Legal Basics: Answers to some basic questions you are too afraid to ask (but you really want to know)
Here are the basics of law and the legal system in the United States. For much, much more, get the new Law Soup book, called Law is Not for Lawyers (It’s for Everyone)!
How do I find out what all this legalese means?
Law Soup aims to set out the law in plain language, but sometimes we have to use a term that people are not familiar with. To find a definition of these terms, see our glossary of terms.
If I happen to break a law that I wasn’t aware of, can’t I just claim I didn’t know about it and get off the hook?
Generally, no. Ignorance is usually not a valid defense to violating the law, unless the particular law itself requires that a person knew about the law and violated it anyway, either intentionally or not.
But for the most part, as crazy as it seems, we are expected to know pretty much ALL of the laws that apply to us, even the most obscure ones that few people know about.
What are the consequences of violating a law?
There are a range of possible consequences, depending on which laws are violated. Sometimes a particular law will specify the consequences for violating it, but often they do not. If it is a “civil” law (non-criminal), then usually the violator can be sued and made to pay an amount of money to the “violated” person to compensate them. For criminal laws (including infractions), usually the particular law specifies the punishment.
What happens if someone disobeys a court order?
If a judge issues a judgement or court order in a case, and the person ordered to do something (or not do something) disobeys this, the judge can find the person “in contempt of court.” The judge can then have the person arrested and sent to jail.
This applies to everyone, including government officials.
What happens if someone disobeys Congress or other government body?
Like a court can, Congress and many other governmental bodies can also place someone “in contempt” and send them to jail.
This also applies to everyone, including government officials.
If there is no law against something, is it legal?
Maybe. In terms of criminal law, there is the concept that to prosecute someone for a crime, the acts in question must be clearly prohibited in the law. Otherwise the law or prosecution action can be thrown out as “void for vagueness.” And there is the Constitutional right that you cannot be criminally prosecuted for a crime that was not specifically illegal at the time you took the actions. That is, criminal laws cannot be retroactive or “ex post facto.”1U.S. Constitution, Article 1, Sections 9 & 10
However, these generally do NOT apply to civil laws (non criminal).
What laws apply to me?
For most of the actions you take, your physical location at the time you take the action determines which laws have “jurisdiction” over you. For example, if you are driving through the City of Los Angeles, you are subject to the traffic laws of (1) the City of L.A., (2) the state of California, and (3) the United States (federal laws). If you then drive through the city of Beverly Hills, you would be subject to that city’s traffic laws instead of L.A.’s traffic laws.
If you are not sure what city you are in at any point (and this can be trickier than you think), check out our What City Am I in?
Also, even if you are not physically located in a certain location, actions that affect other cities or states (for example, shipping a product to a customer in another state) may also subject you to the laws of these other cities or states.
What is a law?
When people talk about a law against this or that, they usually mean a “statute,” which is legislation, or a law passed by Congress, the state legislature, or by ballot measure voted by the general voting population. But actually a law is anything that requires someone to do something or not do something, by a person or body with some official authority.
Here are the various types of laws or actions with the “force of law,” which include:
- statute (legislation or ballot measure)
- ordinance (law passed by local government such as city council)
- court decision
- rule or regulation (law created by a government agency such as the EPA)
- executive action (law created by the President or governor)
Where do laws come from?
Storks (JK). Laws come from a variety of sources, including:
- U.S. Constitution
- Federal legislation (aka “statutes”) passed by Congress and signed by President, compiled in the U.S. Code
- Federal court cases decided by federal judges and justices, including the U.S. Supreme Court
- Rules and Regulations made by federal government agencies (such as the Environmental Protection Agency or EPA), compiled in the U.S. Code of Federal Regulations
- Executive actions and orders by the president
- State Constitution
- State legislation (aka “statutes”) passed by the state legislature, and signed by governor, compiled in state codes
- State ballot initiatives approved by the voters (in some states, not all)
- State court cases decided by state judges and justices
- Rules and regulations made by state government agencies
- Executive actions and orders by the governor
- City Charter (like the city’s “constitution”)
- County laws passed by County government, compiled in county codes
- City laws and ordinances passed by City Council, compiled in city codes
- City-wide ballot initiatives approved by the voters
- Rules and Regulations passed by city government agencies
When we describe a particular law on Law Soup, we usually give a citation to its source so you can find out where exactly the law came from. Then you will also know where to go if you want the law changed in some way.
What happens if two or more laws conflict?
In general, the higher level laws override the lower level laws. So federal laws override state and local laws, and state laws override local laws. This is called “preemption.” HOWEVER: if a lower level law is simply a stricter regulation than a higher level law, then the stricter regulation usually is effective. For example, federal minimum wage is $7.25/hr. But many states and cities have higher minimum wage than that. So employers in a city with a minimum wage of $15/hr must pay the $15/hr, and the federal minimum wage is essentially ignored.
But sometimes when laws conflict, and it is unclear what the outcome should be. For example, the U.S. Constitution is the “supreme law of the land.” So, if a statute conflicts with the Constitution, then the Constitution overrides the statute and the statute is essentially eliminated. But often it is not clear whether there is actually a conflict or not. So who decides whether there is actually a conflict or not? The courts, in particular the Supreme Court. So you may think that the Supreme Court is actually “supreme” even over the Constitution. Although this is not technically true, you could argue that this is how it works in practice.
Then again, if “the people” don’t like how the Supreme Court decided something, they can “amend” the Constitution. Easier said than done (requires 2/3 vote of the House and Senate, and then 3/4 of the states to ratify), but it has been done 27 times.
So, in theory at least, The People are the supreme leaders of the land.
Can a law be illegal?
Yes! It may sound odd, but many laws are actually not legal. This generally happens when a higher level law contradicts a lower law. For example, the U.S. Constitution is the highest law in the country, so any laws passed by Congress or a state legislature that go against the Constitution are called… “unconstitutional.” And who determines when a law is unconstitutional? The courts.
Can I challenge a law I believe is unconstitutional or otherwise illegal?
If it affects you personally and directly, then yes. Otherwise you may not have “standing” to challenge the law. In order to sue over a law, you must have a “direct harm.”
Do I have to follow a law that I know is illegal?
While you are challenging the law and suing to overturn it, you still must follow the law! (With an exception for extreme situations: if a law or order violates human rights and you believe will later be determined as such by a U.S. court or international court, you should not follow it. Those who do cannot claim they were “just following orders.” The Nazi soldiers who used this excuse were still punished severely during the Nuremberg trials.)
Is the government subject to the laws?
Yes. This is part of the concept of “rule of law.” See our page on Can the Government Do That?
What is the supreme law of the land?
The U.S. Constitution is the highest law in the country, meaning that no law or person can go against it. Now you know something that only 30% of Americans know!
How many laws are there?
There are thousands of laws in the U.S., including over 300,000 federal laws and regulations!2Husak, Douglas, “Overcriminalization: The Limits of the Criminal Law” And that’s not even considering state and local laws. They keep coming too, with thousands more created each year.
In theory, you are responsible for knowing and obeying all of these. It is said that “ignorance is no excuse” for violating the law. But with so many laws, and the difficulty in even finding them, it’s virtually impossible for anyone to be a model citizen. So it should come as no surprise that over 70% of American adults have committed a crime that could land them in jail.3Husak, Douglas, “Overcriminalization: The Limits of the Criminal Law”
For much, much more, get the new Law Soup book, called Law is Not for Lawyers (It’s for Everyone)!
See all our substantive legal information at our Legal Guides.
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References [ + ]
|1.||↑||U.S. Constitution, Article 1, Sections 9 & 10|
|2, 3.||↑||Husak, Douglas, “Overcriminalization: The Limits of the Criminal Law”|