1 What Is a Legal System?

in modern american society, the legal system is everywhere with us and around us. To be sure, most of us do not have much contact with courts and lawyers, except in emergencies. But not a day goes by, and hardly a waking hour, without contact with law in its broader sense or with people whose behavior is modified or influenced by law. Law is a vast, though sometimes invisible, presence.

For example, when we go to the grocery and buy bread, milk, soup, and potato chips, and when we pay by credit card, debit card, or check, and take the packages out to our car, we invoke or assume many aspects of the legal order. We may not feel that the legal system, like some sort of Big Brother, is staring at us over our shoulder. But in a sense it is: at us, and at the shopkeeper and his workers. Some branch of law touches every aspect of this ordinary little piece of behavior.

To get to the store, we drove a car or walked, crossing several streets. Traffic law walked or drove with us. Dozens of rules and regulations applied to conditions at the factory where the car was assembled—rules about the workforce, and about the car itself, body and engine. Inside the grocery store, there were labels on the cans and packages reflecting more rules and regulations; in the life history of every jar of jam, every tube of toothpaste, rules and regulations are lurking. And, of course, workers in the store, like workers in the auto plant, are covered by federal, state, and local labor regulations.

Indeed, most things we buy—TVs, mattresses, shoes, whatever—are covered by some body of law, some rules about safety or quality or other aspects of manufacture or use. Most buildings and places of business, including the grocery store itself, have to conform to building codes and to fire and safety regulations. There are rules about standard weights and measures, employee comfort and safety, time and a half for overtime work, Sunday closing laws—the list is endless.

But there is more. When I buy a loaf of bread or a can of soup, I have entered into a contract, whether I realize it or not. If something goes wrong with the deal, the rules of contract law, of the Uniform Commercial Code, or of some branch of commercial law come into play, at least theoretically. The Uniform Commercial Code governs the rules that relate to checks, and a vast body of banking law is relevant to the way these pieces of paper provide credit and payment. Credit card companies have to comply with many laws as well, and may be subject to rules about how much interest they can charge. If the can of soup is tainted and I get sick, I may have the right to sue the soup company; this will switch me onto still another legal track, the law of products liability, a branch of the law of torts.

This is not to say that law lies on us heavily, like a suit of lead. Rather, law is in the atmosphere, invisible and unfelt—often as light as air to the normal touch. (Manufacturers, storekeepers, and bankers, of course, may see things differently; and there are plenty of private citizens who do complain about the heavy hand of law.) Moreover, it is wrong to think of law as a tissue of don’ts, that is, as a kind of nagging or dictatorial parent. Much of the law is supposed to make life easier, safer, happier, or better (whether it is successful in doing so is another question). When the norms do forbid something (or require something from somebody), it is usually for the specific benefit of somebody else. The law might insist that soup companies put labels on their soup. They must tell us exactly what they put inside their soup. This is a burden on the company, but is a benefit (or is supposed to be) for buyers of soup. There are also many ways in which the legal system facilitates, rather than forbids or harasses. It subsidizes; 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 efficiently; it is much less concerned with what not to do or with the punishment or price for disobeying rules. A great deal of law is facilitative in this way. It provides standard ways—routines—for reaching goals. It builds roads for the traffic of society.

Law and legal process are extremely important in our society; that much seems to be obvious. But, as we said in the preface, defining exactly what we mean by law and legal process can be difficult. “Law” is an everyday word, part of the basic vocabulary. But it is a word of many meanings, as slippery as glass, as elusive as a soap bubble. And, as we said, law is a concept, an abstraction, a social construct; it is not some concrete object in the world around us—something we could feel or smell, like a chair or a dog.

As we suggested, to try to get at some sort of working definition, we might start by listening to the way people use words like “law” and see what they are referring to. To begin with, people seem to have in mind the network of rules and regulations that surrounds us. This is clear from such expressions as “breaking the law” or “obeying the law.” It is also what the word “law” means in sentences like “It’s against the law to drive ninety miles an hour in a school zone.” There may be, and certainly are, other shades of meaning, but the idea of rules and regulations is usually at the core. In ordinary speech, then, the word “law” is connected with “laws,” that is, with rules and regulations.

Donald Black, in The Behavior of Law,¹Close puts forward a concise, deceptively simple definition. Law, according to Black, is “governmental social control.” By “social control” he means social rules and processes that try to encourage good or useful conduct or discourage bad conduct. There is a law against burglary, and police, judges, and criminal courts try to put teeth into it. The criminal justice system as a whole is a pretty obvious example of social control (or at least attempted social control). For the person in the street, it is perhaps the most familiar, obvious part of the legal system.

But law is more than criminal justice. The rest of the law (what lawyers call civil justice) is actually larger in size, however you measure it, and almost certainly more important. To make Black’s definition work, we have to understand “social control” in a broader sense. It must mean the whole network of rules and processes that attach legal consequences to particular bits of behavior.

Take, for example, the ordinary rules of the law of torts. If I drive carelessly or too fast in a parking lot, and smash somebody else’s fender, definite legal consequences might follow. Smashing a fender is no crime—I will not go to jail; but I (or my insurance company) might have to pay for the damage. Directly or indirectly, what happens will depend in part on rules of tort law—rules about what happens when one person injures another or damages his property.

These rules may change the way I behave. They certainly affect my pocketbook and the rates of insurance I pay. Hence these rules, too, are part of the system of social control. The rules reward some behavior and punish other behavior (or try to), just as surely as the criminal justice system does. They distribute costs and benefits among people, depending on how they behave. Careless drivers have to pay; victims get money.

All law, according to Black, is social control, but for Black (and many others), not all social control is law. Law is governmental social control. There are other kinds of social control as well. Teachers use rules (and rewards and punishments) to make children behave; parents use rules (and rewards and punishments) at home. Both teachers and parents also hope to mold behavior for the future. Organized religions, too, are concerned with behavior—with social control. A religion tries to induce its members 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 the United States they are not part of the official law. But there are, in fact, two distinct ways to look at law. One way insists, with Black, that law is made up exclusively of official, governmental acts; the other takes a broader approach, and looks at the whole domain of social control.

The main focus of this book is not on “law” so much as on what can be called the legal system. The word “law” often refers only to rules and regulations; but a line can be drawn between the rules and regulations themselves and those structures, institutions, and processes that breathe life into them. This expanded domain is the “legal system.”

It is plain that the legal system has more in it than codes of rules, dos and don’ts, regulations and orders. It takes a lot more than that to make a legal system. There are, to begin with, rules about rules. There are rules of procedure, and rules that tell us how to tell a rule from a nonrule. To be more concrete, these are rules about jurisdiction, pleadings, judges, courts, voting in legislatures, and the like. A rule that says that no bill becomes a law in New Mexico unless both houses pass it and the governor signs it is a rule about rules. It explains one way to make a legal rule in New Mexico. In a famous book, H. L. A. Hart called these rules about rules “secondary rules”; he called rules about actual behavior “primary rules.” The rules against burglarizing the grocery store or against driving at ninety miles an hour to get there would be examples of primary rules. Law, according to Hart, is the union of primary and secondary rules.²Close

In a sense, all rules, including secondary rules, are directives about how to behave. Our example of a secondary rule, for example, is after all a rule about how lawmakers should behave in New Mexico. Both kinds of rule are important, but both are only raw materials, components, parts of a legal system. We could master all the rules and still know very little about the legal system in operation. All we would have is words; and these words—orders, commands, and rules—are blank and empty, unless something happens, unless somebody does something to turn the words into action, and this, in turn, makes somebody move or something happen.

This, of course, is not a fresh idea. It is something that everybody knows. People might say that a certain law is a “dead letter,” while another rule is “in force.” Or we use the term “living law.” Dead letters are not living law, just as a dead language like Sanskrit or Latin is no longer a language that comes tumbling from the mouths of real people, here and now. Living law is law that is alive in a legal system.

For example, the maximum speed limit on Interstate 280 in California is sixty-five miles per hour. This is a legal rule. But the living law—the actual practice—is much more complicated. The rule itself does not tell us, for one thing, that people can actually drive at seventy, or maybe even seventy-five, without any risk of arrest. Police do not take the speed limit literally.³Close If, on the other hand, somebody barrels down the road at ninety or ninety-five, and a police car is around, its siren will scream and the police will come after the speeder. Each type of situation—whether it is driving a car, buying a house, getting a divorce, or merging two giant corporations—calls forth a particular interaction between the various elements of the legal system. These elements are not just laws, or even laws and institutions; they also include people and their attitudes and behaviors.

We now have a preliminary, rough idea of what we mean when we talk about our legal system. There are other ways to analyze this complicated and important piece of the social world. To begin with, the legal system has structure. The system is constantly changing, but parts of it change at different speeds, and not every part changes as fast as certain other parts. There are persistent, long-term patterns—aspects of the system that were here yesterday (or even in the last century) and will be around for a long time to come. This is the structure of the legal system—its skeleton or framework, the durable part, the part that gives a kind of shape and definition to the whole.

There is a Supreme Court in this country, made up of nine justices. The Court has been around since the late eighteenth century and is virtually certain to be around long into this century; its work habits change very slowly. The structure of a legal system consists of elements of this kind: the number and size of courts, their jurisdiction (that is, what kind of cases they hear, and how and why), and modes of appeal from one court to another. Structure also means how the legislature is organized, how many members sit on the Federal Trade Commission, what a president can (legally) do or not do, what procedures the police department follows, and so on. Structure, in a way, is a kind of cross section of the legal system—a kind of still photograph, which freezes the action.

Another aspect of the legal system is its substance. By this is meant the actual rules, norms, and behavior patterns of people inside the system. This is, first of all, “the law” in the popular sense of the term—the fact that the speed limit is sixty-five miles an hour on Interstate 280, that burglars can be sent to prison, that “by law” a pickle maker has to list ingredients on the label of the jar.

But it is also, in a way, “substance” that the police arrest drivers doing ninety but not those doing seventy on Interstate 280, or that a burglar without a criminal record might get probation, or that the Food and Drug Administration is easy (or tough) on the pickle industry. These are working patterns of the living law. Substance also means the “product” that people within the legal system manufacture—the decisions they turn out, the new rules they contrive. We know something about the substance of the legal system when we know how many people are arrested for arson in any given year, how many deeds are registered in Alameda County, California, how many sex-discrimination cases are filed in federal court, how many times a year the Environmental Protection Agency complains that a company dumped toxic wastes into a body of water.

The last paragraph makes it plain that what we call “substance” in this book is not the same as what, let us say, some lawyers put forward. The stress here is on living law, not just rules in law books. And this brings us to the third component of a legal system, which is, in some ways, the least obvious: the legal culture. By this we mean people’s attitudes toward law and the legal system—their beliefs, values, ideas, and expectations. In other words, it is part of the general culture, specifically, those aspects of general culture that concern the legal system. These ideas and opinions are, in a sense, what sets the legal process going. If someone says that Americans are litigious—that is, that Americans go to court at the drop of a hat—he is saying something about legal culture (whether or not what he says is true). We talk about legal culture all the time, without knowing it. If we point out that devout Roman Catholics tend to avoid divorce (because their religion disapproves), that people who live in slums distrust the police, that middle-class people make complaints to government agencies more often than people on welfare, or that the Supreme Court enjoys high prestige, we are making statements about legal culture, and how it affects the way people behave.

The legal culture, in other words, is the climate of social thought and social force that determines how law is used, avoided, or abused. Without legal culture, the legal system is inert—a dead fish lying in a basket, not a living fish swimming in the sea.

Another way to visualize the three elements of law is to imagine legal “structure” as a kind of machine. “Substance” is what the machine manufactures or does. The “legal culture” is whatever or whoever decides to turn the machine on and off and determines how it will be used.

Every society, every country, every community has a legal culture. There are always attitudes and opinions about law. This does not mean, of course, that everybody in a community shares the same ideas. There are many subcultures: white and black, young and old, Catholic, Protestant, Jew, rich and poor, Easterners and Westerners, gangsters and police officers, lawyers, doctors, shoe salespeople, bankers. One particularly important subculture is the legal culture of “insiders,” that is, the judges and lawyers who work inside the legal system itself. Since law is their business, their values and attitudes make a good deal of difference to the system. At least this is a plausible suggestion; the exact extent of this influence is a matter of some dispute among scholars.

These three elements in American law—structure, substance, and culture—are the subject of this book. We will take a look at the way the American legal system is organized, at what it does, and at how it does it; and we will be especially conscious of legal culture—ideas and forces outside the law machine that make it stop and go. The three elements can be used to analyze anything the legal system does. Take, for example, the famous death-penalty case Furman v. Georgia (1972).⁴Close In this case, a bare majority of the U.S. Supreme Court—five justices out of nine—struck down the death-penalty laws in all of the states that had them, on constitutional grounds. (Later on, the Court backtracked; most states re-enacted death-penalty laws, and the Court accepted one type of these laws. This subject will be dealt with in another chapter.)

To understand what happened in Furman we must first grasp the structure of the legal system. Otherwise, we will have no idea how the case worked its way up from court to court, nor why the case was in the end decided in Washington, D.C., and not in Georgia, where it started. We will have to know something about federalism, the Constitution, the relationship between courts and legislatures, and many other long-run, long-lasting features of American law.

But this is only the beginning. The case itself takes up no less than 230 pages of print in the official reports—there were nine separate opinions. As we plow through these pages, we are enmeshed in the substance of constitutional law. The case, to begin with, turns in part on whether the death penalty is “cruel and unusual punishment”; if it is, the Eighth 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, and what doctrines and rulings have been woven about this phrase.

But structure and substance together do not explain why the case came up and why it came out as it did. We have to know something about social context—the movement to get rid of capital punishment, who and what was behind the case, what organizations were fighting for and against the death penalty, and why the issue came up when it did—that is, the attitudes, values, and beliefs about the death penalty, law, courts, and so on, which explain how the case got started in the first place.

We might be interested, too, in a fourth element, impact—that is, what difference the decision made.⁵Close The Supreme Court spoke; who listened? We know some obvious facts about the immediate consequences. For one thing, the men and women on death row never kept their dates with the executioners. Their sentences were automatically commuted to long-term imprisonment. There were other impacts, as well, in substance, structure, and legal culture. Furman set off a storm of discussion, furious activity in state legislatures, and ultimately a flock of new lawsuits. It may have had more remote (but important) consequences too: on the prestige of the Supreme Court, on the crime rate, on national morality. The more remote the consequences, the harder to know and measure them.

We know surprisingly little, in general, about the impact of decisions, even their immediate impact. It is not the job of courts to find out what happens to their litigants once they leave the courtroom, or what happens to the larger society. But impact is the subject of a growing body of research; from time to time the evidence from these studies will be noted or mentioned in this book.

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

One kind of answer has already been given. The legal system is part of the system of social control. In the broadest sense, this may be the function of the legal system; everything else is, in a way, secondary or subordinate. To put it another way, the legal system is concerned with controlling behavior. It is a kind of official traffic cop. It tells people what to do and not to do, and it backs up its directives with force.

The legal system can do this in a very direct, very literal way. There are traffic cops, after all, who stand on busy corners, waving traffic this way or that, and they are certainly a part of the legal system as we have defined it. The criminal-justice system is probably the most familiar example of law as social control. Here we find some of society’s heavy artillery: judges, juries, jails, prisons, wardens, police, criminal lawyers. People who break the law, and other “deviants,” are chased, caught, and sometimes punished; this is control in the most raw and basic sense.

A second broad function of law is what we can call dispute settlement. A dispute, according to Richard L. Abel, is the public assertion of inconsistent claims over something of value.⁶Close Two people both insist they own the same piece of land. Or a Mercedes rear-ends a Honda Accord, and the driver of the Accord threatens to sue the driver of the Mercedes. Or the marriage of Mark and Linda Jones breaks up, and they squabble over who gets the house, the child, or the money. These are all disputes in Abel’s sense: inconsistent claims to something of value.

Many times, the parties are arguing about some concrete thing (or person), something you can touch or squeeze or hug—a child, a bundle of money, a house. At other times, the “thing” is more abstract or nebulous: the right to citizenship, a reputation that has been dragged in the mud, damages for pain and suffering, somebody’s goodwill or peace of mind. Disputes can be big or little, raucous or moderate. We use the phrase “dispute settlement,” generally, when we are talking about putting an end to fairly small-scale, local disagreements between individuals or private businesses. There are, of course, bigger, more basic disagreements in society—disagreements between whole classes or groups. Of this sort might be, for example, clashes between labor and capital, or between regions of the country, or between black and white, or between the young and the old, or between people who want to protect the beaches and people who want more drilling for offshore oil.

We might give these macrodisagreements a name of their own, and call them conflicts rather than disputes. In any event, the legal system is concerned with conflicts as well as with disputes, if not more so. The legal system, in other words, is an agency of conflict resolution as well as an agency of dispute settlement. Courts come immediately to mind in this connection, that is, as institutions that help bring conflicts to an end. But the work of the legislatures is probably, on the whole, even more important. It is Congress and the state legislatures that iron out (if anyone does) most of the bitter battles between employers and labor unions, between businesses and the Sierra Club, between retired people and the people who pay Social Security taxes. It is in the city council of Chicago, say, that boosters who want new stores and factories and highways bump up against people who want to preserve old mansions and fight for their neighborhoods. In the suburbs, it is town councils and zoning boards that deal with conflict between those who want light industry and shopping centers and “residentialists” who want nothing but one-family houses, green lawns, and rosebushes.

The various functions of law overlap, of course. No single function has a clear and perfect boundary. The line between a dispute and a conflict is woefully indistinct. Other functions of law are even less clear-cut. One of these functions is what we might call the redistributive or social engineering function. This refers to the use of law to bring about planned social change, imposed from on top, that is, by the government. Social engineering is a very prominent aspect of modern welfare states. The United States levies taxes on people who have money and uses this money to give cash, food assistance, medical benefits, and sometimes cheap housing to the poor and to others who are felt to deserve it. So, too, do all modern Western nations.

The planned or “engineered” aspect of social policy—whatever is done deliberately through public choice—is done through law and the legal order. Here law stands opposed to the unplanned market. In the market, the law of supply and demand sets prices. The market decides which products and businesses grow fat and rich and which ones shrivel and die. The market distributes goods and services, benefits and burdens, through a system of prices. It can be compared to a kind of auction in which buyers bid for goods they want; scarce, desirable goods go up in price, while common, less wanted goods go down.

The legal system is in a way a rival scheme for distributing goods and services. It, too, rations scarce commodities. To raise an army during times of war, we could literally buy soldiers; and in the past some countries did exactly that. Today we would never use this system. Mostly, we rely on a volunteer army—using incentives to induce young men and women to “join up.” This system, along with the use of reserves, probably works well enough in “little” wars (like when the United States invaded the tiny island of Grenada in 1983, for example). It even works for medium-sized wars like Iraq and Afghanistan, though the government had to tweak the system in those cases with “stop-loss” orders to extend the active duty periods of some of the “volunteers.” But if a really big war broke out, we would probably get soldiers through a draft, as we did in the Second World War. Congress would pass a law and make rules about who would or must serve in the armed forces. There would be rules and regulations about deferments, city and state quotas, how to handle conscientious objectors, and how to deal with recruits with flat feet or poor eyesight. The market would have little or nothing to do with these rules. If we change the rules, we change the allocation system. In other words, whether we realize it or not, our legal system acts as a way of distributing benefits and burdens: as a giant rationing system, a giant planning system, a giant system of social engineering.

We should not push the term “social engineering” too far. To do so would give too much of an impression that the legal system is constantly at work reforming and improving. Most of the time, legal allocations do exactly the opposite: rather than change things, they act in such a way as to keep, or try to keep, the status quo intact. This function can be called social maintenance. The legal system presupposes and enforces structures that keep the machinery going more or less as it has in the past. After all, even the “free market”—even the “invisible hand”—needs law to guarantee the rules of fair play. Even in the most laissez-faire system, the law enforces bargains, creates a money system, and tries to maintain a framework of order and respect for property.

Every society has its own structure, and this structure does not stay put by magic or accident, or even by inertia or the laws of gravity. What makes the structure persist over the years is, first of all, social behavior and social attitudes—customs, culture, traditions, and informal norms. But these, in modern society, do not seem to be enough. Contemporary society needs the muscle and bone of law to stay healthy, even to stay alive. If somebody breaks into my house and refuses to get out, I can call “the law” and get him driven out. If my neighbor owes me $300, I can go to court and collect my money. The law defends my rights, including my property rights. This is the social maintenance function. The criminal law is very much part of this system. After all, the crimes most commonly prosecuted are property crimes—theft, burglary, embezzlement. These are offenses against people who own property. If we punish people who steal things we are at the same time protecting people who own the things that are stolen; we are maintaining and preserving the economic (and social) structure of society.

Obviously, then, the law protects the status quo, and it does so in a very direct and obvious way. This sounds worse, perhaps, than it is. “Status quo” is a phrase usually spoken with a sneer; “protecting the status quo” sounds static, even reactionary. It suggests that law and society are fat and hidebound, and tend to uphold the rights and interests of the privileged against the rights and interests of the poor and the helpless. This is at least arguably true. But, after all, every society—even a revolutionary society—tries to preserve some parts of its status quo. The revolutionary society tries to preserve and strengthen the revolutionary order. The traditional society tries to preserve and strengthen tradition. Any society has to take steps to preserve itself from forces of disintegration and anarchy. There is no such thing as a total revolutionary—somebody who wants to change everything. Whether it is good or bad to keep up old ways and conserve the general structure of society depends on what the old ways are and which old ways and structures we are talking about.

The central fact of human life is that nobody lives forever. People serve out their little terms of life and die. But societies and institutions 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 but different actors play the parts in different periods; moreover, new versions, new sets, new costumes appear every once in a while. We know that norms, morals, and customs help bridge generations. We realize that each generation teaches its language and culture to its children, so that the next generation carries on pretty much as its parents did. If we speak English, so will our children, and their children’s children, too, even though a newborn baby speaks no language at all and will learn Hausa or Portuguese if that is what is spoken all around it.

Of course, social roles are not exactly like the role of Hamlet in Shakespeare’s play; they are much more subject to change. And social change is taking place today at a fast and furious pace, faster than ever before. But not everything changes at once and in every sphere of life. A man or woman of a century ago who fell asleep like Rip Van Winkle and came to life again today would be amazed by many things: cars, computers, smartphones, jet airplanes, air conditioning, antibiotics, not to mention the “sexual revolution.” He or she might have trouble adjusting to our world. Yet many other things—clothes, customs, buildings, ways of thought—would be at least vaguely familiar, and some aspects of life would seem exactly the same.

Continuity—and yet change. These are the constants of social life. And the legal system plays a crucial role in promoting both continuity and change. It helps bridge generations, but it also helps guide social change into what people hope will be smooth and constructive channels. For example, there are laws about the inheritance of wealth—about ways to make out a will, about taxes on estates, about the rights of widows and widowers. We talk about the “dead hand,” somewhat ruefully. But without the “dead hand”—without people’s right to determine, more or less, what will happen to their money when they die—each generation might have to rebuild its structure from scratch; each generation would have to make up who is rich and who is poor all over again. That might be good or bad, just or unjust. It would certainly be different.

Laws about inheritance and taxes on estates, as they exist today, practically guarantee a great deal of continuity. Proposals to do away with such taxes, or cut them down to size, float around Congress from time to time. The federal estate tax was gradually reduced starting in 2001, and actually eliminated for a year in 2010, before springing back to life the following year. This shifting tax regime had some quirky, and important, consequences. Roger Milliken, a ninety-five-year-old textile tycoon, happened to pass away on December 30, 2010, less than forty-eight hours before the estate tax returned, saving his heirs (and costing the IRS) hundreds of millions of dollars. “His timing,” Milliken’s longtime Washington lobbyist quipped, “was impeccable.” Playing around with estate taxes has a real impact on the distribution of wealth—and of power, prestige, and social status.

All our legal institutions, including courts, legislatures, and agencies, are designed, at least in part, for both continuity and change. They are structured in such a way that changes can take place, but only in a regular, orderly, patterned way. After all, every time Congress sits, every time the Delaware legislature meets in Dover, every time the city council of Omaha goes into session, volumes and volumes of new laws and ordinances come pouring out. Every new law changes something; every law tries to attack some social problem, big or small. Happily, it is an orderly process (most of the time) in this country. Like the rest of the world, America is trying to ride the wild horse of change instead of letting it gallop off in all directions. The legal system is an important part of the social system; it acts, or tries to act, as a kind of safety valve—it prevents too much change, and slows down changes that go too fast; it is a process for limiting volcanic bursts of change. It does not always succeed. Nor should it.

Claims of Right. When we think about social control, we usually have in mind a picture of law and government—of “authorities”—in control of “subjects,” the people underneath. Social control is a police officer giving out a ticket for speeding, for example. But we need controls over police officers, 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 president, not the Supreme Court itself—is supposed to be truly, absolutely supreme. Only law is supreme.

This, to be sure, is theory. Practice is more complicated and considerably less than perfect. Everybody knows that some people in authority abuse their positions. We know about bribery; we know about the petty tyranny of bureaucrats. In 2005, Representative Randy “Duke” Cunningham resigned from Congress a few hours after pleading guilty to receiving millions of dollars in bribes (in the form of cash, cars, rugs, antiques, and yacht club fees) to help certain friends and campaign contributors win lucrative military contracts.⁷Close Probably most abuses never get punished, or even uncovered. To correct abuses, there are controls built into the system. Law, in other words, has the further job of keeping an eye on the rulers themselves. This, in a way, turns social control inside out. In a way, however, it is another form of social control: control over the controllers. Control over controllers is, of course, a basic theme in American government. It is the idea behind checks and balances, and behind the corps of ombuds, inspector generals, auditors, and the like, all busily at work. It is also the idea behind “judicial review”; this is the power of courts to decide when other branches of government have overstepped the mark. Courts regularly, and sometimes fearlessly, rebuke or override Congress, administrative agencies, the police, and even the president, when these have gone beyond the limits of legitimate authority, in the court’s opinion. Among the most important limits are those written into the Constitution, or put there by courts in the process of “interpreting” the text.

We also sometimes speak of “claims of right.” By this we mean claims of private citizens or of companies against the government. Claims of right help control abuse of power; but most of the time what the claimant wants is relief from some particular mistake of government. There are innumerable examples: pension claims, benefit claims, grievances and complaints about the million and one ways a civil servant in America can bungle his job. For example—one example out of thousands—a man named James T. Blanks, living in Alabama, who said he was sixty-two years old, applied for old-age benefits. The Department of Health, Education, and Welfare (HEW) turned him down. In their view, he was only sixty, two years short of eligibility. They got this idea from a school census record of Marshall County, Alabama. Blanks countered with a family Bible, federal census records, insurance policies, and affidavits from neighbors and relatives. The HEW people were not impressed; they stuck by their original decision. Blanks went to court. He sued HEW and won his case.⁸Close

Citizens do not, of course, always win these cases. Probably more often than not, the government wins. In a Pennsylvania case, a state policeman, Joseph McIlvaine, was forced out of his job because (according to the rules) he was too old to serve. This seemed grossly unfair to McIlvaine, and he sued to get back on the force. The Pennsylvania courts turned him down.⁹Close He tried to get the Supreme Court of the United States to take his case, but this, too, failed.¹⁰Close

As we leaf through reported cases, federal and state, we find countless claims of right. They are, perhaps, the tip of an iceberg. Such claims may have become more common in recent decades. Why this should be so and whether they bring about effective control of government (or are ineffective or a nuisance) are questions that will be taken up later in this book.

There is a bewildering variety of legal systems in the world. Every country has its own, and in the United States, each state, too, has its own legal system, which governs the internal affairs of the state, generally speaking; the national (federal) system is imposed on top of that system. A law student usually studies the law of a single country—the one he or she plans to practice in. This is true of the United States too; legal education sticks largely to American law. Our legal education, though, is fairly national-minded; it tends to ignore many of the differences between the laws of the various states. The curriculum and the materials studied are much the same in all law schools, whether they are in Oregon or in Alabama. A student does not go to Harvard Law School to study the law of Massachusetts, or to Vanderbilt to study the law of Tennessee. Nonetheless, the study of law is in a sense quite parochial. Medicine is more or less the same all over the world, and so generally are all the natural and applied sciences: electrical engineering in Uganda is no different, in essence, from electrical engineering as understood in China or the United States. Even the social sciences lay claim to a kind of universality. But law is different; it is restricted to one nation or jurisdiction; its power stops at the border. Outside its home base, it has no validity.

No two legal systems, then, are exactly alike. Each is specific to its country or its jurisdiction. This does not mean, 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 El Salvador is very much like the law of Honduras. The laws of Australia and New Zealand are not that far apart.

We can also clump legal systems together into clusters, or “families”—groups of legal systems that have important traits of structure, substance, or culture in common. The word “family” is used deliberately: in most cases, members of a legal family are in a sense genetically 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, and to Canada, Australia, New Zealand, Jamaica, Barbados, and the Bahamas. Many countries in the world once were part of the British Empire. These countries are now independent and have distinct legal systems of their own, but they have kept some aspects of their historic traditions. The legal systems of the English-speaking world have a definite family resemblance. Similarly, 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 family. Members of this family owe a common debt to a modernized version of Roman law. The ancient Romans were great lawmakers. Their tradition never completely died out in Europe, even after the barbarians overran what was left of the Roman 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 Roman law and its medieval revival.”¹¹Close Western Europe—France, Germany, Italy, Spain, Portugal, 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 Canada, the civil law is dominant in the French-speaking province of Quebec. It strongly colors the legal systems of two unlikely outposts, Scotland and Louisiana. It plays a major role, too, in countries like Japan and Turkey, which stood completely outside the historical tradition but borrowed chunks of European civil law in the nineteenth and twentieth centuries in hopes of getting modern in a hurry.

Civil-law systems are, generally speaking, “codified” systems: the basic law is set out in codes. These are statutes, or rather superstatutes, enacted by the national parliament, which arrange whole fields of law in an orderly, logical, and comprehensive way. Historically, the most important of the codes was the civil code of France, the so-called Napoleonic Code, which appeared in 1804. It has had a tremendous influence on the form and substance of most later codes. Another influential civil code was Germany’s, which dates from the late nineteenth century.

During the Renaissance, European legal scholarship was dazzled by the power and beauty of the rediscovered Roman law, and it profoundly influenced the style and content of legal change in country after country. There was one holdout, however—one nation that managed to resist the “reception” of Roman law. The English were not seduced by the majesty of Rome; they held fast to their native traditions. Many ideas and terms from Roman and European law did, to be sure, creep into English law, but the core of the legal system held firm. This tenacious local system was the so-called common law. It differed and continues to differ in many ways from the legal order in other European countries. For one thing, the common law resisted codification. There never was an English equivalent of the Napoleonic Code. The basic principles of law were not found primarily in acts of Parliament, and least of all in careful, systematic statements of law adopted by legislatures or imposed by decree. The principles were found in case law—in the body of opinions written by judges, and developed by judges in the course of deciding particular cases. The doctrine of “precedent”—the maxim that a judge is bound in some way by what has already been decided—is strictly a common-law doctrine. The common law also has its own peculiar features of substance, structure, and culture—some important and basic, some less so. For example, the jury is a common-law institution. So is the “trust,” an arrangement in which a person (or bank) as trustee receives money or property to invest and manage for the benefit of certain beneficiaries.

The common law is no longer confined to a single small country. The English brought it to their colonies, and in most cases it took root and thrived. All common-law countries were once colonies of Great Britain, or, in some cases, colonies of colonies. Roughly speaking, the common law reigns wherever the English language is spoken. This means our own country, for one, and Canada (outside Quebec), Australia, New Zealand, Jamaica, Trinidad, Barbados, and Singapore, among others. Other systems of law contributed bits and pieces here and there—remnants of Spanish-Mexican law poke through the surface in California and Texas—but English law is by far the strongest historical element in our own legal system (Louisiana, as we said, stands off in a corner by itself). England and the United States have been drifting apart, legally speaking, for more than two hundred years, and there are now big chasms between them, but still the relationship between the two legal systems is obvious, instantly recognizable to any lawyer who jets from one country to the other.

The civil-law system was described above as the dominant system in Western Europe. No mention was made of Eastern Europe, which is a rather difficult area for purposes of classification. During the period when the Soviet Union dominated Eastern Europe, some scholars felt that the socialist countries were distinctive enough to make up a separate family of legal systems. Other scholars were not so sure; the Soviet Union and its satellites had close ties with the civil-law systems, and despite the revolutions and one-party rule, there were strong resemblances in many details to the legal systems of Western Europe. For this reason, some scholars treated these systems as still part of the family—black sheep, perhaps, or oddball deviants, but family members nonetheless.

Then, quite suddenly, at the end of the 1980s, the Soviet Union disintegrated. Its constituent parts became independent countries—from Latvia and Estonia to Uzbekistan. The countries of Eastern Europe—Poland and Hungary, for example—which had been under Soviet domination, renounced communism and rushed helter-skelter into the arms of a market economy and Western ways of life (more or less). One legal system—the system of the German Democratic Republic—simply expired; the GDR was absorbed into the German Federal Republic (formerly “West Germany”).¹²Close All of the countries that were formerly part of the Soviet bloc set about reforming their legal systems, and in the process, most are drawing closer, in fits and starts, to the civil-law world.

“Socialist law” is not, of course, extinct; it survives, for example, in Cuba.¹³Close The controversy over whether socialist law was and is a separate system or is merely part of the civil-law family may be nothing but a question of words. Obviously, Cuba, which does not recognize private ownership of businesses for the most part, and has an agricultural system that is largely collectivized, has a lot in common with the now-defunct systems in Hungary or Poland and less in common with, say, the law of Mexico or Colombia. In these countries there are private businesses; lawyers work in the private sector (in Cuba they are employees of the government); the economy is not centrally planned; there is no censorship. Whether these differences mean we have to put Cuba in a separate family is not terribly important. What is important is to see how the form of the economy and the structure of society fundamentally alter the legal system of each particular country.

In general, it is a fairly crude business to assign legal systems to this or that family. There are always troublesome cases at the margin. The Scandinavian countries, for example, do not precisely fit the technical patterns of law among their European neighbors; some scholars assign them a family of their own. In general, we have to remember that a legal system is not an exercise in history; it is a working system, very much here and now. In essence, it can be looked at as a kind of problem-solving machine, and the problems that face it are the problems of today, not yesterday. Legal tradition may explain some aspects of the shape and style of a system, but history and tradition are probably not as decisive as most lawyers (and laymen) think.

For example, Haiti and France are supposed to have very similar legal systems; they are close relatives inside a single family. The Haitian system is derived from that of France. This is certainly true on paper. But is it true when we look at the living law? For decades, Haiti was a plundered and mismanaged dictatorship; more recently, democratically elected presidents were overthrown in a series of military coups. The population was and is desperately poor, almost entirely rural, and largely illiterate, and a recent series of tropical storms and hurricanes, capped by a devastating earthquake in 2010, have made matters even worse. Haiti’s people struggle to survive in a wrecked and overpopulated land. France is rich, has a parliamentary system, and is urban and highly industrialized. The two countries may have codes of law on the books that look very similar, but it seems likely that the living law of France has more in common with the law of England than with the law of Haiti, even though the English legal system belongs to a different “family.”

This last statement is basically a guess, because there is surprisingly little research about the way legal systems actually work, and what we have is spotty and scattered. Comparing whole legal systems, in operation, is essentially beyond our power. But it simply has to be true that the level of development in a country must have an enormous influence on that country’s legal system. If you ever traveled by car in England and France, you noticed (or took for granted) that the traffic rules in the two countries are basically the same, even though the English insist on driving on the “wrong” side of the road. It is probably the case that every country touched by the automotive revolution has traffic rules that have a lot of features in common. Technology is a great lawmaker and a great leveler. The railroad in many ways and in many fields practically rewrote the law books of the United States in the nineteenth century. In the twentieth century, the automobile had almost as big an influence on law. Neither the railroad nor the automobile shows much respect for what family a legal system belongs to.

It is hard to exaggerate the importance of technology in understanding what makes contemporary law tick. Accident law—the heart of the legal field we call torts—is basically the offspring of the nineteenth-century railroad; in the twentieth century, the automobile largely replaced the railroad as a source of accidents, and of accident law. The automobile is responsible for a vast body of rules about roads, traffic, auto safety, buying cars on the installment plan, and so on. Its invention has changed society (and thus the law) in absolutely fundamental ways. We take many of these changes for granted. Could either urban or suburban life go on without cars? Yet the automobile is not something that separates civil-law and common-law countries. It poses the same problems for all of them. It does indeed separate modern systems from older or more primitive systems. And it has a deep impact on the way we live, on where we live, and on the very structure of freedom, our ability to come and go as we please.

Only two or three main groups—families—of legal systems have been mentioned thus far. But the civil-law and common-law systems are not the only families of legal systems. No mention has been made, for example, of the sacred-law systems of classical India, Israel, and the Islamic countries. Islamic law, in particular, is a living force in the world today. In Saudi Arabia, for example, it has official status, and it has made a dramatic comeback in other Muslim countries, most notably in Iran under the Ayatollah Khomeini and his successors. Africa is the home of dozens and dozens of tribal systems of law. Many of them are extremely interesting; some have been carefully studied; all are under great pressure from Western codes and rules in this age of global economies and instantaneous communication.

This book is about American law, a subject that is daunting in itself; it is impossible to provide much detail about other systems of law. But comparisons and contrasts are always interesting and sometimes enlightening. It is not fashionable anymore to label some systems of law as “primitive” (the word seems too insulting); but it is as plain as day that the law of a tribe of hunters and gatherers, or the law of the nomad empire of Attila or Genghis Khan, has to be different from the law of modern America—or, for that matter, from the law of modern Mongolia. Does it make sense to talk about evolutionary patterns in the history of law—progressions moving inexorably from stage to stage, from lower to higher? In other words, do legal systems evolve in some definite, patterned way, starting from stage A and passing through B and C on the road to D? Are there natural stages and a fixed order of progression?

This is a classic question of legal scholarship. There is no definite answer; some people even deny that the question makes sense. A small band of people with spears and knives has legal needs very different from ours; a feudal system generates one kind of law, big-city America quite another. Changes in social systems and technology necessarily push a system toward new burdens and new habits. Classical Roman law did not worry about custody of a baby born after in vitro fertilization, nor about copyrighting software. Legal systems are never static. They change with changing times. In a country like ours, constantly moving, squirming, changing, the law is especially dynamic. We live in a restless world. The rate of change, the kind of change, the effects of change—these are matters of vital interest, and are at the heart of the questions discussed in this book. Whether we call the main lines of growth “evolution” is only a question of words.