Chapter I INTRODUCTION

In order to understand the American legal system, one must first come to terms with the question: What is law? Americans have always had ambivalent feelings about law. Our rhetoric is full of noble ideals such as “equal justice under law” and the “rule of law.” We pride ourselves on having a “government of laws, not men,” and on the assertion that “no one is above the law.” At the same time, disregard for the rule of law has been part of our political tradition. We are a nation born of violent revolution, and during our frontier period vigilante groups often took the law into their own hands. Even in our own time we debate the role of civil disobedience i.n the civil rights, animal rights, abortion, and antinuclear movements. Civil disobedience is the belief that a person has a moral right to disregard an unjust law. In our own time the debate over the role of civil disobedience continues. In the 1960s, the radical left believed ending the war in Vietnam or achieving civil rights for African Americans justified the use of violence. In the 1990s, the radical right used similar arguments to justify violence against abortion clinics. Some paramilitary militia groups even challenged the legitimacy of the government itself.

In many ways the questions we ask ourselves about the nature of law are the same ones we ask about our political system and about society at large. How do we account for the conflicting attitudes Americans have toward law? How can persons who are law abiding one minute turn into a lynch mob the next? How can a nation founded on the basis of its citizens’ “inalienable rights” systematically deny those rights to African Americans and other minorities? How can we explain these contradictions? The answers to these questions are not easy, but we can begin to understand the paradox by understanding the nature of law both in general terms and in American society specifically.

In this chapter we will focus on several aspects of law in the United States. First, we will examine the functions of law in society. Second, we will discuss the source of law in society in order to help us understand why people do or do not obey the law. Next we will define the different kinds of law in our legal system, with examples of the various forms the law takes. Finally, we will conclude with a case study of Bob Jones University v. United States, which illustrates a number of the chapter’s major points.

FUNCTIONS OF LAW IN SOCIETY

Society tends to place far too much emphasis on the negative aspects of law. Many view the law as a list of things they are forbidden to do. Perhaps this attitude is only natural, given our socialization. As children we were continually told, “Don’t do this” and “Don’t touch that,” so it is understandable that our first contact with authority has negative connotations. Law, like the restrictions placed on us by our parents, defines the boundaries of acceptable and unacceptable behavior. But law is more than just a list of forbidden activities; it touches every aspect of our lives and should be viewed as a positive force. Following are some of the functions of law in our society.

Law bestows benefits on people. One of the positive aspects of law that perhaps we seldom consider is that it bestows benefits upon people. Government, no matter what its form, uses its law-making power to determine who receives certain benefits and who does not. Laws deciding eligibility for programs like Social Security, food stamps, unemployment compensation, and veterans, benefits are just a few examples; laws determining who may operate an automobile, practice law, sell real estate, or receive tax deductions are some others. Law is thus closely connected to the political system since it is government that determines “who gets what, when, and how.” The law becomes a major concern of interest groups who try to secure the passage of lows beneficial to them while blocking the passage of those that harm their interests. Finally, it is the government’s ability to meet the demands of interest groups and its fairness in allocating benefits that provide an important measure of governmental effectiveness.

Law reflects society’s values. Interest groups do not use the law just to promote their selfish economic interests. Law has important symbolic value in our society. Interest groups, like pro-life and pro-choice groups, want the law to promote certain values that they cherish in society. This is why some people and groups are willing to work to promote school prayer, ban flag desecration, and punish homosexuality. It is why others are equally willing to push for separation of church and state, freedom of expression, and tolerance of individual lifestyles. People on both sides of a controversial issue believe it is important for the law to reflect the correct view - which, of course, means their personal view of public policy. This eagerness of groups to see their views reflected in the nation’s laws occupies the major portion of political debate in a country.

Law creates new programs. The next function of law is closely related to a previous one. Government, by passing laws that bestow benefits, must create both new programs and the bureaucracies to administer them. Programs such as flood control, crop insurance, welfare benefits, and highway construction by their very nature benefit people in varying degrees. Some programs, like highway construction and flood control, are seemingly for the general welfare but also bestow benefits (like big profits) on highway contractors and insurance companies. Battles between the president and Congress over the nation’s budget are actually struggles over the funding levels of new and existing programs that have been created by the government.

Law proscribes certain activities. As we have noted, most of our thinking about law centers around what we may not do. Law forbids behavior that causes harm to other people or to their property. Some behavior is termed malum in se, or “wrong in itself.” Consequently, the law forbids murder, rape, arson, theft, and other forms of antisocial behavior. There are also laws banning activities that, while not harmful in themselves, are forbidden simply because society disapproves of them. Neither parking in a “no parking” zone nor letting the meter expire is really wrong in itself, but both are against the law. These are examples of malum prohibitum - acts that are wrong merely because they have been prohibited by government. Finally, some forms of behavior - such as gambling, prostitution, physician-assisted suicide, or homosexual activities - are debatable as to whether they are wrong in themselves or simply wrong because a majority in society thinks they should be prohibited. In any case, it is only by banning and punishing certain activities that people can live together in society in relative harmony.

Law provides predictability. One final faction of law is to provide a measure of predictability so that we can conduct our affairs with some certainty. Contract law is a good example of law fulfilling the need for predictability; without contracts enforceable in courts, businesspersons could not conduct their affairs. We also seek predictability because we want some assurance that those in power will not act arbitrarily. One element of due process is the requirement that a law forbidding an activity cannot be void for vagueness.” Some Supreme Court justices, for example, have expressed concern over upholding pornography laws when the Court itself has such difficulty defining pornography. Lawyers want some assurance that the law governing the outcome of yesterday’s cases will serve as guideposts for today’s decisions and tomorrow’s cases. That assurance is why lawyers so eagerly look for precedents, cases previously decided, when presenting cases. Lawyers hope that such precedents will help guide the judge’s decision and make the outcome more predictable.

Despite the comforting assurances of predictability that we seek in the law, there is, paradoxically, unpredictability as well. Professor Lief Carter reminds us that if law always predicted the outcome of disputes, people would never go to court. When the law fails to predict the outcome of a dispute and both sides believe they have a chance to win, lawsuits follow. Carter notes that the use of ambiguous wording in statutes and court opinions is one reason for the unpredictability of law. Phrases such as “due process of law” and “beyond a reasonable doubt” illustrate the ambiguity of the language of law.

These functions of law give us some clues about the nature of law by making us aware of its purpose for a society. Law can be seen as a battle for scarce resources, as a way of organizing society, or as a source of predictability and stability. But understanding the functions of law in society is not enough. Another important aspect of law is the source of law in a society. We now turn our attention toward understanding why people obey the law.