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3.5: Sources of Law- Administrative Law, Common Law, Case Law and Court Rules

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    43588
    • pexels-photo-923681.jpg
    • Contributed by Alison S. Burke, David Carter, Brian Fedorek, Tiffany Morey, Lore Rutz-Burri, & Shanell Sanchez
    • Professors (Criminology and Criminal Justice) at Southern Oregon University
    • Sourced from OpenOregon

    Administrative Law—Agency-Made Law

    State and federal legislatures cannot keep up with the task of enacting legislation on all the myriad subjects that must be regulated by law. In each branch of government, various administrative agencies exist with authority to create administrative law. At the federal level, for example, the Environmental Protection Agency enacts regulations against environmental crimes. At the state level, the Department of Motor Vehicles enacts laws concerning drivers’ license suspension. Administrative regulations are enforceable by the courts provided that the agency has acted within the scope of its delegated authority from the legislature.

    Common Law

    [1] LaFave describes the process by which common law was derived in England.

    . . . Although there were some early criminal statutes [in England], in the main the criminal law was originally common law. Thus by the 1600s the judges, not the legislature, had created and defined the felonies of murder, suicide, manslaughter, burglary, arson, robbery, larceny rape, sodomy and mayhem; and such misdemeanors as assault, battery, false imprisonment, libel, perjury, and intimidation of jurors. During the period from 1660 . . . to 1860 the process continued with the judges creating new crimes when the need arose and punishing those who committed them: blasphemy (1676), conspiracy (1664), sedition (18th century), forgery (1727), attempt (1784), solicitation (1801). From time to time the judges, when creating new misdemeanors, spoke of the court’s power to declare criminal any conduct tending to “outrage decency” or “corrupt public morals.” or to punish conduct contra bonos mores: thus they found running naked in the streets, publishing an obscene book, and grave-snatching to be common law crimes.

    [2]

    [3]

    Stare decisis, discussed below, plays no persuasive or binding role in the civil law tradition. Under the common law tradition though, new substantive law generally adds to, rather than replaces, old substantive law.

    “Though the description of the Anglo-American system as a “common law legal system” notes an important distinction between it and the civil law system, that description should not lead one to ignore the fact that legislation also constitutes an important source of law in the Anglo-American system. That system is actually a mixed system of common law rules and statutory rules. The common law rules established by American and English courts have always been subject to displacement by legislative enactments. Indeed, the courts have the authority to develop common law standards only where the legislatures have not sought to provide legislative solutions. … In our country, the common law also is subject to the legal limitations imposed by federal and state constitutions. The supremacy of the constitutions extends over all forms of law, including the common law. Just as legislation cannot violate a constitutional limitation, neither can a common law rule.” [4]

    Judge-Made Law: Case Law

    case law refers to legal rules announced in opinions written by appellate judges when deciding appellate cases before them. Judicial decisions reflect the court’s interpretation of constitutions, statutes, common law, or administrative regulations. When the court interprets a statute, the statute, as well as its interpretation, control how the law will be enforced and applied in the future. The same is true when a court interprets federal and state constitutions. When deciding cases and interpreting the law, judges are bound by precedent.

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    Court Rules of Procedure

    The U.S. Supreme Court and state supreme courts make a law that regulates the procedures followed in the lower courts- both appellate and trial courts- in that jurisdiction. These court rules, adopted by the courts to facilitate the administration and processing of cases, are generally limited in scope, but they may nevertheless provide significant rights for the defendant. For example, the rules governing speedy trials may be governed generally by the Constitution, but very specifically by court rules in a particular jurisdiction.

    Local courts may also pass local court rules that govern the day-to-day practice of law in these lower courts. For example, a local court rule may dictate when and how cases are to be filed in that jurisdiction. Generally, the local bar (all the attorneys in the jurisdiction) are consulted, and a workforce consisting of judges, trial court administrators, and representatives from district attorney’s office, the public defender’s office, assigned counsel consortiums, and private attorneys will meet every few years to decide on the local rules.

    Okay, so where do I look to see if my behavior is prohibited?

    stare decisis, one red flag that your behavior may be unlawful is that, in the past, the courts have found behavior similar to yours to be unlawful.


    1. Kerper, H. B. (1979). Introduction to the criminal justice system (2nd ed., pp. 27). West Publishing Company.
    2. LaFave, W. R. (2000). Criminal law (3rd ed., pp. 70). St. Paul, Minn: West Group.
    3. Kerper, H. B. (1979). Introduction to the criminal justice system (2nd ed., pp. 27). West Publishing Company.
    4. Kerper, H. B. (1979). Introduction to the criminal justice system (2nd ed., pp. 28-29). West Publishing Company.
    5. Vasquez v. Hillery, 474 U.S. 254 (1986)
    6. Kerper, H. B. (1979). Introduction to the criminal justice system (2nd ed., pp. 47-49). West Publishing Company.
    7. Kerper, H. B. (1979). Introduction to the criminal justice system (2nd ed., pp. 49). West Publishing Company.
    8. Kerper, H. B. (1979). Introduction to the criminal justice system (2nd ed., pp. 49). West Publishing Company.
    9. Cardozo, B. N. (1924). The Growth of the Law. New Haven, CT: Yale University Press.
    10. Kerper, H. B. (1979). Introduction to the criminal justice system (2nd ed., pp. 51-52). West Publishing Company.
    11. LaFave, W. R. (2000). Criminal law (3rd ed., pp. 86-89). St. Paul, Minn: West Group.
    12. LaFave, W. R. (2000). Criminal law (3rd ed., pp. 89). St. Paul, Minn: West Group.
    13. LaFave, W. R. (2000). Criminal law (3rd ed., pp. 96-97). St. Paul, Minn: West Group.