The Dynamics of Law

Michael S Hamilton, George W Spiro

• Publisher: Routledge
• Year: 2014
• ISBN:
  9781317457428
• Edition: 4
• Topic: Economics
• Subtopic: Development Economics
• Index: Economics

Thoroughly revised and updated, this widely used text offers a concise introduction to the American legal system for students without a legal background. The book's coverage is cross-disciplinary, informed by the literature of law, business administration and the social sciences, especially public administration and policy. Its goal is to give non-lawyers in all these areas a lucid overview of the workings of the American legal system as it may affect individuals and organizations in their interactions with each other and the environment.Unlike longer, more expensive competing works, "The Dynamics of Law" presents its subject with clarity and precision, and minimal use of legal terms. It offers clear explanations of how to brief a case and how statutes and regulations are codified in the United States. Study problems and review questions in each chapter, drawn from legal literature as well as general interest articles and books, are designed to stimulate classroom discussion.

CHAPTER 1

The Nature and Function of Law

Law is an important part of our lives. Consequently, many people have a vague feeling that they ought to know more than they do about the law. They suspect that knowledge of legal rules might help them in their jobs or keep them out of trouble.

You could make no greater mistake, however, than to convince yourself that by simply memorizing legal rules from a book you will gain the knowledge you need to handle your own legal problems. Such rote learning is a waste of time, even for lawyers, for several reasons:

1. There are simply too many rules.

2. The same rules are not applied in all states. We can make a good many generalizations that will hold true for most states, but without investigation we can never be sure that a particular generalization is true for any one state.

3. The rules are constantly being modified by legislators, judges, and administrative agencies.

4. Most rules are not simple and categorical. To state a legal rule with accuracy is likely to require a surprising number of qualifications and exceptions. Many situations are not neatly covered by any single rule. Indeed, a lawyer—that is, an expert on legal rules—can often do no better than venture a prediction about which rule a court of law will apply in a given situation.

The proposition that underpins this book is that law must be viewed not as a body of static rules but as a dynamic process by which rules are constantly changed, created, and molded to fit particular situations. We shall describe and analyze the processes of the law in the belief that no one can truly understand legal rules without understanding the processes from which they emerge.

WHY DO WE NEED A SYSTEM OF RULES?

All of us have grown up in a world in which there are established guides for social behavior. Our parents made rules for us as children that we were expected to obey. As we grew older, more was expected of us, and we had to follow more rules that regulated our behavior. The vast majority of these rules were not rules of law, but norms of conduct. It is impolite, for example, to speak with your mouth full, but you would never be convicted as a criminal for violating this norm.

Some forms of social behavior are more necessary and some are more desirable than others. In fact, this is a reason that people form groups such as clubs and religious or business organizations. These groups play an important role in our lives, helping shape our behavior and satisfying needs that we all share. One group of particular importance to us is the nation-state. In our country, members of this group are called citizens; in other nation-states they may be called subjects.

Conceivably, a society could allow sheer power—physical, economic, social, or political—to determine which forms of social behavior should be enforced. It has been suggested that the primary reason for having a state is to provide members of a society with security from the possibility of physical harm as different groups contend to exert their power. History would seem to support this conclusion. For example, archaeologists examining ancient cities of Mesopotamia have uncovered evidence that the concept of the state emerged there to regulate struggles between agricultural communities for control of land and water.

We still look to the state to regulate the exercise of private power and to provide security and safety. However, most civilized societies also recognize such concepts as “justice” and “social utility” as criteria for establishing priorities for their citizens. A major task of government is to create and enforce rules of law based on these criteria in order to maintain an orderly process for settling disputes, to structure cooperative relationships, and to facilitate orderly changes (Lipson 1989, 46–50). Consequently, most of our laws are designed to accomplish one or more of three objectives:

1. to protect people from people (e.g., to regulate behavior, such as criminal laws and economic and environmental regulations);

2. to protect people from government (e.g., to protect civil rights and civil liberties); and

3. to protect government from people, especially the wealthy and unscrupulous (e.g., through conflict of interest and anticorruption laws).

What are rules of law? Legal rules are guides to human conduct in society, established and enforced by public officials. In our nation, these laws are designed to achieve a balance among diverse interests in our society, and they are enforced by officials acting on behalf of the whole community. But rules are not, and can never be, unchanging. In societies in which new problems keep emerging, new rules are continually needed. So it is less important to know the rules than it is to understand the processes by which rules are created and applied. This is why we suggested above that it is best to think of law not as a body of rules, but as a dynamic process—a system of regularized, institutionalized procedures for the orderly decision of social questions, including the settlement of disputes.

PRIVATE RULES FOR SOCIAL ORDERING

Law establishes a framework within which private decision-making takes place. For example, we all know there is a law stating that you must stop at a stop sign. As an individual, you make a private decision either to observe this law or to disregard it and risk the possibility of having an accident or being ticketed. The decision is yours; the law merely gives you guidance.

Although the legal system is the most powerful mechanism for exercise of social control (since public officials can, if necessary, apply methods of enforcement not available to private persons), there are other sources of guidance. Private groups and group rules help satisfy needs that we collectively share. The needs that they address can be grand or trivial. We join religious groups for spiritual reasons, educational groups for learning, and clubs for social reasons. Each of us is part of any number of groups, and we add or change groups over our lives to attend to our ever-evolving needs. These groups can last a lifetime, but they need not be formal, and they may be quite transient—lasting no more than a few hours or minutes (as at a religious prayer or social party). But these groups and the needs they satisfy collectively create the pushes and pulls that provide substance for our system of law and government.

In addition, when distinctions between right and wrong are particularly subtle, when the facts are hard to obtain, or when rapid remedies (damage awards, court orders, and criminal penalties) are not readily applicable, the law is effectively helpless. Courts and judges can do little to make people kinder to their spouses, to prevent students from cheating on exams, or to induce people to be more devoted or more truthful. Consequently, most social control in these areas must be exercised privately or not at all.

There is, then, a clear need that is filled by private groups. These groups create rules that in many ways resemble laws passed by the state or federal government. Your college or university, for example, probably has a student conduct code that outlines the rules concerning student discipline. The only real distinctions between these rules and those that we call laws are that the college rules govern a relatively small society (students in the school) and they are enforced not by public officials, but rather by officials of the school.

Many contemporary scholars would argue that our earlier definition of law is too narrow. They would object to limiting law to those rules enforced by public officials. Why do we need the force of the state to have law? Why not define law as a guide to human conduct in society established and enforced by any official, thereby including rules created by private organizations?

While it is possible to define law that broadly, the vast majority of legal scholars take a narrower view. Both for this reason and because this text examines the U.S. legal system as a model, we shall use the narrower definition. In Chapter 9, however, we shall discuss a direct and important link between private organizations’ rules and those of the formal U.S. legal system.

CUSTOMS AND MORALS VERSUS LAW

Legal rules are distinguished from other rules by the fact that public officials create them and are supposed to enforce them. Behind legal rules stands the authority of the state. Although many of a community’s customs and moral rules eventually become law, a custom or moral rule is not in itself a rule of law; it does not become one unless adopted as such by officials who have the power to create legal rules.

Morality encompasses an individual’s ability to distinguish right from wrong and to act accordingly. The ideas of right and wrong, good and bad, are value judgments as determined and generally accepted by some reference group. Moral behavior may or may not coincide with a legal rule. It may, for example, be morally right to come to the aid of a person who is drowning, but it is not a legal necessity.

Problem

SAN DIEGO, Jan. 17 (AP)—A 75-year-old man in a wheelchair apologetically robbed a bank of $70 here on Tuesday so that he could buy heart medicine.

The man, William Hart, pleaded not guilty at his arraignment on Wednesday, contending that anyone in his position would have acted as he did. He was allowed to remain free without bail until a court appearance in two weeks.

The office of the United States Attorney here said it had not yet decided whether to prosecute Mr. Hart.

Mr. Hart, who has no criminal record, said he suffered a stroke and two heart attacks three years ago and had been on medication ever since. His right side is partly paralyzed and his speech is slurred.

On Tuesday he entered a branch of the bank, where he had $4 in his account, and apologized while demanding $70 from a teller, telling her he would blow up the bank if she did not comply. He said a bottle he was carrying was filled with explosives, but it actually contained a heart medication.

After the teller had turned over the money, a security guard followed Mr. Hart out of the bank and called the police. Mr. Hart was arrested minutes later when he tried to buy a $69 bottle of heart medicine at a drugstore near the bank.

Source: Excerpted from New York Times (1991).

Do you see any moral problems in this case? Are there any value conflicts? How would you handle this problem if you were the judge trying Mr. Hart’s case?

The problems faced by Mr. Hart’s judge are typical of those that intrigue philosophers and bedevil policymakers. Although it is obviously necessary to have a law against stealing, it may seem unfair to apply the law in the same way to Mr. Hart as to someone who is well off and commits a robbery just for the fun of it or as an occupation. Mr. Hart has broken the law, but it is a matter of argument whether he has also done wrong. In order to be a good citizen, should people obey the law, no matter how much the law offends their sense of morality? Conversely, should they do what they think is right under the circumstances, even if it means breaking the law? Perhaps the important thing is that any person considering these questions must understand the consequences, both legal and moral, of following each course of action.

You will notice in even the relatively objective account of the incident involving Mr. Hart that the question of moral judgment is affected by the use of value-laden words and phrases. Mr. Hart is “a 75-year-old man in a wheelchair” who is “partly paralyzed” and who robbed a bank “apologetically,” terms that may make the bank and the police sound heartless in contrast. Such words influence our perception of the legal and moral issues involved in the case. In analyzing cases throughout ...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright Page
• Table of Contents
• Preface
• 1. The Nature and Function of Law
• 2. The Courts and Adjudication
• 3. The Trial Stage
• 4. Judicial Lawmaking I: Law Built on Precedents
• 5. Lawmaking by Legislatures
• 6. Judicial Lawmaking II: Interpretation of Statutes
• 7. Judicial Lawmaking III: Interpreting the Constitution
• 8. Administrative Lawmaking and Adjudication
• 9. Private Contributions to the Legal System
• 10. Law in Society: A Conclusion
• Bibliographic Note
• Index
• About the Authors