2.3 Legal actors
The US Constitution adopted Montesquieu’s concept of the separation of
powers, and distinguishes among executive, legislative and judicial functions. Yet, while in Montesquieu’s conception different institutions perform
the neatly separated executive, legislative and judicial functions, the US
Constitution, fuelled by mistrust in government, establishes an elaborate
system of checks and balances of institutions upon each other, under which
no single institution should be able to have too much power, and compromises are necessary. This is true between the branches of government, but
also within each of them. Thus the most important executive position in
the federal government is held by the President
, yet numerous administrative agencies perform executive functions often in considerable autonomy.
The legislative function is allocated to the Congress, which consists of two
chambers: the Senate and the House of Representatives. The Senate is
made up of two senators from each state, no matter how big or small, while
the House represents voters from each constituency more or less equally.
However, so-called gerrymandering, creative redistricting typically implemented by the majority distorts results to a degree unknown in Europe.
Finally, the judiciary consists, on the federal level, of judges appointed by
the President for life, and allocated to three levels of courts: district courts,
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courts of appeals and the Supreme Court. While the state constitutions
differ, sometimes considerably,
from the US Constitution (which some of
them predate), the same approach can generally be found there; judges,
however, are often elected by the public.
The system of checks and balances has two important consequences.
First, the government speaks with many voices, which makes it weaker than
the sum of its powers should suggest. Second, law, especially public law, is
not a rational system of substantive rules, but more a procedure for a constant power struggle (or the outcome of such struggles), not only between
the federal government and the states, but also within each of these systems.
This has spurred an emphasis on process instead of substance. Government
is restrained by procedure and by the system of checks and balances, not
so much by substantive constitutional law.
2.4 Legal style
Legal style and legal method in the United States are different from those
in other countries, even common law countries (Atiyah & Summers, 1991).
On the one hand, especially in statutory and constitutional interpretation,
there is still a remarkable degree of textualism and formalism reminiscent
of European law in the 19th century. There are two reasons. First, the judge
is not supposed to implement the will of the legislator (although, somewhat
paradoxically, many oppose the use of legislative materials). This resembles
the otherwise rejected concept of the judge as ‘mouth of the law’. Second,
legislation often represents a compromise as the result of hard bargaining,
judges should not second-guess such a compromise to reach seemingly
more rational results. This judicial restraint may also explain why proportionality tests are relatively unpopular, not only in criminal law, where punishment is often unusually harsh, but also in other areas, where balancing
is considered inappropriate for judges. On the other hand in case law, US
law and legal thought have, perhaps more radically than most other legal
systems, rejected a formalism that was still en vogue in the 19th century, and
have supplemented it with open policy considerations to an extent
unknown in most European legal systems. Law is not usually understood
as a coherent and systematic whole, but rather as a hodgepodge of court
decisions and statutes;
therefore systematic arguments carry little weight,
and legal reasoning is both more case-specific and more inductive than in
Continental European systems. Americans doubt that there is ‘one right
answer’ to every case that can somehow be distilled from the legal system
as a whole: court decisions are the result of the better argument made by
the winning party, not by logical deductions from a coherent system of law.
A consequence of the political substance of the law, and of the fact that
law is the fruit of political determination rather than of systematic and
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neutral goals, is that law often embodies either extreme positions or ad hoc
compromises. For example, positions on abortion (both by individuals and
by lawmakers) have always been either ‘pro choice’ or ‘pro life’; compromises seem harder to achieve than in other countries (Glendon, 1987).
Homosexuality sees similar extremes: in the same year (2003), Texas still
criminalized homosexual conduct (overturned by the US Supreme Court
in Lawrence v. Texas), while in Massachusetts homosexuals attained the
right to marry, because anything short of that would have been a violation
of equal protection rights. The middle ground of registered partnerships
seems unattractive to both sides in the debate. While such oscillation
between extremes may look unattractive in the short run, the upside is that
US law has traditionally been more open to change and reform than either
English common law or continental European law. Bad laws may be frequent, but a process of trial and error keeps their detrimental effects to a
minimum, and the US is quicker than others to change its law.
