Since 2010, I have been posting on the development of a new course I have been developing for our first year law school students, "Elements of Law." The course originally had a quite modest objective--to introduce law students to legal research and reasoning through case law, statutory interpretation, and legal history, processes, and institutions. I chose to broaden its objectives within these specific parameters and development a framing and concepts course that would provide a deep foundation to law students on the legal system they were undertaking to study.
--Elements of Law 3.0: On the Relevance of a First Year Law Course Designed to Frame the Law School Curriculum).Grounded in the principles of the sociology of law, the course has morphed into an effort to introduce students to law as a self-referencing system with its own particular structures, premises, constraints and language, with its own logic and taboos and its own means of understanding the world. That systemicity (cf. Peter Checkland, Systems Thinking, Systems Practice, Chichester : John Wiley and Sons Ltd, 1999) is then a critical element in the way in which the legal system (in this case of the United States) interacts with the world, both as a legal and as a socio-economic-political actor. The course has also expanded from its original narrow and technical focus, to a broader focus on principles and the use of language and logic to build and operate a system of law. That broadening has made it possible to offer the course not just to first year law students, but also to graduate students in the social sciences and in international affairs, as a grounding in the legal systems that are important in their respective fields.
--Developing a New Course--"Elements of Law"
--"Elements of Law" Course 2.0: A Framework Course for the U.S. Law Curriculum,
This and the posts that follow produces some of the materials I will be presenting to the class. I offer these materials in hopes that they may prove of use and that you might share comments, perspectives and suggestions as I develop those materials on this site. Thanks.
This post includes a draft of the first Chapter of Part II-- Hierarchies of Law and Governance; Sources and Uses, Chapter 8 (The State and Its Apparatus).
We have spent the first part of this course examining the scope and meaning of law for contemporary lawyers. The answer to the question―What is law?―has produced a “lawyer’s answer”: it depends. We have come to understand that variations on the simple answer―law is the manifestation of justice―merely provide a gateway to more profound questions. Among these, the most important for the first year student of law touch on the connection between the form of law, its substance, and the culture of its function (its “Rechtssoziologie” or sociology of law; the way that culture shapes the relationships among courts, government, society and claimants). The student was introduced to the basic forms of U.S. law―common law, equity, statute, and administrative regulation―and the ways in which each is distinguished from the others in terms of their operational premises, development and operationalization through courts, legislatures, and regulatory agencies. We ended by considering the most current movements in the development of legal forms (and the form of their underlying substance). If administrative regulations could detach the function of law from its form, might this functional law be detachable from the state? The answer could be found in the progression from the view of social norms as a dependent variable in the operation of law to its transformation as functional law available to state and non-state actors.
With these materials we turn our attention from a consideration of law as a set of autonomous and self-referencing concepts, to law contextualized within the modern state, and particularly within the United States. The central issue students will consider with these readings introduce a core tension in the construction of a government for states. This tension arises from two distinct ways of looking at the relationship between government and law in the West. On the one hand, law has been understood as an instrument of the state and the government established with the delegated authority (from the people) with authority to enact it (in whatever form permitted). Under this view, law is understood as the product of the national will which can only be legitimately expressed as law when law making is asserted directly by the people or (more often) by the people’s representatives constituted as the government of the territory over which the state has the power to impose its rules. On the other hand, law has been understood as related to but autonomous of the state and the government established to administer its territory. It is understood either as a reflection of the common beliefs and traditions of the people who are sovereign within the national territory or otherwise reflect the implementation of higher norms, usually understood as extrinsic to the state and its people (e.g., natural, moral, rationalist or international public) norms.
This is a tension that remains central to the ideology of the state, and as part of that ideology, the foundation of the way in which individuals approach their relationship to the state (and to law). Under the instrumental view, it sometimes follows that the fundamental question of government is the manner in which it may be used to provide for the welfare of the people, and the expectation is that the government will serve as the source and protector of people’s welfare. Law then memorializes the range of protection of individual rights in law through the state. This is a view that finds expression in its modern form first in the works of Jean Jacques Rousseau (especially his Social Contract or Principles of Political Right (original Du Contrat Social) (1762)) and then in the work of Carl Schmidtt, which the student has been asked to read.
The readings from Carl Schmitt, Legality and Legitimacy 17-26 (Jeffrey Seitzer trans., Duke U. Press 2004) (1932) nicely illustrate this approach. In our readings Schmitt considers the legislative state and the concept of law. He starts by considering the rise of the great legislative states of the 19th century and principally the Deutches Reich. Such legislative states embrace a formalist organizational framework grounded in legislative consent as the basis for the validity of law. These formal concepts, Schmitt argues “are essentially political concepts For this reason, it was the decisive triumph of the legislature that law appeared essentially in the form of statutes and that positive law was in essence statutory law.” (Schmitt, supra17). There was a consequence for the customary law which had been a foundation of medieval conceptions of law: “the acceptability of customary law is denied where one fears it could damage the trust in the legislator so central to the legislative state.” (Ibid). Indeed, and in an insight powerfully relevant to the relationship between statutory and common law in the U.S., Schmitt proposed that “the recognition of customary law always means a limitation on the parliamentary lawmaker to the benefit of other organs, especially, of course, the judiciary.” (Ibid., 17-18).
In the legislative state, legal science is easily reducible to a simple equation―Law EQUALS statute; Statute EQUALS the state regulation that comes about with the participation of the legislative assembly EQUALS law. (Ibid., 18). The “rule of law” and a principle of legality, central to 19th and 20th century legal theory, then, is dependent on the role of the legislature; “law in statutory form is the state” and “the state is law in statutory form.” (Ibid). It follows that the citizen has a duty to obey the law as a self-referencing command―she must effectively obey herself when she (abstracted as part of the body of the state) is the sole source of the law: “only through the law in statutory form is the right to resistance eliminated.” (Ibid). Put a different way, Schmitt suggests rule of law as a set of fundamental equivalences: “The preexisting and presumed congruence and harmony of law and statute, justice and legality, substance and process dominated every detail of the legal thinking of the legislative state.” (Ibid, 19). With echoes of the Institutes Book I (Ibid, 19), Schmitt suggests that the legislative state avoids tyranny only through the development of trust built primarily upon the ability of process to ensure that law remains a manifestation of justice. Consequently, the “law-state” (Rechtssaat) is essentially a process-state. Thus a system that places all trust in its all-powerful legislators can avoid arbitrary governance if it is “dominated entirely by the presumptions of the already noted trust, which first leads to the congruence of justice and formal law.” (Ibid., 20). But such law might also have a substantive element in the form of legal principles as determination of “what should be right for everyone” and as a set of managed interferences with the freedom and property of citizens (Ibid., 21).
Yet Schmitt argues both protect against tyranny only if one adheres to the idea that by definition the legislator cannot legislate anything but right (because the legislator is essentially regulating the abstracted incarnation of the aggregate of the collective self ―the population (Foucault), the people (Rousseau) (Ibid., 23). “In a democracy, law is the momentary will of the people present at the time, that is to say, in practical terms, the will of the transient majority of the voting citizenry; lex est, quod populus jubet [law is what the people order and establish]” (Ibid., 24; quoting Gaius from the Institutes Bk 1. Tit. 2. P.3.). But he notes that this set of presuppositions and potential circularities can work only where the legislative state is supported (with a nod to Rouseau) by a foundational presupposition of a “homogenous people” that are “good” and that thus posits sufficient will to support trust and process exercised through the representative legislature where the “will of the parliament is identified with that of the people” (Ibid, 24). It is only in this state that the formal concept of law can be coherently conceived.
Yet for Schmitt, functional disaster lies in the construction of this set of presumptions that must exist to support the authenticity of the legislative state and the legitimacy of its delegated lawmaking power. “If the assumptions underlying the legislative state of the parliamentary-democratic variety are no longer tenable, then closing one’s eyes to the concrete constitutional situation and clinging to an absolute, ‘value neutral’, functionalist and formal concept of law, in order to save the system of legality, is not far off.” (Ibid., 25). The result is not collapse but instead a greater reliance on process and organizational rules and to the resort to written constitutions as constraints, not on the power of legislatures to but, but on the form through which periodic legislative majorities could impose its will through formal law. The problem of the legislative state, then, is essentially the problem of representation combined with the transfer of a power over law to the re-incarnated “population” of the state in its legislature; law, justice, the state then exist in an imperfect relation.
Under the other, non-instrumental view, it sometimes follows that the fundamental question of government is the manner in its power to affect individual autonomy may be constrained and managed. The object of government may be to serve the people, but the suspicion of the use of government for tyranny and the individual interests of those who occupy positions within the governmental apparatus militates against extending excess authority to that entity. The fundamental idea here is to develop a higher law that protects people from government, and law is understood both to delegate authority to the state but to constrain it as well. This is a view that finds expression in the construction of the federal Republic in the United States and underlies the work of the Federalist Papers and have their partial source in the work of John Locke, which the student has been asked to read. The republic established for the United States tended to embrace a form of this approach. Yet like other republics that tend toward this view in the construction of their government, there is a sometimes strong embrace of the idea of the identity between law and the state, and of the imperative of obedience to law legitimately enacted by the actions of those representatives of the people to which law making authority has been delegated. That, for example, marked the initial reticence to including a Bill of Rights in the American Federal Constitution:
Like Schmitt, but several centuries earlier, John Locke also considered the problem of the legislative power and its relation to law; John Locke, Second Treatise on Government (Thomas P. Pearson, ed., New York: MacMillan 1952) Chapter XI (Of the Extent of the Legislative Power). Locke starts from the well-known notion of popular consent expressed through power delegation to a representative body. (Locke, supra, 75), but then moves in quite a different direction from Schmitt. Where Schmitt (and Rouuseau) view all power and legitimacy flowing through and to this legislative incarnation of the popular will, Locke viewed the legislature as the nexus of power that itself must be contained by and protected against impositions on the people.
The idea of absolute legislative power is rejected. First, the grant of legislative sovereignty is necessarily limited by the scope of the power actually transferred. But the people may never transfer the whole of its power. That notion is supported by reference to natural law: “nobody has an absolute arbitrary power over himself or over any other, to destroy his own life or take away the life or property of another.” (Ibid., 76). And embedded within this natural law reference is a principle ultimately fundamental to American political theory, the idea that arbitrary power is inherently illegitimate. Arbitrary power is measured, in turn, by the object of its use―power may be asserted legitimately only if it is “limited to the public good of society. It is a power that has no other end but preservation, and therefore can never have a right to destroy, enslave or designedly to impoverish the subjects.” (Ibid).
Second, legislative power must be constrained by what Schmitt would call legality; “the legislative or supreme authority cannot assume to itself a power to rule by extemporary, arbitrary decrees, but is bound to dispense justice and to decide the rights of the subject by promulgated standing laws, and known authorized judges.” (Ibid, 77). Third, because “the preservation of property being the end of government” (Ibid., 79), the legislative power cannot be used to deprive an individual of her property without her consent. Notice here a fundamental difference with Schmitt; there is a presumption here that customary arrangements both precede and survive the rise of the legislative state and that the object of the legislature is necessarily not instrumental in principal effect but passive an protective―in the way we have come to understand the common law. Indeed, Locke argues, an assurance of this protection lies in “assemblies which are variable, whose members, upon the dissolution of the assembly, are subjects of the common law of their country, equally with the rest.” (Ibid., 79). Fourth, and ironic in the circumstances of 21st century governance, Locke argues that legislatures must be limited in their authority to transfer the lawmaking power to others. (Ibid., 81). Such transfer of power creates the possibility of tyranny as there is a loss of direct connection between the people and those accountable to them. We will see how, over the course of the last century, U.S. jurists have sought to find ways to justify this delegation to the administrative state.
The last reading, Larry Catá Backer, Reifying Law: Understanding Law Beyond the State, 26(3) Penn State International Law Review 521 (2008), attempts to put these strains of theory together for the purpose of understanding the nature of the relationship between law and the state in the United States. That relationship remains ambiguous and in a tension that carries over from unresolved issues of governance that contributed to the English Civil War the effects of which were profound on the intellectual developments in the colonies, especially in the form of the writing of Sir Edward Coke. On the one hand, law in the United States is understood in some respects to be beyond the reach of the government. That law—natural law derived from the universal principles of human nature and divine moral and ethical commands related through Scripture and the authoritative writings of established Churches—was also understood as binding on both judges in the application of common law and equity, and binding on government when they sought to use the legislative power. On the other hand, equally prominent in the United States was a strain of thinking that posited that the core premises of the political organization of the federal union contained within it a corollary that the only authoritative source of law was the legislatures of states, and of the general government. The tension between the two strains of core assumptions about the legitimacy of law and the sources of legitimate expression of law (making) continues to shape the landscape of legislation in the United States.