Table of Contents
A body of rules of conduct of binding legal force and effect, prescribed, recognized, and enforced by controlling authority.
In U.S. law, the word law refers to any rule that if broken subjects a party to criminal punishment or civil liability. Laws in the United States are made by federal, state, and local legislatures, judges, the president, state governors, and administrative agencies.
Law in the United States is a mosaic of statutes, treaties, case law, Administrative Agency regulations, executive orders, and local laws. U.S. law can be bewildering because the laws of the various jurisdictions—federal, state, and local—are sometimes in conflict. Moreover, U.S. law is not static. New laws are regularly introduced, old laws are repealed, and existing laws are modified, so the precise definition of a particular law may be different in the future from what it is today.
The U.S. Constitution
The highest law in the United States is the U.S. Constitution. No state or federal law may contradict any provision in the Constitution. In a sense the federal Constitution is a collection of inviolable statutes. It can be altered only by amendment. Amendments pass after they are approved by two-thirds of both houses of Congress or after petition by two-thirds of the state legislatures. Amendments are then ratified by three-fourths of the state legislatures or by conventions in three-fourths of the states. Upon ratification, the amendment becomes part of the Constitution.
Beneath the federal Constitution lies a vast body of other laws, including federal statutes, treaties, court decisions, agency regulations, and executive orders, and state constitutions, statutes, court decisions, agency regulations, and executive orders.
Statutes and Treaties
After the federal Constitution, the highest laws are written laws, or statutes, passed by elected federal lawmakers. States have their own constitution and statutes.
Federal laws generally involve matters that concern the entire country. State laws generally do not reach beyond the borders of the state. Under Article VI, Section 2, of the U.S. Constitution, federal laws have supremacy over state and local laws. This means that when a state or local law conflicts with a federal law, the federal law prevails.
Federal statutes are passed by Congress and signed into law by the president. State statutes are passed by state legislatures and approved by the governor. If a president or governor vetoes, or rejects, a proposed law, the legislature may override the Veto if at least two-thirds of the members of each house of the legislature vote for the law.
Statutes are contained in statutory codes at the federal and state levels. These statutory codes are available in many public libraries, in law libraries, and in some government buildings, such as city halls and courthouses. They are also available on the World Wide Web. For example, the statutory codes that are in effect in the state of Michigan can be accessed at <http://www.michigan.gov/orr>. A researcher may access the United States Code, which is the compilation of all federal laws, at <http://uscode.house.gov>. The site is maintained by the Office of the Law Revision Counsel of the U.S. House of Representatives.
On the federal level, the president has the power to enter into treaties, with the advice and consent of Congress. Treaties are agreements with sovereign nations concerning a wide range of topics such as environmental protection and the manufacture of nuclear missiles. A treaty does not become law until it is approved by two-thirds of the U.S. Senate. Most treaties are concerned with the actions of government employees, but treaties also apply to private citizens.
Statutes are the primary source of law, and the power to enact statutes is reserved to elected lawmakers. However, judicial decisions also have the force of law. Statutes do not cover every conceivable case, and even when a statute does control a case, the courts may need to interpret it. Judicial decisions are known collectively as case law. A judicial decision legally binds the parties in the case, and also may serve as a law in the same prospective sense as does a statute. In other words, a judicial decision determines the outcome of the particular case, and also may regulate future conduct of all persons within the jurisdiction of the court.
The opinions of courts, taken together, comprise the Common Law. When there is no statute specifically addressing a legal dispute, courts look to prior cases for guidance. The issues, reasoning, and holdings of prior cases guide courts in settling similar disputes. A prior opinion or collection of opinions on a particular legal issue is known as precedent, and courts generally follow precedent, if any, when deciding cases. Breaking with precedent may be justified when circumstances or attitudes have changed, but following precedent is the norm. This gives the common law a certain predictability and consistency. The common law often controls civil matters, such as contract disputes and personal injury cases (torts). Almost all criminal laws are statutory, so common law principles are rarely applied in criminal cases.
Sometimes courts hear challenges to statutes or regulations based on constitutional grounds. Courts can make law by striking down part or all of a particular piece of legislation. The Supreme Court has the power to make law binding throughout the country on federal constitutional issues. The highest court in each state has the same power to interpret the state constitution and to issue holdings that have the force of law.
Occasionally courts create new law by departing from existing precedent or by issuing a decision in a case involving novel issues, called a case of first impression. If legislators disagree with the decision, they may nullify the holding by passing a new statute. However, if the court believes that the new statute violates a constitutional provision, it may strike down all or part of the new law. If courts and lawmakers are at odds, the precise law on a certain topic can change over and over.
Courts of law are a fundamental part of the U.S. judicial system. The U.S. Constitution and all state constitutions recognize a judicial branch of government that is charged with adjudicating disputes. Beginning in the 1990s, vigilante organizations challenged the judicial system by establishing their own so-called common-law courts. By 1996 these common-law courts existed in more than 30 states. Though they have no legitimate power, being created without either constitutional or statutory authority, and in fact sometimes contravene established law.
Traditionally, common-law courts administered the Common Law, that is, law based on prior decisions rather than statutes. These new common-law courts, however, are premised on a mixture of U.S. Constitutional Law, English common law, and the Bible, all filtered through an often racist and anti-Semitic world view that holds the U.S. legal system to be illegitimate. These common-law courts imitate the formalities of the U.S. justice system, issuing subpoenas, making criminal indictments, and hearing cases. Most of their cases involve Divorce decrees and foreclosure actions. Many of the persons on the courts or seeking their assistance are in dire financial circumstances. They wish to prevent the loss of their property by having a common-law court declare them free of the loans they have secured from banks.
Though common-law courts appeared to be merely a symbolic attempt by extremists to assert their political legitimacy, the actions of some of them led to prosecution for criminal conspiracy. Common-law courts have issued arrest warrants for judges and prosecutors in Montana and Idaho and have threatened sheriffs who refused to follow their instructions. In 1994 the Garfield County, Montana, prosecutor charged members of a common-law court with criminal syndicalism, for advocating violence against public officials. One court member was sentenced to ten years in prison, and others received shorter sentences.
When researching a legal issue, it is helpful to consult relevant case law. The researcher first finds the relevant annotated statutes, and then reads the cases that are listed under the statutes. Reading case law helps the researcher understand how the courts interpret statutes, and also how the courts analyze related issues that are not covered in the statutes. Volumes of case law can be found in some public libraries, in law libraries, in courthouses, and in state government buildings such as statehouses and state libraries. Case law research can also be conducted using the Internet. For example, Cornell University’s online Legal Information Institute (<http://www.law.cornell.edu>) offers recent and historic U.S. Supreme Court decisions, as well as recent New York appeals decisions.
Agency Regulations and Executive Orders
Administrative agencies may also create laws. The federal and state constitutions implicitly give the legislatures the power to create administrative agencies. Administrative agencies are necessary because lawmakers often lack detailed knowledge about important issues, and they need experts to manage the regulation of complex subjects. On the federal level, for example, the Department of the Interior was created by Congress to manage the nation’s natural resources. In creating the agency, Congress gave it power to promulgate regulations concerning the use and protection of natural resources.
Administrative agency regulations have the force of law if they have a binding effect on the rights and duties of persons. For example, Interior Department regulations that prohibit mining or logging in certain areas of the country are considered law, even though they are not formulated by an elected official or judge. Federal administrative agency rules are approved by Congress, so ultimately they are a product of the will of elected officials. Similarly, on the state and local levels, an administrative agency may promulgate rules that have the force of law, but only at the pleasure of the elected lawmakers that created the agency. If an agency seeks to change a regulation, it must, in most cases, inform the public of its intentions and provide the public with an opportunity to voice concerns at a public meeting.
Not all agency regulations have the force of law. Agency rules that merely interpret other rules, state policy, or govern organization, procedure, and practice need not be obeyed by parties outside the agency.
Some administrative agencies have Quasi-Judicial powers. That is, they have limited authority to hear disputes and make binding decisions on matters relevant to the agency. For example, the Health and Human Services Department (HHS) has a court with authority to hear cases concerning actions by the HHS, such as the denial of Social Security benefits. An administrative law judge (ALJ) presides over the court, and appeals from ALJ decisions can be taken to an HHS appeals council. If an administrative agency has quasi-judicial powers, decisions made by the ALJ and boards of appeals have the force of law.
The quickest way to uncover information about state agency regulations is to search the World Wide Web. Most state agencies maintain a comprehensive website. Each state’s Secretary of State can also be accessed on the Web. Most agencies are named according to their area of concern. For example, a department of Gaming is concerned with gambling, and a department of fish, game, and wildlife is concerned with issues related to hunting and wildlife conservation.
Executive orders are issued to interpret, implement, or administer laws. On the federal level, executive orders are issued by the president or by another Executive Branch official under the president’s direction. Executive orders range from commands for detailed changes in federal administrative agency procedures to commands for military action. To have the force of law, a federal Executive Order must be published in the Federal Register, the official government publication of executive orders and federal administrative agency regulations. On the state level, governors have similar authority to make laws concerning state administrative agencies and state military personnel.
Counties, cities, and towns also have the authority to make laws. Local laws are issued by elected lawmakers and local administrative agencies. Local laws cannot conflict with state or federal laws. Decisions by local courts generally operate as law insofar as they apply to the participants in the case. To a lesser extent, local court decisions may have a prospective effect. That is, a local court decision can operate as precedent, but only in cases brought within the same jurisdiction. For example, a decision by a court in Green County may affect future court cases in Green County, but it has no bearing on the law in any other county. Local laws can be found in local courthouses, in local libraries, and in state government libraries. Local laws may also be accessed via the World Wide Web.
Administrative Law and Procedure; Civil Law; Congress of the United States; Constitutional Amendment; Constitution of the United States; Court Opinion; Criminal Law; Equity; Federalism; Federal Register; Judicial Review; Private Law; Public Law; Stare Decisis.
LAW. In its most general and comprehensive sense, law signifies a rule of
action; and this term is applied indiscriminately to all kinds of action;
whether animate or inanimate, rational or irrational. 1 Bl. Com. 38. In its
more confined sense, law denotes the rule, not of actions in general, but of
human action or conduct. In the civil code of Louisiana, art. 1, it is
defined to be “a solemn expression of the legislative will.” Vide Toull. Dr.
Civ. Fr. tit. prel. s. 1, n. 4; 1 Bouv. Inst. n. 1-3.
2. Law is generally divided into four principle classes, namely;
Natural law, the law of nations, public law, and private or civil law. When
considered in relation to its origin, it is statute law or common law. When
examined as to its different systems it is divided into civil law, common
law, canon law. When applied to objects, it is civil, criminal, or penal. It
is also divided into natural law and positive law. Into written law, lex
scripta; and unwritten law, lex non scripta. Into law merchant, martial law,
municipal law, and foreign law. When considered as to their duration, laws
are immutable and arbitrary or positive; when as their effect, they are
prospective and retrospective. These will be separately considered.
LAW, ARBITRARY. An arbitrary law is one made by the legislator simply
because he wills it, and is not founded in the nature of things; such law,
for example, as the tariff law, which may be high or low. This term is used
in opposition to immutable.
LAW, CANON. The canon law is a body of Roman ecclesiastical law, relative to
such matters as that church either has or pretends to have the proper
2. This is compiled from the opinions of the ancient Latin fathers, the
decrees of general councils, and the decretal epistles and bulls of the holy
see. All which lay in the same confusion and disorder as the Roman civil
law, till about the year 1151, when one Gratian, an Italian monk, animated
by the discovery of Justinian’s Pandects, reduced the ecclesiastical
constitutions also into some method, in three books, which he entitled
Concordia discordantium canonum, but which are generally known by the name
of Decretum Gratiani. These reached as low as the time of Pope Alexander
III. The subsequent papal decrees to the pontificate of Gregory IX., were
published in much the same method, under the auspices of that pope, about
the year 1230, in five books, entitled Decretalia Gregorii noni. A sixth book
was added by Boniface VIII., about the year 1298, which is called Sextus
decretalium. The Clementine constitution or decrees of Clement V., were in
like manner authenticated in 1317, by his successor, John XXII., who also
published twenty constitutions of his own, called the Extravagantes Joannis,
all of which in some manner answer to the novels of the civil law. To these
have since been added some decrees of the later popes, in five books called
Extravagantes communes. And all these together, Gratian’s Decrees, Gregory’s
Decretals, the Sixth Decretals, the Clementine Constitutions, and the
Extravagants of John and his successors, form the Corpus juris canonici, or
body of the Roman canon law. 1 Bl. Com. 82; Encyclopedie, Droit Canonique,
Droit Public Ecclesiastique; Dict. de Jurispr. Droit Canonique; Ersk. Pr. L.
Scotl. B. 1, t. 1, s. 10. See, in general, Ayl. Par. Jur. Can. Ang.; Shelf.
on M. & D. 19; Preface to Burn’s Eccl. Law, by Thyrwhitt, 22; Hale’s Hist.
C. L. 26-29; Bell’s Case of a Putative Marriage, 203; Dict. du Droit
Canonique; Stair’s Inst. b. 1, t. 1, 7.
LAW, CIVIL. The term civil law is generally applied by way of eminence to
the civil or municipal law of the Roman empire, without distinction as to
the time when the principles of such law were established or modified. In
another sense, the civil law is that collection of laws comprised in the
institutes, the code, and the digest of the emperor Justinian, and the novel
constitutions of himself and some of his successors. Ersk. Pr. L. Scotl. B.
1, t. l, s. 9; 6 L. R. 494.
2. The Institutes contain the elements or first principles of the Roman
law, in four books. The Digests or Pandects are in fifty books, and contain
the opinions and writings of eminent lawyers digested in a systematical
method, whose works comprised more than two thousand volumes, The new code,
or collection of imperial constitutions, in twelve books; which was a
substitute for the code of Theodosius. The novels or new constitutions,
posterior in time to the other books, and amounting to a supplement to the
code, containing new decrees of successive emperors as new questions
happened to arise. These form the body of the Roman law, or corpus juris
civilis, as published about the time of Justinian.
3. Although successful in the west, these laws were not, even in the
lifetime of the emperor universally received; and after the Lombard invasion
they became so totally neglected, that both the Code and Pandects were lost
till the twelfth century, A. D. 1130; when it is said the Pandects were
accidentally discovered at Amalphi, and the Code at Ravenna. But, as if
fortune would make an atonement for her former severity, they have since
been the study of the wisest men, and revered as law, by the politest
4. By the term civil law is also understood the particular law of each
people, opposed to natural law, or the law of nations, which are common to
all. Just. Inst. l. 1, t. 1, Sec. 1, 2; Ersk. Pr. L. Scot. B. 1, t. 1, s. 4.
In this sense it, is used by Judge Swift. See below.
5. Civil law is also sometimes understood as that which has emanated
from the secular power opposed to the ecclesiastical or military.
6. Sometimes by the term civil law is meant those laws which relate to
civil matters only; and in this sense it is opposed to criminal law, or to
those laws which concern criminal matters. Vide Civil.
7. Judge Swift, in his System of the Laws of Connecticut, prefers the
term civil law, to that of municipal law. He considers the term municipal to
be too limited in its signification. He defines civil law to be a rule of
human action, adopted by mankind in a state of society, or prescribed by the
supreme power of the government, requiring a course of conduct not repugnant
to morality or religion, productive of the greatest political happiness, and
prohibiting actions contrary thereto, and which is enforced by the sanctions
of pains and penalties. 1 Sw. Syst. 37. See Ayl. Pand. B. 1, t. 2, p. 6.
See, in general, as to civil law, Cooper’s Justinian the Pandects; 1
Bl. Com. 80, 81; Encyclopedie, art. Droit Civil, Droit Romain; Domat, Les
Loix Civiles; Ferriere’s Dict.; Brown’s Civ. Law; Halifax’s Analys. Civ.
Law; Wood’s Civ. Law; Ayliffe’s Pandects; Hein. Elem. Juris.; Erskine’s
Institutes; Pothier; Eunomus, Dial. 1; Corpus Juris Civilis; Taylor’s Elem.
LAW, COMMON. The common law is that which derives its force and authority
from the universal consent and immemorial practice of the people. It has
never received the sanction of the legislature, by an express act, which is
the criterion by which it is distinguished from the statute law. It has
never been reduced to writing; by this expression, however, it is not meant
that all those laws are at present merely oral, or communicated from former
ages to the present solely by word of mouth, but that the evidence of our
common law is contained in our books of Reports, and depends on the general
practice and judicial adjudications of our courts.
2. The common law is derived from two sources, the common law of
England, and the practice and decision of our own courts. In some states the
English common law has been adopted by statute. There is no general rule to
ascertain what part of the English common law is valid and binding. To run
the line of distinction, is a subject of embarrassment to courts, and the
want of it a great perplexity to the student. Kirb. Rep. Pref. It may,
however, be observed generally, that it is binding where it has not been
superseded by the constitution of the United States, or of the several
states, or by their legislative enactments, or varied by custom, and where
it is founded in reason and consonant to the genius and manners of the
3. The phrase “common law” occurs in the seventh article of the
amendments of the constitution of the United States. “In suits at common
law, where the value in controversy shall not exceed twenty dollar says that
article, “the right of trial by jury shall be preserved. The “common law”
here mentioned is the common law of England, and not of any particular
state. 1 Gall. 20; 1 Bald. 558; 3 Wheat. 223; 3 Pet. R. 446; 1 Bald. R.
554. The term is used in contradistinction to equity, admiralty, and
maritime law. 3 Pet. 446; 1 Bald. 554.
4. The common law of England is not in all respects to be taken as that
of the United States, or of the several states; its general principles are
adopted only so far as they are applicable to our situation. 2 Pet, 144; 8
Pet. 659; 9 Cranch, 333; 9 S. & R. 330; 1 Blackf 66, 82, 206; Kirby, 117; 5
Har. & John. 356; 2 Aik. 187; Charlt. 172; 1 Ham. 243. See 5 Cow. 628; 5
Pet. 241; 1 Dall. 67; 1 Mass. 61; 9 Pick. 532; 3 Greenl. 162; 6 Greenl. 55;
3 Gill & John. 62; Sampson’s Discourse before the Historical Society of New
York; 1 Gallis. R. 489; 3 Conn. R. 114; 2 Dall. 2, 297, 384; 7 Cranch, R.
32; 1 Wheat. R. 415; 3 Wheat. 223; 1 Blackf. R. 205; 8 Pet. R. 658; 5 Cowen,
R. 628; 2 Stew. R. 362.
LAW, CRIMINAL. By criminal law is understood that system of laws which
provides for the mode of trial of persons charged with criminal offences,
defines crimes, and provides for their punishments.
LAW, FOREIGN. By foreign laws are understood the laws of a foreign country.
The states of the American Union are for some purposes foreign to each
other, and the laws of each are foreign in the others. See Foreign laws.
LAW, INTERNATIONAL. The law of nature applied to the affairs of nations,
commonly called the law of nations, jus gentium; is also called by some
modern authors international law. Toullier, Droit Francais, tit. rel. Sec.
12. Mann. Comm. 1; Bentham. on Morals, &c., 260, 262; Wheat. on Int. Law;
Foelix, Du Droit Intern. Prive, n. 1.
LAW, MARTIAL. Martial law is a code established for the government of the
army and navy of the United States.
2. Its principal rules are to be found in the articles of war. (q.v.)
The object of this code, or body of regulations is to, maintain that order
and discipline, the fundamental principles of which are a due obedience of
the several ranks to their proper officers, a subordination of each rank to
their superiors, and the subjection of the whole to certain rules of
discipline, essential to their acting with the union and energy of an
organized body. The violations of this law are to be tried by a court
3. A military commander has not the power, by declaring a district to
be under martial law, to subject all the citizens to that code, and to
suspend the operation of the writ of habeas corpus. 3 Mart. (Lo.) 531. Vide
Hale’s Hist. C. L. 38; 1 Bl. Com. 413; Tytler on Military Law; Ho. on C. M.;
M’Arth. on C. M.; Rules and Articles of War, art. 64, et seq; 2 Story, L. U.
LAW, MERCHANT. A system of customs acknowledged and taken notice of by all
commercial nations; and those customs constitute a part of the general law
of the land; and being a part of that law their existence cannot be proved
by witnesses, but the judges are bound to take notice of them ex officio.
See Beawes’ Lex Mercatoria Rediviva; Caines’ Lex Mercatoria Americana; Com.
Dig. Merchant, D; Chit. Comm. Law; Pardess. Droit Commercial; Collection des
Lois Maritimes anterieure au dix hutiŠme siŠcle, par Dupin; Capmany,
Costumbres Maritimas; II Consolato del Mare; Us et Coutumes de la Mer;
Piantandia, Della Giurisprudenze Maritina Commerciale, Antica e Moderna;
Valin, Commentaire sur l’Ordonnance de la Marine, du Mois d’Aout, 1681;
Boulay-Paty, Dr. Comm.; Boucher, Institutions au Droit Maritime.
LAW, MUNICIPAL. Municipal law is defined by Mr. Justice Blackstone to be “a
rule of civil conduct prescribed by the supreme power in a state, commanding
what is right and prohibiting what is wrong.” This definition has been
criticised, and has been perhaps, justly considered imperfect. The latter
part has been thought superabundant to the first; see Mr. Christian’s note;
and the first too general and indefinite, and too limited in its
signification to convey a just idea of the subject. See Law, civil. Mr.
Chitty defines municipal law to be “a rule of civil conduct, prescribed by
the supreme power in a state, commanding what shall be done or what shall
not be done.” 1 Bl. Com. 44, note 6, Chitty’s edit.
2. Municipal law, among the Romans, was a law made to govern a
particular city or province; this term is derived from the Latin municipium,
which among them signified a city which was governed by its own laws, and
which had its own magistrates.
LAW, PENAL. One which inflicts a penalty for a violation of its enactment.
LAW, POSITIVE. Positive law, as used in opposition to natural law, may be
considered in a threefold point of view. 1. The universal voluntary law, or
those rules which are presumed to be law, by the uniform practice of nations
in general, and by the manifest utility of the rules themselves. 2. The
customary law, or that which, from motives of convenience, has, by tacit,
but implied agreement, prevailed, not generally indeed among all nations,
nor with so permanent a utility as to become a portion of the universal
voluntary law, but enough to have acquired a prescriptive obligation among
certain states so situated as to be mutually benefited by it. 1 Taunt. 241.
3. The conventional law, or that which is agreed between particular states
by express treaty, a law binding on the parties among whom such treaties are
in force. 1 Chit. Comm. Law, 28.
LAW, PRIVATE. An act of the legislature which relates to some private
matters, which do not concern the public at large.
LAW, PROSPECTIVE. One which provides for, and regulates the future acts of
men, and does not interfere in any way with what has past.
LAW, PUBLIC. A public law is one in which all persons have an interest.
LAW, RETROSPECTIVE. A retrospective law is one that is to take effect, in
point of time, before it was passed.
2. Whenever a law of this kind impairs the obligation of contracts, it
is void. 3 Dall. 391. But laws which only vary the remedies, divest no
right, but merely cure a defect in proceedings otherwise fair, are valid. 10
Serg. & Rawle, 102, 3; 15 Serg. & Rawle, 72. See Ex post facto.
LAW, STATUTE. The written will of the legislature, solemnly expressed
according to the forms prescribed by the constitution; an act of the
legislature. See Statute.
LAW, UNWRITTEN, or lex non scripta. All the laws which do not come under the
definition of written law; it is composed, principally, of the law of
nature, the law of nations, the common law, and customs.
LAW, WRITTEN, or lex scripta. This consists of the constitution of the
United States the constitutions of the several states the acts of the
different legislatures, as the acts of congress, and of the legislatures of
the several states, and of treaties. See Statute.