by John Bandler
The word "law" means different things to different people. What are your initial thoughts on these questions?
- What is law?
- Where do laws come from?
- What is the purpose of law?
- What would we do if we had no laws, or rule of law?
As I teach cyberlaw it is necessary to step back and think about traditional law, examine what law is, and ask the above questions.
This short article to introduces the concept of law, and at the bottom are links to my fuller "Introduction to Law" outline, and an article about Rules.
Remember there is no magic universal answer to those questions, and if you asked ten lawyers what law means to them, you will get ten different answers. And nothing says only lawyers can know the magic secrets of law. In fact, everyone needs to know something about law (that's why I teach it and why I built these resources here and a Udemy course on it).
Laws are rules that come from government
I think of laws as rules that come from the government.
In another article, I talk about "rules", and how rules come from many different places including:
- Parents and family
- Society (including religion)
- Organizations we work for
For me, it is the government rules that are considered laws.
Government rules include constitutions, duly enacted laws, regulations, and court decisions.
Some may say that people have certain "inalienable rights", or "God-given rights", or other assertions that call to a higher legal authority. In my opinion, that gets into vague and subjective areas that are impossible to verify or apply any legal standards to. As we will see, it is hard enough interpreting the law of the U.S. Constitution (and the intent of the people who wrote that document) even though that has been fixed in writing for hundreds of years. It is infinitely harder to interpret the wishes of any supreme being who has not yet directly written their own words.
Laws include rules for conduct and rules to resolve conflict
Laws provide rules on what to do, or not do. These might be criminal laws or civil laws and regulations. These are areas of substantive laws.
Laws also provide rules on how to resolve a conflict. For example, if the government alleges that a defendant violated a criminal law, there is a process and system for adjudicating that allegation. If one party alleges a civil wrong was committed by another, there is a civil process and system to allege and resolve that dispute. These are areas of procedural law.
Sources of laws in the United States
Laws come from many different government entities. We can show that in this simple diagram.
First, we can categorize them by federal (from the U.S. government) and state (from the fifty states, and don't forget about the District of Columbia and territories).
Next, they could come from constitutions, notably the U.S. Constitution and then of each state.
Next, there are statutes, or duly enacted laws, from the federal government or a state government.
Then come regulations, duly promulgated (put forth) by a federal or state regulator.
Finally come court decisions, a decision of a judge or group of judges (appellate court) which makes a ruling in a particular case but also has broader legal weight that can apply to future cases. This principle of broader legal weight is known as "precedent", "stare decisis", or "judge made law".
In a future case, one side of lawyers will analogize that prior case, and say "Judge, this prior case is similar to our case here, and you should apply the law as the law applied it in that prior case."
The opposing side of lawyers will distinguish that prior case, and say "Judge, this prior case is different to our case here, and you should not apply the law as it was applied in that prior case. Instead, you should follow this other case."
Now here's that same diagram with a little more text.
Who interprets the law?
Laws are interpreted by humans, normally a judge who is also an attorney. Humans are not perfect, attorneys and judges are not either. And reasonable people will often disagree.
The U.S. Constitution is the highest legal rule in our country, but there is plenty of disagreement about what this rule currently is, and it's interpretation has clearly evolved and even reversed prior interpretations throughout history. Thus, even where the words of this rule have been fixed and unchanging over hundreds of years, it's meaning and interpretation has changed
Principles of law in the U.S.
Some principles of law that are important:
- Our county is a nation of laws
- No person should be above the law
- Our highest law is the U.S. Constitution
- Citizens play an important role in our country's law and legal system.
- Citizens have the right and responsibility to vote (and cast an informed vote)
- The officials we elect create laws and enforce laws
- Citizens have the right and responsibility to serve on juries (and uphold that important duty)
- Juries are the final test of a legal dispute
- Citizens have the right and responsibility to vote (and cast an informed vote)
- Law affects every one of us.
In this representative democracy, citizens elect the government that creates and then enforces and administers the law.
Fairness of the law and fairness of enforcement
It is helpful to separate two issues:
- What is the law (or what should it be), and
- How should the law be enforced and punished,
Laws could be fair, unfair, or somewhere in between. There will always be room for reasonable people to debate those issues (and remember that not every person is reasonable).
The next issue is enforcement of laws, and whether that is fair or not. Laws can be interpreted and enforced fairly, with consequences tailored to the infraction and person. Or they can be enforced unfairly, arbitrarily, or capriciously. Again, reasonable people will debate this as well.
Areas of law
There are dozens of areas of law, and there are lawyers and judges and arbitrators that specialize in these areas. I list them in my introduction to law outline (see link at bottom).
Cyberlaw is one area of law, and it's a vague term, but to me it is the broad and amorphous area of law dealing with cybercrime, cybersecurity, privacy, and technology.
"Cyberlaw" is the reason I have built out so many traditional law resources, because of my years of teaching and speaking about it.
As I teach and speak on cyberlaw, I realize that many people need to know about traditional law first. I regularly remind students that cyberlaw is built on a foundation of traditional law. If people do not comprehend traditional law, they will not understand cyberlaw.
Then, I realize that if people do not comprehend traditional law, they might not be able to perform their important duties of citizenship as well as they might.
Getting a little more technical on "law" vs. "regulation"
This is an introductory article so I try to keep it simple. But I also know people confuse the terms "law" and "regulation" and I don't want to add to that confusion. So here I try clean that up with some informal definitions.
- "Law" as a concept: The body of government issued rules, like constitutions, laws, regulations, court decisions.
- "Law" as a specific individual thing: A duly enacted law, passed by the legislature, signed by the executive.
- "Regulation": A government rule put forth by a regulatory body.
Laws and our legal system are important to know about. We are a nation of laws and we all play a role in our country and legal system. We all need to make legal decisions regularly (whether we know it or not), and eventually will face a significant legal issue that requires we obtain legal advice and properly understand it.
This short article is not tailored to your circumstances and is not legal or consulting advice.
If you want to learn more about law, there is lots on this site, and my Udemy course.
If your organization needs help with improving its internal documentation and compliance with laws and regulations, including regarding cybersecurity and protecting from cybercrime, let me know.
- Introduction to Law (Outline)
- U.S. Constitution
- Law (this article)
- Criminal law
- Negligence law
- Contract law
- Cybersecurity Laws and Regulations Part 1
- Intellectual property law
- Business Basics and Law
- Helpful Legal Links and References
- Five Components for Policy Work
- Internal Rules
- External Rules
- Cybersecurity Laws and Regulations Part 1 (general legal overview)
- About my course on Law at Udemy and Coupon Codes
This article is hosted at https://johnbandler.com/law, copyright John Bandler, all rights reserved.
This article is also available on Medium.com at https://medium.com/@johnbandler/law-8e5444258a1 (though not kept as up to date).
Originally posted 3/27/2023, updated 9/4/2023.