Sunday, February 26, 2017

Chapter 11 (Chapter Summaries) "Hierarchies of Law Within the Domestic Legal Order and Between National and International Law Reflecting Governmental Order" in Elements of Law and the United States Legal System

(Washington Monument Pix © Larry Catá Backer 2016)

I recently announced the forthcoming publication by Carolina Academic Press of my Elements of Law and the United States Legal System (ISBN: 978-1-61163-927-8 • e-ISBN: 978-1-61163-984-1).

The work made sense as a century of legalization (here and here) and judicialization (here and here) forces more and more people worldwide to bump up against aspects of aspects of the U.S: legal system.  The system is a complex amalgamation of distinct approaches to legalization, and the mechanics of its implementation, that  tends to be mystifying to everyone, even individuals trained in law elsewhere. Most people tend to be hard pressed to explain the U.S. legal system either to non-lawyers or to foreigners, even sophisticated foreign lawyers or jurists, or for that matter to each other. Most would find it difficult unravel the distinct strands of law in the United States, each of which deeply embedded within their own internally coherent systems of generation, interpretation and application. The object of the book is to make the elements of law within the U.S. legal system more accessible and easier to invoke.

This set of posts provide interested readers with a more detailed description-summary of each chapter along with teaching objectives. After these descriptions I will circulate a chapter by chapter based draft Teacher's Manual. Comments welcome for all. 

All contents posted on line may be accessed here:

Summary book organization and Chapter 11 Summary follows.

The work is divided into three parts and a historical preface.  The Preface traces the origins of the materials and its objectives.  It suggests as well the challenges of teaching normative or framing concepts around a profession based on the training in technique; in effect the book seeks to expose the underlying normative structures and patterns well embedded within the techniques that tend to center the study  of law and legal subjects. Part I: What is Law? An Introduction,  is divided into two chapters.  Chapter 1 sets out a detailed roadmap for the materials built around an introductory problem that highlights the book's major themes. Chapter 2 then introduces the principal vocabulary, institutions and forms, starting with the issue of the connection between law, justice and the state. Part II: U.S. Law: System and Sub-Systems (Chapters 3-7), then focuses on the principal components that together make up the U.S. legal system. Its five chapters each focus on three forms of law sub-systems.  The first includes law articulated by the courts--common law and equity.  The second touches on law articulated by legislatures--statutes and administrative regulations. The third focuses on emerging systems of governance beyond the state--private regulation, hybrid public-private regulation and social norms. Part III: Hierarchies of Law and Governance: The Relationship Between People, Law, and Government moves from the study of the specific characteristics of legal subsystems to their relationship to government. It speaks to the governmentalization of law. Its four chapters first consider the fundamental theories that tie law to the government, the role of rule of law concepts, the development of hierarchies of law within the domestic legal order of the United States and then the relationship of domestic to international law. Part IV: Institutional Architecture of Law and Governance: The Law of Government of the United States then considers the legal rules through which governmental regulatory authority may be exercised. If Part III spoke to the issue of the governmentalization of law, Part IV touches on the legalization of government. Its four chapters considers the fundamental principles of separation of powers and checks and balances, the constraining of administrative discretion, popular law making through initiative and referendum, and the legal structu8res of federalism. Part V: The Role of the Courts in the Application of Law: Judicial Review, Methodologies of Interpretation, and Legitimacy closes the circle by bringing the focus back to the courts and their engagement with law. The first of its three chapters touches on the doctrine of judicial review and the legalization of the authority to interpret and apply law beyond common law. The second of its chapters then considers the techniques of judicial interpretation and their relationship to judicial legitimacy.  The last of the chapters then considers the binding nat8re of judicial opinion, especially the legal effect of judicial decisions interpreting statute.

Chapter 11

Hierarchies of Law Within the Domestic Legal Order and Between National and International Law Reflecting Governmental Order

A. Introduction

B. Problem 11
--State of Missouri v. Holland
--Notes and Questions
C. Hierarchies of Law within the Domestic Legal Order and Between National and International Law Reflecting Governmental Order
--Backer, Inter-Systemic Harmonization And Its Challenges For The Legal-State
--Notes and Questions
--Medellin v. Texas
--Notes and Questions
--A Note on Medellin
--Kiobel v. Royal Dutch Petroleum Co.
--Notes and Questions

D. Learning Objectives

A. Introduction

We have been considering the way in which the United States has developed a set of principles to systematically organize the relationship between law and the apparatus of state (its government). We have seen how that initial decision produced a compromise of sorts between two competing ways of conceptualizing the state-law nexus. The first understood law as inevitably tied to and produced only by the apparatus of state as a representative avatar for the people as sovereigns. The second represented an evolution of the old medieval understanding of law as autonomous of the state (and its government). That autonomy, of course, was not absolute—the legislature could project power into law by enacting statutes. Yet early on, there was also a sense that higher order values might not be interfered with by either the legislature (Parliament) or the executive (the Crown), though together (as Crown in Parliament) they might be vested with the authority to act as or for the sovereign people. We have come to understand how these premises shaped the development of a two tier structure of law with different relationships to the state. Higher Order or Constitutional law remains somewhat autonomous of the state and can only be amended at great effort. Other forms of law may be more easily made. Yet even there the notion of separation remains lurking.

We have also begun to understand how this grounding notion of law-state structure produced a need for ordering among law. If, as we have come to understand it, the law system of the United States includes several sub-systemic strands that overlap, and if we also have come to understand the governmental system of the United States as layered among local, state, and federal authority, then some structural guidance is necessary in order to make the U.S. legal system coherent rather than chaotic. It is to that point that we considered the way in which hierarchies of law have been established both within states and between states and the general government in Washington D.C.

With this chapter we broaden our gaze just a little more. This section introduces the student to the issues of legal hierarchy in the context of the state system on which the contemporary global legal and political order is founded. The student will examine the relationship between domestic and international law in relation to the obligation of the state and the obligations of individuals. That has tended to be a complex business sin the United States, the outer limits of which remain quite lively areas of debate. The chapter is meant to help students apply some of the premises underlying U.S. approaches to the incorporation of international law and principles within its domestic jurisprudence and the way in which that international legalization can actually penetrate into the U.S. legal system.

Over the course of the last several chapters the student has been introduced to the relationship between the state, its government, and systems of law as it has developed in the West. We started with an exploration of the premises of most important approaches to the construction of relationships between law, the state, and a government. Beyond the substantive characteristics of each, and their similarities and differences, the student was also introduced to the effects of each set of ordering premises on the fundamental relationship between the individual, the political community, and their government. On an as applied basis, it provides the student with the tools that make an understanding of different political systems, and their relationship to law, more understandable. In addition, the student was also exposed to the way in which each of these approaches communicate. Ultimately, the object was to provide students with the outlines of the framework within which the modern law-state has been created and deployed in domestic and global governance.

The student then turned to the issue of ordering law within each of these framing structures. In the face of the structuring characteristics of the modern law-state, how do states order law, and by ordering law, implement theoretical premises about the relationship of the individual to government and government to law. The focus of the class was on two principal objectives. The first was to explore the creation and the legitimacy of “higher law” that both constrains the state and its government, which has become the basis of modern constitutional law. The second was to explore a consequence of this establishment of a “higher law” system for ordering government, and its effects for ordering “inferior” law that may otherwise be declared or enacted by courts, legislatures, or administrative bodies. Together these two facets of law-ordering creates what is commonly understood as the domestic legal order of a state. That is, the domestic legal order of a state refers both to the ordering of law within a state and also to the mechanics by which government is constituted, constrained, and legitimated by a states “higher law” and by which a government contributes to the enactment, implementation and enforcement of law.

The management of legal hierarchies in the United States was then introduced. The doctrine of preemption serves as the tool through which multi-jurisdictional states—federal states like the United States, and federal unions of states, like the European Union—manage the multi-system legal orders. The object is coherence within a governance space in which law operates through multiple autonomous but related sub systems (common law, statutes, etc.) organized in simple hierarchies (recall the Indiana statute on legal hierarchy) within states, and in more complex relationships between state hierarchically ordered law systems and those of a superior governmental system (the United States general government), which share authority over the subject of legal regulation. The system of preemption is made complicated precisely because multi-level federations now legislate in areas traditionally left to non-state social norm systems, and because of a shift on political consensus that once favored local law making and now favors law making at the national level.

In a world in which the state represented the repository of the highest law of the territory within which its authority could be enforced, the domestic legal order of states expressed both a description of a system of law-states, and also gave expression to the premise that the law-state was the highest form of legitimate law making. Beyond that was the world of the “law of nations” in a modern version not far different from its conception at the time of the Institutes,[1] and from the 19th century a more formalized structure of contract relations between states, managed under a system of treaties and custom understood as international law. These applied as contracts among equals among the family of civilized nations but could be used to support colonization or the making of unequal treaties when superior nations engaged in state to state relations with an inferior state. Before 1945, this system, of international law produced a bifurcated approach to law systems. On the one hand, the system of law produced within a state, the sum of which constituted its domestic legal order, was understood to apply directly to individuals and understood as the legitimate expression of popular sovereignty because it proceeded from the people or their representatives in ways sanctioned by the “higher (constitutional) law” of the state. On the other hand, the obligations incurred by states among each other were said to bind states, as juridical entities, but had no effect within the territory of a state unless, under the rules provided for this purpose within a state, these treaty or customary obligations, were incorporated into the domestic legal order of a state. In the absence of that incorporation, there was no automatic transposition of international into domestic law and individuals within a state had neither rights nor obligations under these provisions, however much they might want either.
But especially since the middle of the 20th century, law and law systems have once again become more detached from the state, and assumed an autonomy that might produce a direct connection between international law and individuals wherever situated irrespective of the action or inaction of an intermediary state.

Learning Objectives:

(1) The student should be familiar with issues of legal hierarchy in the context of the state system on which the current contemporary global legal and political order is founded.

(2) The student will consider the relationship between the federal authority over foreign affairs and the federal treaty power against the structural limitations of federalism and residual state authority.

(3) The student will consider the effect of international law within the U.S. federa system, the difference between self-executing and non-self-executing treaties and their respective effects on federal and state judicial authority.

(4) The student will be introduced to the limits of federal authority to incorporate international law through the expansion of judicial jurisdiction in the reading of Kiobel v. Royal Dutch Shell.

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