In the first part of this series of posts, I argued that understanding how law works is not very difficult, that it’s easily accessible to people with basic analytical ability. I started out with an explanation of the basic skill of making an argument by connecting a law with the facts of a case. Like an archer, you set up a target (the law relevant to an aspect of the dispute), and you then fire your arrows (the facts of your case) case, arguing that they either do or do not hit the target BECAUSE (insert your argument for why the facts do or do not meet the criteria established by the law here). Rinse and repeat for each law applicable to the dispute. That’s the core mechanic at the heart of litigation-oriented practice.
But how do we know what the laws are? And what kinds of arguments count as good “BECAUSE arguments”? There are three basic elements essential to a solid understanding of legal systems. First, you need to know how the legal system works so that you can tell what the laws are, what they should be, and how they are enforced. Second, you need to know, mechanically, how to make an argument (first introduced in the last post). And third you need to know how to judge the quality of an argument, that is what kinds of arguments are in bounds.
In this post, I’m going to show you what the basic areas of a legal system really are: Tort, Contract, and Criminal Law, all governed by Constitutional Law and Procedure. This subject arrangement is not arbitrary and knowing how to derive it will help you learn how to develop intuitions for what the law should be in any give case.
First Things First
Let’s talk about legal systems. How do we know what the laws are or should be? You no doubt have some familiarity with contracts, “lawsuits,” prosecutions, and the like. You surely know, as well, of wills and gifts. All these things seem like possible subjects of court cases, all of them laws of one kind or another. How do we make sense of this jumble of things a court might have to deal with? I’m now going to take a crack at explaining a way of understanding legal systems that I advanced in a recent article. Please, download the article early and often! (Why that’s helpful and why the fact that it’s helpful is absurd will be the subject of another post.)
It’s easiest if we go back to first principles, and so you’ll need some patience with abstraction. Start by thinking not of formal, developed legal systems, but of random collections of people. “In the beginning,” suppose we have a group of people who decide that life will be easier if they work together. This group decides it will undertake certain joint projects and has some ability to coerce its members to cooperate. Maybe all they can do is kick you out. Maybe they can beat you, imprison you, make you pay a fine, or make you compensate someone else in the group.
A legal system is the set of rules, call them “laws,” for figuring out how this group, or “public,” will deploy whatever coercion it can muster. So we see that a legal system is an attribute of just about any collective you can think of: a nation state, a corporation, a fraternity, or your local PTA. They all have legal systems, and, guess what, all of these systems have the same, basic structure. Let’s turn to what that foundational structure is. (Aside for law profs: I know this sounds like Austin, unreformed by Hart, but this is immaterial at the moment. For now, all that matters is that I’m defining something. And you can call that thing something other than a legal system if it bothers you.)
Classifying the Laws
One of the very first things any “public” must decide is how its laws should be made and enforced. And the most basic element of each of those decisions is who should do so. You see, the business of law is the creation and transmission of information. For example, a legislature may draft a law, pass it, transmit it to the chief executive, who signs it, publishes it, and then a court reads it, interprets it, and creates information in the form of a judgment, which is then the basis for action by others. So a legal system can be conceived as a set of rules to manage the creation and passing of messages among various groups within a public. (If you’re a computer programmer and are starting to think this sounds like object-oriented programming, yes, the connections are deep, because both endeavors are code-based efforts to manage complex systems.)
To proceed further, we need a convenient term to describe subgroups within the public that will be making and passing on legal information. I’ll call these groups institutions. The Congress is an institution, with many sub-institutions. A corporation is an institution. They’re all over. But to understand the basic structure of legal systems — and to construct a simple atlas of the laws — we only need to talk about the two fundamental types of institutions: public and private. Public institutions, like legislatures, presidents or city councils, are established by the collective to work on behalf of the collective. Private institutions, like a corporation, a single individual, or contracting parties, are the creations of private individuals meant to serve the interests of those individuals , even if those interests are altruistic or publicly minded.
So here it is, an atlas of the legal system: law can be made by either (a) private institutions or (b) public institutions and prosecuted by (a) private institutions or (b) public institutions. By “prosecute,” I mean, roughly, who controls whether a cause of action is brought. Can you go to court and sue, privately prosecuting, or does the decision whether to enforce a law and prosecute rest with a public official, a public prosecutor? (The full article contains a bit more detail.) Setting this out in a chart, we have the following:
Privately Made Publicly Made Privately Pros. Contracts Torts Publicly Pros. Parens Patriae Criminal Law
These are the basic legal areas: Contract (privately made, privately prosecuted), Tort (publicly made, privately prosecuted), Parens Patriae (privately made, publicly prosecuted - and almost, but not quite, an empty set), and Criminal Law (publicly made, publicly prosecuted). Beware, these are my own labels. Gifts are part of Contract Law in my atlas, and civil rights statutes giving individuals a right to sue violators are a part of Tort Law. Other academics and practitioners might not use these same labels, but our goal is understanding legal systems in general. Once you know that, then learning the particulars of our own system or some others is just picking up jargon.
So why is this a useful map? For one, it helps law students understand why they take Contract, Tort, and Criminal Law as foundational, first-year courses. In doing so, you’re functionally covering the whole legal system. For us, it will help to understand, in broad outline, why laws come from the institutions they do and what the limits on such laws should be. Put simply, the constraints on a contract, statute, or other type of law almost always come back to the characteristics of the institutions that made it. And so if you’re trying to argue that a law/contract/regulation is valid, invalid, should be interpreted in a particular way, or anything else, the right kinds of arguments will be found in thinking hard about the characteristics of the law’s drafter. Just a little more about this…
A Functional Atlas
The above is a classification of the laws of a legal system. But legal systems have rules, sometimes called secondary rules, that specify how a law must be made, how far it can go, how it should be interpreted, and how it should be enforced. Constitutional Law is what I call the set of rules governing which institutions can make which kinds of laws (so-called structural rules, like voting rules, age requirements, and the like) and what the permissible contents of laws are (which you can perhaps lump together as “rights,” such as that the law may not abridge the freedom of speech). Similarly, the rules governing who can bring and how they can bring actions to enforce law, I call Procedure. Here’s the full map of arbitrary legal systems:
Constitutional Law Privately Made Publicly Made Procedure Privately Pros. Contracts Torts Publicly Pros. Parens Patriae Criminal Law
To re-emphasize: Constitutional Law are the (secondary) laws governing the making of laws. Procedure is the (secondary) law governing the prosecution of law violations. There is a public and private Constitutional Law — and Procedure. One of the goals of my academic work has been to exploit this symmetry to show how these areas of law — the private Constitutional Law of Contracts, comprising offer and acceptance and contract doctrines like unconscionability, and the public Constitutional Law, often with more rule-like procedures for law enactment and with rules of due process and other substantive constraints — nicely mirror one another, with the differences owing precisely to the generic difference between public and private institutions.
The key advantage to learning law in these terms is that we can develop intuitions and arguments about what the law should be based on the qualities of the institution at hand. For example, individuals typically act in their own self-interest. If we’re going to allow them to make a law that binds others, we should probably only do so if all those others consent. And, indeed, the basic structural provision of what I call the Constitutional Law of Contracts is consent: that a privately made law may only come from a unanimous private group containing all those who would be bound. Public agents are expected, in contrast, to act in the public interest. And our secondary rules governing the public making of law are tuned to trying to ensure good agency (by looking to see that proper and usually detailed procedures were followed and scrutinizing more closely than we do with contracts the fit of a law with our more basic norms - freedom of speech and equality, e.g.).
Importantly, we now have in hand a map of the legal system, Contract, Tort, Criminal Law, governed by Constitutional Law and Procedure. We’re going to need to go over some examples to see how the public or private identity of the institution plays a primary role in the content of Constitutional Law and Procedure. That will give us an abstract understanding of legal systems, a set of expectations about how laws are probably made and governed.
Then, we can begin to look at how our system, in particular, is constituted. What are the public institutions? What kinds of legal information does each produce, and how does information flow among institutions?
Once you know these things, you’ll be able to take a dispute or an issue and know where to look and how to think about what the law is and what the law should be. Should we leave this issue to parties to contract over? Should we pass a law that creates rights to sue? Should we create a criminal law? What kinds of sanctions should there be? If you know what the law should be, then, because the law very often is what you think it should be, you’ll know where to find it and how to argue about it.
And finally, in this series, we’ll take a tour through the various “tools” deployed in legal arguments — principles like precedent, economic efficiency, justice, and the like. But for now, whew, thanks for staying with me.