American Law Paper

Question

American Legal Culture

What is American legal culture? How does it shape the legal system of this country? What, according to Lawrence Friedman and Robert Kagan, are the strengths and weaknesses of American legal culture?
In order to demonstrate your understanding, you must make reference to our course readings, define your concepts clearly, and back up your arguments with examples. Don’t expect to find the “right” answer here, but strive to offer a “good” answer—what I ask is that you try to be as thoughtful as possible. Every answer will need to bring in course readings, and the best answers will make use of a variety, of course, materials in a relevant and interesting manner. The use of relevant case judgments is encouraged. The purpose of this assignment is to test how well you understand and apply the concepts discussed in class and in the readings. So, essays that merely express your personal opinions and do not cite the readings will not be acceptable. Your answer will be evaluated on the basis of three basic criteria: clarity, comprehensiveness, and insight.

Answer

Title: American Legal Culture

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The modern American law is founded on a culture that emphasizes the need to uphold integrity. In efforts to uphold the institutional integrity of the institution of law, the American society has been nurturing and upholding a culture where formal justice that involves procedures and means, is taking the place of substantive justice, which largely dwells on moral values. The formative element in American law takes the shape of the country’s general legal culture. This general culture is best defined with reference to the values and attitudes that are held by the people who exert implicit or explicit pressure on the system. This essay highlights the ways in which the American legal culture shapes the legal system of the country. The strengths and weaknesses of the American legal culture, according to Robert Kagan and Lawrence Friedman, are also explored.

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Friedman notes that legal culture has been discussed in an extremely general way, mainly in isolation from economic status, political culture, and general social context (98). However, in real life, such isolation does not exist; legal culture remains an integral part of the American general culture. Moreover, in every society, opinions and ideas tend to come in clusters, that is, a person’s stance on a few issues relating to the law can be used to predict with reasonable accuracy his stance on many other issues.

Friedman puts the American legal culture into even sharper perspective by giving examples of categorizations containing names such as political liberals, educational conservatives, economic conservatives, and social liberals (98). Some clusters are found more in protestant conservatives than in Catholic ones, while others are more commonly found in black liberals compared to white ones.

The same thing can be said of opinions and attitudes regarding law. In Friedman’s observation, there are, within the American legal culture, many cultures, for example, legal liberals, legal conservatives and all types of subgroups and variants (32). Within particular groups, the legal culture consists of specific attitudes which, however, tend to cohere, to stick together, forming clusters of related attitudes.

Friedman also uses the paradoxical notions of individualism and conformity in describing the American legal culture (100). The common opinion in American society indicates that we live in the age of conformity, an age when people are ‘other-directed’. The individualistic man lived in the 19th century, says Friedman (100). However, Friedman is quick to point out that the terms ‘individualistic’ and ‘conformity’ are ‘slippery’ words since every person is an individual and everyone is a conformist (100). Friedman says that there is evidence, for instance, to suggest that the society, in its entirety, became more ‘civilized’ during the 19th century; there is evidence to show that serious crime probably declined sharply and sexual morality changed during this century (100).

In modern society, observes Friedman, people must depend on strangers’ behaviors, whereby the expect reciprocity that they are not able to enforce on their own (1588). From this state of affairs, comes the type of collective decision that the state and the law must intervene as the main generalized third parties. It is only the law that can enforce the other side of bargains in an efficient manner. One of the reflections of modern individualism in the American legal culture is inequality. The impact of this on how the law addresses sexual morality is obvious. It also affects the working meaning of key concepts in the American legal culture.

The concept of equality has changed a lot in line with the transformations that have continually been taking place in American society since the 1900s. During 1800 and 1900, the US was essentially a ‘free’ country, complete with mass political participation, where people were proud of their democratic institutions. Ironically, though, there were many obvious ways in which legal equality remained severely limited. In 1850, for example, it was only a white adult male who could vote for someone into public office or hold such an office. The rights of women were extremely limited in society, and the married ones were largely handicapped by the law. For the black population, the situation was even worse. Most southern blacks were living in the enslavement while those in the north were freed slaves, without votes and profoundly despised.

Only a century ago, the majority of Americans professed a strong belief in equality before the law. However, notes Friedman, the main weakness of the legal culture were the fact that social norms, as well as the law, defined equality differently from the existing definition. ‘Immutable’ and inborn characters were an integral part of an individual’s fate (109). They were a part of the package that was delivered by birth, destiny, and luck. Nobody could expect total justice; race, ethnicity, religion, and sex were an integral part of justice. Today, race, sex, and ethnicity continue to be felt within the justice system, although many people hold the opinion that no one should suffer any form of injustice on account of possessing these traits. Friedman thinks that the doctrine that ‘immutable’ issues ought to be legally irrelevant appears to have been raised to the level of a constitutional principle and then recast in a way that makes the injustice of the older view be amazingly apparent (63).

According to Kagan, the United States possesses a unique legal culture (7). The legal culture of the country is unique compared to that of other developed democracy. The uniqueness of the American legal culture is documented in the accumulating body of cross-national studies. Each of these studies highlights particular areas of law, social problem-solving approaches or public policy in comparison to the corresponding situation in another economically advanced democracy.

The American legal culture has been seen to be distinctively effective in solving social problems through the implementation of public policy and dispute resolution. Moreover, the culture is advantageous in the sense that it contains complex, highly formalized, adversarial procedures for resolution of scientific and political disputes. On the side of weaknesses, the forms of contestation that exist in this system are exceedingly costly. On the positive side, the legal sanctions imposed are remarkably punitive. Other characteristics of the American legal culture include more political controversy concerning legal institutions and rules, and more frequent judicial review of as well as an intervention into various administrative processes and decisions. Moreover, in the US, there is a markedly higher level of legal uncertainty and instability.

The United States has the largest cadre of ‘cause lawyers’ in the world. These lawyers often seek to influence institutional practices and public policy through innovative litigation. Here, lawyers are highly entrepreneurial in efforts to seek new kinds of business, they are eager to challenge authority, and they are also quick to give proposals for new liability – by expanding the existing legal theories. Kagan observes that these elements of the American legal culture are inherent if one considers the recent most highly publicized legal arguments, such as the multi-court battle votes in Florida’s 2000 elections, impeachment proceedings against President Bill Clinton, and the antitrust case against Microsoft (9).

In summary, both Friedman and Kagan describe the American legal culture in both positive and negative light, in terms of both strengths and weaknesses, although both of them agree that it is costly, technical and complex. For Friedman, it is defined in terms of legal individualism and choice culture while for Kagan, it is defined in terms of being litigious and adversarial. For Friedman, freedom is a crucial value in a pluralistic society, while Kagan views it merely as a political tool. For Friedman, the legal culture creates tensions with traditional institutions while for Kagan, the main weakness of the culture is its potential to be inconsistent and to cause injustice.

Works Cited

Friedman, Lawrence. The Republic of choice: Law, authority, and culture, Boston: President and Fellows of Harvard College, 1990.

Friedman, Lawrence. “Law, Lawyers, and Popular Culture”, The Yale Law Journal, 98.8 (1989): 1579-1606.

Friedman, Lawrence. Total Justice, New York: Russell Sage Foundation, 1985.

Friedman, Lawrence. “Legal Culture and Social Development”, Law & Society Review, 4. 1(1969): 29-44.

Kagan, Robert. Adversarial Legalism: The American Way of Law, Boston: Harvard University Press, 2001.

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