Daily RC Article 40

Legal systems of England and the United States


Paragraph 1

Although the legal systems of England and the United States are superficially similar, they differ profoundly in their approaches to and uses of legal reasons: substantive reasons are more common than formal reasons in the United States, whereas in England the reverse is true.

This distinction reflects a difference in the visions of law that prevail in the two counties. In England the law has traditionally been viewed as a system of rules; the United States favors a vision of law as an outward expression of the community’s sense of right and justice.

Paragraph 2

Substantive reasons, as applied to law, are based on moral, economic, political, and other considerations. These reasons are found both “in the law” and “outside the law,” so to speak.

Substantive reasons inform the content of a large part of the law: constitutions, statutes, contracts, verdicts, and the like. Consider, for example, a statute providing that “no vehicles shall be taken into public parks”.

Suppose that no specific rationales or purposes were explicitly written into this statute, but that it was clear (from its legislative history) that the substantive purpose of the statute was to ensure quiet and safety in the park.

Now suppose that a veterans’ group mounts a World War II jeep (in running order but without a battery) as a war memorial on a concrete slab in the park, and charges are brought against its members.

Most judges in the United States would find the defendants not guilty because what they did had no adverse effect on park quiet and safety.

Paragraph 3

Formal reasons are different in that they frequently prevent substantive reasons from coming into play, even when substantive reasons are explicitly incorporated into the law at hand.

For example, when a document fails to comply with stipulated requirements, the court may render the document legally ineffective.

A will requiring written witness may be declared null and void and therefore, unenforceable for the formal reason that the requirement was not observed.

Once the legal rule—that a will is invalid for lack of proper witnessing—has been clearly established, and the legality of the rule is not in question, application of that rule precludes from consideration substantive arguments in favor of the will’s validity or enforcement.

Paragraph 4

Legal scholars in England and the United States have long bemused themselves with extreme examples of formal and substantive reasoning.

On the one hand, formal reasoning in England has led to wooden interpretations of statutes and an unwillingness to develop the common law through judicial activism.

On the other hand, freewheeling substantive reasoning in the United States has resulted in statutory interpretations so liberal that the texts of some statutes have been ignored altogether.

Topic and Scope:

American and English legal systems; specifically, America’s reliance on “substantive” reasons and England’s reliance on “formal” reasons.

Purpose and Main Idea:

Author’s purpose is to contrast the different legal reasons employed by the American and English legal systems; this is a “storytelling” passage, in which the author simply lays out a fundamental difference between the American and English legal systems, so there is no specific main point or idea. (No surprise, then, that there’s no specific main point or idea question.)

Paragraph Structure:

Paragraph 1 hinges on the Keyword “Although” (line 1), which signals that the author’s about to describe a basic difference between the otherwise similar American and British legal systems — America’s reliance on substantive legal reasons and England’s reliance on formal legal reasons.

The Paragraph ends without clear-cut definitions of those terms, but you knew (didn’t you?) that they would be forthcoming.

Paragraphs 2 and 3, as anticipated, describe substantive and formal legal reasons. Substantive reasons — as the example of the World War II jeep in the park suggests — are based on the spirit rather than the letter of the law.

Formal reasons — as the example of the will implies — are based on the letter of the law. You don’t really have to understand things much more deeply than that.

Paragraph 4 wraps things up with an assertion of problems stemming from “extreme examples” of each tradition:

The English system’s emphasis on strict adherence to past legal traditions has inhibited its development, while the American system’s emphasis on judicial innovation has led to situations in which established laws are ignored.

The Big Picture:

  • You might want to leave a “storytelling” passage like this one for later in the section. Why? Although topic and scope are revealed early in Paragraph 1, the author’s purpose is not entirely clear until you finish the passage. You might have predicted that the author was going to limit himself to a simple contrast without really taking a position for or against anything, but you don’t actually know that for sure till the end.
  • Be on the lookout for passages that contrast two (or more) things: points of view, cases, theories, systems, etc. Such passages always contain questions that hinge on a firm understanding of each of the things being compared.
  • A “firm” understanding doesn’t mean detailed or in depth: It means clear and broad. Here, as long as you get that substantive = U.S. = “spirit of law” = more or less liberal, while formal = England = “letter of law” = much more conservative, you do O.K. Don’t try to read as if you were a legal scholar, read as who you are: a layperson who has less than 10 minutes to get the gist of the thing and answer a set of questions on it!

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