Culture

The third element of the American legal system, legal culture, is genuinely elusive. Legal culture is the matrix of values, attitudes, and assumptions that have shaped both the operation and the perception of the law.

Legal culture has had two components. First, it is a manifestation of ideology. Persons often hold strong ideas about how the world should and does operate, and those beliefs have had an impact on the legal system. That is why what prominent figures in the legal system have said about it is of such importance. Ideology is both a statement of expectations and a rationalization of what has occurred.

Second, legal culture has evolved in response to individual and group interest. American historians have argued endlessly about whether ideas or interests have provided the mainsprings of historical action. Have people within the American legal system acted as a result of what they believed or who they were? Or were interest and ideology so intertwined that separating them only caused further confusion? There seems little doubt that what persons have been has shaped what they expected of and how they viewed the legal system. Property holding, social class position, wealth, and race, for example, provide individuals with tangible interests to be secured through the law. What has been good for some property holders has not necessarily been good for others.

Legal culture through ideology and interest provides the mainsprings of the legal system in the United States. Structure and substance provide the institutional manifestations of the system; legal culture embodies the motivating forces in response to which the other two develop. The plurality of interests and ideas in American history has bred controversy over the purposes of the legal system. Diversity has spawned disagreement, and one measure of the significance of the rule of law in our history has been the extent to which it has promoted consensus.

The nature, direction, and velocity of legal adaptation is one of the central issues of this book and it is also a measure of the effectiveness of the rule of law. The rule of law is one of our culture's most important concepts and one of the great forces in the history of western civilization. Its origins reach back to the Roman Empire, but beginning only in the seventeenth century, with the rise of humanistic rationalism, did it assume anything like its present identity. The rule of law meant that there existed a body of rules and procedures governing human and governmental behavior that have an autonomy and logic of their own. The rule of law--the rule of rules, if you will-- proposed to make all persons equal before a neutral and impartial authority. Its legitimacy derived largely from the possibility of applying it on a reasoned basis free from the whim and caprice of both individuals and government. Social position, governmental office, family of birth, wealth, and race ideally had nothing to do with the dispensation of justice. By the eighteenth and nineteenth centuries the very notion of justice had become an abstraction. To do justice was to administer the law in a procedurally correct manner, because such attention to the process of law guaranteed a reasonable and hence just conclusion to any dispute. The rule of law made persons in authority-- police, legislators, and judges--bound to it. It promised impartiality, fairness, and equality; all persons were to receive the same treatment. ⁵

Legal historians have disagreed sharply about whether the rule of law has actually performed in such a manner. Some of them, notably scholars identified with the critical

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legal studies movement, insist that the rule of law is so much humbug. As John Henry Schlegel has observed: "LAW IS POLITICS, pure and simple."⁶ These critics of our legal system complain that the law merely provided a formal device by which the most powerful elements of a capitalist society--the ruling class--perpetuated their control. The law furnished the elite with an amoral device that promoted their social hegemony. In such circumstances, these historians explain, minorities--blacks, Native Americans, women, and poor white working class--have suffered. Impartiality and fairness have not only been in short supply, but the rule of law has masked blatant class oppression.

A contrary interpretation reaches quite different conclusions. This so-called pluralist consensus view, most fully identified with this century's greatest historian of law in the United States, J. Willard Hurst, holds that given the enormous diversity of the population and the great geographic size of the United States, the abstract rule of law has fostered economic growth and the maintenance of free expression and dissent, and has limited the authority of government. ⁷ The law, in this interpretation, has functioned as an honest broker through which conflicting interests have sought to achieve their own ends. The results of the clash of pluralistic social interests appear in the historical rise of a large, prosperous middle class. The rule of law, in short, has opened fresh opportunities for large numbers of persons, certainly more so than was ever the case in Europe with its feudal past. This book suggests that neither interpretation quite captures the supple nature of the American historical experience nor the powerful contradictions that have beset it.

Private Law and Public Law

All law is a system of social choice backed by the power of the state. But the state has varying degrees of interest in those choices. Private law, though implemented through public courts, aims to resolve disputes in which the interests of individuals, rather than the state, are directly involved. The state, for example, has a direct interest in whether you speed in your car or murder your neighbor, but it has only an indirect interest in whether you keep a promised contractual agreement with that neighbor. Private law, therefore, encompasses the major categories of substantive legal rules, such as contracts, real property, and torts. Private law is private because of the character of the parties in dispute and the absence of a direct state interest.

Public law, on the other hand, involves social choices where the state has a direct interest. Public law embraces those rules that affect the organization of the state, the relations between the state and the people who compose it (including control over the means of legitimate violence and punishment of deviant social acts), the responsibilities of the officers of the state to each other and to the public, and the relations of states within the nation to one another. Public law, like private law, also has several categorical divisions. It consists of criminal, administrative, international, and constitutional law. The last of these, constitutional law, treats the establishment, construction, and interpretation of constitutions and the validity of legal enactments passed under them.

This book is about both private and public law, about private law rules and public law doctrines. Although historians have frequently treated these as subjects distinct

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from one another, this book seeks to show the relationships among them, as they have been shaped by legal institutions and as they have formed a part of the legal culture. We might think of them as complementary themes played in different modes. ⁸ Both contribute to the ordering of society and each contributes to the life of the other. Both have formed the magic mirror of our legal past.

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Social and Institutional Foundations of Early American Law

Origins

When the first settlers in the early seventeenth century pushed ashore on the North American continent, two great systems of law dominated the Western world. One was the civil law of western Europe; the other was the common law of England. The American legal system owed something to both, though much more to the latter than to the former.

Civil Law

The Roman Empire contributed its system of civil law to the growth of Western civilization. The Romans formulated their law through written codes susceptible to easy replication throughout their vast empire. Emperor Justinian of Constantinople in the early sixth century A.D. captured the essence of the Roman legal system in the Corpus Juris Civilis, a four-volume restatement that ordered most of the earlier law of the Empire. Justinian was a reactionary concerned about the decadence of the Empire, and he believed that a thorough codification of the law would strengthen its moral fiber. On the publication of the Corpus Juris Civilis, the emperor forbade any further reference to the older law of Rome. The Corpus failed in its social purposes, but its preparation was nonetheless propitiously timed. The civil law system went into eclipse following the Germanic invasion of the Empire, but thanks to the Corpus Roman law survived, though in a less sophisticated version.

During the Middle Ages, clerics in the Roman Church "rediscovered" Justinian Corpus and with it the great civil law tradition. The rulers of the new Holy Roman Empire embraced it, not only because the civil law legitimated their connection with

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the Caesars, but because it offered a ready-made device by which to extend their rule over western Europe. Thereafter waves of exploration from the sixteenth century on spread it to Latin America and elsewhere, including French-speaking Canada and the Mississippi River Valley and Spanish settlements in present-day Louisiana, Florida, the Southwest, and California. But only in Louisiana and Quebec did the civil law system win a lasting hold on the North American continent.

The civil law was a system of positive rules arranged in books called codes. Its commands, whether from a sovereign body or a royal ruler, spoke directly to the ruled. Its authority depended on neither broad notions of morality nor assumptions about human character rooted in nature, but on the powers inherent in the person or persons promulgating it. This comprehensive body of rules established what law or laws governed a particular situation. When a controversy reached a lawyer or judge, their immediate task involved finding the appropriate code provision and then applying it. The civil law system placed a premium on the judicial administration of the law rather than on the judicial interpretation of it, a feature that typified English common law. Civil law judges had limited discretion; they applied existing law rather than initiating it. The civil law system that emerged from medieval Europe was responsive to social change, but it trusted in legislative action and the scholarly endeavors of academic lawyers rather than judges to systematize, criticize, and develop it. Past cases were important, but judicial precedent lacked the influence it assumed in the common law system.

Civil law countries regularly updated their codes through major restatements. Perhaps the most influential in modern times was the French Civil Code, or Code Napoleon, of 1804. It had enormous influence throughout western Europe and beyond, serving as the major source of authority for the hybrid version of civil law practiced in Louisiana.

The civil law tradition contributed only modestly to the origins of American law. In the nineteenth and twentieth centuries American law reformers, however, repeatedly invoked the concept of codification--of a rational, written body of rules for all to see--as a way of imposing order on the unruly common law. Legal systems composed part of the cultural baggage of colonial expansion; the English settlers not only came in larger numbers, but they came to stay with concentrated settlement on the vital Atlantic beachhead. Therefore, although the Dutch briefly carved out a civil law system in New Amsterdam, the common law system flourished after control of the colony passed to the Duke of York in 1664.

Date: 2015-01-29; view: 891