The American Legal System

Introduction

In the United States, the two prominent theories about the underlying purpose of law are consensus theory and conflict theory. The basic purpose of our legal system is to ensure fairness in balancing individual and social rights and needs, while preventing excessive government power. This balance between individual and social rights and needs is represented by the scales of justice.

Is the American Legal System Fair?

Our legal system has its roots in the common law of England, the early English judge-made law, based on custom and tradition that was followed throughout the country. As a term in American law, common law is synonymous with case law. Inherent in the common law was the principle of stare decisis. Stare decisis requires that precedent set in one case be followed in all cases having similar circumstances, thus assuring consistency in the law.

The Constitution ensures individual rights by limiting government power. And although the law, in fairness, must be consistent, it is also flexible. American lae is considered a living law because it can change along with society. In addition to common law, our legal system also relies upon case lae, statutory law-that is, law passed by legislature or governing bodies-and constitutional law.

Our legal system categorizes offenses into two specific areas: civil and criminal. Civil laws deal with personal matters and wrongs against individuals-called torts. Criminal law deal with wrongs against society-called crimes. An act may be both a tort and a crime.

David Cole wrote, "Our criminal justice system affirmatively depends on inequality" (Hart, 19). Cole has substantial grounds for making this statement. Race and class have long been issues in the criminal justice system, but does the system "affirmatively depend on inequality?" Does the criminal justice system depend on the disparities of the people that it serves. The case of Gideon v. Wainwright can be used to illustrate this point. Cole summarizes the case:

Clarence Earl Gideon, a penniless Florida man, down on his luck and charged with breaking and entering a poolroom, claims that although he can't afford a layer, he has a constitutional right to have a lawyer appointed by the state to defend him. When the Florida trial court denies his request, [Gideon] represents himself, and is convicted. From prison, [Gideon] sends a hand-written note to the Supreme Court asking it to hear his case. ... (Llewellyn, 87) argues Gideon's case, and then [the Court] rules that the ...