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Selected Legal Principles

This web site overviews legal concepts, but underpinning our legal system are principles that may not be obvious.  This web page introduces several principles that influence numerous legal concepts and laws.

Review What is the Rule of Law? -- especially the eight points in the section titled "Elements of the Rule of Law"

Law is abstract; it is not a physical item that can be observed, touched or measured.  However, our laws are documented; they can be found in a written format. Click here for links to some web sites that provide access to our laws.  Writing the law is necessary so we have an archive from which to retrieve our understanding of these abstract concepts.

There is a distinction between a legal issue and a policy issue. A legal question asks "what is the outcome or solution to a situation or problem under current law." A policy question is likely to ask "what do we think the law SHOULD say about the problem we are considering."

• Restated, with a policy question, we are asking whether the current law is the most appropriate law at this time given society's collective values. A legal question asks "what IS the current law, or what is the solution to the problem under the current law." It does NOT ask us to consider whether the current law is the desired law, or whether the current law should be changed.
• The focus of this web site is on legal issues, not policy issues.

 

The law does not make decisions for individuals; however, the law, in some circumstances, requires individuals to disclose information so others can make informed decisions.

The law will not prevent an individual from making a poor decision; for example, a buyer is responsible for determining what they are purchasing.

• See Holcomb v. Zinke, 365 N.W.2d 507 (N.D. 1985) for an example of these two concepts.

Although our nation is approximately 230 years old, many of our legal concepts extend back hundreds of years; in some cases, thousands of years. Basic legal principles that we adhere to today have evolved over the centuries; many of these principles are based in English law. Our strong relationship to English law reflects our history, that is, we were part of the English empire and under English law until the time of the American Revolution. Even though we changed our government at that time, we did not discard all the legal principles. Accordingly, many of the concepts addressed in this course/web site have a long history extending back hundreds of years.  Similarly (but to a lesser extent), our law also reflects the influence of French and Spanish laws.

The government (whether it is local, state or federal) does not have unlimited authority. Instead, it is better to think of government as having only the authorities the people have granted to government in the Constitution. Likewise, the government is prohibited by the people from taking certain actions. For example, some of the prohibitions the people (we) have imposed on government (in the Constitution) are interfering with communication (freedom of speech), interfering with religion (freedom of religion), and taking of private property; see the Bill of Rights.

If government needs to take your property for a government purpose, you are entitled to be compensated for the value of the property (US. Constitution, Amendment V). However, if the property is needed for general safety, health, and well-being of society, government can take the property without compensating the owner. This government action would be considered an exercise of the government's police power; police power generally defines the limit of action government can take without compensating the individuals affected by the government action.

• "[¶9] Hoffman's argument he is entitled to just compensation is equally unavailing. Hoffman began his business long after N.D.C.C. ch. 24-16 went into effect, and the government's exercise of its police power to abate a public nuisance does not entitle the property owner to compensation. City of Minot v. Freelander, 426 N.W.2d 556, 560 (N.D. 1988)." Mountrail County v. Hoffman, 2000 ND 49, 607 N.W.2d 901

The limit to government action will be addressed several times throughout the course.

State law arises in a similar manner to federal law since states also have three branches of government.

• Many of the concepts addressed in this course are state law.
• There is variation among state laws, but there also are considerable similarities.
• In the past 50 years, there has been increased pressure to standardize state laws so businesses involved in interstate transactions (and individuals who move about and live in different states) encounter fewer problems due to conflicting state laws. The leading effort in accomplishing this standardization has been the National Conference of Commissioners on Uniform State Laws.
• A Uniform state law must still be adopted by the state legislature to take effect; thus a proposed uniform law, if adopted by only several states, would not reach the objective of nation-wide uniformity.
• It also is helpful to recognize that a uniform law that has been adopted by all 50 states does not make it a federal law; it is still state law.  Congress is not involved in the process of adopting Uniform laws; it is a state matter and thus addressed by each of the 50 state legislatures.

Any conflict between federal law and state law is resolved with federal law prevailing; that is, federal law is supreme, or federal law preempts state law (U.S. Constitution, Article VI, Para 2).

• "The dormant Commerce Clause is the negative implication of the Commerce Clause [of the U.S. Constitution], pursuant to which states may not enact laws that discriminate against or unduly burden interstate commerce. Quill v. North Dakota, 504 U.S. 298, 312 (1992)." See Jones v. Gale, United States District Court for Nebraska, December 15, 2005; pp.4 -5.
• Congress has indicated, however, that in some circumstances state law will apply as long as it fits within federal guidelines.

How do nations resolve disputes among themselves? Who creates and enforces international law?

A thought about learning a communicating.  As you proceed through this course and your career, you will need to clarify your writing.  To the surprise of many, one strategy to clarify our thinking and writing is to slow our thought process (rather than speed it up) until we are able to recognize all the mental steps we take as we proceed from one thought to another.  Our minds work so fast that we do not recognize that we have proceeded from step 1 to step 4 in our thought process and thus we do not recognize that steps 2 and 3 occurred. Our explanation of our thought process then, may only mention steps 1 and 4.  but our reader or listener may not recognize that steps 2 and 3 have to occur to move from step 1 to step 4.  Without us explicitly recognizing and stating that steps 2 and 3 are occurring, our reader or listener may not accept or understand that step 1 ultimately leads to step 4.  Accordingly, we must discipline ourselves to understand and communicate our complete thought process; not just the obvious "stepping stones".

My suggestions to you:  One, slow your thought process until you recognize all the steps you take in analyzing a situation.  Two, state these steps in your writing or speaking so the reader or listener takes the same steps, otherwise the reader or listener may not be able to follow and understand your thought process.  Three, once you have developed the skill to recognize and state all the mental steps you are taking, speed up your thought process again, but do not stop recognizing and explaining each step as you proceed through your analysis or explanation of a problem or topic.

Bottom line -- we need to be fast thinkers, but we need to be clear thinkers.  We need to slow the thought process to practice clear thinking and once we have achieved that skill, we are ready to resume fast, but clearer thinking.

By the end of the course, we will have discussed:

• Property is not the item; it is the legal rights.
• Consequently, there can be intangible property.
• Legal rights also pertain to persons, including the right not be be injured, thus we have tort law.
• Contract law recognizes that we can define our relative legal rights and obligations by entering into an agreement. These self-imposed and self-defined legal rights will be enforced by our legal system.
• Society, through government, continues to define legal rights and regulate private activities but the regulation cannot be a "taking" of private property (broadly defined).
• Consequently, we distinguish between an exercise of police power and a taking.
• We also recognize that the law continues to change as our social values change.
  

Summary of Key Points

• Some fundamental legal concepts may not be apparent in our statutes, regulations and court cases; but these concepts have to be understood.
• Even though the law changes as society changes, some current legal concepts are based on ideas that are 100s of years old.

The next page overviews the organization of the U.S. legal system.

Last updated August 25, 2010

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