Substance

The operation of the formal legal structure produces substantive results. Substance is what Oliver Wendell Holmes, Jr. meant by the legal system's "moral deposit." It is the primary rules--against murder, the treatment of agreement between bargaining parties, the awarding of damages to injured parties, the establishment of fault and liability, for example--that the legal structure produces. The substance of the legal system has been more than the sum of judicial pronouncements; it has also included statutes, executive orders, and administrative regulations produced at the federal, state, and local levels. It offers a direct measure of the extent to which cultural and moral values have penetrated the legal system.

Both the structure and the substance of the law have been multiform. There has never been only one American legal system, but permutations and deviations. From the beginning of white settlement, the substance of the legal system evolved through many forums: federal, state, and local. Geography and topography encouraged diversity in the substantive results of the legal system, but so too did the U.S. Constitution through the concept of federalism. The framers in Philadelphia in 1787 indeed fashioned a national government, but they did not create a national law. Rather, the principle of federalism recognized that the states retained important elements of sovereign authority, and that they could, within the terms of that authority, enact laws for themselves. The states retained authority under the police powers to deal with questions of health, safety, morals, and welfare. The federal government, on the other hand, had broad responsibilities for national concerns, such as war and peace, foreign relations, commerce among the states and with foreign nations. This bifurcated scheme left the states through much of the nineteenth century to develop large areas of the legal system. The law was not a free-for-all, but it did manifest important differences from state to state.

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Date: 2015-01-29; view: 1070