Monday, February 20, 2017

Chapter 8 (Chapter Summaries) "From Law to the State and Its Government Apparatus " 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 8 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 8

From Law to the State and Its Government Apparatus

A. Introduction

B. Problem 8
--James Madison, The Federalist No. 51
--Alexander Hamilton, The Federalist No. 84
--Thomas Jefferson to James Madison, December 20, 1787
--Brutus II [Antifederalist Paper No. 84]
--Poe v. Ullman
--Notes and Questions
C. The State and Its Apparatus
--John Locke, Second Treatise of Civil Government
--Obergefell v. Hodges
--Notes and Questions
--Backer, Reifying Law--Government, Law And The Rule Of Law In Governance Systems
--The U.S. Declaration of Independence
--Notes and Questions
D. Learning Objectives

A. Introduction

The student has been considering the complex interplay of distinct sub-systems that in the aggregate make up what is understood as “law” in the United States. The student has come to understand that these subsystems include both a methodological and structural element. Each exhibits distinct cultural behaviors. Yet each also is intimately connected to the others. Thus, common law describes both the system of substantive law administered through courts, and the methodologies that judges use to develop and apply this law. Equity describes substantive law that is also judicially administered but beyond the framework of common law. But it is also a reference to procedural defenses and remedial strategies that can have significant effect on the form and content of judge administered law. Where common law is focused on determining the structures and application of causes of action—referencing rights and obligations defined by conduct parameters—equity tends to consider fairness and prejudice at its core. Like common law and equity, distinct yet related legal sub-systems, statutes, and regulations are related but distinct sub-systems with characteristics somewhat different from those of judicially administered law systems. Both are instrumental expressions of legislative (or administrative will), unlike common law and equity that represents a complex interaction between judicially managed norms and the social norms within which they are embedded. Statutes and regulations are written, and that writing does not change. Its interpretation and application, however, are either left to or administered by courts. Courts interpret statute; statutory interpretation is central to the judicial engagement with statutes. Regulations are established by administrative agencies—courts consider both the jurisdictional power of agencies to regulate, and the authority of other political branches to engage with such agencies. But courts have imported the methods of common law practice to the exercise of statutory construction. Statutes and regulations now may be burdened by a complex set of judicial interpretations that may, at times assume importance equal to or greater than the statutory language itself.

With this introductory chapter to Part III, the materials shift the examination from the law to the institutional structures within which they are created, established, elaborated, interpreted, and applied. Just as law is organized as a system in which distinct forms of law have superior or inferior power to affect behavior, so too the effectiveness of law, and the extent of its legitimate application is determined to some extent by the nature, character, and power of the institution that produced it.

To that end, this section considers an issue that most lawyers take for granted without stopping long enough to consider—does law (and lawmaking) have a purpose? We will consider two principal schools of thought. The first assumes that law is an instrument of the state/government with authority to enact it. At its greatest level of generality, this view posits that law is “positive” and “instrumental.” Under this view, law is the conscious product of the national will directed toward to the attainment of a particular behavior controlling objective. From that premise, it follows that without government there can be no law. The second assumes that law is autonomous of government. Law exists whether or not there is a government. In this guise law is understood either as (1) a reflection of the common beliefs and traditions of the people (custom), or (2) the implementation of higher moral norms (natural, religious, rationalist, or international customary norms).

Learning Objectives:
(1) The student will be introduced to the issue of whether law or lawmaking has a purpose and the way that connects law to a state apparatus. 

(2) The student will be introduced to principal approaches. The first is one grounded in the idea that law is organic and reflects the political culture in which it is embedded (a memorialization and organization-implementation-facilitation function).  The second is grounded in the idea that law expresses a mandatory set of objectives that a political culture imposes on itself, the responsibility for the attainment of which is assigned to the governmental apparatus ().

(3) The student will consider the influence of both of these approaches in the construction of the law-state system of the United States.

(4) The student should be familiar with the legal debates surrounding the adoption of the Bills of Rights to the U.S. Constitution through a reading of The Federalist Nos. 51 and 84, a letter from Thomas Jefferson to James Madison, and the Anti-Federalist No. 84.

(5) The student will be introduced to two principal approaches to the development of the fundamental ordering principles that define the relationship between law and the state:
o First, 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).

o Second, law has been understood as related to but autonomous of the state and the government established to administer its territory.
(6) The student will begin apply these principles to the connection between the legal subsystems studies in Part II (Chapters 3-7) and the government in the United States. 

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