The U.S. Legal System and Its Lawmaking Institutions

The most efficient way to research the law is to understand that all positive (man-made) law has both an abstract and a concrete aspect. Understanding this dual nature of the U.S. law helps you understand how to best research it. Usually, you come in touch with this dual nature of American law when you study how law (legal norms) steers political power into achieving concrete results.
You also come in contact with both the concrete and the abstract facet of the law when you study individual rights. From a conceptual standpoint, individual rights can be viewed as powers of law conferred on the individual by the legal order through concrete legal norms, such as statutes or court decisions. Those rights and the norms that confer them will inherently mirror the fundamental values of each society. Some individual rights are common to all societies (and legal systems) that have a similar cultural tradition, such as private property rights are common in all societies today. Other individual rights are more contingent culturally. The individual right to health care or euthanasia are among such specific rights, as are such individual entitlements as welfare.
From a pragmatic point of view, individual rights go beyond their power of symbolism of empowerment. Rights are what you can do with them. For a member of the upper class, property rights surely have the making of a fundamental right. For a member of the underclass, expectedly so, things are totally different; and property rights will have lesser value. Nevertheless, discussing rights would be an abstract exercise, while locating the legal norms – statutes, or cases – which establish those rights is a legal research exercise which requires you to understand the government institutions which make the respective norms.Here is in brief how the law-making institutions function.


The U.S. legal system belongs to the common law tradition and it shares its principles and the core of its legal norms with the other common law systems. It is a development of the old English common law, which Beryl Harold Levy, aptly described as “the cumulative rules about law as expressed and altered from case to case, from precedent to precedent” (1991). This official use of cases from precedent to precedent distinguishes it from the other legal systems, such as those that belong to the civil law tradition. Those officially deny any precendential value to court cases and theoretically rely only on parliamentary laws, usually collected in codes. Moreover, our sole reliance on laws whose majority come from different governmental lawmaking institutions, distinguishes our common law tradition-as well as the civil law one-from the various Islamic legal systems whose principal source of law is the Koran, or “the word of God as given to the Prophet,” as Steven Vago explained in Law and Society (1997).

As you know, there are major differences among the legal systems that belong to the different traditions mentioned above. Additionally, differences can also be found between the American and the English system, despite their common law roots. For example, England has no written Constitution and, after the Glorious Revolution of 1688, the English Parliament became and has remained the supreme lawmaking institution in England, and it has been its duty to respect the inalienable rights of the individual. The United States has a written Constitution, which arguably divided the lawmaking duties among the three branches of the government, but it is through sheer common law precedent that we have established the Supreme Court as the supreme lawmaking institution in the United States. In the 19th century, in the famous case of //Marbury v. Madison//, 5 U.S. 137 (1863), Chief Justice Marshall established the Court’s prerogative-with regard to both statutes and case law-of declaring what constitutes binding law in the United States.

Within the same system, there are various legal norms. Some are called substantive because they are perceived as substantially governing our behavior.

Substantive laws are supposed to tell us what our rights and duties are, and we are expected to act accordingly. However, procedural rules do the same thing, with the only difference being that they regulate our behavior vis-à-vis the court system, where we go to protect our rights or clarify our duties. Another distinction has been between laws that govern our behavior vis-à-vis the state (public laws such as constitutional law) and laws that govern our behavior vis-à-vis each other and nongovernmental entities (private corporations). The distinction this book follows is that determined by the source of the legal norm: the lawmaking body that issues it. Statutory law, also known as legislation or “enacted law,” is law made by legislatures. Case law, also known as decisional law or ‘Judge-made” law, is law enacted by judges. Case law usually designates the decisions from intermediate (appellate) courts and courts of last resort. Finally, administrative law covers both rules issued by administrative bodies and decisions reached by them.

The next section will cover the American lawmaking bodies both at the federal and state level. It will provide you with the fundamental legal research terminology you need to understand how specific types of legal norms are created, how you can locate them, and, of course, how you can be sure that what you have located is still binding (good) law.
Generally speaking, the U.S. court system is divided into federal and state courts.13 For a comprehensive view of the judiciary, see http://wlwatch.westlaw.com/aca/west/images/uscrtsys.gif.

external image uscrtsys.gif
Both at the federal and state level, the court system is structured hierarchically. At a minimum, it comprises two types of courts: trial courts and courts of appeal. These are courts of general jurisdiction and can hear any type of case or dispute between two parties. Their responsibility is to explain and interpret the laws and thus solve the litigants’ claims on the rights guaranteed to them in the Constitution and by law.


The Lawmaking Branches of the Government

Federal and State Legislatures

Federal and State Courts

The Executive Branch. Independent Administrative Agencies