Constitution and Legal Positivism The Structure and Sources of Law

Introduction: The Structure and Sources of Law

The American government comprises three distinct branches at the state and federal levels: the legislative, judicial, and executive. Each branch contributes to creating laws within its jurisdiction, forming different types of legal rules, commonly known as “sources of law” (Mckinsey and Burke, 2023). The legislative branch enacts statutes, the judicial branch issues judicial opinions, and the executive branch drafts regulations. Constitutions, however, serve as the foundation for all other sources of law and are considered the supreme source of law.

Constitutions and Legal Positivism

The United States’ legal system is often characterized as a legally positivist system. Legal positivism is a jurisprudence theory stating that all laws are man-made and only considered valid in a state because people accept them (Mckinsey and Burke, 2023). In his Influential Work, the Concept of Law, H. L. A. Hart, a prominent British legal philosopher, provided a clear explanation of legal positivism.

Hart’s theory of legal positivism includes the concept of a “rule of recognition,” which signifies the validity of laws within a jurisdiction (Mckinsey and Burke, 2023). In the United States, the federal government’s rule of recognition is the U.S. Constitution, while state constitutions serve the same purpose for their respective state governments. Constitutions obtain their authority from the people’s will and acceptance, making them the ultimate source of law for American legal researchers.

Constitutions also define the processes by which governments create other sources of law. They divide American governments into three distinct branches and provide each branch with a method for creating legal rules (Mckinsey and Burke, 2023).

Statutes and the Legislative Process

According to the American Separation of Powers system, as outlined by various constitutions, the legislative branch creates statutes. Generally, a legislator introduces a bill into their respective legislative house, and once it passes both houses and receives the chief executive’s signature, it becomes an enacted law (Mckinsey and Burke, 2023).

The legislative branch, or Congress, comprises the House of Representatives and the Senate at the federal level. Bills that pass both houses and receive the President’s signature become “Public Laws,” published in a multi-volume set called the Statutes at Large by the Government Publishing Office (GPO). The GPO also organizes Public Laws by topic, incorporating them into a topically-organized publication of all federal laws in force called the United States Code (Mckinsey and Burke, 2023).

State legislatures follow a similar process as the federal legislature, though the terminology may differ. For example, in Kentucky, the General Assembly, consisting of the Senate and the House of Representatives, enacts bills into Acts. Researchers can find these Acts in chronological order in the Kentucky Acts or the topically-organized Kentucky Revised Statutes. In Texas, bills that pass both houses become General Laws published in the Texas General Laws before being integrated into various codes based on their respective topics (Mckinsey and Burke, 2023).

As constitutions grant legislative branches general law-making powers, statutes represent laws in their most fundamental sense. Therefore, they are the second most important source of law after constitutions and typically take precedence over other sources of law in resolving legal issues (Mckinsey and Burke, 2023).

Judicial Interpretations

In many legal disputes, it may not be immediately clear how a specific statute applies to a particular set of facts or whether it is even applicable. This uncertainty arises because legislatures tend to draft statutes using broad, abstract language, allowing the statute to encompass a wide range of situations. As a result, these abstract statutes often need interpretation for their application to specific disputes. In line with the principle of the Separation of Powers, the judiciary assumes the responsibility of interpreting laws (Mckinsey and Burke, 2023).

The judicial system usually consists of multiple layers of courts, including a supreme court at the top, trial courts at the base, and one or more intermediate appellate courts in between. These court names differ across jurisdictions. For instance, at the federal level in the United States, the Supreme Court serves as the highest court, District Courts act as the entry points, and Courts of Appeal (or Circuit Courts) bridge the gap. Constitutional provisions generally grant judicial authority to the entire court system (Mckinsey and Burke, 2023).

Judicial interpretations take the form of judicial opinions or cases. Although subordinate to the statutes they interpret, judicial opinions establish their own legal rules through the power of precedent. Precedent operates on stare decisis, meaning a court must adhere to previous judicial decisions when the same issues arise in future litigation (Mckinsey and Burke, 2023).

Consistency in the law allows those governed to anticipate the actions required for compliance. Adhering to previous decisions as precedents fosters increased consistency. When courts consistently interpret a statute in a certain manner, it benefits society for them to maintain that interpretation (Mckinsey and Burke, 2023).

Occasionally, judicial opinions establish legal rules through precedent, even in the absence of a statute. This often occurs when courts interpret constitutional provisions or apply legal rules predating widespread statute use. “common law” refers to the law established through judicial opinions rather than statutes. Numerous common law rules remain in force in American law, especially in Torts and Property (Mckinsey and Burke, 2023).

Hence, through the power of precedent, judicial opinions contribute legal rules to the various branches of American law via statutory interpretation and common law. Many attorneys devote much of their research efforts to case research (Mckinsey and Burke, 2023).