” policy, but was refused. Gillespie believes his rights were violated.
- What sources of law do you think would apply to this case? In other words, what types of laws should Gillespie look at to determine whether his rights were violated?
- Would there be Constitutional laws that pertain to the case?
- Would you expect there be to any statutes that would govern this situation?
- Would there be an administrative agency involved in determining the outcome of Gillespie’s claim?
- Under what circumstances would a court get involved in determining whether Gillespie’s rights were violated?
- Do you think that Coastline would have any laws in it’s favor? Why or why not?
- What if Coastline added a “Men’s Night” on another night of the week, keeping “Ladies’ Night” as is. Would this change the outcome of the case?
Debate the Case: Find and review one resource dealing with discrimination and “Ladies Night.” Make sure the resource that you found discusses at least one source of law that applies. Do you think that the “Ladies’ Night” claim should be dealt with using the U.S. legal process, or is this an insignificant case that should not be the subject of the laws we studied in this Chapter?
Check Your Understanding
a written law passed by the legislative branch of government—Congress or a state legislature—and usually signed into law by the head of the executive branch of government—the president or a state governor
a regulation issued by a court or government agency
a rule, adopted under authority granted by a statute, issued by a municipal, county, state or federal agency
a determination made by a court
a declaration by the president or a governor which has the force of law, usually based on existing statutory powers, and requiring no action by the Congress or state legislature
while there is no one, specific body of international law, the term is taken to mean the collection of treaties, customs, and multilateral agreements governing the interaction of nations and multinational businesses or nongovernmental organizations
a law adopted by a town or city council, county board of supervisors, or other municipal governing board
a formal and legally binding agreement between the U.S. government and one or more foreign governments or international organizations
a law that permits what was previously prohibited or that creates new powers; enabling statute
a law that is made by judicial decision
Article VI, clause 2 of the U.S. Constitution, which says that the Constitution, federal laws, and federal treaties are "the supreme Law of the Land;" as such, when state law conflicts or interferes with the operation of federal law, courts often look to the supremacy clause to find that federal law must prevail
a specific legal claim for which a plaintiff seeks compensation
the law does not govern trifles; law ignores insignificant details
an opinion of a federal or state court of appeals establishing a legal principle or rule that must be followed by lower courts when faced with similar legal issues
an informal rule judges often follow when deciding cases that counsels judges to follow precedents—decisions and opinions from similar cases that were decided in the past; Latin for "let the decision stand"
a wrongful act that causes injury
an agreement that the law will hold the parties to
anything that is owned by a person or entity
any ruling or decision of a court
