A. Three Branches of Government.
Law is either about power (orders backed by threats, in Austin's phrase) or it is about rules. It's about kings or about governments. There isn't much middle ground. For better or worse, if a legal system is not based on rules, it will inevitably be based on someone's arbitrarily decision making, whether good, evil, or neutral.
For the past two centuries and more, the law of this society has been rule-based rather than power-based. And the medium in which we try to capture our rules is language. Now language is a funny thing. It strikes a remarkable balance between precision and universality. Most of the time we can use language to communicate with a surprising degree of both generality (the capacity of the language to capture what each of us means by words that seldom have identical meaning for speaker and hearer) and specificity (nailing down with exactitude the speaker's precise meaning so that the hearer adds nothing of his or her own).
This seems simplistic but it's not. Think of any word you please, say 'chair'. There will be things that you feel are clearly included in that concept, things that are clearly excluded, and things that may or may not be included (say, an inflatable lounge chair in a swimming pool). Not only does this middle category exist for each of us, but the lines that separate it from the two clear categories are not necessarily fixed over time or across people. Wittgenstein makes this sort of point in the example that HLA Hart draws on in the essay on law and morality that I'm asking you to read in the fourth and fifth weeks of the course.
To take another example that Hart uses, suppose that a town has come to the conclusion that it needs to have a way to protect the tranquility, safety, and beauty of its parks. To further that end, an ordinance is enacted that, among other things, includes the following section on making the parkland accessible exclusively for people on foot:
"Public Law 110.445. There shall be no vehicles permitted in the areas designated as public parks."
- Think about each of the following examples, and decide what this law has to say on the subject:
- John Smith lives on one side of town and works on the other. He will save ten minutes if he drives through the park.
- There are many trash barrels in the park so that people may deposit all litter there, thereby keeping the park clean. The sanitation department wants to go in to collect the trash.
- Two police cars are chasing a suspected bank robber. If one cuts through the park, he can get in front of the suspect's car and trap him between the patrol cars.
- An ambulance has a dying car accident victim in it and is racing to the hospital. The shortest route is through the park.
- Some of the children who visit the park want to ride their bicycles there.
- Mrs. Thomas wants to take her baby to the park in his baby buggy.
- A monument to the town's citizens who died in the Vietnam War is being constructed. A tank, donated by the government, is to be placed beside the monument.
[Credit for the development of these examples, which are taken from the book Street Law, published by West Publishing, should be given to Harriet Bickelman Joseph, Lanette Sullivan, and other law-related educators, unknown to those authors, who may have subsequently helped refine them. The primary credit, of course, belongs to HLA Hart, on whose work these rely.]
Plainly, for many of these (though perhaps not exactly the same ones of these for every reader) the answer is unclear or ambiguous. It is tempting to view this as bad drafting on the legislature's part (that happens), or as cheating on my part--I didn't provide much information about exactly what the purposes of the legislation were. But in fact neither is substantially to blame. Try drafting a rule without loopholes. Post it or e-mail it to me, and we'll see if there aren't loopholes that remain. No matter how one tries to use language to narrow a definition down, the problem of boundaries persists. And it persists in a way that ultimately can only be addressed on a case by case basis. And adding information seldom helps, but, worse, when a rule is adopted by a voting body there is seldom any one reason or set of prioritized reasons that explains everyone's vote. Different legislators had different reasons in mind, sometimes slightly different, sometimes grossly so, but always divergent.
Thus, the effort to make rules leads more or less inevitably to the need to interpret them.
But wait, there's more. Making rules and getting people to obey those rules are two very different things. We'll be reading an essay during the course's second unit called 'Is Law Important' by John Griffiths that gets at the question whether the rules themselves make any difference. Some might argue that all that matters is the risk of punishment should they be violated. To the extent that is true, we're back to power, to the threat imposed not by legislation of rules but by the enforcement of those rules. [You may find this link to a Lenny Bruce monologue on the invention of the police amusing.] In general, rules don't implement themselves, they must be executed. And the process of deciding how and when to enforce a particular rule requires judgment and interpretation, just as does the job of figuring out what exactly a rule means when there has been a dispute.
These three functions of a government based on rules -- legislation, adjudication, and execution -- are thus foundational. Even so, they are not essential. England got by without a significant number of statutes for centuries. The law developed through the courts more or less exclusively, and was known as the 'common law.' That process works to a certain extent for us as well, and there remain some areas in which decisions are all there is, no legislature has yet made rules. Until a legislature acts, the court-made law governs. Once the legislature acts, however, the statutes trump the common law rules, and those cases become persuasive, rather than binding, authority (at best). Our government has all three components. And, in an effort to assure that the system of rules can never (or at least not easily) devolve into a system founded purely on power, it allocates each of these three functions to different people, indeed to different, independent, and co-equal branches of government. This is as basic an aspect of our political system as one can get to. On the federal level it plays itself out even in the Constitution. Each branch of government gets its own Article of the Constitution.
The separation of functions and powers, therefore, is a central component of American legal systems. There is a legislature, a judiciary, and an executive.
Like many things that seem obvious to us, and therefore generally go unchallenged or even unreflected-upon, you may have a hard time defining the difference between civil and criminal law. We all know the practical difference between being arrested and being sued, but it's a bit difficult to articulate what the underlying difference, the fundamental conceptual distinction, is between the two. Without understanding the difference, though, most of us would acknowledge that the law is largely divided into two kinds of rules: rules that define crimes, and rules that define human and business relations. In general, violations of the first set of rules puts one at risk of being jailed, of having one's liberty taken away. Violations of the latter generally are addressed primarily through money.
There is more to it than the difference between prison sentences and fines, however. For one thing, some criminal laws involve money transfers (fines), while some civil laws impinge on liberty (injunctions). For another, we need to explain why the money transfers in criminal cases go to the government, while in civil cases they are between individuals.
The purposes of these two kinds of law seem different. Crime is about punishment. Civil Law is about the definition and allocation of resources and risk. When I take something from you, two quite distinct things happen. One is a violation of your sense of ownership, of the boundaries you assume exist around yourself and your stuff. The other is the simple practical reality that your wealth has diminished, you have fewer resources and I have more. The criminal law exists to deal with the former. The civil law addresses the latter. The criminal law will punish me for doing to you something that we have all agreed should be done by none of us (except, perhaps, the state) to any of us. The civil law will allow you to try to get your stuff back.
There is nothing fundamental in all of this. I can't assure you that there will never be a society in which all wrongs are criminalized, or one in which no one is ever punished (and all transgressions are handled by transfers of wealth between people; in such a society, if I wanted to kill someone I would merely have to be willing to pay the cost a jury would exact as a payment to his or her heirs; seem far-fetched? that's more or less how environmental law works now, or the law governing cigarette manufacturing, or the production of hazardous materials ). But it is the way our government is organized, and it bears some thought as to whether that's a good way, the best way, the most effective way, or the most efficient way, to do things.
Another aspect of our system's fear of the ways that power can encroach on rule making lies in the notion that the interpretation of law should be open to review. No decision maker should have sole and final authority to interpret the rules. Those judgments should be subject to review and revision.
Thus, every legislative decision, or at least virtually every legislative decision (writing about the American legal system while an impeachment trial is playing on CNN in the background is simultaneously sobering and vaguely ironic), is subject to judicial review. Every (almost every) executive decision similarly can be reviewed by the judiciary. It seems acceptable to place the judiciary in a reviewing role over the other branches because it is so decentralized. The power is not vested in a single judge or a single court, but in many, all over the place. But who can get to review judicial decisions without aggregating too much power in one of the other branches? Our system's response is the concept of 'appeal,' with the judicial system including several, generally three, levels of court, hierarchically stacked.
At the lowest level sits a trial court (in NY, for historical reasons, inartfully called the Supreme Court; in federal court it is the District Court). Appeals of trial court decisions go up a notch to the Appellate Division (in NY; in the federal system the mid-level court is called the Court of Appeals). And appeals of those decisions can go to a single, multi-judge court (in NY the Court of Appeals, in the federal system the Supreme Court).
When you read a case, you are almost always reading a decision of an appellate court. Trial courts seldom issue written decisions. They are about outcomes, not articulated interpretations of the law.
D. Fact and Law, Substance and Procedure.
This difference between the work of trial courts and that of appellate level courts brings to the foreground an extremely central, simple-sounding, unbearably subtle distinction. The line between fact and law, substance and procedure, drives law students nuts. But there it is. Courts, when one thinks about it, do two things. They interpret the law, and they apply it. That is, when there is a dispute about what the law means, the judge has the duty to interpret the law and render a decision about it. And when there is a dispute about what happened, the court (usually in the form of a jury, though sometimes the judge does this as well) hears the evidence and renders a decision about what it thinks happened.
So the parties to a lawsuit can disagree about what happened, or about what the law is. If each of these two items is rendered perfectly clear, there should be no dispute left about whether the law applies to a particular situation. That is, if I know what happens, and I know what the law says follows when that happens, I will know how to decide the case before me. The difference between a dispute of law and a dispute of fact is important in ways that ricochet through the legal system. As I've already suggested, they often are decided by different players (at the trial level, judges arguably function more as referees than as decision makers; juries decide the questions of fact unless the parties agree to ask the judge to do so). And they are subject to different levels of review (fact finding is afforded far greater deference by an appeals court than is interpretation of the law).
Questions of law themselves break down into two different kinds of issue. Both, however, are still questions of law, and both are decided by the judge and reviewed as legal, rather than factual, determinations. One kind of legal question has to do with the substance of the case: how, for example, negligence is defined (in an automobile accident case). The other is about how the legal proceeding is run: whether, for example, a particular question is permitted under the Rules of Evidence. The important thing to try to keep in mind, recognizing that the lines (like all efforts at definition) can get extremely fuzzy, and be subject to differing conclusions), that questions of substantive law, are not themselves questions of fact. That is, there is a world of difference between deciding how to define negligence, and deciding whether, given that definition, a particularly driver's actions on a particular day were within the definition.
E. The Sources of Legal Authority.
Legal argument, as we discuss during the third week when you will have read Edward Levi's and Karl Llewellyn's work, is an unusual sort of logic. One of the oddest parts about it is that it makes itself. That is. a judge deciding what the law is, inevitably has an impact on what, in the future, the law will be. If three cases seem applicable to a legal question today, and I as a judge apply them to the facts of my case and address the legal question in my decision, then tomorrow there will be four cases applicable (the three I read plus the one I wrote).
That's weird. Imagine if Newton's treatise on gravity, or Galileo's on the heavens, had an impact not just on our ideas about gravity or astronomy, but on the forces of gravity or the realities of astronomy themselves.
In this context, you need to understand that authority, jurisdiction, and power overlap in the law. In assessing the merits of a legal argument, the first question is whether the authority being cited is binding. To be binding, the authority, first, has to be the law in the jurisdiction in which the court is sitting. Statutes are law. Cases from that jurisdiction are law. Regulations (issued by the executive branch) are not law, just the executive's interpretation of the law. Cases from other jurisdictions are not the law. Newspapers, books, speeches, articles, none of these is the law. They're just someone's opinion.
If an authority is the law, then for it to be binding it also has to be law that applies to the court making the decision. Decisions of higher courts within the same jurisdiction are binding on lower courts. Decisions of courts from the same level or below, or from different jurisdictions, though they are the law somewhere or in some senses, are not binding on the court. For these purposes, where there is a conflict between federal and state law, the federal law trumps the state's.
Thus, for example. A US Circuit Court of Appeals decision for the 2nd Circuit is binding on all federal and state courts within that circuit (which includes New York). A 1st Circuit decision isn't binding on any court in the 2nd Circuit. No Circuit Court decision is binding on the US Supreme Court. But federal statutes do bind the US Supreme Court unless the Court decides that the statute is unconstitutional and therefore not binding,. The Supreme Court's own prior decisions are binding on successor cases in that court.
Higher courts trump lower courts. Federal courts trump state courts. Statutes trump judicial decisions.
On the other hand, if the authority one is relying on is not the law, but only someone's view, the court may use it as 'persuasive' authority. That is, it may think the argument is nifty and adopt it as its own (provided it does not conflict with anything binding on the court). But it does not have to give it the time of day if it doesn't like it. The point here is that the reasoning is the key, not the fanciness of the credentials of the person holding an opinion.
F. Two Legal Systems, Federal and State.
Many places have two or more sets of laws. We have federal law, state law, and local law. What makes our system somewhat unusual, though, is the existence of two, distinct sets of legal systems. The two systems -- state and federal -- are not only independent, they are autonomous. Each has primacy in the areas of its jurisdiction. There are, of course, other countries that are similar, Canada, for example, or Australia. But there are plenty that have the somewhat more rational structure of a single, hierarchical legal system, in which different parts of the country occupy different levels within a single system. Trials might take place at the local level in municipal courts; appeals could go up a notch to a state level court, and ultimate appeals might be heard by a single federal supreme court.
But in each of our states we have two parallel systems, from the bottom up. Trials can take place in state courts (the Supreme Court or a county court), or they can take place in a federal court (a US District Court). Appeals can be taken to a mid-level court (appeals of state court decisions go to the Appellate Division of NY State court; in federal court they go to a US Circuit Court of Appeals). And there is an ultimate decision maker for New York State (the Court of Appeals) and a separate one for cases brought in the federal system (the US Supreme Court).
In theory, each of these systems has jurisdiction over specific legal questions, though some cases can wind up in either system at the parties' discretion. Where state and federal law conflict, and each has the power to make laws, the federal trumps the state. An example of this might be labor law. There is, for example a federal minimum wage, and no state may make a law that contradicts that federal statute by saying that workers within that state may be paid less than the federal minimum. But any state may adopt a law that has a higher minimum wage than the federal government, since the federal law is just a minimum, not a ceiling.
The structure of the system of government is defined by a core federal document, the Constitution. The Constitution serves two purposes. Every legal system needs some starting point, a series of axioms, of givens, that define what the system is and how law is made. Our government is defined, on a national level and with respect to the division of responsibilities, powers, obligations, and rights, between the national and legal levels, by the Constitution. That's one purpose. The other primary job for the Constitution, a job that we associate closely with it but in many ways take for granted, has to do with upholding basic individual rights.
When I say that we take this latter role for granted, what I mean is that we use the word 'right' regularly, refer to it routinely. We seldom if ever ask what it means. But it is wickedly hard to define. And our effort to define it may lead us to some surprising conclusions. Perhaps the most telling implication is that rights are counter-majoritarian. That is, notwithstanding the notion that the government as a whole owes its legitimacy to the consent of the governed, there are some things that we don't believe the voters, or a majority, can legitimately consent to. Some things are non-negotiable bottom lines. The problem is that two of the three branches of government are majoritarian in design, and the third for many years was made up, in essence, exclusively of cranky white males.
The Constitution, or more precisely the Bill of Rights and the 14th Amendment, assert that there are some core political values that the majority cannot waive or sweep aside, and the judicial branch, as the interpreter of the constitution, gets to enforce the restrictions imposed.
With respect to the structure of our basic political system, the Constitution was not the first shot we took at defining the balance between state and federal responsibility and power. Before the Constitution was adopted there were the Articles of Confederation. The Articles did not include the content in the Bill of Rights, and they expressed a somewhat difference balance of power. States were more powerful, their own final arbiters, and the federal government was, by definition, somewhat less powerful. The contemporary notion that states are subordinate to national governments was not obvious to the framers of the early governance documents.
Thus, for example,. although most people believe that Vermont was one of the original states, it was not. Nor was it a territory. It was an independent republic, joining as the fourteenth state after it became clear that autonomy would not work.
The Articles of Confederation were unworkable, and the government came apart, only to be re-formed in 1789 around a more federally-centered document. But even though it was considerably m ore centralized than its predecessor, the Constitution remains largely a document of fixed limits on federal power. The first three articles narrowly define and enumerate the powers of the federal legislature, the national president, and the federal courts, respectively. The fourth article affirms the equal force of each state's power in inter-state disputes. The fifth article describes how the document can be amended (only via a super-majority and a very cumbersome process). The sixth reaffirms the new government's obligation to pay the debts of the old one. And the seventh ratifies the document.
The first nine amendments assert the primacy of a range of individual rights, as against the federal government. The tenth asserts the premise that all powers not expressly granted to the federal government are retained by the states and by individuals. None of the rights contained in the Bill of Rights (the first ten amendments) were guaranteed by the federal government to its citizens, as against the actions of the individual states.
Until after the Civil War. With the passage of the 14th Amendment, and of the Due Process clause contained in it, states, like the federal government under the 5th Amendment, were enjoined from encroaching on individuals' life, liberty, or property, without due process of law.
The 14th amendment was a watershed both with respect to the emerging primacy of the federal government as the defender of the rights of individual citizens, and with respect to the articulation and assertion of those rights at all. Here is what it says:
. . . nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
Note that this requires a sort of flow chart of analysis. One must as a series of questions, in order in evaluating any due process claim under the 14th Amendment:
Perhaps the trickiest aspect of Due Process law is the fact that different liberties have come to be associated with different levels of expectation about state process. Rights that the courts has called 'fundamental' usually require a substantial amount of process. Other rights far less.You may come across the terms 'substantive due process' and 'procedural due process' in your readings. Substantive due process refers to a court's inquiry into the questions that have to do with whether there was a protected interest. Substantive due process cases are those questions that focus on defining what 'liberty' includes. Procedural due process refers to cases in which the court is focusing on the last question, whether the state engaged in sufficient process, given the liberty being protected. All due process challenges, to be successful, necessarily have to make it all the way through to the end of the question list. So they all include inquiries into both substantive due process and procedural due process (though, if the former is answered in the negative - there is no protected interest - then one need not go to the latter). But though you have to make it through the entire list, there may be little controversy about one part or the other.
There you are, civics in a nutshell.