Origins and Characteristics of the Law and Legal Systems in the U.S. The Origins and Characteristics of the Law

and Legal Systems in the United States

The origins and characteristics of the law and legal systems of the United States

It is a commonplace observation to state that the Declaration of Independence and The Constitution of the U.S. are the origin of and provide the characteristics of the legal systems of the U.S. But in order to truly understand the ideas behind these landmark legal documents one must delve deeper into history. What of the texts that influenced America's Founding Fathers? Most may know that the Magna Charta, the English charter from the year 1215, was an influence. But the English weren't the only influential opinion-makers for revolutionary Americans. The Scottish and the French were too. The Scottish Declaration of Arbroath, for example, has been linked by scholars as an influence on Thomas Jefferson, one of the primary authors of the Declaration of Independence. The democratic ideal of gaining the "consent of the governed" to make a government legitimate can be traced to the Medieval scholar John Duns Scotus by other scholars. The French Englightenment thinker, Charles-Louis de Secondat, baron de La Brede et de Montesquieu, author of The Sprit of the Laws, a favorite of many of the founders, was also a major influence.

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"But what do we mean by the American Revolution? Do we mean the American war? The Revolution was effected before the war commenced. The Revolution was in the minds and hearts of the people." -- John Adams

It is a commonplace observation to state that the Declaration of Independence and The Constitution of the U.S. are the origin of and provide the characteristics of the legal systems of the U.S. But in order to truly understand the ideas behind these landmark legal documents one must delve deeper into history. What of the texts that influenced America's Founding Fathers? Most may know that the Magna Charta, the English charter from the year 1215, was an influence. But the English weren't the only influential opinion-makers for revolutionary Americans. The Scottish and the French were too. The Scottish Declaration of Arbroath, for example, has been linked by scholars as an influence on Thomas Jefferson, one of the primary authors of the Declaration of Independence. The democratic ideal of gaining the "consent of the governed" to make a government legitimate can be traced to the Medieval scholar John Duns Scotus by other scholars. The French Englightenment thinker, Charles-Louis de Secondat, baron de La Brede et de Montesquieu, author of The Sprit of the Laws, a favorite of many of the founders, was also a major influence.

1. Discuss how modern law evolved from English common law.

One of the drivers of the Revolution, and thus of American law and jurisprudence, was John Adams. He attended Harvard College, thinking he would be a minister. But when he graduated he gravitated to the law. He studied under Worcester lawyer John Putnam for two years, from 1756 to 1758, and apprenticed to be an attorney. Putnam charged him a fee of $100, payable whenever he could find it "convenient."

"He read law at night moving fast -- not too fast, he later thought -- through Wood's four-volume Institute of the Laws of England, Hawkins's Abdrigment of Coke's Institutes, Salkheld's hefty Reports, Coke's Entries, and Hawkins' massive, two-volume, Pleas of the Crown," writes historian David McCullough in his Pulitzer Prize winning book, John Adams (Simon & Schuster, 2001). "Can you imagine any drier reading?' he would one day write to Benjamin Rush, heavily underscoring the question."

After completing his studies, he returned home to Braintree, Mass., and moved in with his parents, as he completed his final studies for the bar examination. "I've read Gilbert's first section of feuds, this evening, but I am not master of it,' he recorded in his diary on Oct. 5, 1758, referring to Sir Geoffrey Gilbert's Treatise on Feudal Tenures," writes McCullough. "Rose about sunrise. Translated Justinian."

Justinian was a Roman emperor in late antiquity (483-565 A.D.). He is most famous for his judicial reforms, including a complete rewrite of the Roman legal code. The most famous works of the emperor include the Codex Justinianus, the Digesta or Pandectae, the Institutiones, and the Novellae.

Founding Fathers who were also lawyers -- Thomas Jefferson and James Madison, who attended the College of William & Mary in Williamsburg -- also read law for the bar, down the coast, in their native Virginia. They would have read similar books as part of their studies, for they considered themselves Englishmen initially, like most other colonists, before the Revolution.

"I rejoiced that I was an Englishman and gloried in the name of Britain," writes McCullough, of a letter that Adams wrote to a friend.

So it is clear from the historian McCullough that English law, and even ancient Roman law, had an impact on the thinking of the founders. English law is clearly one of the sources of American law and the American legal system, and helped shape the characteristics of that system. So was Roman law. Other sources note this as well, including Law in America: A short history by Lawrence M. Friedman...

Problems in Contract Law by Knapp, Crystal, and Prince (2007, 6th edition, Aspen Publishers), Prosser, Wade and Schwartz's Torts (2005 by Foundation Press), Modern Criminal Law by Wayne R. LaFave, (4th edition, 2006 Thomson West), and Law 101 by Brien Roche (2009, Sphinx Publishing).
2. Discuss the Constitutions and the Codes of the U.S. As well as the functions and fields of the system of law of the U.S.

But there were other influences as well which led to the Declaration of Independence and the Constitution. Scottish culture and myths and writers also made a contribution to the characteristics of the America, perhaps inspiring its revolutionary spirit.

"William Wallace (1270-1305 A.D.), played by Mel Gibson in the movie, Braveheart, is often seen as an isolated rebel or even a fictional character. Yet, the historical William Wallace was a representative of the spiritual and intellectual forces of Scotland, particularly the writings of John Duns Scotus (1265-1308 A.D.) and the radical political thought of the ancient Celts and the individualism of Celtic Christianity," write legal scholars Robert Munro and Alexander Leslie Klieforth in their breakthrough book, The Scottish Invention of America, Democracy and Human Rights (2004, University Press of America.)

The authors state that Scotus was the first to write of the consent of the governed' in his Ordinatio (c.1290s) that quickly became known in Scotland and was the intellectual and spiritual foundation of Wallace's rebellion (c.1297-1305) and the Scottish Declaration of Independence (1320).

What's more, Scotus' theory of human society, centered on the ancient Celtic traditions, was to revolutionize the thought and practice of the Western world.

"The democratic revolution that began in Celtic Europe and Scotland was the mightiest revolution in the history of the world," write Munro and Klieforth. "Anglocentric historians failed to realize that the liberty of John Locke and the English Whigs (1660s) descended from the ancient Celts and Scotus through the Scots, Mair, Buchanan, Knox and Hutcheson and then spread through the Scottish Enlightenment thinkers to the American founding fathers. Thus, they were not able to explain the Celtic-Scottish "revolution principles" of the Founding Fathers by references to the theory of Locke and the Whigs which was fundamentally a conservative, "evolutionary" philosophy.Scotus's theory as expressed in the Scottish Declaration of Independence of 1320 was the intellectual foundation of the American Revolution and the Declaration of Independence of 1776."

Gary Wills' book Inventing America (1978) did locate the source of some of the intellectual thought of Jefferson's contribution to the Declaration of Independence in the Scottish Enlightenment.

"Wills failed to place this historical connection in the larger context of ancient Celtic and medieval Scottish history and to mention the Declaration of Arbroath and the critical role of Scotus," write Munro and Klieforth.

Another influence on the founders -- one who, perhaps more than any other influence, influenced America's system of separation of powers was Charles-Louis de Secondat, baron de La Brede et de Montesquieu, author of The Sprit of the Laws, a favorite of many of the founders.

Historian Thomas Pangle, author of Montesquieu's Philosophy of Liberalism (University of Chicago Press, 1989) demonstrates that Montesquieu was the most often cited authority on government and politics in colonial pre-revolutionary British America, quoted more by the American founders than any source save for the Bible.

According to Pangle, after the American secession, Montesquieu's work remained a powerful influence on many of the America's founders, particularly James Madison, known to history as the true "Father of the Constitution." Pangle writes that Montesquieu's philosophy that "government should be set up so that no man need be afraid of another" instilled in Madison and others the idea that a free and stable foundation for the new national government required a clearly defined and balanced separation of powers.

That's why today America has a federalist system of government. Power is divided. The federal government has three branches: the Executive, the Judicial and the…