Origins and Characteristics of U.S. Law and Legal Systems

Introduction: Deeper Roots of American Law

"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 United States 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 Carta, the English charter from the year 1215, was an influence. But the English were not 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 to 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, according to other scholars. The French Enlightenment thinker Charles-Louis de Secondat, baron de La Brède et de Montesquieu, author of The Spirit of the Laws — a favorite of many of the founders — was also a major influence.

English Common Law and Roman Legal Tradition

One of the drivers of the Revolution, and thus of American law and jurisprudence, was John Adams. He attended college thinking he would become a minister, but after graduating he gravitated toward 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 Abridgment of Coke's Institutes, Salkeld's hefty Reports, Coke's Entries, and Hawkins's 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, Adams returned home to Braintree, Massachusetts, and moved in with his parents as he completed his final preparations 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 October 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.), most famous for his judicial reforms, including a complete rewrite of the Roman legal code. His most famous works 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 in their native Virginia. They would have studied similar books, 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," McCullough writes, recounting a letter Adams wrote to a friend.

Scottish Influences on American Revolutionary Thought

It is clear from McCullough's account that English law, and even ancient Roman law, had a significant impact on the thinking of the founders. English law is clearly one of the primary sources of American law and the American legal system, and helped shape the characteristics of that system. So, too, was Roman law. Other sources confirm this, including Law in America: A Short History by Lawrence M. Friedman (2002, Modern Library), Problems in Contract Law by Knapp, Crystal, and Prince (2007, 6th ed., Aspen Publishers), Prosser, Wade and Schwartz's Torts (2005, Foundation Press), Modern Criminal Law by Wayne R. LaFave (4th ed., 2006, Thomson West), and Law 101 by Brien Roche (2009, Sphinx Publishing).

There were other influences as well that led to the Declaration of Independence and the Constitution. Scottish culture, mythology, and writers also made a contribution to the character of 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 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), which quickly became known throughout Scotland and served as the intellectual and spiritual foundation of Wallace's rebellion (c. 1297–1305) and the Scottish Declaration of Independence of 1320. Moreover, Scotus's theory of human society, centered on 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's book Inventing America (1978) did locate the source of some of the intellectual thought in Jefferson's contribution to the Declaration of Independence within 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," however, write Munro and Klieforth.

Conclusion: A Multicultural Legal Foundation

All of these different influences — English common law, Scottish revolutionary rhetoric, Roman law, French Enlightenment philosophy, and the Napoleonic Code — shape the law and legal systems of the United States today. To paraphrase John Adams, cited at the beginning of this paper, the law is in the hearts of the people.