American Legal Tradition

The American Legal Tradition

The American Legal System

The Hierarchy of Law

Basic Principles of American Federalism

International Law or the Law of Nations

Law, Morality, and Ethics

1. The American Legal System

The United States is a Common Law country. We derive our legal system from the Common Law of England and even today Common Law principles remain applicable where there are no binding statutory provisions.

The Common Law was a judge made system of law. Judges make case law; that is the law develops on a case by case basis. Each case serves as precedent for the next case.

The US Supreme Court is the highest court in the land. The US Supreme Court has the power to interpret the US Constitution and to decide through judicial review whether actions of Congress, the President, and the Bureaucracy are constitutional. The US Supreme Court decides on a case by case basis. These cases become part of U.S. Constitutional law. Thus our highest law in the land, is a case law.

2. The Hierarchy of Law

International Law or the Law of Nations

Federal Law

U.S. Constitutional Law

U.S. Constitution
U.S. Supreme Court Decisions interpreting U.S. Constitution

U.S. Statutory Law

U.S. Administrative Law

State Law

State Constitutional Law

State Statutory Law

State Administrative Law

Local Laws

Local Charters
Local Ordinances
Local Administrative Regulations

3. Basic Principles of American Federal System
(Discussed in Detail in Gov 201)

The U.S. Constitution is the Supreme Law of the Land
The U.S. Constitution outlines the basic structure and function of the National Government
The U.S. Constitution does not establish the powers of the States. The States derive their authority to govern from their respective State Constitutions.
The U.S. Constitution places restrictions on State Government.
The U.S. Constitution acknowledges the Reserved Powers to the States (Tenth Amendment).
The U.S. Constitution establishes National Supremacy. Valid Federal law is above conflicting State law. (Supremacy Clause, Article VI, Clause 2)
Valid Federal law is law made in accord with the U.S. Constitution. The Constitution grants to the Federal government (Congress) the delegated powers. (Art. I, Section 8)
The delegated, listed, or enumerated powers can be stretched through the elastic clause or the "necessary and proper" clause of the Constitution. This gives rise to the implied powers.
Valid Federal law is law made in accord to the delegated and implied powers. Congress (the Federal government) is limited in its authority to make new laws on new subjects. If the reserved powers are to have any meaning, then there must be limits on the power of the national government to legislate or regulate. Ultimately, it is the U.S. Supreme Court that decides what these limits are. This is the power of judicial review. The U.S. Supreme Court is the ultimate umpire of our Federal system.
If a vast majority of American voters disagrees with the U.S. Supreme Court, a Constitutional Amendment could be added to the U.S. Constitution either adding or subtracting from the powers of the national, central, or federal government.
Over the past 100 years the power of the national government has grown; the power of all levels of government have grown; the powers of the executive branch on the federal and state level have grown vis a vis the legislative branch.
Urbanization, industrialization, and war have been the primary factors for the gowth of government.
The basic purpose of government is to serve the needs of the majority of the people. That is what democracy means.
Minority rights are protected by the U.S. Constitution against abuse by the government and by the majority of the people.

4. International Law or the Law of Nations

The U.S. Constitution recognizes the role of international law or, as it used to be called at the time the Constitution was written, the law of nations. In the provision on national supremacy mentioned earlier (Art. VI, Clause 2), it states: "all treaties made . . . under the authority of the United States . . . shall be the supreme Law of the land."

International law is created through the interactions of sovereign states. The United States of America is a sovereign state both in fact and as recognized by other sovereign states. As such the United States has all the rights (and obligations) which any sovereign state has under international law.

International law is based on five "sources". These are

The International Customs and Traditions of the State System.
Treaties
General Principles of Law
Decisions of International and Municipal Judicial Bodies that relate to international law
The writing of the great jurists on international law.

The theory of jurisprudence requires that international law be superior to state law or municipal law. From the perspective of international law, the laws of particular countries is called municipal law.

This theoretical superiority is weakened through many practical limitations. There is as yet no world government which could enforce international law. International courts have limited jurisdiction. Municipal courts pay great deference to the political executive and often refuse to apply international law. Individuals often have no standing to bring suits against foreign governments using international law rules.

Nonetheless, the inherent powers of states derive from the principle of "sovereignty" recognized by the law of nations.

Inherent powers are generally associated with states of emergency and conditions of war. For example, the right to administer a conquered territory after a war derives from the inherent powers of sovereign states. Lincoln asserted the inherent powers of the United States when he suspended the right of habeas corpus in Maryland to prevent that state from joining the Confederacy at the beginning of our Civil War. His actions were clearly unconstitutional, but they may have saved the Union.

The evolution of international law since World War I has led to the condemnation of wars of aggression. Self defense is still a legitimate reason to resort to war. We may be close to the point where only wars authorized by the United Nations will be considered legitimate.

It is extremely difficult to subject powerful, so-called sovereign states to the rule of law. Countries governed by brutal dictators who oppress their own peoples (and enforce oppressive laws) are not deterred by the mere rules of international law. Realists would argue that within the international system the rules are based on power and military force. Yet the very purpose of law, at all levels, is to constrain force and violence and anarchy. It may be difficult to constrain states by law, but it is not impossible. The evolution of the international community, the growth of international organizations, and the development of world public opinion may help to constrain states and force them to abide by the rules of international law.

Treaties and executive agreements are part of the supreme law of the United States, that is they are part of Federal law.

5. Law, Morality, and Ethics

Social Morality refers to the values and mores, which people in a given society practice in fact. Customs and traditions are part of a given country's social morality. They usually are reflected in that country's system of law.

Customary rules are enforced as law in many traditional societies.

Moral Idealism refers to a set or system of moral standards that go beyond customary practices. These ideals are often based on religious beliefs. For the West, the Ten Commandments are an important source of both morality and law. The belief in the brother- and sisterhood of all humanity is another important moral ideal.

Natural law is the belief, dating back to at least the Stoics , that there are universal moral laws governing the cosmos in much the same way that there are also physical laws of nature. While modern philosophical analysis draws a logical divide between matters of fact and questions of value, the idea that there should be a moral order to the universe remains strong in many people.

Natural rights is the belief developed by Thomas Hobbes, John Locke, Jean Jacques Rousseau and others that humankind enjoyed certain natural rights in a state of nature before governments were formed through a social contract. These natural rights include the right to life (no one has the right to take your life; you can always fight those who would kill you), liberty (you are free to do whatever you please as others are free to do as they please. If you infringe on others; they will infringe on you), and the pursuit of property (later changed to happiness). For Thomas Hobbes, the state of nature is "nasty, brutish, cruel, and short" because whenever everyone is free to take whatever they will, no one has any security. In the state of nature all are equal. For Hobbes, "the weakest he, can kill the strongest he." For Hobbes, creating an absolute government is the way out of the state of nature. For John Locke, the state of nature is much more benign and we retain our natural rights even after governments have been established. The concept of natural rights should not be confused with that of natural law.

Divine law is the idea that a Supreme Being or God has established a set of divinely ordained rules that are found a) in Holy Books (like the Torah, Bible, or Koran) inspired by Divine Revelation b) through human reason (rational thought), and c) the moral order of the cosmos as understood through human rationality, which is itself a gift of God.

Ethics is a branch of philosophy that attempts to reason about morality. It attempts to answer questions such as whether moral values are relative to a particular time and society or absolute. When moral principles come into conflict with each other, how would one sort out their relative value? Moral idealism could be viewed as a construct of ethical philosophizing. Kant's categorical imperative and John Mills principle of utility are two moral standards developed by these philosophers.

Law is a word with many different meanings as in divine law, natural law, physical laws of nature, customary law, and positive law. When the word law is used as being different from morality and ethics, we generally refer to law as applied by courts and enacted by legislatures. John Austin referred to these laws as positive law. His definition was that positive law is a command by a sovereign authority backed by sanctions. Section 2 presented the hierarchy of positive law as it exists in the United States. These positive laws can also be referred as the Municipal Law of the United States of America. (See Section 4).

There are different legal traditions in the world. In the West, the Roman law tradition is often distinguished from the Common law tradition. The Roman law tradition derives from the legal codes of Rome, especially the Corpus Juris Civilis of the Emperor Justinian, and forms the basis of most legal systems on the Continents of Europe and Hispanic America. The Common law tradition is based on the decisions of the royal judges of King Henry II of England and their successors. It is the basis of law in England and most of the British Commonwealth. One should also mention that there is a distinct Islamic legal tradition.