In the eighteenth century, when the legal and regulatory environment of everything was a lot simpler than it is today, the great Irish satirist Jonathan Swift likened laws to cobwebs because they seem to stretch in every direction to catch innocent flies while failing utterly to stop wasps and other creatures responsible for much greater crimes against human comfort. Like George McGovern, many people no doubt find this comparison at least as true today as it was in Swift’s time. After all, in order to be law-abiding innkeepers (or just plain citizens), we must negotiate a vast web of constitutional law, federal law, regulatory law, and state and local law; criminal law, civil law, and common law; substantive law and procedural law; public law and private law; and business law, which includes contract law, product-liability law, patent law, consumer-protection law, environmental law, employment and labor law, insurance law, cyberlaw, agency law, and a host of other forms of law. In fact, being a truly law-abiding citizen is virtually out of the question. According to one estimate, the average American driver deserves ten speeding tickets a day. Other underpenalized violations range from stealing cable TV and scalping tickets to exhibitionism and illegal fishing and hunting (Sexton, 2008).
A System of Rules and Principles
Perhaps, however, we should examine the issue of the laws in our lives from a more positive perspective. As a veteran lawmaker, for example, George McGovern certainly appreciates the value of law, which is basically a body of enforceable rules and principles of conduct. Clearly, his criticisms are directed not at the existence of laws, but rather at certain facets of administrative and statutory law—in particular, the way specific statutes can be applied to the activities of a small business owner in the state of Connecticut. What he calls for, in effect, is a little more flexibility in the enforcement of certain rules and principles.
In a very basic—and very important—sense, McGovern’s point about legal obstacles to daily business-related activities is well taken. In the United States, as in all complex societies, we’ve entrusted the responsibility for adopting and enforcing legal rules and principles to government. In so doing, we’ve approved the formation of a legal system—the institutions and processes that actually enforce our rules and principles (Roszkowski, 2002). That system, like any other, works because its key elements are stable and interact in reliable ways. When it’s applied systematically, in other words, law isn’t always as flexible as it should be in doing what it’s supposed to do—namely, preserving peace and stability so that members of society can pursue their various social and economic activities.
At the same time, however, we should point out that, on a certain level, flexibility is a hallmark of law in the United States. Why do we say “on a certain level”? For one thing, it apparently isn’t sufficiently flexible on the level on which George McGovern was obliged to deal with it. In all probability, a small hotel like the Stratford Inn doesn’t need to meet the same fire regulations as a hotel with 1,500 guest rooms, 100,000 square feet of meeting space, three four-star restaurants, and a five-story parking garage. Laws, however, can’t be written to take care of each and every contingency that arises during the course of life in the real world—the one in which millions of people and organizations are constantly pursuing different social and economic activities. When it comes to law, therefore, we settle for general “rules and principles,” and the key to flexibility in a legal system is flexibility on the level at which rules and principles are applied. In the United States, the legal system evolves to respond to changes in social norms and commercial activities, and through the court system, it’s prepared to address each issue or dispute on its own terms (Cheesman, 2006).
There are, of course, abuses and mistakes by judges and juries, and procedural mishaps occasionally tip the scales of justice in the wrong direction. Sometimes—as in George McGovern’s case—innocent parties are forced to bear the cost of defending themselves in court. On the whole, however, the U.S. legal system is remarkably fair.
The Rule of Law: Predictability and Fairness. How do we know what’s legally “fair” and what isn’t? (Price & Krug, 2000) Granted, depending on who’s enforcing the rules of the game, just about anything can be “fair” and just about anything can be “foul.” Legal tradition in the United States, however, rests on the principle of the rule of law—the principle by which government legitimately exercises its authority only in accordance with publicly declared laws that are adopted and enforced according to established procedure. All members of society know what the laws are and the conditions under which they should be applied. Under the rule of law, then, the legal system establishes the rules of the game, adopting and enforcing them in a reasonably predictable manner.
Unfortunately, the principle of predictability doesn’t in itself guarantee that a legal system is committed to fairness. If, for example, the law allows only certain people to vote—say, property owners—it extends a guarantee of fairness in the electoral process only to property owners. People who don’t own property would have a good reason to complain of social injustice in electoral matters, but only property owners could claim a right to fairness in the courts. Even under the rule of law, therefore, a legal system can achieve a reasonable degree of fairness in any given social or economic activity only if it also guarantees equal treatment of all members of society. Admittedly, the U.S. legal system hasn’t always been successful in guaranteeing equal treatment under the law—the original thirteen states, for example, granted the vote only to white male property owners, and women couldn’t vote in every state until 1920. Since 1868, however, U.S. courts have used the Equal Protection Clause of the Fourteenth Amendment to the Constitution to check a range of potentially discriminatory and unfair actions by governments at every level.
Functions of Law
Laws such as the Equal Protection Clause are designed to serve a general function—namely, the promotion of social justice. This is just one of several primary functions served by law in the United States (Cheesman, 2006):
- Keeping the peace (e.g., designating some activities as crimes—violations of statutes for which the law imposes punishment)
- Shaping moral standards (e.g., laws discouraging such activities as drug or alcohol abuse)
- Promoting social justice (e.g., laws prohibiting discrimination in such areas as voting and employment)
- Maintaining the status quo (e.g., laws preventing the forcible overthrow of the government)
- Facilitating orderly change (e.g., laws and practices requiring public scrutiny of proposed statutes)
- Facilitating planning (e.g., laws that enable businesses to evaluate the risks that they may be taking in a commercial venture)
- Providing a basis for compromise (e.g., laws and practices making it possible to resolve disputes without taking them to trial)
- Maximizing individual freedom (e.g., laws ensuring such rights as freedom of speech and religion)
- Law is a body of enforceable rules and principles of conduct. When we entrust the responsibility for adopting and enforcing legal rules and principles to government, we approve the formation of a legal system—the institutions and processes that actually enforce our laws. That system works because its key elements are stable and interact in reliable ways.
- U.S. legal tradition rests on the principle of the rule of law—the principle by which government legitimately exercises its authority only in accordance with publicly declared laws that are adopted and enforced according to established procedure. Under the rule of law, the legal system adopts and enforces laws in a reasonably predictable manner. The principle of predictability, however, doesn’t in itself guarantee that a legal system is fair. A legal system can achieve a reasonable degree of fairness only if it also guarantees equal treatment of all members of society.
- When it’s applied systematically, law isn’t always as flexible as it should be in preserving the peace and stability that members of society need to pursue their various social and economic activities. But because laws can’t be written to cover each and every contingency, we settle for general “rules and principles.” The key to flexibility in a legal system is flexibility in applying legal rules and principles.
U.S. law serves several primary functions:
- Keeping the peace
- Shaping moral standards
- Promoting social justice
- Maintaining the status quo
- Facilitating orderly change
- Facilitating planning
- Providing a basis for compromise
- Maximizing individual freedom
Individuals in the United States are guaranteed equal treatment under the law. Do you believe that all individuals do in fact receive equal treatment? Support your answer with examples.
Cheesman, H. R., Contemporary Business and Online Commerce Law: Legal, Internet, Ethical, and Global Environments, 5th ed. (Upper Saddle River, NJ: Pearson Education, 2006), 4.
Price, M. E., and Peter Krug, The Enabling Environment for Free and Independent Media (Washington, DC: USAID Center for Democracy and Governance, December 2000), Chapter 3, at http://www.medialaw.ru/e_pages/publications/ee/3.html (accessed November 12, 2011).
Roszkowski, M. E., Business Law: Principles, Cases, and Policy, 5th ed. (Upper Saddle River, NJ: Prentice Hall, 2002), 4.
Sexton, T., “Millions of Americans Break the Law Several Times a Day without Being Punished,” Associated Content, September 9, 2008, http://www.associatedcontent.com/article/979756/millions_of_americans_break_the_law.html (accessed November 12, 2011).