American Law an Introduction

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A me rican Law

L {,.

·

^,

By

th

e Same Aut

hor

Co

ntract

Law

in Ame ri

ca, A Social and Econom

ic Case Study

Gove

rnme nt and Slum Ho using: A Century of Frus tra ti

on

A History of Ame

rican Law

T

he Legal Sys te m: A Social

Science Pers

pective Law and Soci

e

ty: An Introduction

T

he Hoot

s of Justice: C

rime and

P

unishment in

Ala

me da County, C alifo rnia, 1870- 1910

(with Robe

rt V. Percival)

merican Law

Lawrence M . Friedman

STANFORD UNIVEHSITY

W· W·X orlon & Company

.Nrw YOJ'h; • Londoll

, ,

Copyright © 1984 by Lawrence tv!. Friedm(1)\

All rights llescrv(~d.

Printed in the U!)ited States of Amcrka.

The text of this hook is composGdi i,l) Caledonia, with displ1ay type SId ill

Bulmer Italic. Composition and manufacturing by TI'le Maple-Vail Book Manl1facturing Gronp

tiook design hy Jacques ChaLaud

Library of Congr 'SS Cataloging ill Puhlication Dntn Friedman. Law\,(:'l1ce Meir, 1930-

Am ·'l"i<:(\11 law.

lncllldes index.

1. Law-United States- Popular works. I. Tith,. KF:3S7.1-'74 1984 349.73 83--12()o2

ISBN

0-393-~1B90-3

ISBN 0-393 - 95251-7 (pbk.) w.

^{W. Norlon} & Company) [nc.) 500 pifth Avenue, New York, N.Y. IOllO W. W. NOI~ton & Company Ltd., 10 Coptic Street, London WCIA IPU

890

For Leah, Jane, Amy and SCtrah

CO'n ten ts

A(~KN()\VLE)(;l\ I EN'l'S

P[\EFACE

1. What Is a L·\gal System?

2. L;.1W: Format alld In{c)rmal

3. The Bael gn)1I11d ol'American Law

4. The Strllcture of AmerlC<1n Law: The emlrl's

.5 ,

The Stl'lIdUI" of American Law: St~ltlltcs and S Latu te Makers

6. The Strl1ctul" ^J. of Am -'ric<lll Law: Exe 'u ing Policy 7. F dCI'Hlisll1 lind A III "rican regal Cultul'

8. I.nside the Black Box: Th SlIbstnnc" of Law 9. Crimes <1J1d Pllllishments

10. Constitutional L<1W ilnd Civil Lih(-~rtil!s

.l2. Legal Culture: Legitimacy and Morality

i.r xi

1

2() .]()

57

88 i()7 .l23 138

154 .178 199 218

,. iii ^{(;()N'I'EN'rs}

13. Tll<' ;\nwric,lIl Legal Professio1l 14. Law and Social C11<.lllgc

15. ,EJ)iloguc: The FlIture of' Llw in the United States

DOCU~lENTS

NOTES INDEX

23[

2. 4

28() 2,<)1

.Jell'

Acknowledgments

J wo"ld Iikc to thank the staff or the Stanfill·d Law Lihrary, and espe- cially 'Iyron Jac~lhstcin and Iris Wildman, for their help at so many points. I also want to thank my secretary, Joy St. John, who patiently worked on draft alicr draft during the p.criod I was working on this hook. Special thanks, too, tn Leah fe,r her strong and mnsist('nt social support.

j

Priface

This book is a gcn ral introduction to the law- 'lI1d the I gal svsteUl- 0(' the Unit 'd Stat s. In a way writing another hook ahout American law is hringillg ( 11 )lh " oal Lo ewcastl. Th r is . ~rtaillJy no short- age of hooks ahout our 1 :>gal system. Th - Harvard Law Schoollihrary which is just ahollt th ' bigg st in the coulltry (olltsid ' of' th - LibraI' of Congn: .. ss), has about a million and a quarter volum s. P rhaps

thre" hundrecl thousand of these are books about Am rican law. Ev ry

year, Harvard adds thousands more to its 011 'tion. Of th Ilwking of law hooks ther s emstobe noend. Dowe r-allyn don mor-? Perhaps w-' do. Almost aU of those thousands and thousands of books are n an t /:()J" the specialized eyes of th lav.,y rs. V -ry f ware writt n for the layman. True, in recent years, flocks of "how to do it"

books bave:: appeared: how to get your own divon.: , how to avoid probat" how to d al with your landlord. Ther -are also som popular handbooks about )(\ople,' right I ow to "win I i /' in .-·11C 11-'lain s courts, and so on. Books of this kind are no nov Ity. In tl nin le nth century, too, ther were "how to do

it"

books, with nam s Iik Eery

Man His Own Lawyer. Som were extreln ly popular. On" su h book, publ~shed in 1867, c1airnecl it would b- valuahl tor just about v ry- body: the "city wholesale merchant," th r' tail \', tl. ountry mE~r­ chant, attorn ys, justi s of the peaee fanners, m .chani 's- v 11 th

"discharged soldi"r or sailor" of the Civil \lVar,

'v\1ho

would find "all the jnstructions ~llld

forms

necessary' to get back payor p nsions, in languag "so plain as to make the whole matt r perf 'ctly ,lear and simpl'."1

xii ^Pl\EFACE

Out or thi s vast lite rature, ror lawye rs and

layme

n, onl y a handful of books are d esigned to ex plain th e syste m to ge ne ral read ers with- out hav ing some imme diate, practi cal g0a l. Most or these fe w books m oe som ewhat spec

ialized

(con stitution al law is a common subject;

bu si,;';: , s law is another)_ The re is room , th e n, ror anoth e r book, writ- ten spec

ifically ror th

e ge ne ral read e r, giving an

overall picture of the

Ame

rican le

gal syste

m as it was and as it is,_

in operation _

De finin g th e

legal system presents us with some

tough question s.

Exactly what is th e legal sys te

m made or? What is its hi

storical origin ? What are its parts? Wh e

re does it begin

, and where

doc

s

it

e

nd?

Ther e ar e no simple answe rs-especially whe

n

we think of the

hundreds on

egal syste

ms in

th e world and all th e syste

ms that exi

sted in

the

past. Do we want answe rs broad e nough to cove

r law in

small trib es of nomads a< we

ll

as in giant indu strial socie ties; in soc

i

e ties rang

ing from those of th

e an cient Hittites and Chin ese,

through those

of the Middl e Ages, into th

e world of today? This would be a tall

order

ind

eed. Some scholars

have tried to

solve the proble m. They have tried to de fin e and describe

law

in a way that bridges all soci eti es and aU time pe

riods

. Ther e is no gene ral agree me nt on whe th er the ir

results are

worthwhil e.

The goal or this book is mo re modes t.

It

is an introdu ction to

American law,

and

it

is e ntitled , th e n, to focus on the Unite d States and

neglect radically difJerent

socie ties. After all, "law," "legal sys- te m," ancl "legal process" are all me ntal constructs . They are not thin gs th a t exist

in

the real world. You cannot touch , taste, sm e

ll,

or mea- sure

law.

Any

d

efinition

, the

n ,

has to be more or less conventional,

or artificial. This does not mean tha t these de finition s arc wrong; it simply means th at a d e finition is good

if it is use

ful

,

and

if we make

clear to ourselves and

to

othe rs e xactl y what we are about.

Our first job, th e

n, is

to

layout a kind of map of the

Am erican legal system- to cata log the subject of thi s hook. Houghl y, th e critc- rion

for including and

excludin g will be based on popular unde rstand- ing : what scholars and

laymen

would ag

ree is insid

e th e circle of law.

The starting point can be gove rnme ntal rules; th ese are o bviously part of what is unde

rstood as law. Clearl

y, too, whate ve r is conce rn ed with

making and

carr ying o ut these rul es is inside th e legal sys te m.

Tbis means th e courts, or cou rse, and the legislatures, ci ty halls, and

COUllty

board s; also administrative age

ncies-th

e Inte rnal Re venue

Se

rvice, the

Inte

rstate

Comm e

rce Commission

; state age

ncies that li

cens e do ctors, teac

he

rs, and plumbe rs

; and

eve

n

th e rathe

r lowly

zonin g bmu'cls and sewe r di stricts. They all

make

rul es and regula-

tions.

Preface :riU A legal system cannot enforce or carry out these rules and

regu- lations

without

the work

of a lot of men and

wome n

who carry out orders

from

above-policemen,

for

example, or elevator

inspectors

, or auditors who work for the tax bureau.

We

also

include

as

part of the system our huge corps oflawyers. Th

eir work-even their private

dealings in the snug confines of a Wall Street officc--is directly rele- vant to the

legal system.

Law is,

after all,

the

lawyer's stock

in trade.

The lawyer advises his clients and tells them how to use law

or

how to pick a path among legal minefields. He works in the shadow of the

law,

and

thus forms part of the legal system-indeed, a vital part.

But

the

activities of official agents of the law are

not

the whole story. Ordinary citizens participate in the

legal

system, not just by their actions, which may be law-abiding or not, but also by their atti- tudes and belief,. The American

legal system in operation is,

thus

,

a very

complex

organism.

It

has many parts

,

many actors

, and

many

aspects.

The

actors

range from judges

of the Supreme Court

to ho- boes

sleeping

in

railroad yards;

the institutions include

courts,

pris-

ons, zoning

boards

,

police departme nts,

and countless

oth

ers.

As in

all

legal systems, what g ives the organism life is th

e

way rules

,

peo- ple, and institutions interact. How they do so is

our general theme.

J

American Law

/)

1

What Is a Legal Systelll ?

IN

^{MODEltN AMEIIICAN SOCIETY, th I gal syst m is v rywhere}

with us and around us. To he sure, most of us do not have much contact with COll rts and lawyers except in emergencies. But not a day goes by, and hardly a waking hour without '0 ta ,t wilh law in its broad r s "I1S - or with p ople whose

b

havior is l1louifi

d

or influ- enc

cI

by law, Law is a vast, though sometim· . invisible, PI' s nee.

For exarnpl , when we go to the grocery and buy bread, milk, soup, and potato ('hips, ~nd when Wf. make out a 'h k f/)J" the food and take the p<lckag"'s out to our C'U', we invok or (ssumc many f~1cets of legal order. To be sure, we do not feel that th 1 gal system, like some sort of Big Brother, is staring at us over our should 1". But in a sense it is: at LIS, and at the shopkeeper and his workers. Some branch of law touches every asp t of this ordinary littl piec of b 'havior.

To gel to the stor ,w drove a car or walkE

ct ,

crossing s " I slrc ts. Traffic law walked or drove with liS. Dozens of rules and r g- ulations applied to condiHons at the ractory wher th 'ar was assem- bled-nil s about th· work loree, and about the ar itself, hody and engine. Inside the grocery store, there w I' labels on thE-cans and packages- more rules and regulations; in the

life "..

history of -v ry jar of jam, every tllhe of toothpaste, rules and r 'gulations ar'" lurkit g. And of course w< rk rs in the store, like workers 'in th . Huto r1ant, are cov'"'red by r~ c1 'rat stat , and local labor re(fulations.

Indeed, most things we buy-TV sets, mattress ··s, shoes, what- ever- are cover ,J hy some body of law, some rules about sal' ty or

2 :\l\lEIUCAN LA \V

quality or other asp 'cts of manub ture or use. ivlost buildings and p1laces of business including th grocery store itself, hav" to'oll()rm to building codes Hlld to fire" and safety regulations. Hul-·s ahout stan- clm'd wights and mC<.ISlIl'C>S, ""lllployee comfort and safety, tim ' and a l1a~f

for

ov -'dime work, Sunday closing laws- the list is endl ss.

But there .is luor '. vVh I I buy a loaf of br ad or a can of soup, J have entered illto a 'olilracl, whether I realize it or not. H son ething goes wrong with tbe deal, the rules of contract law, of the Uniform Commercial Code, or of some branch of commercial law 'owe into play, ilt least theor rl,tically. 'I'he Conunercial Cod - gov rns the ruI-,s that relate to checks; and a vast body of hanking law is relevant to the way these pieces of paper provide credit and payment.

If

tile can

or

soup is tainted .mel 1 get sicik, I rnay have the right to SHe the soup company; this will switch me onto still another legal tra 'k-the law of products liahilil'y, a hranch of tile law

of

torts.

This is not to say that w·' fcel law iyjng on tiS lik a suit

or

^lead.

Law is in the alll10sph re, as light J.S air to the normal touch. (Manu- facturers and stor ke pel'S, of course, may see things ddf; r ntly.)

\lloreover, it is wrong to think of law as a tissue of don'ts, that is as a kind of naggin~ or dictatorial parent. wIueh of th - law is intend d to make life easier, safer, happier, or better. vVhen the norms do (cwhid something (or require som thing from somebody), it is usually f()r th specific benefit of sornehoely else. The law insjsts that soup companies put labels on their soup. They must tell us exactly what th·y p It inside. This is a burden on the company, but is a benefit (or is sup- posed to be) for buyers of soup. There are also many ways in which the legal system facilitates, rather than

forbids

or harasses. It subs:i- dizes; it promotes; it provides easy ways to reach desirable goals. The law about wills or contracts, for example, is basically about ways to do what you want to do, safely and meiently· it is much less conc"rned with what not to do-- with

tit

pric

un-

^{disobeying rul-'s. A gr i:lt} J al of law is t~lcilitative in this way. It provides standard ways- roll- tines-for reaching goals. It bujlds roads for the trafn of soci "'ty.

Legal process is so important that it certainly behooves us to kilO,",

as much as we can ahout it. But what is that ^l

if"'?

What do P 'opl have in wind when they speak abO\l.lt "the la\,v" or

"1 -

gal pro' ss",?

~4uch as we might want '-0 avoid tricky probl InS of

cI

finition) w may in the end have to say xactly what

"ve

mean hy th t rn

s law ,

legal systen~,

ancllegal

process.

To define them is ^cl tdcky job. La-w is an everyday word' part of the basic vo<.:abuiary. But it is a word of many m -al ings, as slippery

What Is a Legal System? 3

as glass, as e

lusiv

e as a soap bubble. II is impossible

to

talk sensibly about

the

meaning or law, as if' l aw were some concrete object in the world around us-something we cou

ld

feel or smell

, like a chair or a

dog. But we can try to get at some sort of' workin g definition

.

One way to start is to

li

s

ten

to the way people use words like

law,

and ask what they are rel'

e

rring to. To begin with

,

people seem to

have in

mind

th

e

network or rules and regulations that surrounds us.

Thi s is clear li'om such ex

pressi

o

ns as "breaking the law" or "obeying th

e

law." It is

also what

th

e word

law means in

se

ntences like "It's

against

th

e

law

to

drive nin

ety

miles

an

hour."

There may be, and certain

ly arc, other shades or meaning;

but th e

idea of rul

es and

reg- ulations is usually at thc core. In

o

rdinary speech,

th

en, th

e word

l(lw is

co

nnected

with "laws," that is, with

rules and regulations.

Donald Black,

in The Behavior oj UIlO, I

puts

forward

a concise, deceptively simp

l

e de finition. Law, according to Black

, is "govern- mental social control.

" By

"social control"

he mea ns

social rules and processes which try to encourage good or usel'ul conduct or dhcour- age bad conduct.

The re

is a

law against burglary; and police, judges, and

criminal courts

try to put teeth into it. All toge th

er,

they form a pretty obvious example of social control (or at

least attempted social

control). The whol

e

crimin al justice system plainly aims in this direc- tion.

For

the

person in th

e stree

t, it is

perhaps

th

e most filmiliar

,

obvious part of' th

e legal system.

But law is more than

crimina

l justi

cc. The

rest of th

e

law

(what

lawyers call civil justice) is actuall

y large

r in

sizc,

however you mea-

su

re it, and almost certainly mor

e

important. To make Black's defi

-

nition work,

we

have to understand "social control" in

a

broad

er sense

. It mu

st mean

the whole network of rules and processes which attach legal conscquences to particular bits of bchavior.

Take, f

o

r exampl

e,

the

ordinary

rules of the law of' torts.

11'1

drive

carek'ss

ly or

too fast in a parking l ot and smash

somebody else's fender, th

e

re

will

be definite legal consequ

e

nces.

What

I did is

no c

rime; I

will

not

go

to jail; but I (or my in

surance company) may

have to

pay

for the damage.

Directly or

indirectly,

this depends on rules of tort

law- rules

about what

happens when

one person injures anothe

r

or damages his property.

Th

ese

rulcs may change the way I be have. They certainly afTect

my pocketbook and th

e

rates of insurance I pay.

Hence

these rules,

too, arc

part or the

syste

m

of soc

ial

control. The rules reward so

me behavior

and punish othe

r behavior

(o

r

try

to),

just as sure

ly as th

e

c

riminal

justice system. They distribute cos

ts

and bene fits among

4 ^AMFHICAN LAW

people depending un how they behave. Careless drivers have to pay;

victims get money.

Law, according to Black, is social control, but it is so iaj control of on&particular kind. Law is govermnental social control. Ther'" al"

other kinds as well. Teachers lIse rules (and rewards and punish- ments) to make children behave; parents use rules (and rewards and punishments) at horne. Both teachers and parents also hope to mold behavior for the future. Organized religions, too, are concerned witll behavior-wjth social control. They aim to induce their membe}'s to live a godly or proper life, as the religion defines it.

But these forms of social control are not governmentaL they are not official, not part of the state apparatus. Under Black's definition, then, they are not law. At least we can say that in a country like

tin

^b>

United States they arc not part of the official law. But ther are, in hlCt, two distinct ways to look at law: one in~ists that len·v is made lip exclusively of official, gOV( 'rnmcnt,ll acts; the oth '1' tak s a b.roader approach.

The main foclls of this book is not on "law" so much as on what can be called the legal sustem. Th" word law often refers only to rules and regulations; but a lin can b drawn between the rules and r'g- ulations themselves and thos structures, institutions, and proc ss s which breathe life into them, This xpanded domain is th "I gal sys- tem."

It is plain that the legal system has more in it than simply rules.

There are, to begin with, rules about rules. There an nil s of pro- cedure, and rules that lell us how to tell a }I'ule from a nonrule. To be more concrete, these are rules about jurisdiction, pI "adings, judges, courts, voting in legislatures, and the like. A rule that says thal no bill becomes a law in N w 1'vlexico unless both houses pass it and th-' governor signs it is a rul ahout rules. It explains one way to mak a legal rule in New M ,ico. In H famous bool , H. L. A. art called thes \ rules about rules "secondary rlll s;" be called rules about a tual hehavior , primary rul s." The rules against burglarizing th'" groc ry stor - or against driving at nin ty mil s an hour to get ther would h -'xam- pies of primary rules. Law, according to Hart, is the union of primary and secondary rules. 2

Both primary and s conclary rules are, however, rul-'s' in a s ns ·) all rules are directives ahout how to behave. Our xample

( ;r

a s c- ondary rule, for cx;.unpl-', is alter all a rule about how lawmal ers should behav in New rvlcxico. Rul,s '11" • important; but a 1 "gal syst 'm 'al1-

,not consist of rill salonC'. W ^0\ could read all the rules in a bool' and

What Is a Legal S IjstemY

still know very httle about the legal system in op ration. Law is only words on paper

if

we do not consider the' \-vay people in society ·;tctually think,

f

I] and behave in regard to law. Orders, command., and rules are blank and empty unless something happ ns- ·unl ss they make something nwve.

This, of course, is not a fresh idea. It is something tInt v rybody knows. People say that a cert.ain law is a «dead letter," while another rule is «in for 'e." Or we llse the term living law. Dead l(-~tt~rs are llot living law, just as a dead language like Sanskrit or Latin is unlike a language that comes tUlnbling from the mouths of real p ople, ht,re and now. Living law is law that is alive in a legal system.

For example, the nabonal speed limit right nnw is fifty-fiv.c:. nililu~

per hour. This is a legal rule. But the living law-the actual prac- tice- is much more complicated. The rule itself do s not tell liS for one thing, that peopl can actually drive at sixty, or maybe even sixty- five, without any risk of arrest. Police do not tak . th sp d Ijmit literally. If, on the other hand, somebody barrels down the road at seventy or eighty, and a police car is around, its siren will scream and the polic will com after the speeder. Each situation calls forth a particular interaction of the legal system's many elements, not only rules and institutions, but also people and their behavior.

Eie'ments of a Legal System

We now hav a preliminary, rough idea of what we mean 'vvhen we tal1< about our legal system. There are other ways to analyze this complicated and important set of institutions. To be fin with, the "legal system has structure. The system is constantly chlanging; but parts of it change at cliff; ren t speeds, and not every part changes as fast as certain other parts. There are persistent, long-tern! patterns- aspects of th - syst rn that wer here yesterda (or even in the last century) and will he around for a long time to come. This i' th str lctur of the I gal sysl tn-its skel ton or frarnework, the durahl part which gives a kind of shap and definition to th whol .

There is a Supreme Court in this country, made up of nin jus- tices; the Court has been around since th late ighte nth century' it is likely to be around in the twenty-first c ntury·.and its work habits change very slowly. The structure of a legal system consists of ele- ments of this kind: the number and size of courts; their jurisdiction (that ils, what kind of cases they hear, and how and why); Hnd rnodes of appeal from one court to another. Structure also means how the

6

legislature is organiz-d, how many In mhers sit on the Federal 'l'rade 'om mission, what n pr -id ;'Ilt can (legally) do or not do. what pro- 'edures the police depart! ""nt f()llows, and so on. Structur:" in ^'1 way, is a./s.incl of cross s ction of the legal system-a kind of still pho- tograph, which freez"'5 th::\ a tion.

Another aspect of th legal system is its suhstance. By tltis is meant th . a -tunl rules norms, and h h'l iar patt 1115 of P opl illsi h th·

syst·m. This is, Rrst

oL dl, "th -

law" ill the popular sense of the l-nl- the fact that the speed lin jt is flfty-Rve miles an hour, that burglars can be sent to prison, that "by law" a pic.kle maker has to list his ingredients on the lahel of the jar.

But it is also, in n: way, "suhstance" that the poUc arrest only drivers doing seveutv instead of sixty; or that a burglar without a crim- it al record g ts probation; or that the llooel and Drug Administration is easy (or tough) 011 the pickl industry. These are working patt -'rns of th living Jaw. Subslance> ^'11'0 means th '(product" that p opl within the

1 -

gal syst m manur, ('Lure-the d cisions th y turll out th new rules the, 'onlri .

" V

kno\-" somethincr about th -suhst'lO 'e of the legal system wi n w know how many people are arr st 'cI for arson in any given year; how m;.1I1Y deeds are regi.ster "d in Alam -da County, California; how Iltany sex discrimination cases are fil-..din federal court; how many times a year the Environmental Protection Ag Bey complains that- c.l company durnp d toxic wastes.

The last paragraph makes it plain that the ideas of substance in this book are not the s.l.me a' those that, let us say, some lawyers pllt forward. The stress he)'(~ is on living law, not just rules in Jaw books.

And this brings us to the third component of a legal syst m which is, in some ways, the least obvious: th' legal cu.lture,

By

this w m an p opl ^> s attitudes toward law and th I gal system-their beli is, '11-

U "5, id 'I and rp etations. In nth r words, it is that part of th g neral culture which concerns th Legal SYSl-ll. These id as and opinions are, in a sens , what s ,ts the 1 gal process going. Wh n people say that Americans are litigious (whether this is tru or not)- that is, that Americans go to court at the drop of a hat- p" opJe ar saying something about legal culture. vV - talk about legal ultur aU the time, without knowing it. If we point out that Catholi s t nd to avoid divorce (beCCl\1Se of r :ligion) that p ople who live in slun s .dis- trust pol icemen, that micldl o.-dass p' ople make complaints to govern- ment agencies rnore often than people on welfare, or that the Suprern"\

Court enjoys high PI' -'stig ', all thes - al'(~' statements about I "gal u.l- ture.

vVha[ Is a Legal Systmn? 7

The legal culture, in other words, is the dimal of social thought and .( ial fc)}' which d t nnin ^"S how law is us d avoided, or (. bu d.

\,yithout legal ultur. th I gal syst m is ill rL- a dead fi I lying in a bask t, not a living fish swimming in it s a.

Anotl er way Lo visllaliz the three el rn nts of law is to irnagine Ie :Tal 'structure" as '1 kind of machine. "Substan 'e" is what the machin manufactures or does. The "legal cultur is whatever or whoever decides to ttl I'll the mach ine on and off, and d .termin s how it will be used.

Every society, every country, every community has a legal cul- ture. There are always attitudes and opinions abo It law. This does not \IlIlc;.m, of course, that everybody shares the sam iel as.

1'h

r are many subcultures: white aoel black, young and old, Catholic, Protes- tant, Jew, rich and poor, easterners and western rs, gangst 1's and policemen, Jawyers, doctors, shoe salesm n, bankers. On particll- larly .important subculture is the I gal 'lIltllr~' of 'insid 1's," that is, the judges and lawy::>rs who work inside th legal syst:>111 itself. Since law is their busin S5, their values and attitudes make a good d al of cliffeI' n 'e to the system. At least this is a plausibl·· suggestion; the exa t xten t of this influence is a matter of some clisput among schol- ars.

These three elements, in American law- structur", substance, and cultur - are th subjects of this book. It will take a look at the way the American I gal system is organized, at what it does, and how it does it; and it will b especially conscious of legal cultur-'- ideas and forces outside· th law machine that make it stop and go. The tJuee elements can b used to analyze anything th I gal syst m do s. Take) for example, th fi nl0US d atb penalty case, Furman v.

Georg ia

(1972).-

In this case, a bare majority of the Unit d States Supreme Court- five judg s out of nine- struck down death p nalty laws in all of the stat s which had tl 'In, on constihltional grounds. (Later on, the Court . backtracked somewhat; this subject

will

be dealt with in another

chaptet".)

To understand what happened in Funl'lan we must fil-st grasp th strucl'ure of the l·:.gal syst"m. Otherwise) \ov

will

hav no id-a how the case worked its way up from court to court, nor why th·· ca was in

til )

end decided in \Vashington, D. C'l and not in , orgia where it started. "Ve will have to know SOl ething ahout f de.ralism, the Constitution, the relationship hetween courts and legislatures, and many other long-run, long-lasting featur s of American law.

But this is only the beginning. The cas itself takes up no less than

M"lli:lUCAN LA \V

230 pages of print in the official reports. (There l-lr - sevt.n s -'parat opinions.) As we plow through these pages, we are enmeshed in th substance of constitutjonallaw. The cns-" to begin with, turn' in part

<m wh ther the death p nalty is "cruel and UllUS1.1C1l" punishrn nt~

it

it is,'tl1e Eight Amendment to the Constitution specifically forbids it.

There are long discussions in the opinions about what "cruel and unusual" means, what earlier cases have said, what doctrines and rul- ings have been woven ai)out this phrase.

But structur" and substance together do not explain why the 'as came IIp and why it came out as it did. We have to know something about social context-the rnovernent to get rid of capital plinishment,

WllO and what was behind the case, what organizations were fighting

for and against the death penally, and why the issue came up when it did-that is, the attitudes, values, and beliefs about the death pen- alty, law, courts, and so on, which explain how the case got start d in the first place,

We might he interested, too, in a f()Urth element: 'i1npact, that is, what difference the decision made. Th Supreme Court spoke; who listened? We know SOI11 obviolls facts ahout immecliat ons - . quences. For one thing, the men and women on d ath row nev Jr

kept their dates with the gas chamher OJ' the electric ('hair. Their sentences were automatically commuted to long-term imprisonment.

There were other impacts, as well, in substance, structur , andl gal culture. Fttrnum. set ofT a storm of discHssion, furious activity in stat

legislatures, and uhil'llate]ly a flock of new lawsuits. It may have had more remote (but important) consequences) too: Dn the prestige of the Suprelne Court, on thG 'ldme rate, on national morality. The more remote the consequenc s, the harder to know and m -'::.tsure them.

We lU10w surprisingly little, in general, about the impact of d ci- sions, even their imnlediate impact. It is not the job of courts to nnd out what baL)pCnS to their litigants onc:.>: th y leave th 'ourtroOl ^{J (} r what happens to the large,' society. But impact is the subj· ct of a small, growing body of research; from time to time the eviclenc from these studies

will

be noted m' mentioned in this book.

The Functions of the Legal SY8tem

But why have a legal system at aLI'? What does it do for society'? In other words, what functions does it perform?

One l<ind of answer has already h n given. The legal syst m

is

part of the system of social control. In the broadest sens , this may

What Is a Legal Syste'm.? 9

be the'fu1lction of the legal srstem; everything -b is in a way, ^S c- onclary or suhordinat . To put it anoth r way: th 1 gal system is concerned with controlling behavior. It is a kind of uHi 'ial traffi · op.

It tells people what to do and not to do; and it backs up its dir ctiv s with force.

The I '-'gal syst·"J11 can do this in a very hI' t, v -'ry literal way.

There a1

e

traffic cops, after all, who stand on busy 'orncrs, waving traffic this way or that, ({nd they are certain ly a part of th I-'gal system as we have defined it. The criminal justice syst m is pro~ably the most hlmiliar example of law as social control. H "re w" find some of society's heavy artillery: judges) juries, jails, wardens, police, crimi- nal lawyers. PeopJe who break the law, and other "deviants," are chased, caught, and sometimes punished; this is control mn the most raw and basic sense.

A second hroad function of law is what we can call di~puJe ~ettle­

lnent. A disput-, according to Hichard L. Abel, js th publi' assertion of inconsistent claims over something of valu ^.'J Two p ople both ins- ist they o\>\1n the same piece ofland. Or a VW Rabbit I' ar- nels a 1978 Chevrolet, and th ' drivf r of the Chevrolet thl' "aten~ to sue th driver of the Rabbit. Or the marriage of ~'lark and Linda Jon s breaks up and they squabble ^OV('I' who gets the house, th child or th money. These are a.ll cJisputes in Abel's sense: inconsistent claims to some-

thing of value.

Many times, th re literally is some concrete thing (or person) that the parties are arguing about> something you can touch: or squ eze or hug-a child, a bundle of money, a house. At other tin') ~s, the "thing"

is more abstract or nebuloLls: the right to citjzenship, a reputation that has been dragged in the lTIud, damages for pain and suffering, somebody's goodwill or peace of mind. Disputes can be big or little) raucous or mod Tate. The phrase dispute settlement is usuaJly reserved for f~lirlY' slJlaH-s "al , local disagreements b tw ' '11 inuividuals or pri- vate busln sses. There are, of cour.se, bigger, more basic disagree- ments in society--disagreenlents betwel: ... n classes or groups. There are, (or 'xarnple, clashes betwet:u labor and capitcJ; 01' bet .veen regions of the country; betw ell blad< and whit , North and South; b tw n the young and th old; between peoplf" who wat t to protect th beach s and people who prefer offshore oiL

It mig'I:1t be ^H good idea to ~ive these macrodisagreements n name of their own, and call them conflicts rather than disput s. In allY ev nt, the legal syst(~m i.s as concerned with cOllflicts as it is with disputes, if not mm" so. The icgal systeni1, in otber words, is an ag-ncy of

10 ^A~IEIIICAN LAW

conflict reso

lution as well as an agency of dispute se ttl

e

me nt. Cou rts come immediate ly to mind in this conn

ection,

that is, as th

e

institu- tions that he lp most notably to bring confli

cts

to un end. This th

ey

indeed do

.

But the work of th e legislatures is probabl

y,

on th

e whole,

more

i~ri'portanl. It

is Congress and th

e state legisl

atures that iron out

(if anyone

docs) most of th

e

bitte r baltl

es

betwee n

e

mploye rs and labor union s, between bu sin essmen and th ", Sie rra C

lub, between

retired peo pl e and th

e

people who pay social secu rit

y

taxes.

It

is in th

e

c ity co unc il o f Chicago, say, that boosters who want new stores and facto ries a nd highways bump up against peop

le

who wa nt to pre- serve old mansion s and fi ght for their ne ighborhoods. In the suburbs, it is coun cils and zoning boards that deal with co nflict be tween those who want li ght industry and shopping centers

,

and

"res

ide ntialists"

who want nothing but one-fa mil y ho uses, green lawns, and rose- bushes.

The various flmelion

s of

law overl ap, of course. No single fun

c

tion has a clear and perfect boundary. The lin e between a dispute and a co nflict is woefully indistinc t. Other fun cti ons of law are even less cl ear-c ut. One of these fun ction s i s th

e

redistributive or social

engi- neering

fun ction. This refe rs to the fact that law is sometimes used to bring about planned social change-change imposed from on top

,

that is, by the gove rnme nt. Social e ngineering is a ve ry prominent aspect of mode rn welf are states. The United States-as do all othe r Weste rn co untri es-levies tases O n people who have money and uses this mon

ey to

g ive cas

h,

food stamps

,

medica

l

benefit s, and some- times cheap

housing to

th e poor and to othe

rs who are felt

to dese rv e it.

Law, then,

e

mbodies the planned or "enginee red" aspect of social policy-whate ve r is don e de

liberately through

public choice.

It

stands opposed to th

e

unplanned marke t. In the marke t, the law of supp ly and demand

scts

prices. The market decides which products and businesses grow fat and ri

ch and whk

h ones shrive l and die

. The mar-

ke t distributes goods and se rvices, be nefits and burde ns , throu gh a system of prices

. It

is a kind of auction in which buye rs bid ( or goods;

scarce, d

esirable

goods go up in price, while co mmon

,

less wanted goods go down

.

The legal system is in a way a rival sche me for distributing goods and

ser

vices.

It,

too, rations scarce

co

mmodities. To raise an

,,-r

my durin g tim es of war, we could

literally btl!!

soldi

ers;

and in the past some countri

es

did

exactly

th at. Today we would never use this sys-

te m. Ins tead, we would get soldiers throu gh

II

draft. Congress would

VVJwt Is ^a Legal Sus'lt:I1l.iJ 11

pas~ a lavv ilild Irtak", I'll les about who would or must' sel'v'" in the army. There would be rul s and regulations about d -{ I'm nts, city and stat quotas, how to handle conscientious obj 'tors, and ^hO\\I to

c1

ai with r' rllits with flat feet or poor ey sight. Til - mark t would have little or nothing to do with these rules. If we change the rules, we challge the allocation systenl. In other words, \-vh th ")" w· realize il 01' not, our legal system is a. kind of giant rationing system a giant planning syst m, a giant system of so ia} engin -ring.

\Ne should not push the term social engineering loo f~ll'. This gives the legal system too much of an active, ref(1l'ming flavor. Most of the time, legal allocations do exactly the opposit : rath -r than change thjngs, they t nd to

k

"P the status quo intact. This function can be called social maintenance. The legal system keeps the machinery going more or less as it was in the past. After all, vel the 'fr marl et '- even the "invisible hand"- needs law to guaranle th rul s of Jail' play. Even in lh ~ mosl h issez-hlir-s 'stem, th law nforc'-'s barO'ain.', creates a money SystC'llI, and tries to maintain i.1 framcworl of order and rpspect f()f property.

Every soci ,oty has its O\V11 stnlctUl'(:.; and this strllctur do s not stay put by magi or accident, or even by inertia ur th " laws of grav- ity. vVhat Inak-s th structure persist over th years is, first of all, social behavior and social llttitudes-customs, culture, traditions, and informal norms. But these, in modern society, do not seem to be enough. Contemporary society needs the muscl and bon of law to stay healthy, or CVUl to stay alive. If somebody br aks into my house and rf'fuses to get out, I can calll "the law" and g thin') driven out. If my neighbor owes me $300, ~ can go to court and colle -t my money.

The law c1e~ nels my rights, including my property rights,

Thi s

is the social maintenanc'-' function. The criminal law is part of it. After all, the crimes most commonly prosecuted are property crimes- theft.

hllrglary, '1l11 czzJ m "nt. Th -se are ofl'cns o>s again ,t p opl" who own property. If we punish people \\(ho steal things w- ar at th same time protecting people who own the things that are stolen; h ~ne we are preserving th e ()nolni~ (and soci'al) struetul' of society.

It is clear, ^then, thaI.' the law pn)tects th status quo in a v~r direct alld obviolls way. The phrase status qllo is nol' H happy on . It is usually spoken with a sneer; it sounds static, 'v.en r actionary. It sugg sh tllat Jaw (and society) a.rc fat and hidebound upholding the privil6ged against the poor and the helpless. This mayor may not be true. Every so iety- yen revolutionary soieties-tri CIS to PI' S rv- SOl 1e parts of its status C]uo. The revolutionary society tries to pre-

12 AMEHLCAN LA'V

serve and strengthen the revolution. The traditional society tri s to pre .. I've and strengthen tradition. Any society would immediat ly collapse unless it took steps to pre' "'rv its If. There is no sud thing as a total r~\jJlutionary--so1\l0bocly who wants to change everything.

\Nhether it is good OJ" bad to keep up old ways depends on what th ~

old ways are and which old ways we are talking about.

The entral fact of human life is that nobody lives forever. People serve Ollt their little terms of life and (lie. But societies and institu- tions go on. A social structure is much more durable than the people who fill its roles. Structure is like a play-Hamlet, for example -in which the text carries on from generation to generation, hut with different actors to play the parts and with new versions, new s ts, new costumes every once in a while. We know that norms, morals, and customs help bridg" generations. We realize that each generation teach s its lnnguage and culture to its children, so that the next gc:,n- eration carries on prf'tty much as its parents did. If we speak English, so will our children, and their childrens' children, too, even though a newborn baby speaks no language at all and would learn Hausa or Portuguese if that was what was spoken all arOlLnd it.

Of course, we do have to remem bel' that social roles are not exactly like the rote of Hamlet in Shakesp are's play; they are much mol' subject to change. And social change is taking place today at a hlst and furious pace, f~lster than ever before. But even so, not everything changes at once and in every sphere of liCe. A man or woman of a century ago who fell asleep like Hip Van Winlde and carne to

lif e

again today would be amazed

by

many things: cars, computers, the "sexual revolution." He might have trouble adjusting to our world. Y t many other things--clothes, customs, buildings, ways of thought-would be at least vaguely familiar; some aspects of life would strike him as exactly the same.

ontin ulty-and yet chell e. Thcs . ar th constant· of so iallife. And the legal system plays i:1 crucia.J rol in promoting both continuity and change. It helps bridge generations, but it also helps cli.reet social change into smooth and constructiv channels. For exampl > ther are laws about the inheritanc of wealth- about ways to 1~1ake ^Ollt a will, about death taxes, about the rights of widows and widow rs. \IV- taLk about the "dead hand," somewhat ruefully. But v./ithout til - "J ad hand"- without a person's right to determin " more or less, what w"ill happen to his money when

he

clies- each generation might have to rcbu.ild its structure h'om scratch; 'Clch generation would have to make up who is rich and who is poor nil over again. That might b either

What Is a Legal System?

13 good or had; it would certain ly be different.

All our l egal institutions-courts, legisl atures, and agencies alike- are designed

,

at least in part, for both

~"Ontinuity

and change. They are designed to permit change to take place

, but in a regular, orderly,

patterned way. After all, every time Congress sits, eve ry time the Delaware legis lature meets in Dover, every time the city co uncil of Omaha goes into sess ion , volumes and volumes of laws are spewed out. Every ncw law chan ges something; every law tries to attack some soc ial proble m, big or small. Happily, it is an orderly process (most of th e time) in this co untry . Like the rest of the world

,

America is trying to rid e th e wild horse of change instead of le tting it gallop olf in all direc tions . The legal system is one process lor preventing too much change and chan ges that are too fast; it is a process lor

limiting

volca nic bursts of chan ge.

It

does not always succeed. Nor s hould it.

Claims of Right. When

we think about social control, we usually have in mind a picture of law and government in coi,trol of their

"subjects"-

the people underneath them. Social control is a police-

man giving out a ticket for speedi ng, for example. But we need con- trols over policemen, too. In our society, there is no horse without a bridle. Nobody- not the mayor of Memphis, not the governor of New York, not the pres ide nt, not the Supreme Co urt itself

-

is supposed to be truly , abso

lu

tely supreme. Only law is supreme.

This

,

to be s ure, i s theory. Practice is more compli cated and con- Siderab ly less than perfect. Everybody knows that some peo ple in authority abuse th eir positions. We know about bribery; we know about the petty tyranny of bureaucrats. To correct th ese evils , there arc controls built into th e system. Law, in other words, has the fur- th e r job of keeping an eye on the rule rs th emselves. This is, in a way, a process of turnin g soci al control upside down

. (In

another way, it is simply another form of social cootrol, but over a selected subgroup in society.) Control over controllers is of course a basic theme in Amer- i can government; it is the idea behind ··jud i cial review" (the power of co urts to decide when other branches of governmen t have over- ste pped the mark). Co urts regularly, and somet imes fearless l y, rebuke or override Congress, administrative agencies, the police, and even the preside nt himselr, when they have gone beyond what th e court feels are th e limits of legitimate authority. This is especiall y true of those

limits written

into the Constitution or put there by courts in the process or "interpreting" the text.

We also some tim es speak of "claims of right. " By this we mean

14 ^A~IEHICAN LA\V

claims of private citizens or of companies against the government.

Claims or right help control abuse or powe

r; but most or th

e

lime what th

e

claimant wants is reli

e

r rrom

so

me particular mistake

or govern-

ment. There are innumerable examples: pension claims, be nefit claims,

grievanc~s and complaints about the million and one ways a civil ser- van

t in twentieth

century Ame

rica

can bungle

his job. To take

olle example

out or thou

sands:

a man Mm

ed James

T. Blanks

, living

in Alabam

a,

who said h

e was sixty-

two years old, applied in

1967

for old- age be nefits. Th

e

De partm

e

nt

or Health,

Education

,

and We lfare turned him down

.

According to their notion

,

he was on

ly sixty,

two

years short or eligibility.

The y go t this idea li'om a school

census

record or Marsha

ll Co

unty, Alahama. Blanks countered with a 1

'1l11ily

Bihle, f

e

d

e

ral

cens

us re cords, ins urance policies,

and

affidavits fi'om ne igh- hors and

rela

tives. Th

e

HEW people we re not impressed; they stuck hy the ir

o

riginal decision. Blanks

wen

t to

co

urt. He

sued

HEW a nd

won his case.⁵

C

itizens do not, or

co

urse, always win these cases. Probably more orte n than not, the government comes out ahead

. In

a

Pen

nsylvani

a case, a state

police man

,

Joseph Mcllvain

e, was

rorced

out or his job

because (according to the rill

es) he

was too old to se rve. This see med

grossly unl"ir to McIlvaine, and he sued to get back on

the lorce. The Pe nn

sylvania courts

turn

ed him down"

He tried to ge t the Supreme

Co

urt or the Un

ite

d States to take hi

s case;

but thi

s,

too, f

'liled.⁷

As we lear through reporte d

cases,

fe d

eral and

state, we find

countless

claims or ri

ght. They

arc, perhaps

,

the tip or an ice be rg.

S

uch claims

seem to be getting

morc common. Wh

y

this shou

ld

be

so,

and wheth

e

r they brin

g abou

t e flectiv

e control or gove

rnment, arc qu

es

tions that will be taken up later in this book.

The ComllJ.on Law and Its Competitors

There is a b

ewildering variety of'legal sys

te ms in the world

. Every country

has its own

; and

in the United

States, each state

has a legal

system ror dealing

with its inte rn

al affairs,

with the nat ional (Ie deral

) syste

m on top or it. A law student usuall

y studies

the l

aw of a single country-

the

one

he or

she

plans to practice in

. T

his is tru

e of'

the

Un

ited States too; legal e duca tion

sticks

largely to Am

e

rican law. Our

l

egal education,

though

,

is f

a

irl

y

national-minded

; it

te nds to i

g

nore

diflerenees be tween the

law of the

various states. The curri

culu m and

the mate rial

s are

much th

e same

in Orego n

and in

Alabama. Exce pt

in this regard

,

the s tudy or law

is

quit

e

parochial. Medi

cine

is more

Wha/. Is a Legal System?

15 or less the same all over the world; and this is genera

lly

true of all

the

natural

and applied sciences: electrical engineering in Uganda is no

different,

in essence,

li'om

electrical engineering

as understood

in China or the

United States. But law is

strictly

defined by nationality:

it stops at the border. Outside its home

base, it has no validity at all.

No

two legal systems, then, are exactly

alike

.

Each is specific to its

country

or its jurisdiction. Tbis does

not me'lIl,

of course,

that every legal system is entirely different from every

other legal system.

Not at all. When two countries are similar in culture and tradition,

their legal systems are likely to be similar as well. No doubt the law of EI

Salvador

is

very

much like the l

awaI' Honduras. The

laws

of Australia and New Zealand are not that far apart.

We

can also

clump I

cgal systems

together into clusters, or "fami- li

es"-groups of

legal systems that have important traits of structure, , '

substance, or culture in

common.

Tbe word family is used deliber-

ately:

in most cases,

members of a

legal family are related,

that is, they

have

a common parent or ancestor, or

else have

borrowed

their laws from a common source. English settlers carried English law with them to the

American colonies, to Canada, Australia, New Zealand,

Jamaica,

Barbados, the

Bahamas.

Many

countries

in the world once were part of the British Empire. These

countries are now indepen- dent and have distinct legal

systems of their own;

but they have kept

their basic

traditions.

The

legal systems

of the English-speaking world

have a definite family resemblance.

The Spanish

brought their law to

Latin America. Spanish-speaking countries

in

that part of the world

share many traits and traditions.

The largest, most important family is the so-called civil-law fam- ily.

Members of this family owe a common

debt to

Roman

law.

The

ancient Romans were great

lawmakers.

Their

tradition never

com-

pletely died

out

in

Europe,

even

after

the barbarians

overran what

was left of the Homan

Empire.

In the Middle Ages, Roman law, in

its

classic form

,

was

rediscovered

and

revived; even today, codes

of law

in

Europe

reflect "the

influence of

Homan law

and

its

medieval

revival.

^"8

Western Europe-France, Cermany, Italy, Spain, Portu-

gal, and

the

Low Countries, among others- is definitely civil-law

country. Through Spain and Portugal, the civil law

traveled to Latin

America. The French brought it to their

colonies

in Africa. In

Can-

ada,

the ~ivil law is

dominant

in

the French-speaking province of

Quebec.

It

strongly colors the legal systems of two unlike

ly

outposts,

Scotland and

Louisiana. It plays a major role, too, in countries like Japan and Turkey, which stand completely outside the historical

tra-

16 MIEIUCAN LAW

dition but which borrowed chunks of Roman law in recent times, in hopes of

getting

mode rn in

a hurry.

Civil-law syste

ms are,

generally speaking, ··mdified" systems:

the basic

l

aw , is ,

set out

in codes. These are

statutes,

or rath

er supers

tat- utes, enacte d by

the

national parliam

e

nt, which

arrange

whole fie

lds of" law

in an orde rly,

logical,

and

~"Omprehensive

way. Hi

storically,

the most important of the codes was

the civil

code of F

rance,

the so-

called

Code Napoleon, which appeared

in 1804. It has

had

a tre

men-

dous

influence on

th

e

l

o

nn and substance

of" most

later mdes.

Anothe

r

influ

cnti

al code was Germany's, whi

ch dates li·o

m the late nine tee

nth century.

During th

e

Rcnaissan

ce,

Europca

n legal scholarship

was dazzled

b

y the powe r and beauty of"

the rediscovered

Roman

law.

On

e

co

un-

try

, howeve

r, managed to resist th

e so-called "reception," that is,

th

e

acceptance of Roman law

.

England alone was

not seduced. it held

fast to

its

nati

ve

traditions

.

Many ideas

and

terms li·om Roman and European

law

did

,

to be sure,

c

reep into Engli sh

law;

but the co

re legal

system of this island he

ld

firm

.

This te nacious

l

ocal system was th

e

so-calle d

common

law.

It

dilTered and co ntinu

es

to difler in many ways from

the legal order in its ne

ighboring m untries. For one thing, the mmmon

law resisted codification.

There never was an Engli

sh equivalent

of the Napo

leoni

c Code. The basi

c principles

of law we re

not lound primarily in

acts of Parliament, but in

the

case la w--the

body 0("

opinions

written by judges, and

de veloped by judges

in

the course of

deciding partic

ular cases. The doctrin

e of"preccdent"- the maxim that a judge is bound in

some way

b

y what has a

lready been decided- i

s strictl y a

~"Ommon-law

doctrine

.

Th

e common l

aw

also has its own peculiar leatures of

substance, structure, and culture. T

he jury, for

exa

mpl

e,

i

s a common-law

institution.

So is the

"trust," an

arrangement in which a pe

rson (or bank) as trustee rece

ives money or property to invest and manage for the

bencfit of certain beneficia-

ries.

The common

law is no longer ~"Onfined

to a single small munlry.

Th

e

English brought it to

their colonies,

and in most cases it took

root

and thri ved . All common-l aw countries we

re

once m

l

onies of Great Britain

, or,

in some cases, coloni

es of (."Olonies.

Houghly speaking, the

co

mmon

law

re igns whe reve r th

e

English lang uage is spoken. This mea ns our own country,

1(11'

one, plus Canada (outS ide Quebec), Aus

- tralia, New Zealand,

and

new nations such as Jamaica

and Trinidad.

Othe r sys te ms con tribute d bits and pi

eces here and

the re -re

mnants

of" Spanish-Mex

ican law

poke through

th

e surl,\CC

in California and

What Is a Legal System? 17

Texas-b ut Engli

sh

law is by far the strongest historical

ele

me nt in our own l

egal

system

(Louisiana

stands of1' in a corner by itse lf).

England and the Un ited States have bee n drifting apart, legally

speaking,

for mor e than 200 years, and th

ere

are now big chas ms be twee n th

e

m.

The civil

-law

syste m was d

escribed as thc

dominant syste m in Western Europe. No me ntion. was made of Eastern E urope, which is a rath

e

r diffic ult arca for purposes of classification. Some scholars f

ee

l that th

e

socialist co untri es are di stinc tive enoug h to make up a se pa- rate !>tmily of legal sys te ms . Othe r scholars are not so sure. Russia and its satellites once had close ti es with th e civil -law syste ms. Social- ist revo

lution

s have trans[,mned th ese countries; but

legal resem-

blances to Wes te rn Europe are still fairly close. Thi s i s why some scholars trea t thcse sys tems as still part of that bmily- black s heep, perhaps

, or oddball

deViants, but family membe r s none the less.

Th

e

controversy is pe rhaps nothing but a matte r of de finition--{)f words

,

if you will. Obviously, Russian

,

Polish

,

and Hungarian law have a lot in co mmon

,

and many of th e ir common traits set them sharply apart from, say, Dutch law. Th

ere are

no

collective

farms in Holland, for exa mpl e, and he nce no rul

es

about coll

ectiv

e f 'mns. In Holland

,

too, most lawyers work in tbe private sector and are not e mployees of th e government, as are lawyers in Russia; th e economy is not ce ntrally planned; the re is no ce nsorship. Marx-and th e Rus

-

sian bear- have

laid heavy hand

s on th e law of the "peop le's de moc- raci

es"

in Easte rn Europe. They are deeply influe nced by Russian law and by th e

flm

ctional require me nts of their socialist economies.

In gene ral, it is a fairly crude bu siness to ass ign l egal systems to this or that family

. There are always troubl

esome cases at the margin.

The Scandinavian countries, [or example, do not fit in very well with th e ir European ne i ghbors

; some scholars assign

th

e

m a family of the ir

own.

Besides,

a legal system

is not an exercise in history; it is

a prob-

le m-solving machin e, and the probl

ems

that face it are th

e

problems of today, not yesterday. Legal tradition may explain some aspects of the shape and sty le of a syste m; but it is probably not as decisive a ["etor as most lawye rs-and layme n- think.

For example, Haiti and France are supposed to have very

similar

legal systems; they arc close re latives inside a single fami ly. The Hai-

tian system is d

e

ri ved fi·o m that of France. This is

ce

rtainly true on

paper. But is it tru e whe n we look at th e

li

ving

law? Haiti

is a dic ta-

torship and is de spe rately poor, almost

e

ntirely rural and illite rate

.

France is rich

; has a

parliame ntary syste m; and is urban

,

and highly

18 AME1{ICAN LAW

illdustrializ-d. The two 'ountries may hay codes of law in common (on the books), but it is possi'bl \ that the "IiViJ1g Law" of Franc has mOl" i11 common with the law of England than with the law of I aiti even though English law belongs to a difl'~rent family.

Tt:ti~ is a gu 55, b - aLls, W" know surprisingly little about how legal systems a ·tually work. But it js c-rtainly plausibl to assume that the level of development in a country h~s an enormOllS inHuenc on that country's law. If you ever traveled by car in England and France, you noticed (or took f()r grantc'd) that the trafn -. rules in th two countries are basically th ) same, even though the English insist on driving on the "wrong" side of the road. Traffic rules are similar in every country touched by the automotive revolution. Technology is a great lawmaker--and a great I veler. The railroad, th probl ms it brought, and the opportunities it reated practically rewrot th law books of the United Stat'-'s in th nin teenth century. In this c ntury, the automobile has had almost as big an influence OIl law. N ither the raiLroad nor the automobile shows mueh respect for what C'1mily a legal system belongs to.

It is hard to xaggerate the importance of technology in xplaining the history of laws. Th pages of our own history virtually shout this out. Tort law (basi ·ally the

law

of a "idents) was practi all~1 sp aking

th

child of the railroad; it is now the adopted child of the automobil . The automobile is responsible

foJ'

a vast l~ody of rules about ronds, traffic, auto safety, huying cars on thf' in.stnHment plan, and so on. Its invention has chang-lit ^$0 iety (and thus the law) in absolutely fllnc1a- mental ways. We tak mnny of these changes for granted. Could eith 'r urban or suburban life surviv withol!.lt cars? Yet the automobile is not something that s parat s civil-law and common-law cOUl tri -s. It poses the same prohl ms for all of them. It does indeed s parat mod- ern systems fro111 olel r or mor- primitiv systems. And it has a de p impact on the way w livE' and on the structure of fr edom.

Only two or thl' - majn groll ps-fami lies-of legal systems hay , been mentioned th'llS far. But th 'ivil-law and common-law syst 1115 are not the only famities. Ev ry so iety has a legal syst 111; thll, , many countries have clearly be n I

ft

out. No mention has b n made, for E~xample, of the legal syst ¹¹¹⁵ of the FeW East, or the sa ^T

cl-Ic

^W sys- tems of classiccllIndia, Isra I and th Islamic countri s. lslami law, in particular, is a living force in th \ world today. In Saudi Arabia icw example, it has officia1 status; and it has made a drarllatic com back in other i\1oslem countries, most notably ^jll1 Iran under th - Ayatollah Khomeini. Afi'iea is the home of dozens and dozens of tribal syst ms

What [s a Legal Syste'fnr if) oflaw. Many ofth mare xtremely interesting; som hav~ b<':>n car - flllly studie ; all are Hnd r great preSSlll" ) fron vV 'st rn

rules in this age of modernization.

This bonk is ahout American law, and it is impos!>ihl ~ to TO into the

cl

C'ltails of th se variolls systems. But comparisons and 'ontrast·

ell' always inter sting and sometimes enlight-ning. It is not fashion- able any more to talk about «priJnitiv law"'; but it .is as plain as clay that the law of a tribe of hui"\ters and gatherers, or th - law of the nomad empire of Atbla or Genghis Khan, has got to b differ nt from the law of modern America. Does it mak sens ~\ to talk about evolu- tionary patterns in the h,istory of law--progl'essions moving inexora- bly from stage to stage? In other words, do Ie 'ral syste.ITls evolve in some definit patten1cd way, stalting from stag A and passing through Band C on the road to D? Are there nalure I stages and a fix

cI

order of progression '(

This is a classic qu stion of legal scholarship. Ther is no definit anSWt~r: some [leopt ven deny that th:;> question mak s sens . A small band of people with spears and knives has ] ·'gal needs very differenl from ours; a feudal system gen.erates on kind of law, big- city Ameri a qUit-another. Changes in social systems and tecbnology necessarily pllsh a legal system toward ne,-\, burdens and new habits.

The railroad and th automobile almost literally '11uule th '-' n odeI'll law of torts, to repeat one example. Legal systems ar nev r static. They chang with �