Chapter 1
Legal Heritage and the Digital Age
What is the meaning of, “It’s the law”?
I. Teacher to Teacher Dialogue
One of the most common dilemmas facing instructors of business law is the issue of
topic choice. By the very nature of the subjects we teach, the breadth of materials is so wide
that choosing what to focus on in the limited classroom time we have with our students can
be a most daunting task. This problem is especially exacerbated when the topics we are
dealing with are all of deep interest and can stand alone as separate courses.
In this chapter, for example, we are asked to introduce students to topics ranging
from the definitions and purposes of law to how our system affects business decisions, to
some of the most important provisions found in the U.S. Constitution. Any one of these
subparts can provide the raw materials for an entire course at the law school level. Our job
must start with a self-evident, but sometimes forgotten, point: this is not law school. We are
here not to train future lawyers but rather students who need to know enough about these
issues to recognize that they are issues. The technical legal problems they may be facing
later will ultimately need to be resolved using law and other practitioners.
The plus side of this dilemma is that because we have such a diverse menu to select
from, we are able to pick and choose our areas of emphasis. For example, if your particular
teaching and research interests lie in the area of ethics and the schools of jurisprudential
thought from which they are derived, then by all means, run with it! Rather than trying to
be all things to all people, it is better to focus your efforts on your strengths. This does not
mean that you can shortchange the other material. All key objectives of the chapter should
be fully outlined and incorporated in both your lecture and materials outline. But if you
have a particular interest and expertise in, for example, the Law and Economics School of
jurisprudential thought, then use them as focal points of comparison in the evolutionary
process that seeks to distinguish the older schools of jurisprudence from newer approaches
to these issues. In any event, remember that philosophical studies of what law is and what
its role is in the larger scheme of things have always posed questions virtually impossible to
answer. This chapter represents attempts by great thinkers to answer the unanswerable. It
,would be far too presumptuous for us to think that we can teach, in a few hours, what the
great philosophers of the world have tried to do over hundreds of years. Perhaps this is an
early lesson in what wisdom is really all about: the more we know of history, the more we
know of our own limitations. If we can get that point across, the course is off to a good start.
II. Chapter Objectives
Define law.
Describe the functions of law.
Explain the development of the U.S. legal system.
List and describe the sources of law in the United States.
Discuss the importance of the U.S. Supreme Court’s decision in Brown v. Board of
Education.
III. Key Question Checklist
What is law?
Once you have identified the kind of societal expectation of behavior, what standard
of behavior is most appropriate? Does law codify the standard? Do one or more of
the schools of jurisprudence support the standard?
What are the sources of law in the United States?
What bodies of law and/or ethical standards apply?
How would you apply these standards to the facts?
IV. Chapter Outline
The first chapter objective is an introduction to the historical underpinnings of
jurisprudential thought. This would include not only the functions of law listed in the
summary, but also an early opportunity to introduce the role of ethics based on the various
schools of jurisprudence discussed.
What Is Law?
, The law consists of rules that regulate the conduct of individuals, businesses, and
other organizations within society.
It is intended to protect persons and their property against unwanted interference
from others.
The law forbids persons from engaging in certain undesirable activities.
It is often fair (but not always).
The Law must be flexible.
Definition of Law
According to Black’s Law Dictionary, “Law, in its generic sense, 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 consequences is a
law.”
Functions of the Law
Keeping the peace – Including making certain activities crimes
Shaping moral standards – e.g., enacting laws that discourage drug and alcohol
abuse
Promoting social justice – e.g., enacting statutes that prohibit discrimination in
employment
Maintaining the status quo – e.g., passing laws preventing the forceful overthrow
of the government
Facilitating orderly change – e.g., passing statutes only after considerable study,
debate, and public input
Providing a basis for compromise – approximately 90 percent of all lawsuits are
settled prior to trial
Facilitating planning – e.g., well-designed commercial laws allow businesses to
plan their activities, allocate their resources, and assess their risks
Maximizing individual freedom – e.g., the rights of freedom of speech, religion,
and association granted by the First Amendment to the U.S. Constitution
, Fairness of the Law
The American legal system is, overall, a comprehensive and fair system. Yet it is occasionally
misused and abused.
Flexibility of the Law
U.S. law has evolved and grown as a reflection of changes in society, technology, and
commerce. The same general principles that we were established on still exist. The
modifications exhibit the flexibility and maturity of our system to be able to adapt to the
changing commercial, social, and ethical environments.
Landmark U.S. Supreme Court Case: Brown v. Board of Education
This box discusses the application of law where the Supreme Court overturned the
“separate but equal” doctrine that condoned separate schools for black children and white
children.
Case Questions
Critical Legal Thinking: The states must treat all individuals in the same manner as others
that are in similar positions or situations, without favoring residents or any other group.
Equal application is the important idea here.
Ethics: Separate but equal cannot be applied when it comes to education, so the decision in
Plessy v. Ferguson was wrong. The Plessy decision was based on the idea of granting
political and civil equality to African Americans, but left out social equality.
Contemporary Business: The US Constitution was drafted to reflect changing social,
economic, technical, and intellectual ideas. This is what makes the Constitution unique, as it
slowly adapts to the changing world around us.
Schools of Jurisprudential Thought
Natural Law School – Postulates that law is based on what is “correct” and that law
should be based on morality and ethics
Historical School – Believes that law is an aggregate of social traditions and
customs
Analytical School – Maintains that law is shaped by logic
Legal Heritage and the Digital Age
What is the meaning of, “It’s the law”?
I. Teacher to Teacher Dialogue
One of the most common dilemmas facing instructors of business law is the issue of
topic choice. By the very nature of the subjects we teach, the breadth of materials is so wide
that choosing what to focus on in the limited classroom time we have with our students can
be a most daunting task. This problem is especially exacerbated when the topics we are
dealing with are all of deep interest and can stand alone as separate courses.
In this chapter, for example, we are asked to introduce students to topics ranging
from the definitions and purposes of law to how our system affects business decisions, to
some of the most important provisions found in the U.S. Constitution. Any one of these
subparts can provide the raw materials for an entire course at the law school level. Our job
must start with a self-evident, but sometimes forgotten, point: this is not law school. We are
here not to train future lawyers but rather students who need to know enough about these
issues to recognize that they are issues. The technical legal problems they may be facing
later will ultimately need to be resolved using law and other practitioners.
The plus side of this dilemma is that because we have such a diverse menu to select
from, we are able to pick and choose our areas of emphasis. For example, if your particular
teaching and research interests lie in the area of ethics and the schools of jurisprudential
thought from which they are derived, then by all means, run with it! Rather than trying to
be all things to all people, it is better to focus your efforts on your strengths. This does not
mean that you can shortchange the other material. All key objectives of the chapter should
be fully outlined and incorporated in both your lecture and materials outline. But if you
have a particular interest and expertise in, for example, the Law and Economics School of
jurisprudential thought, then use them as focal points of comparison in the evolutionary
process that seeks to distinguish the older schools of jurisprudence from newer approaches
to these issues. In any event, remember that philosophical studies of what law is and what
its role is in the larger scheme of things have always posed questions virtually impossible to
answer. This chapter represents attempts by great thinkers to answer the unanswerable. It
,would be far too presumptuous for us to think that we can teach, in a few hours, what the
great philosophers of the world have tried to do over hundreds of years. Perhaps this is an
early lesson in what wisdom is really all about: the more we know of history, the more we
know of our own limitations. If we can get that point across, the course is off to a good start.
II. Chapter Objectives
Define law.
Describe the functions of law.
Explain the development of the U.S. legal system.
List and describe the sources of law in the United States.
Discuss the importance of the U.S. Supreme Court’s decision in Brown v. Board of
Education.
III. Key Question Checklist
What is law?
Once you have identified the kind of societal expectation of behavior, what standard
of behavior is most appropriate? Does law codify the standard? Do one or more of
the schools of jurisprudence support the standard?
What are the sources of law in the United States?
What bodies of law and/or ethical standards apply?
How would you apply these standards to the facts?
IV. Chapter Outline
The first chapter objective is an introduction to the historical underpinnings of
jurisprudential thought. This would include not only the functions of law listed in the
summary, but also an early opportunity to introduce the role of ethics based on the various
schools of jurisprudence discussed.
What Is Law?
, The law consists of rules that regulate the conduct of individuals, businesses, and
other organizations within society.
It is intended to protect persons and their property against unwanted interference
from others.
The law forbids persons from engaging in certain undesirable activities.
It is often fair (but not always).
The Law must be flexible.
Definition of Law
According to Black’s Law Dictionary, “Law, in its generic sense, 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 consequences is a
law.”
Functions of the Law
Keeping the peace – Including making certain activities crimes
Shaping moral standards – e.g., enacting laws that discourage drug and alcohol
abuse
Promoting social justice – e.g., enacting statutes that prohibit discrimination in
employment
Maintaining the status quo – e.g., passing laws preventing the forceful overthrow
of the government
Facilitating orderly change – e.g., passing statutes only after considerable study,
debate, and public input
Providing a basis for compromise – approximately 90 percent of all lawsuits are
settled prior to trial
Facilitating planning – e.g., well-designed commercial laws allow businesses to
plan their activities, allocate their resources, and assess their risks
Maximizing individual freedom – e.g., the rights of freedom of speech, religion,
and association granted by the First Amendment to the U.S. Constitution
, Fairness of the Law
The American legal system is, overall, a comprehensive and fair system. Yet it is occasionally
misused and abused.
Flexibility of the Law
U.S. law has evolved and grown as a reflection of changes in society, technology, and
commerce. The same general principles that we were established on still exist. The
modifications exhibit the flexibility and maturity of our system to be able to adapt to the
changing commercial, social, and ethical environments.
Landmark U.S. Supreme Court Case: Brown v. Board of Education
This box discusses the application of law where the Supreme Court overturned the
“separate but equal” doctrine that condoned separate schools for black children and white
children.
Case Questions
Critical Legal Thinking: The states must treat all individuals in the same manner as others
that are in similar positions or situations, without favoring residents or any other group.
Equal application is the important idea here.
Ethics: Separate but equal cannot be applied when it comes to education, so the decision in
Plessy v. Ferguson was wrong. The Plessy decision was based on the idea of granting
political and civil equality to African Americans, but left out social equality.
Contemporary Business: The US Constitution was drafted to reflect changing social,
economic, technical, and intellectual ideas. This is what makes the Constitution unique, as it
slowly adapts to the changing world around us.
Schools of Jurisprudential Thought
Natural Law School – Postulates that law is based on what is “correct” and that law
should be based on morality and ethics
Historical School – Believes that law is an aggregate of social traditions and
customs
Analytical School – Maintains that law is shaped by logic
