Wednesday, February 08, 2017

Chapter 2 (Chapter Summaries) The Cast of Characters, Institutions, and Forms: Reading Justinian’s Institutes: "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.

All contents posted on line may be accessed here:

Summary book organization and Chapter 2 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, 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 2
The Cast of Characters, Institutions, and Forms: Reading Justinian’s Institutes

A. Introduction

B. Law and Justice: The Issue of Jury Nullification in Criminal Cases
--Problem 2
--Notes and Questions
--Constitution of the United States of America
--Sparf and Hansen. v. United States
--Notes and Questions
--US v. Thomas
--Notes and Questions
--U.S. v. Lynch.
--Notes and Questions
--Note on Jury Nullification in Civil Actions
C. Law and Justice: An Introduction to the Cast of Characters, Institutions, Substance and Forms of Law
--The Institutes of Justinian
--Notes and Questions
--The Constitution of the Empire of Japan
--Notes and Questions
--Sir William Blackstone, Commentaries on the Laws of England
--Notes and Questions
--James Kent, Commentaries on American Law
--Notes and Questions
D. Learning Objectives

F. Additional Readings

A. Introduction

The question “what is law?” is to some extent intimately connected with the question “where is law made?” To understand law, then, one might seek to understand the institutional context in which law is produced, and the extent to which particular institutions have been accorded power to “make” or “pronounce” law. That investigation is also far more complex in the United States than a quick examination of the organization of its government might suggest. For the purposes of this study, the student should start by considering whether the answer to the question depends on the character of the institution producing “law” and the actors vested with the lawmaking power. The student might also those distinctive features that gives law a special quality, marking law as different in character from other forms of command, guidelines, or direction. These issues will be taken up in the next several chapters. Even at this preliminary stage of study, the student should begin to discern that these qualities that make law distinctive are a function, in part of the cast of characters, institutions, and forms that are essential elements to the production, operation and application of law. Identification of these elements of law making is a necessary first step in any effort to understand what law “is.”

That process of identification can then be brought to bear on the “uniqueness” issue. Students of law, whether in law schools or the social sciences, learn to distinguish between law and systems of religious rules, ethics, morals, or governance. Law students are taught to engage with law within the structures established for that purpose. Social science and policy students are taught that the special character of law is critical for better understanding policy and distinguishing the actions of states, around which law is bound, and the lesser obligations of religion, ethics, morals, and governance (except to the extent those are operationalized as law through their incorporation within the domestic legal order of a state).

The uniqueness issue thus touches on a central issue of law (and to some extent, though with distinct sets of vocabulary, religion, morals, ethics, and governance), one that brings us to the first bedrock issue—the connection between law and justice. This connection bridges law, legislation, government, custom, policy, and process.[1] And it touches on the connection with law producers and law protectors—for example courts, mediators, etc.[2] We do not approach that issue from the perspective of philosophy, but more practically from an institutional perspective. To what extent is law conceived as related to justice? To what extent might they mean the same thing? What are the consequences of convergence or divergence? Clearly these are issues that have attracted substantial critical thinking of the highest order—none of which will be the subject of our study.

But the issue of the relation between law and justice tends to be highly abstract. It might be more useful for the student seeking an introduction to the system if U.S. law in action, to begin to think about this abstraction in more concrete terms, and specifically in terms that are important in the U.S. context. To that end, Section B sets out a problem that permits the students a way to consider the complex issues of law—as substance, process, values, institutional power, and legitimacy—in its U.S. context. The setting of that problem then provides the foundation for the more theoretical discussion in Section C. This discussion contextualizes the American dilemma of jury nullification within the broader discussion of the historical context in which American legal ideology approaches the bedrock issues of law and justice, in form and function.

* * *

Chapter 2 Learning Objectives.
· The primary focus of this chapter is relationship between law and justice.

· To read and analyze a document such as the Justinian Institutes, a document from the 6th century Roman Empire, whose principles were carried forward by U.S. jurists of the 18th and 19th centuries into our own system.

· To consider the importance of elements of predictability, certainty and societal norms to a legitimate system of law.

· To consider way the principles of the Institutes have influenced the U.S. legal system.

· To apply the principles of law and justice to the question of jury nullification in criminal cases in the U.S.


[1] For one well known perspective, see Friedrich August Hayek, Law, Legislation and Liberty: A new statement of the liberal principles of justice and political economy (1973; repr., London: Routledge Classics, 2012).

[2] See, e.g., Jerold S. Auerbach, Justice Without Law? (Oxford: Oxford University Press, 1984).

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