Tuesday, February 21, 2017

Chapter 9 (Chapter Summaries) "The Relationship of Law and the Government of the State: Role of Law/Rule of Law" 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 9 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 9.

The Relationship of Law and the Government of the State: Role of Law/Rule of Law
A. Introduction

B. Problem 9
--U.S. ex rel. Accardi v. Shaughnessy
--Notes and Questions
C. The Relationship of Law and the Government of the State―Role of Law/Rule of Law
1. Rule of Law and the Use of Law to Organize the State
--United Nations, What is the Rule of Law
--Notes and Questions
2. Procedural Due Process as Rule of Law in the United States.
--Wilkinson v. Legal Services Corp.
--Notes and Questions
--Hamdi v. Rumsfeld
--Notes and Questions
--A Note on Hamdi
--Mathews v. Eldridge
--Notes and Questions
3. An introduction to Fundamental Rights as Constraints on State Power in the United States
--Washington v. Glucksberg

D. Learning Objectives

A. Introduction

In Chapter 8 the student was introduced to government as an actor within system of law. The chapter considered the great debate in the United States about the relationship between law, the state, and the government. Chapter 9 introduced students to the basic principles that frame the way that law is understood as an important part of the way the government “speaks” but also as rules that the state receives and is bound to apply. In the process, several concepts were introduced that will be studied in greater detail in this chapter and the chapters that follow. These include the concepts of hierarchies of law and of the role of the legislature as both constrained by law and as a primary source of positive law in its representative capacity. It also introduced the ideas of law or constraints beyond the higher law of the constitution of a state.

With this chapter we finish our consideration of the issues that frame Western, and particularly American, understandings of the relationship between law and government and that also structure the hierarchical relationships between law and government and among distinct classes of law. In succeeding chapters in this Part III, the student will then examine the consequences of a systems structured with a higher law at its top and government and subordinate law forms extending beneath it. In Chapter 10, the student will consider the relationship between the state and law arranged in hierarchies of authority in relation to government. In Chapter 12, the student will be introduced to the traditional relationship between the law inside a state―its domestic legal order―and the law outside of the state. The latter, now understood as international law, has undergone substantial changes since 1945 and the creation of a governance architecture built around international organizations, the United Nations, World Trade Organization, regional human rights courts, and the like. Simultaneously, the ability of states to protect their domestic legal orders has been challenged as borders have become more porous to transactions in goods, capital, services, and to a lesser extent, people, in a process usually understood as economic globalization. Together, these trends have made it harder for states to shut international law out of their domestic legal orders; but not entirely.

With that longer-term objective in mind, the goal of this chapter is to consider the organization of the relationship between law and the state around the core concept of justice—that brings us back to the initial question posed in our study of Justinian’s Institutes and its translation into American ideological jurisprudence. Justice, in this context, has a quite specific focus—fairness (in the sense of giving every person their due in accordance with societal expectations). The ideological concept of fairness is commonly referenced by lawyers―and increasingly by our political officials―as “rule of law.” I have elsewhere suggested a standard model for rule of law in the early 21st century:[1]

More specifically, in this Chapter 9 the student considers another aspect of the relationship between law, the state, and the government. These revolve around issues of legitimacy and authority of the state with respect to law and to the exercise of its own powers in relation to law. These issues are commonly aggregated within the complex of principles commonly understood as “rule of law.” In U.S. jurisprudence, the rule of law is the expression of the relationship between law, the state, and its government, expressed through law. It embraces three broad principles. The first is the principle of the supremacy of law over the discretion of government ministers, including legislators and judges. All government officials are bound to follow the law. This applies as much to the substantive rules of law as well as to the procedural rules necessary to effect decisions or otherwise act. The second principle is one of equality before the law. This has been clear in the United States for well over a century. As the Supreme Court noted in U.S. v. Lee, 106 U.S. 196 (1882):
Under our system the people, who are there called subjects, are the sovereign. Their rights, whether collective or individual, are not bound to give way to a sentiment of loyalty to the person of the monarch. The citizen here knows no person, however near to those in power, or however powerful himself, to whom he need yield the rights which the law secures to him when it is well administered. When he, in one of the courts of competent jurisdiction, has established his right to property, there is no reason why deference to any person, natural or artificial, not even the United States, should prevent him from using the means which the law gives him for the protection and enforcement of that right [106 U.S. 196, 208-209 (1882)].
The third principle is that the rule of law must in the last instance reflect popular consent and the popular will, especially in the form of its customs, traditions and expectations. The rule of law intimately connects the legitimacy of the higher law of governmental organization with the substantive principles with which the people have elected to order their lives. These principles are foundational for the ordering of the U.S.: legal system in its relationship to the government established therefor under its constitution. The essence of rule of law in the United States, then, can be understood as two sets of value, a set of process values (thin rule of law) and another of normative values (thick rule of law).

After the Problem, the Chapter introduces students to a comparative approach that suggests the malleability of the concept of rule of law but also its importance as a sign of law system legitimacy. The student will be introduced to the fundamental difference between rule of law as a political concept—one that embraces a particular ideology of political organization and social structuring—and rule of law as a legal concept within the United States legal system. In this latter aspect, rule of law has been subsumed within the core constitutional principles of due process and equal protection understood as tools to avoid governmental tyranny or the assertion of arbitrary power. Those principles, and the rule of law construct it embodies, find expression in the United States in the jurisprudence of fundamental rights. These principles find expression in the jurisprudence of the United States as courts seek to apply these abstract concepts to concrete cases. Ultimately, it is to an understanding of the concrete expression of the abstract concept of rule of law and its importance to the functioning of the U.S. legal system that the bulk of the chapter is devoted.

Learning Objectives:

(1) Students will be introduced to the concept of rule of law and its relationship both to law systems and to government.
(2) Students will consider rule of law generally as a political concept.

(3) Students will consider rule of law generally as a legal concept.

(4)  Students will be introduced to Procedural Due Process as an important species of Rule of Law in the United States.

(5) Student will become familiar with the concept of substantive due process and its four part standard, and how the Court applies the concept through a reading of Washington v. Glucksberg.

[1] Larry Catá Backer, “The Rule of Law, The Chinese Communist Party, and Ideological Campaigns: Sange Daibiao (the ‘Three Represents’), Socialist Rule of Law, and Modern Chinese Constitutionalism,” Transnational Law & Contemporary Problems 16, no. 1 (2006): 34–36.

No comments: