# 2.1: Sources of Law

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Law comes from three places, the Constitution, a statute, or a case. Collectively, these categories are commonly referred to as the sources of law.

## Constitutional Law

Another important distinction is to remember that one central purpose of constitutional law is to regulate (or limit) government action. The constitution protects private individuals from their government; the constitution does not protect private individuals from each other. Private individuals need not follow either the federal or state constitutions.

## Example of Government and Private Action

Cora stands on a public sidewalk and criticizes President Obama’s healthcare plan. Although other individuals may be annoyed by Cora’s words, the government cannot arrest or criminally prosecute Cora for her speech because the First Amendment of the US Constitution guarantees each individual the right to speak freely. On the other hand, if Cora walks into a Fred Meyer department store and criticizes the owner of Fred Meyer, Fred Meyer could eject Cora immediately. Fred Meyer and its personnel are private actors, not government actors, and as such, they do not have to abide by the Constitution.

## Exceptions to the Constitution

The federal and state constitutions are written documents that set forth general guiding principles establishing the government’s relationship with its citizens. Such principles are subject to interpretation and require the balancing of competing interests. For this reason, it is not uncommon that a particular constitution’s protection contains numerous exceptions. For example, we see more exceptions to constitutional protections in public schools and prisons for safety and security reasons. Public schools and prisons can mandate a certain style of dress to ensure safety. Technically, forcing an individual to dress a specific way could violate the right to self-expression, which the First Amendment guarantees. However, if wearing a uniform can lower gang-related conflicts in school and prevent prisoners from successfully escaping, the government can constitutionally regulate self-expression in these locations.

## Superiority of the Constitution

Of the three sources of law, constitutional law is considered the highest and cannot be supplanted by either of the other two sources of law. Under principles of federal supremacy, the federal or US Constitution is the preeminent source of law, and state constitutions cannot supersede it. Remember that the federal constitution mandates a floor, but a state can always increase the protections granted to its citizens.

## Statutory Law

The second source of law is statutory law. While the Constitution applies to government action, statutes apply to, and regulate, both government and individual or private action. A statute is a written (and published) law that can be enacted in one of two ways. Most statutes are written and voted into law by the legislative branch of government. The US legislative branch is called Congress, and Congress votes federal statutes into law. Every state has a legislative branch as well, called a state legislature, and a state legislature votes state statutes into law. Often, states codify their criminal statutes into a penal code.

State citizens can also vote state statutes into law and repeal laws enacted by the legislature. This is referred to as the initiative and referendum process. AK. Const. art. XI, 1.§ 1. (1959). Although a state legislature adopts most state statutes, citizens voting on an initiative can enact some very important statutes. For example, in 2014 a majority of Alaskans voted to legalize the recreational use of marijuana for adults over the age of 21 years old. See Ballot Measure No. 2 “An Act to tax and regulate the production, sale, and use of marijuana.” (2014). The initiative created the Marijuana Control Board, the taxation structure, and the penalties for violations. The citizen initiative process can be very powerful.

## Statutory Law’s Inferiority

Statutory law is subordinate to constitutional law, which means that a statute cannot conflict with or attempt to supersede constitutional provisions. If a conflict exists between constitutional and statutory law, the courts must resolve the conflict. Courts can invalidate unconstitutional statutes under the power of judicial review.

Other written and published laws that apply to government and individual action are administrative regulations and municipal ordinances. Regulations and ordinances cannot supersede or conflict with constitutional or statutory law.

## Ordinances

Ordinances are similar to statutes, except that municipalities, such as cities, counties, or boroughs vote them into law, rather than a state’s legislature or a state’s citizens. Municipalities generally derive their powers from state constitutions, municipal charters, or statutes. Ordinances usually relate to health, safety, or welfare, and violations of them are typically classified as infractions or misdemeanors, rather than felonies. Anchorage’s law prohibiting aggressive panhandling within the city’s limits is an example of a criminal ordinance. AMC § 08.30.160. Aggressive Panhandling is a class B misdemeanor subject to six months of incarceration and a \$2,000 fine. AMC § 08.05.020(H)(2).

## Model Penal Code

State criminal laws differ significantly, so in the early 1960s, a group of legal scholars, lawyers, and judges who were members of the American Law Institute drafted a set of suggested criminal statutes called the Model Penal Code. The Model Penal Code intended to provide a standardized set of criminal statutes that all states could adopt, thus simplifying the diversity effect of the United States’ legal system. While the Model Penal Code has not been universally adopted, a majority of the states have incorporated portions of it into their penal codes, and the Model Penal Code survives as a guideline and focal point for discussion when state legislatures modify their criminal statutes. Alaska has adopted portions of the Model Penal Code. A state is free to adopt some, all, or none of the Model Penal Code.

## Case Law

The third source of law is case law. When judges rule in a particular case, they apply the law (from the constitution, statutes, prior cases, and the common law) to create case law (precedent).Federal case law comes from federal courts, and state case law comes from state courts. Case law has its origins in English common law, although, in modern times, it is derived from constitutions, statutes, and precedent.

## English Common Law

In Old England, before the settlement of the United States, case law was the most prevalent source of law. This was in contrast to countries that followed the Roman Law system, which primarily relied on written codes of conduct enacted by a legislature. Case law in England was mired in tradition and local customs. Societal principles of law and equity were the guidelines when courts issued their rulings. To be consistent, English judges made it a policy to follow previous judicial decisions, thereby creating a uniform system of laws throughout the country for the first time. Case law was named common law because it was common to the entire nation. Common Law, Black’s Law Dictionary (6th ed. 1990).

The English system of jurisprudence made its way to the United States with the original colonists. Initially, the thirteen colonies unanimously adopted common law as the law of the land. All crimes were common law crimes, and cases determined criminal elements, defenses, and punishment schemes. Gradually, after the Revolutionary War, hostility toward England and modern reform led to the erosion of common-law crimes and a movement toward codification. States began replacing common law crimes with written statutes enacted by state legislatures. Oxford professor Sir William Blackstone’s Commentaries on the Law of England, which interpreted and summarized English common law, became an essential reference as the nation began the process of converting common-law principles into written statutes, ordinances, and penal codes. See id.

## Limitations on Common-Law Crimes

In modern society, judges cannot create crimes. See United States v. Hudson & Goodwin, 11 U.S. 32 (1812). This violates notions of fairness and the constitutional doctrine of separation of powers. Making up a new crime and punishing the defendant for it does not provide consistency or predictability to our legal system. It also violates the principle of legality, a core concept of American criminal justice embodied in this phrase: “Nullum crimen sine lege, nulla poena sine crimen” (No crime without law, no punishment without crime). Further, it violates basic constitutional protections like ex post facto and due process.

In states that do not allow common law crimes, statutes must define criminal conduct. If no statute exists to criminalize the defendant’s behavior, the defendant cannot be criminally prosecuted, even if the behavior is abhorrent. Alaska law makes this point explicit, “[n]o conduct constitutes an offense unless it is made an offense by [statute or regulation].” AS 11.81.220.

The common law still plays an important role in criminal lawmaking, even though most crimes are now embodied in statutes. Classification of crimes as felonies and misdemeanors is a reflection of English common law. Legislatures often create statutes out of former common law crimes. Judges look to the common law when defining statutory terms, establishing criminal procedure, and creating defenses to crimes. The United States is considered a common law country. Every state except Louisiana, which is based on the French Civil Code, adopts the common law as the law of the state except where a statute provides otherwise.

## Example of a Court’s Refusal to Create a Common Law Crime

Keeler v. Superior Court, 470 P.2d 617 (Cal. 1970) is a good example of the importance of codified criminal law. In Keeler, the defendant attacked his pregnant ex-wife, and her baby was thereafter stillborn. The California Supreme Court disallowed a murder charge against Keeler under California Penal Code § 187 because the statute criminalized only the malicious killing of a “human being.” The court reached its decision after examining the common law definition of a human being and determining that the definition did not include a fetus. The court reasoned that it could not create a new crime without violating the due process clause, separation of powers, and California Penal Code § 6, which prohibits the creation of common law crimes. After the Keeler decision, the California Legislature changed Penal Code § 187 to include a fetus, excepting abortion.

## Powerful Nature of Case Law

Courts are frequently called upon to interpret constitutional and statutory law, making case law a powerful source of law. A judge can interpret a constitution in a way that adds or creates exceptions to its protections. A judge can also interpret a statute finding it unconstitutional and unenforceable. This is called the power of judicial review. See Marbury v. Madison, 5 U.S. 137 (1803).

As Chief Justice Marshall famously said,

It is emphatically the province and duty of the [Judiciary] to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each.

… This is of the very essence of judicial duty.

If then the courts are to regard the constitution; and the constitution is superior to any ordinary act of the legislature; the constitution, and not such ordinary act, must govern the case to which they both apply.

See Marbury, 5 U.S. at 177-78.

## Example of Judicial Review

In Texas v. Johnson, 491 U.S. 397 (1989), the US Supreme Court ruled that burning a flag is protected self-expression under the First Amendment to the US Constitution. Thus, the Court reversed the defendant’s conviction under a Texas statute that criminalized the desecration of a venerated object. Johnson not only invalidated a state statute as being inconsistent with the US Constitution but also interpreted the US Constitution by adding flag burning to the First Amendment’s protection of speech.

Figure 2.1 Diagram and Hierarchy of the Sources of Law

## Stare Decisis and Precedent

Individual cases are incredibly diverse, so there must be a way to ensure the law’s predictability. Thus, judges adhere to a policy called stare decisis. Stare decisis is derived from English common law and compels judges to follow rulings in previous cases. A previous case is called precedent. Once judges have issued a ruling on a particular case, the public can be assured that the resulting precedent will continue to be followed by other judges. The idea that the law is predictable and certain is the crux of stare decisis. Chief Justice Rehnquist noted,

Stare decisis is the preferred course because it promotes the evenhanded, predictable, and consistent development of legal principles, fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process. Adhering to precedent “is usually the wise policy, because in most matters it is more important that the applicable rule of law be settled then it be settled right.”

Payne v. Tennessee, 501 U.S. 808, 827 (1991) (citations omitted).

Although stare decisis is important and will normally be followed, it is not absolute; judges deviate from it to update the law or conform to society’s modern expectations. For example, in Brown v. Board of Education, 347 U.S. 483 (1954), the United States Supreme Court famously overruled the so-called “separate but equal” doctrine announced in Plessy v. Ferguson, 163 U.S. 537 (1896). In fact, some judges believe that stare decisis is merely an interpretative guideline and not a barrier to revision or rejection of prior judicial decisions. See e.g., Gamble v. United States, 587 U.S. ___, ___, 139 S.Ct. 1960, 1984 (2019) (J. Thomas concurring) (“When faced with a demonstrably erroneous precedent, my rule is simple: We should not follow it.”).

## Rules of Stare Decisis and Use of Precedent

Case law and stare decisis refer to cases that were decided in an appeal following a trial court’s ruling in the case. A trial court generally resolves the factual disputes in a case (often it is a jury that does this in a trial) and then applies the applicable law to those facts. In contrast, an appellate court generally reviews the legal rulings made by the trial court; an appellate court does not resolve factual disputes. There is often more than one level of appeal, so some appeals come from higher courts than others.

Many complex rules govern the use of precedent. Lawyers primarily use precedent in their arguments, rather than statutes or the Constitution, because precedent is much more specific. With proper research, lawyers can usually find precedent that matches or comes very close to matching the facts of any particular case. In the most general sense, judges tend to follow recent precedent, from a high court, and from the same court system, either federal or state.

## Example of Stare Decisis and Use of Precedent

Donald is a defense attorney for Conrad, who is on trial for second-degree burglary. The burglary prosecution is taking place in Anchorage. To be guilty of second-degree burglary, a person must burgle a “building.” Conrad is accused of entering a metal shed behind an automotive repair shop and stealing car parts. Donald finds precedent from an Oregon Court of Appeals case, dated 1979, indicating that a railway boxcar is not a “building,” and thus, Conrad should not be prosecuted. Paul, the prosecuting attorney, finds case precedent from the Alaska Court of Appeals, dated 2017, indicating that a woodshed located in a person’s yard constitutes a “building” for Alaska’s burglary statute. The trial court will probably follow the precedent submitted by Paul because it is more recent, from a higher court, and from the same court system as the trial.

This page titled 2.1: Sources of Law is shared under a CC BY-NC-SA 4.0 license and was authored, remixed, and/or curated by Rob Henderson via source content that was edited to the style and standards of the LibreTexts platform; a detailed edit history is available upon request.