All laws—those enforceable rules prescribed by a government authority—must come from somewhere. Let’s say that you are pulled over and given a ticket for driving 70 miles an hour, when the speed limit is only 55. You obviously broke a law. But where did that law come from? Did someone just walk down the highway and put up signs saying how fast he or she thought you should drive? Of course not. The speed limit, like all other laws, originated from a government body authorized to establish rules. These rules fall into four different categories: constitutional, statutory, regulatory, and common (or case) law.
Constitutional law consists of both the U.S. Constitution and the constitutions of the individual states. This is the country’s highest judicial authority (since 1787). The U.S. Constitution sets up the government, defines the government’s power to act, and sets limits on the government’s power (i.e., individual rights such as the right to free speech). It takes precedence over all state laws and the state constitutions.
It is important to realize that the Constitution only addresses the relationship between individuals and their government; it does not apply to the relationship between private entities, whether they are individuals or businesses.
Statutory and Regulatory Law
Statutes are laws passed by legislative bodies, either Congress or a state legislature. This is called statutory or legislative law. Congress and the state legislatures have the authority to pass laws because in setting up our form of government, the Constitution authorized the legislature to make laws. Statutory law consists of ever-changing rules and regulations created by the U.S. Congress, state legislators, local governments, or constitutional lawmakers. These statutes are the inviolable rights, privileges, or immunities secured and protected for each citizen by the U.S. Constitution. They include written codes, bills, and acts (also called regulations).
Legislatures sometimes authorize agencies to make laws. The legislature does this by passing a statute, called enabling legislation. This statute creates an agency and authorizes it to pass laws regarding specific issues. For instance, the Food and Drug Administration is a federal agency that can pass rules governing the sale of food and drugs. The rules or laws made by agencies are called regulations .
Statutes begin as bills submitted by legislators at the state or federal level. The first step is taken when the bill is introduced in either of the two legislative houses: Senate or House of Representatives. If the bill does not “die” (fails to be acted upon) in one of the houses, it then goes to a committee for discussion and consideration. (Note that 85 percent of all bills die before they reach a committee.) The committee studies the bill and may hold a hearing to gain more facts about the bill. This first committee issues a report, including a recommendation to either pass or fail the bill. The bill then goes back to the house (Senate or House of Representatives) in which it originated, where a discussion and vote takes place. After the bill passes in one house, it becomes an act. The act is then sent back to the other house, where it goes through the same steps as it did as a bill. The act can always be amended by the second house, which results in its being returned to the originating house for a discussion and vote on the amendment.
If the second house passes the act, then the heads of each house—Speaker of the House of Representatives and the President Pro Tem of the Senate (the Vice President of the United States, in the case of a federal act)—sign it. The act is then sent to the chief executive, who is, in the case of a federal act, the President, and for a state act, the governor. The act becomes a law if it is signed by the chief executive or if it is not vetoed within ten days. If vetoed, the bill goes back for an override vote. A presidential veto can be overridden by a two-thirds majority of both houses of Congress. After this complicated process, the act is referred to as a public law or statute.
A public law is designated by the initials P.L., the five or six digits that follow indicates the Congress that passed the law (the first 2 or 3 digits), and which piece of legislation the law was in that Congress. For example, a new law is issued with a public law number, such as PL 94-104, which indicates that it was the 94th Congress that passed the law (the first two or three digits) and the 104th piece of legislation in that Congress.
Laws that are passed by city governments are called municipal ordinances . Federal laws have precedence over state laws; state laws have precedence over city or municipal laws. In other words, a state or city may make laws and regulations more stringent than the federal law, but cannot make laws less stringent.
Common Law (or Case Law)
The final source of law is common law. Unlike the laws established by legislative bodies (statutory laws), common law is made by judges when they apply previous court decisions to current cases. This means it is based on the judicial interpretation of previous laws, leading to a common understanding of how a law should be interpreted. Thus, common law , as established from a court decision, may explain or interpret the other sources of law. Since common law evolves on a case-by-case basis, it is also called case law . For instance, a case may explain what the constitution, a statute, or a regulation means. In addition to interpreting the other sources of law, common law defines other legal rights and obligations. For example, a doctor’s obligation to use reasonable care in treating a patient (i.e., not to commit medical malpractice) is a legal obligation created from actual court decisions.
Common law, or case law based on decisions made by judges, was originally established by English courts in the twelfth century and brought to America by the early colonists. The only state that doesn’t follow common law is the state of Louisiana, which bases its law on early French law. Common law is based on precedent, the ruling in an early case that is then applied to subsequent cases when the facts are the same. Each time common, or judge-made, law is applied, it must be reviewed by the court to determine if it is still justified and relevant or has not been overturned by existing laws. As a result of this constant review of common law, many laws have been changed (or updated) over the years. The ultimate arbiter, or interpreter, of common law is the state supreme court or, if the law involves a federal question, the U.S. Supreme Court. The legal principle of stare decisis , or “let the decision stand,” comes to us from the precedence of basing decisions on similar past case decisions.
Taken literally, stare decisis means to abide by, or adhere to, decided cases.
Many old case decisions, such as the ones described in the case law example, still influence today’s medical practitioner.
EXAMPLE OF CASE LAW
In the 1616 case of Weaver v. Ward, Weaver sued Ward after Ward’s musket accidentally fired during a military exercise, wounding Weaver. Weaver won, and Ward had to pay damages for Weaver’s injury. The court concluded that Weaver did not have to show that Ward intended to injure him. Even though the injury was an accident, Ward was still liable (Weaver v. Ward, 80 Eng. Rep. 284, 1616). In Lambert v. Bessey, decided in 1681, the court stated, “In all civil acts the law doth not so much regard the intent of the actor, as the loss and damage of the party suffering” (Lambert v. Bessey, 83 Eng. Rep. 220, 1681). Cases such as these established the precedent that the person who hurt another person by unavoidable accident or self-defense was required to make good the damage inflicted.
Even though the facts of these cases are antiquated, we can still see their relevance when a patient suffers an injury while undergoing medical treatment. In the late nineteenth century, the courts recognized that there should be liability for a pure accident. Therefore, a person (defendant) may be liable for an injury to another person (plaintiff), even if the defendant did not intend to hurt the plaintiff.