(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 5 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.
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 5 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 5
Law Articulated by Legislatures: Statutory Law
A. Introduction
B. Problem 5
--In re SinclairC. Law Articulated by Legislatures: Statutory Law
--Notes and Questions
--1. What are Statutes for?D. Learning Objectives
--a. Direct Command2. The Problem of Hierarchy
--Constitution of the United States Article I, V--b. Delegation and privatization
--Notes and Questions
--Kevin M. Stack, Purposivism in the Executive Branch: How Agencies Interpret Statutes--c. Indirect Management of Behavior—Social Engineering through Statute.
--Notes and Questions
--Harold I. Abramson, A Fifth Branch of Government: The Private Regulators and their Constitutionality
--Tsilly Dagan & Avital Margalit, Tax, State, and Utopia
--Notes and Questions
--Berreman v. West Publishing Company3. The Problem of Coherence
--Notes and Questions
--Jean Louis Bergela, Principal Features and Methods of Codification4. The Problem of Equity—Reading Moral Values Into Statutory Provisions
--Notes and Questions
--Gunther A. Weiss, The Enchantment of Codification in the Common-Law World
--Notes and Questions
--State v. Williams
--Notes and Questions
--Schnell v. Chris-Craft Industries, Inc.5. The Problem of Interpretation—Finding Meaning and Applying Statutory Text; An Introduction
--Notes and Questions
--Sir William Blackstone, Commentaries on the Laws of England
--Notes and Questions
--Church of the Holy Trinity v. United States
--Notes and Questions
A. Introduction
Centuries ago, Blackstone noted that “municipal law is ‘a rule of civil conduct prescribed by the supreme power in a state.’ For legislature, as was before observed, is the greatest act of superiority that can be exercised by one being over another.”[1] In jurisdictions like the United States, which has a rich tradition of customary or organically sourced law, the relationship between this judicially administered law and the law produced by legislatures (and later regulatory agencies) presents unique problems. “Statutes in modern liberal democracies are mandatory for courts, not advisory. This conclusion does not tell us just how statutes should be understood or how constitutional provisions under which statutes might be held invalid should be construed. This conclusion also does not resolve whether courts should be able to declare invalid statutes that directly offend fundamental political or moral principles.”[2] But as Edward Wilberforce noted in 1881, statutes neither exist in a vacuum, nor are they self-enforcing, or interpreted by institutions beyond the courts. Then as now, and in England as well as the United States, the definition he offered might still stand as an excellent starting point for this chapter: “Statute Law may, we think, be properly defined as the will of the nation, expressed by the Legislature, expounded by the Courts of Justice. The Legislature, as the representatives of the nation, expresses the national will by means of statutes. Those statutes are expounded by the Courts so as to form the body of Statute Law.”[3]
The first of the issues statutes present is the problem of hierarchy. In the United States statutes do not exist alone—the sole expression of the power of the people to govern themselves. They do not share the cultural and structural characteristics of highly integrated and self-referential codes of law that mark the essential characteristic of civil law systems—systems grounded essentially on the primacy if statutes and the rejection of law declared and administered by governmental institutions other than the legislature. Instead, they constitute just another layer within a complicated legal system. But hierarchy contains another wrinkle: though statutes may be superior to other forms of law (with the exception of constitutional law), do the interpretations of these statutes by courts as they are applied also share that place in the hierarchy of law? This issue remains contentious in the United States, especially with respect to judicial interpretations of constitutional law.
The second is the problem of coherence. Though statutes are deemed superior in rank to common law and equity, that is to judge administered law, they do not stand apart from common law or equity. Rather statutes tend to be woven into the rich tradition of judicially administered law. One of the objects of this chapter is to introduce students to the character of states. The body of statutory law in the United States does not constitute an integrated and self-referencing code. Instead, statutes may stand apart and create mandatory rules around which the common law or equity may be applied. Increasingly, statutes represent compilations of law that are porous, in the sense that they may be read together with common law, and may incorporate elements of equity.
The third is the problem of interpretation and application of statute to resolve disputes. Statutes set standards and manage behavior. Statutes set up sometimes complex systems of oversight and regulation. Statutes may not be easy to read or apply, especially when they permit more than one reasonable interpretation, conflict with other provisions of law, or in the context of compilations that regulate a field, when they appear to leave regulatory gaps. It is usually left to the courts to apply statutes and to interpret them in the process, as and when disputes are brought to the courts about the meaning, scope, and interpretation of these statutory provisions. That raises a fundamental question for the courts—how are they to approach the project of interpreting statures? Court could apply an inductive approach—seeking meaning solely within the words of the statute itself, perhaps guided by general principles of law themselves derived from statutory law. Or they could apply the ideology of judging already well insinuated into the working style of courts through their engagement with common law and equity. Courts in the United States have applied both approaches—but the weight of practice has favored the application of common law interpretive approaches to statutory interpretation. Of most importance is the transposition of the culture of precedent into the sphere of statutory interpretation. The student will be introduced to the issues of statutory interpretation and the power of the courts to say what statutes mean. The mechanics of interpretation will be taken up in substantial detail in Part IV.
The chapter starts with a problem that is meant to illustrate the character of statutes as an essential form of law making in the United States. The chapter then introduces the student to the way that the U.S. legal system has confronted the problems of hierarchy, coherence and interpretation. The first seeks to distinguish statutes from Common Law and Equity as to form, characteristics, and application. This is particularly important for individuals seeking to conform their behavior to law and for courts seeking to apply law in disputes or actions before them. The second seeks to consider how court administered law (Common Law and Equity) and statutes work together. Each offers a different, and perhaps autonomous set of rules. They might sometimes produce multiple or inconsistent rules. It is important to understand how they are harmonized to at least make coherent. To that end it is important to understand the differences between statutes as specific commands enacted by a legislature, and codes—systems of statutes organized into a coherent whole. The differences are important for determining the way in which courts might interpret statutes or apply them. The third seeks to understand the culture of statutory law in the United States in its most import aspect—as statutes are interpreted and applied by the courts. While individuals and the state generally interpret and apply statute without any necessary intervention, such intervention becomes necessary when there is conflict or disagreement about the reach or application of statute. These disputes, like those at common law, are applied through the courts. And courts tend to use the same institutional tools with respect to both. However, interpreting statutes is not the same as applying common law or equity, and this chapter will introduce the student to the approaches courts have adopted to the enterprise of statutory interpretation.
Learning Objectives:
(1) Students will be introduced to the systemic qualities of statutes, their historical underpinnings, and the role they play in the legal framework of the U.S.
(2) The students will be introduced to the character of statutes by working through a problem that illustrates the characteristics of statutes as an essential form of lawmaking in the U.S. that center on issues of hierarchy, coherence, and interpretation.
(3) The students should be introduced to the purpose of statutes as direct commands of a legislature.
(4) The student will distinguish the characteristics of statutes that delegate authority from those that command behavior.(5) Students will distinguish between statutes as formal lawmaking as command and lawmaking as behavior management through but not by statute.(6) Students will consider the issue of hierarchy in statutory authority between statutes and common law.(7) Students will understand the difference between codification and compilation in statute making and connect that to the problem of coherence and shared authority with common law and equity systems.(8) Students will consider the relationship between statutes and equity.(9) Students will be introduced to the fundamental problem of extracting meaning from statutory text; the fundamental of statutory construction, its ideology and methodology will be introduced.
NOTES:
[1] Sir William Blackstone, Commentaries on the Laws of England (Oxford: Clarendon Press, 1765-1769), 46 (“Wherefore it is requisite to the very essence of a law, that it be made by the supreme power. Sovereignty and legislature are indeed convertible terms; one cannot subsist without the other.”).
[2] Kent Greenawalt, Legislation: Statutory Interpretation: 20 Questions (New York: Foundation Press, 1999), 29.
[3] Edward Wilberforce, Statute Law: The Principles Which Govern the Construction and Operation of Statutes (London: Stevens & Sons, 1881), 8-9.
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