Elements of the Legal System

This book is about more than rules and their place in American society. It concerns also the structures, institutions, and processes through which the law has operated historically. The component elements--the connective tissue, if you will--of this legal system have been its structure, substance, and culture.

Structure

The institutions and the means through which they have operated constitute the structure of American law. Most persons, if asked to name a "legal" institution, would doubtless respond with "court." The life of the law, to many of us, has been the adversarial process; the drama of lawyer confronting lawyer, of judge and jury. But

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this view is needlessly and misleadingly narrow. The formal product of the law has emanated not just from courts and lawyers, but from legislatures, administrative agencies and the executive branch. In the legal history of the United States, courts have usually been reactive institutions; the great limit on the judicial power has been the necessity of judges waiting for litigation to reach them so they might decide an issue. Legislators, executives, and administrators, on the other hand, have most often had the initiative in the lawmaking process, although the courts, through the process of judicial review, have gradually developed the power to decide what the law is.

The legal structure has also included informal and nongovernmental institutions, such as the family, private associations, and trade groups. In some instances, moreover, these nongovernmental and informal associations have developed their own procedures. Witness, for example, the development of Roberts Rules of Order in the late nineteenth century, and the effort it embodied to bring procedural order to the operation of private, nongovernmental groups.

This book, however, gives attention to the formal, governmental structure of the legal system. The purpose of legal history is not to explain all social choices and all aspects of social control. The distinctiveness of the American legal system has been its reliance on a formal structure, and it is with the understanding of the place of that formal structure in society that American legal history is concerned.

Date: 2015-01-29; view: 1079