Legal Systems, Sources, Sources of American Law, and American Legal Thought
Legal Systems, Sources, Sources of American Law, and American Legal Thought
Systems of Law and Justice
The roots of American Law
European
British
Two broad types of law
Civil Legal Systems (Romano-Germanic)
Common Law Legal Systems (Anglo-Saxon)
Some argue there is a third type
Religious Law or Sharia
Civil Legal Systems
6th Century AD
Eastern Roman Empire
Emperor Justinian
Commissioned a code of law
Literally hired/forced people to write down laws
Codes Justinus
The code of Justinian
Part of the Corpus Juris Civilis
"Body of Law"
The basis of all civil law
Prior to this, magistrates handled disputes
Provided specific, particularized solutions
Decisions used in future cases
Justinian decided that this system was too mysterious
Gave legal scholars five years to make a new code
Once the code was ready, it superseded all prior law
All prior law became illegal
The Code of Justinian spread throughout central and eastern Europe from 533 AD until 1453 AD
Medieval Europe
Regional and tribunal systems
Canon Law- religious law
Napoleon in France, 1804
New code to unify the regional systems
Napoleonic Code
Based on Code of Justinian, but expanded
Spreads all across Europe with the expansion of Britain
Based on CODE
It is systematic
Logical
Comprehensive
Universal
Judges apply the code only
Judges do not tret previous decisions as law
Designed to solve any problem in society
Anticipate things that could happen
Very ambitious
Who uses it?
Most European countries
Except England, Wales, and Northern Ireland
Turkey
Most of Asia
Except Singapore and Hong Kong
Most sub-Saharan Africa
Central and South America
Except for many of the island nations
Even on US state
Louisiana
Quebec
Common Lae Systems
Developed in England \
Spread to colonies
US and Canada
Australia and New Zealand
India (mixed)
South Africa (mixed)
Most of the island nations that were once under the control of the UK or US
Origins
Normans invade and conquer England in 1066
Normans inherited a feudal country
They had trouble establishing order
Norman kings had two political goals
Unify regional systems into a national body of law
Remove power from barons, restore to monarchy
Established a system of traveling justices
Centralized in London
Judges loyal to the crown were sent to administer justice then came back to tell the crown how they decided
This is how precedents were set
Incremental development of law
Can create a new novel opinion or rely of precedent (stare decisis)
Common law is judge made law
Particularistic
Allows states to produce their own interests
Decisions in one case act as law for future cases
Precedent
Over time, a general body of law develops
No precedent? Judge decides
UK believed precedent gave the judges too much power so they developed statutory law
They have to give a voice to the people
Statutory law always takes precedence over common law
US is a common law tradition
We have common law but rely on statutory (code) law
No code created by humans can handle everyday demand placed on it
Sources of American Law
Case Law- Judicial decisions
Decisions become precedent
Statutory Law
Laws passed by elected officials
Natural Laws
From some higher law of nature or metaphysical perspective
Think: Declaration of Independence
Often used to judge human-made law
Constitutional Law
What is a constitution
The fundamental law of a nation or state
Written or unwritten
Establishes that character and the conception of government
Regulates, distributes, and limits powers
Defines the relationship between the government and the people
Derives power and legitimacy from the governed
US constitution
Ratified on June 21, 1788
Enacted March 4, 1789
Articles of Confederation
Failed
Only lasted 8 years
The national government had too little power and the states had too much power
Power is shared between the federal and state governments
Separation of powers
First seven articles - powers and responsibilities
Bill of rights - first 10 amendments
27 amendment, the last ratified in 1992
What is constitutional law
Prevailing meaning of the Constitution as found in decisions of the US Supreme Court
Constitution itself has change very little
Constitutional law has changed dramatically
Constitutional law is essentially constitutional interpretation
Constitutional interpretation
Government has issues after Civil War
Had to punish the South but not too much
They were a part of the union again
Maintain the federalized system
Address the problem of former slaves becoming citizens where states were going to be hostile
14th amendment
Privileges and immunities clause
States cant make laws that abridge privileges and immunities of any US citizen
Right to vote, use courts, other things
Due process clause
Cannot deprive anyone of life, liberty, and property, without due process of law
States can make their own due process but the Supreme Court decides if you received it
Equal protection clause
States can make their own law but it has to be applied equality to everyone
Plessy v. Ferguson
"separate but equal"
14th guaranteed political not social equality
Brown v. Board
Overturned Plessy
Separate in inherently unequal
De jure segregation, not okay
Amendment never changes but the courts interpretation of it did
Sources of American Law
Criminal Law
Between government and individual
Two broad categories
Felonies
Misdemeanors
Third category
Infractions
Felonies - more serious
Punishable by death or imprisonment for over one year
Misdemeanors - less serious any crime that is not a felony
Fine or jail term under a year
In general
Felonies = prison
Misdemeanors = jail
Criminal law focuses on two things:
The act
It has been determined to be a threat to society
The intent
Did they intentionally do wrong
Civil Law
Non-criminal law
Disputes between individuals and/or groups
Injury, harm, and making people whole
It deals with "private" matters
Equity law
The "conscience of common law"
Early effort to bring fairness and discretion into common law
Seeks to prevent injustice
Injunctions, restraining orders, etc.
Civil Law Terms
Contract
Promise(s) for the future
Rights, responsibilities, and remedies
Tort
Committed when persons or property are injured by others
Administrative law
Administrative agencies are created to handle various societal needs
The DMV, the Department of Education, etc.
Potentially many changes coming due to the recent West Virginia v. EPA case
American Legal Thought
America has many uniquely American ways of thinking about law
Four dominant periods
Pre-classical Consciousness: 1776-1885
Classical Legal Consciousness: 1885-1935
The Realist Challenge: about 1920 to about 1939
Post Realism: 1940 to present
American Legal Thought: Pre-classical (1776-1885)
American law starts to develop
Comes from the English system of law
Closely related
Our understanding of the law develops during the revolutionary war
We didn’t know what kind of country we wanted to become
How much democracy do we want
Framers saw a need for democracy but also feared too much of it
They put checks on the amount of democracy:
Electoral college
Senate was elected by state legislatures to represent state interests (modified by the 17th Amendment)
The Bill of Rights at its heart is an antidemocratic statement
Peoples' will is important, but there are some rights that are more important
Legal thought was very conservative
Discovered law
Our law was like the 10 Commandments, it was handed down, we should cherish it, it should be constant
Law is constant
Law operates independent of actions of society and government
Lawyers and judges believed they were uniquely able to say what the law is
What they say the law is, is the law
Legislature doesn't know what the law is
Sole and impartial arbiters of what the law meant
Rejected the idea that the law was biased in any way
There were no privileged groups
If the law has a negative impact on you, it's because of your legal circumstance, not your background
The law was meant to be a protection against encroachment of the government on private property
Justice Joseph Story
Served on the Supreme Court from 1812-1845
Published three volumes of Commentaries of the United States
Still studied in law school today
Famously believed that lawyers and judges are the last protection that keeps private property protected from the tyranny of the majority
American Legal Thought: Classical (1885-1935)
People with large amounts of capital wanted government action
Andrew Carnegie (steel), John D. Rockefeller (oil), Cornelius Vanderbilt (railroads)
There's a renegotiation that maybe everything government does isn't bad
Law operated in two spheres
Private law
Operates under the pre-classical lens
Individuals have certain (economic) rights
Public law
Government has certain powers
Law can encroach on private property
Lawyers and judges can help, and law can be beneficial to the wealthy
Similar to pre-classical
Believed in inherent truth and fairness of the law
Objective and unbiased
Believed in the unique role of judges and lawyers to tell people what law really is
Only judges and lawyers can decide what public law is okay
American Legal Thought: Challenges
An unchecked economic system was having visibly negative effects
Classical jurists blocked efforts to regulate
Failed to see that as economy grew, the lines between public and private blurred
Two things happen in American history that challenge pre-classical and classical period
Great Depression
New Deal
The Supreme Court was striking down New Deal legislation
This was when everyday people really start paying attention to (and disliking) the Supreme Court
The Supreme Court kept blocking FDR's New Deal policies by declaring many of them unconstitutional
The Supreme Court at the time:
"The Four Horsemen" the "conservative" bloc
"The Three Musketeers" the "liberal" bloc
Chief Justice Hughes and Justice Owen Roberts were swing votes
Hughes leaned slightly liberal and Roberts leaned slightly conservative
FDR proposed the Judicial Procedures Reform Bill of 1937
Would increase the number of SC Justices from 9 to 15
"The switch in time that saved 9"
American Legal Thought: Realist (1920-1939)
Challenged the pre-classical and classical views
Law is politics
The other guys are wrong but there is no unified legal theory
It is up to the people to pay attention to the law
Part of the larger Progressive political movement
4 specific tenants
Law is subjective
Law is a product of the political process and is political
There is no apolitical, legal truth
Law is policy
Legal decisions have broad policy impacts
Law has winners and losers
When the Supreme Court makes a decision it isn't really different that when Congress passes a law or when the president signs an executive order
The private/public distinction is artificial
It is all law
Judges are not objective
They have personal policy preferences
To counter this, realist argue that we should be less dependent on precedent
So realists come up with their four tenants/problems… what are the solutions
Two competing idea:
Judicial Restraint
Says the realists are right
Judges are humans and products of their upbringing
We all bring our personal biases, but if those preferences start to occur, the people have to call them out on it
Judicial Activism
Says the realists are right
We all have personal preferences
The courts are 1 of 3 branches of government and should be able to make policy too
Judges should pursue their preferences
American Legal Thought: Post-Realist (1940-present)
How to reconcile realist observations with law?
There is no single orthodoxy of legal thought
Each judge and legal scholar can have his or her own thoughts on legal theory
Lots of competing ideas
Other recent developments in legal theory:
Economic Conceptions of Justice (Rightist)
Feminist Legal Theory (Leftist)
(These are just two examples)
American Legal Thought: Economic Justice
Judges have to consider policy when they decide on cases
Their rulings will essentially become law
To do so, they should use principles of economics
A more extreme example
Richard Posner argued:
Existing adoption laws are ineffective
It's difficult to adopt
We should use the free market for adoption purposes
Pros:
Everyone is better off*
Biological mother is compensated
Potential parents don't have to wait forever
Society pays less
Cons:
You're literally talking about selling children
*Money doesn’t always mean good parents
Extreme example, but shows the ideas of rationality, utility, deregulation, cost-benefits
American Legal Theory: Feminist Legal Theory
Katherine McKinnon
Lae is paternalistic. It favors men over women
Men have control over the legal system
They use this control to benefit themselves
Obscenity Law
Speech is protected under the first amendment. When should it be regulated?
The court has determined that certain speech is not okay
How do we determine if something is "obscene"?
Miller Test (1973)
Three conditions
Whether "the average person, applying contemporary community standards", would find that the work, taken as a whole, appeals to the prurient interest
Prurient - having or encouraging an excessive interest in sexual matters
Whether the work depicts or describes, in a patently offensive way, sexual conduct or excretory functions specifically defined by applicable state law
Whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value
The work is considered obscene only if all three conditions are satisfied
Three Tiers of Protected Speech
The Supreme Court created a 3-tier view of expression (you have no absolute free speech)
Most protected - Strict scrutiny
Artistic, educational, religion, political, scientific
When regulation is attempted, the burden is on the government
They have to prove why your speech is so threatening that they can regulate it
Mid-level protected - intermediate scrutiny
Commercial speech
Not protected - rational bias
Obscenity, defamation, fraud, incitement, fighting words, true threats, speech integral to criminal conduct, child pornography
American Legal Thought: Feminist Legal Theory
Law should be used for activism
We should get rid of the tier system
With pornography, there is an unequal distribution of power
It should be regulated
Porn conditions men to perceive women differently
McKinnon
McKinnon tried to actually implement her idea in American cities
Minneapolis
Indianapolis
Tried to restrict location of adult stores
Proposed a new definition of pornography
Wanted to allow women to sue if a link could be shown between pornography and assault
SCLU makes a challenge
No link between violence and pornography
Proposal didn’t have workable definitions
Found to be unconstitutional