Intellectual Property Law for Engineers, Scientists, and Entrepreneurs. Howard B. Rockman
preamble of the code states its purpose as:
“… to bring about the rule of righteousness in the land, to destroy the wicked and the evil‐doers; so that the strong should not harm the weak; so that I should … enlighten the land, to further the well‐being of mankind.”
The code has been cast as an early fundamental law, regulating a government in the manner of an early constitution. For example, it is one of the earliest statements of the presumption of innocence, and of the rule allowing both the accused and the accuser the opportunity to present evidence on their behalves. The most repeated law from Hammurabi’s Code is the “eye‐for‐an‐eye” provision, which states as follows:
“Ex. Law No. 196. If a man destroy the eye of another man, they shall destroy his eye. If one break a man’s bone, they shall break his bone. If one destroy the eye of a freeman or break the bone of a freeman, he shall pay one gold mina. If one destroy the eye of a man’s slave or break a bone of a man’s slave he shall pay one‐half his price.”
The second noteworthy set of Divine laws are the Ten Commandments, which are short and simple, and presumed to be known by every person. Knowledge of law is a presumption that has to be made. If not, anyone can plead ignorance of law and thereby avoid the operation of law. Today, most people can recall the Ten Commandments, or most of them; however, it would be impossible to know all of the laws which govern our lives today. However, there is a presumption under American law that every citizen is held to the knowledge of every law. Ignorance of the law is no defense to unlawful behavior in a nation which is governed by the rule of law.
2.4 THE FOUR TYPES OF LAW
2.4.1 Constitutional Law
Constitutional Law, or Basic Law, creates the operation of a government, defining its powers, and also establishes the limits on the government’s exercise of its powers over its people. A constitution sets forth the fundamental principles and the relationships between the state and the citizens of that state. In the United States, citizens have rights both under individual state and federal Constitutions. A purpose of the U.S. Constitution is to protect the rights of minorities against the fiats of the majority.
2.4.2 Statutory Law
A statute is a law enacted by a legislative body, stating the express declarations of the will of the legislature on a given subject. A state law prohibiting gambling is an example of statutory law. Federal laws such as the Interstate Commerce Act, and municipal laws or ordinances regulating traffic, are also examples of statutes. Treaties and administrative regulations also have the same force and effect as statutes passed by the legislatures.
A primary reason for passing a statute is general dissatisfaction among the public with a present law situation in a particular field. The passage of a statute voids the common law covering the same point when the legislature’s jurisdiction is invoked. However, there are limitations on the statutes passed by the legislature. For example, a statute cannot conflict with the U.S. Constitution or with the state Constitution involved. If a case arises involving a statutory issue, the courts may find that the statute conflicts with the Constitution, and the statute may be held invalid. Thus, the Constitutions are the supreme laws of their respective jurisdictions.
Legislatures also pass laws to develop a comprehensive set of rules to deal with specific problems and situations. Under the common law system, on a case‐by‐case basis, many years and several complex decisions may evolve before the law in a certain area changes. A legislature has the ability to cut through that time and enact legislation immediately to establish new laws.
2.4.3 Common Law
The U.S. common law was brought over from England by the colonists, and remains the basis of the legal system today in all but one state (Louisiana) of the United States. The common law is used by a court to decide issues between parties when no statute or constitutional law covers the particular legal problem involved. The common law arose with the practice of judges writing their opinions, giving the general principles and reasoning they followed in deciding cases. When the facts were similar in later cases, judges tended to follow the earlier opinions of other judges. These decisions eventually were followed by the courts throughout a particular jurisdiction in cases with similar or near‐similar facts. This gave rise to the term “common law” to describe these judge‐made decisions.
A primary principle of American law involves abiding by previous decisions—a doctrine known in Latin as stare decisis. This is the embodiment of the main feature of the common law wherein the law itself is built on prior case decisions. Thus, a judge uses earlier cases with similar facts as the foundation for that judge’s decision in a particular case. Case law today is reported, and readily available to lawyers, parties, and the judges for precedent purposes. This body of precedential law in the United States forms the body of common law used by both the state and federal governments, except for the state of Louisiana, which still uses the French Civil Code system.
The common law is defined in Kent’s Commentaries (an early legal treatise) as “those principles, usages, and rules of action applicable to the government and security of persons and property which do not rest for their authority upon any express or positive declaration of the will of the Legislature.” This sets forth the principle that the common law is extracted from recorded decisions of courts. As new factual situations arise before the courts, new interpretations of law are made by the courts, and the common law is continuously amplified and modernized.
2.4.4 Business Custom
Courts will often make use of a relevant established and widely used business custom. For example, silence on the part of one to whom an offer is made usually cannot constitute acceptance of that offer. However, if there has been a history of dealings between persons, or if there is a practice in a particular business or trade, such that silence constitutes acceptance, the court will consider this and decide accordingly. Also, terminology particular to a trade is given its common trade usage in interpretation in a court of law. Business customs also involve something called the “law merchant.” Merchants often need certainty about the rules that would be applied to any dispute by courts in various locations. Thus, a body of law that developed beginning in the Middle Ages continues until today out of business customs, and this set of laws is used by various courts in deciding commercial cases between merchants.
2.5 CIVIL LAW SYSTEMS
Two great systems of law are used in Western civilization.
1 The common law is used in most English‐speaking countries.
2 The code or civil law is used in the remainder of Western societies.
The code or civil law, also known as the “continental system,” originated around 450 BC as the Law of the Twelve Tables in the Roman Empire. This system expanded and contracted during the next ten centuries, and statutes were passed during that time and meanings clarified in court decisions. This civil law spread to other countries and became the foundation of the legal systems used in continental Europe today, and in other “civil law” countries.
Civil or code law is predicated on the establishment of comprehensive and complete written codes or statutes, the court’s task being to apply the correct statute to the particular set of facts in each case.
Common law is built on the use of prior court decisions determining the outcome of subsequent cases presenting similar factual situations. Most of the law brought to the United States by its earlier settlers was the English common law. However, in certain areas of the United States settled by the French and Spanish, remains of civil law systems may be found, such as in Louisiana, Texas, and California.
The term “civil law” has two meanings. First, it means the code of law based on the Roman codes, and second, it is the system of private law as distinguished from criminal law, the latter regulating the conduct of individuals vis‐a‐vis