Introduction to Jurisprudence

Prof. Dr. Leslie Burton

Leslie.burton.prof@gmail.com
Week 1
What is Jurisprudence?

The study, science, or knowledge of law

What does law DO?
Behavior

Requires
Prohibits
Allows
Regulates
Prescribes/ proscribes behavior
Two functions of law
Primary rules that govern conduct

Secondary rules that regulate how the law is made, how the courts are
set up, what procedures must be followed
Rights

Create rights and imposes duties

between people
between people and govt
between people and objects
Creates Claims

Defines terms
procedures
Does Law Impact Your Daily Life?

How?
Concepts of Law
Juridical Act

“Act” means conduct

“Juridical” means intended to have a legal effect

What does a “juridical act” do?

Create,
Modify, a right,
Transfer, an obligation, or
Preserve, a legal relationship
Extinguish (terminate)
“Juridical acts” (conduct intended to have a
legal effect) Examples

Sell a house= Transfer of a right of ownership

Get married= Create a new legal relationship between partners

Cancel a contract= Extinguish a legal relationship

Parliament passes a statute= Obligates property owners to pay property

tax
Many kinds of acts may bring about a legal effect or
have legal consequences.

But if an act is not done with the intent to have legal

consequences, it is not a “juridical act.”
Examples of non-juridical acts

Building collapses= civil or criminal liability may arise, but no juridical

act

Driver accidentally crashes into another car and the passenger in the
other car is hurt=civil or criminal liability may arise, but no juridical act
Who can perform a juridical act?
Legal ability or right to do the act=
Competence

Person performing the juridical act must have the “competence” to

create legal consequences by performing the act

Competence to sell a house=only the owner has that competence

Competence to pass a statute=only the legislature has that ability

Juridical act
Act that affects legal rights, obligations, or legal relationships

Intentionally done to bring about a legal consequence

Performed by someone who has competence

Immunity
Immunity means “Protection”

Immunity from a disease

Immunity from prosecution

Competence vs. Immunity
Only the house owner has the “competence” to sell his house.

This means the owner is “immune” from having anyone else sell his
house.

Generally, a person is competent to change only his/her own legal

relationships. Can’t change other people’s relationships.
Exception
Who has the competence to change people’s
legal relationships without their consent?
Exception: Private citizens aren’t immune to having
their legal positions changed by legislation, police
officers, taxing authorities, etc.
Public officers often have the competence to modify the legal positions
of private citizens with their juridical acts.

Tax inspector can impose a duty to pay income tax

Parking officer can fine the driver of an illegally parked car
Court can sentence a defendant to pay damages
Lots of general rules and exceptions
Conduct that is intended to cause a legal effect is a “juridical act”

Unless the person who performs the conduct does not have the
competence to do the juridical act

A person is competent to change only his/her own legal relationships

Unless the one acting is a public officer or official who has been
given the competence by a Constitution or law or court order
“Null and void” or “avoidable”
If the juridical act is not performed properly, or is performed by
someone who lacks competence, the legal consequences are “null and
void”

Null and void=Not Valid, has no effect

Or the legal consequences can be “avoidable”

Avoidable (or voidable)=Can be declared void (not valid) by a court

Duties
Law imposes a lot of duties

Duty

If a person has a duty to do something, that means that he/she is

required or obligated to do it; he/she must do it.
Duty v. Obligation
In the U.S., we use “duty” and “obligation” interchangeably.
In civil law, there is a difference.

Civil law use of the terms:

“Duty” is owed to society at large (I have a duty to drive safely so not to

endanger others)

“Obligation” is a duty owed to a particular person (I have an obligation to pay

my worker)
Duty has two parts
Who?

Who has the duty?

What?

What is the duty?

What is the duty? = Content of the duty
What action is required or prohibited?

Duty to DO something or NOT to do something.

Must do something= Duty / Obligation

Not supposed to do something=Prohibition

Duty v. Prohibition examples

Duty to pay taxes

Duty to provide for your children

Prohibition against selling heroin

Prohibition against cheating customers
Duty and Prohibition can be closely related

Idiom:
“Opposite sides of the same coin”

Duty to stop at red light

Prohibited from running the red light
Duty and Right can be closely related
The duty of one person often corresponds to the right of another (and
vice versa)

Contract example
Party A has the duty to deliver apples to Party B
Party B has the right to receive the apples from Party A
Party B has the duty to pay Party A
Party A has the right to be paid by Party B
Permission
If someone has permission to do something, it means he/she can do it
if he/she wants,

Even though he/she has no duty to do it and

Even though he/she has not been prohibited from doing it.
General rule: Everyone is allowed to do anything
that has not been explicitly forbidden

explicit=stated with no ambiguity

So permission can be looked at as the absence of prohibition.

Everyone is permitted to walk on the grass unless:

There is a prohibition, such as
• a sign that says “Do Not Walk on the Grass”
• a local ordinance that prohibits walking on grass
• you are trespassing on someone else’s private property.
Explicit permission as a juridical act
Remember juridical acts?
Conduct intended to have a legal effect

If Susan is a landowner and she says to James,

“James, you are free to walk on my lawn any time you want.”
Susan has given James explicit permission to walk on her private lawn.
She has performed a juridical act.

Legal effect here would be to extinguish Susan’s right to stop James from
walking on his land and simultaneously create a right in James to walk on
the land.
Only a person with Competence can give
Permission

Susan, who owns the land, is competent to give permission to James.

Miriam, who does not own the land, cannot give permission to James
because as the non-owner, she is not competent to do so.
How would Miriam obtain the competence to give
permission to James?

Susan would have to perform a juridical act to give Miriam permission to give
James permission.

Ideas?

Sell or lease the property to Miriam.

Give Miriam the permission to give permission to James (makes Miriam the
agent of Susan).
Leave the land to Miriam in her will.
Permission can be limited or revoked

”James, you are free to walk on my lawn just this once.”

Limited permission.

“James, you cannot walk on my lawn anymore.”

Revocation of permission; permission is revoked.
Right

What is a right?

An interest that is protected by law

Interrelationship of concepts

People have a right to freedom of speech.

Government has a duty not to interfere with that freedom.
Govt is prohibited from interfering with that freedom.
Govt generally does not have the competence to interfere with the
right.
People generally are immune from having their freedom taken away.
People can waive their right to freedom of speech.
Waive= to give it up; to refrain from insisting on a right
Vocabulary words
Juridical act Prohibition
Extinguish Right
Competence Explicit
Immunity Waive
Null and void Revoke/ revocation
Avoidable/voidable
Duty
Permission
Week 2 Jurisprudence

Law is created by the Legislature or the Courts

But how did the “law” come about?

Concept that the law reflects natural law, what is naturally good and
just.

But that is abstract and we need to have concrete laws.

In a society with no laws, is it “everyone for himself”?

Do we need laws to regulate our behavior?

Do we follow the law because the laws exist and we don’t want to get
in trouble?
Should the law treat all people equally?

Any rational reasons to treat people differently?

Criminal behavior
Age
Race
Qualifications
Sex
Are there moral principles that should apply to all cultures?

Should there be a difference between morality and legality?

Do our moral judgments need to be made into law?

Is “good” understood differently in different places?

Why is law different in different societies?

What does “good” depend on?

Religious beliefs
Family / community custom
Are human rights universal and apply to all human beings…

or are they dependent on the culture?

Statutory analysis
Terms for what statutes and regulations do:

Prohibit—forbid, prevent
Require—“shall” or “must”
Allow—“may”
Statutory interpretation
Disjunctive—“OR”

Conjunctive—“AND”

Penalty for littering is jail and a fine.

Penalty for littering is jail or a fine.
Or can mean “and/or”

Before you can be admitted to the adult swimming pool, you must have a
swimming certificate or take a lifesaving class.

You can get there on time and get a donut, or you can get there late and get
nothing.
Punctuation and word placement
Children’s Meal $1.99

Burger and soda, or pizza, soda and toy.

Burger and soda OR pizza, soda and toy.

Burger and soda OR pizza and soda AND toy
Sandwich $5.95
For just $1 more you get: A drink and fruit, chips or a cookie

A drink and fruit (and then a choice between) chips or a cookie

A drink AND (choice between) fruit or chips or cookie

A person who is convicted of possessing child pornography shall receive
an additional ten-year sentence if he has a previous conviction for
aggravated sexual abuse, sexual abuse, or abusive sexual conduct
involving a minor.

Minor =a person under 18.

Defendant had a previous conviction for aggravated sexual abuse of an
adult female acquaintance.

Lockhart v. United States (2016)

A person who is convicted of possessing child pornography shall receive an
additional ten-year sentence if he was previously convicted of:
_______________________________________________
aggravated sexual abuse )
sexual abuse )
abusive sexual conduct ) involving a minor.
_______________________________________________
aggravated sexual abuse, or
sexual abuse, or
abusive sexual conduct involving a minor.
Why not write it this way?
A person who is convicted of possessing child pornography shall receive
an additional ten-year sentence if he has a previous conviction for
sexual abuse.
If the defendant used a firearm during a drug trafficking crime, the
sentence will be increased by five years.

Trafficking = to deal in something illegal

Defendant tried to trade a gun for drugs.

Is that “using” a firearm?

”using a gun”
Majority opinion said yes, it was ”using” a gun!

Dissenting opinion by Justice Scalia :

To “use” something ordinarily means to use it for its intended purpose.
When someone asks, “Do you use a cane?,” he is not inquiring whether
you have your grandfather’s silver-handled walking stick on display in
the hall; he wants to know whether you walk with a cane.

Similarly, to speak of “using a firearm” is to speak of using it for its

distinctive purpose, i.e., as a weapon. Smith v. United States, 508 U.S.
223 (1993)
3 methods of statutory interpretation
Literal rule: Words mean what they say. Apply the natural grammatical
meaning-- even if it is an absurd result.

Golden Rule/ Pragmatic rule: Use common sense. Modify the result if the literal
approach would be absurd or not what the legislature intended.

Mischief rule / Legislative intent rule: What mischief was the legislature trying
to prevent/ fix? Interpret the statute so that it does prevent/fix the situation.
We did examples with:

Landlord should provide an adequate number of garbage cans.

A testator must sign the will in the presence of two witnesses

No garbage dump shall be established within 250 feet of a residence.

Classic wishy-washy words (imprecise, unclear, vague)

Adequate
Sufficient
Significant
Substantial
Satisfactory
Suitable
Reasonable
Minimal
Appropriate
Feasible
Martha, a widow, died leaving a large estate, but no will.
Martha has a biological daughter born during the
marriage, an illegitimate daughter, an adopted son, and a
stepson.

The inheritance statute states:

“When an unmarried person dies intestate, the money

shall be distributed equally among the children.”
Susan, a student at a university, published a flyer about an
upcoming protest. She placed the flyer around campus on the
bulletin boards. One of the other students, Robert, who was
opposed to the protest, tore down the signs. Susan sued Robert
for conversion.

The conversion statute states:

“No person may intentionally exert unauthorized control over

property of another person.”
Louis wrote a will leaving everything to his girlfriend.
His children are upset and want to contest the will. The
will was properly signed and witnessed and listed the
date as “2020.”

The statute states: “A will must be signed and dated by

the testator.”
Michigan statute
“No one is allowed in this public park for the purpose of
fishing, hunting, trapping, camping, hiking, sightseeing,
motorcycling, snowmobiling, or any other outdoor
recreational use or trail use.”

Why don’t they just say, “for any purpose whatsoever.”

Or even just “No entry”?
Ejusdem generis
Lists
Ministers, actors, and carpenters cannot work in this jurisdiction without
a license.

Can a gardener work without a license? According to this statute, yes.

Gardener is not mentioned.
This is an “exhaustive” or “exclusive” list; it says who it applies to and it
doesn’t apply to anyone else.

If a list is an exhaustive list (fully comprehensive, thorough), the court

will not add things to it.
A customs certificate is required for fruits, vegetables, plants, and other
things.

Does a guitar need a customs certificate?

No.

Rule of “ejusdem generis.” Means that a catch-all term (“and other

things”) will be interpreted as meaning “other SIMILAR things.”
The plaintiff’s buildings were damaged by the underground construc­tion
of a rapid-transit system. He tried to recover from his insurance
company.

His policy stated:

“This insurance policy does not cover damage due to earth movement,
including but not limited to earthquake, landslide, mudflow, earth
sinking, earth rising, or shifting.”

Applying ejusdem generis, the court limited the exclusion to “natural”

phenomena. So he could collect from the insurance policy. Holy Angels
Acad. v. Hartford Ins. Grp., 487 N.Y.S.2d 1005,1006 (Sup. Ct. 1985)
British Petroleum operated a ship that was drilling for oil in the Gulf of Mexico.
Due to the negligence of the project’s on-site administrator, the ship exploded
and 11 men were killed. The government brought a federal criminal action
against the administrator under a specific statute for manslaughter of seamen.
But the statute said:

"Every captain, engineer, pilot, or other person employed on any steamboat or

vessel whose negligence causes the death of a seaman is guilty of manslaughter.

What is the commonality?

Court decided it meant “Someone responsible for the opera­tion, equipment, or

navigation of the vessel.” U.S. v. Kaluza, 780 F.3d 647 (5th Cir. 2015).
A fisherman caught a lot of undersized fish in violation of federal
law. When he saw the Feds coming, he threw all the fish back in the
water, so there would be no evidence. He was charged with violation
of the following statute:

“It is illegal to destroy or conceal any record, document, or tangible

object with the intent to impede a federal investigation.”

Court said: A “tangible object” under the statute must be an object

used to record or preserve information. Yates v. U.S., 35 S. Ct. 1074
(2015).
The lesson?
Important to be precise with your words

Unclear writing and poor drafting is what causes disputes and problems

Also these exercises help you to think like a lawyer, which you need to
do to write like a lawyer
Vocabulary Words
Conjunctive Literal Rule of Statutory
Disjunctive Interpretation
Minor Mischief Rule of Statutory
Interpretation
Canon
Golden Rule of Statutory
Trafficking Interpretation
Intestate
Ejusdem generis
Conversion