1
CHAPTER 1
THE HISTORICAL BASIS AND CURRENT
STRUCTURE OF THE AMERICAN LEGAL
SYSTEM
CHAPTER OUTLINE
The Historical Basis of American Law
• Before the Government
• The Results of the Revolution
• The Influence of Political Theories
• Balance as the Key to Success
The Modern Legal System
• The Sources of Law
• The Hierarchy of Law
• The Exception to the Rule of Hierarchy
LECTURE KEYS
1. Early American settlers came to escape religious persecution and take advantage
of economic opportunities. Settlers used many of the laws of their homelands and
brought their prevailing attitudes toward religion. Under these laws and attitudes,
people were charged and punished by the government for committing acts that
were regarded as sinful and thus illegal.
2. As the population grew, foreign governments increased their efforts to
establish a formal and permanent influence in the New World by
establishing government offices and authorities and imposing taxes on the
rich natural resources and products of America.
3. Many of the colonists did not want to be under the rule of a foreign government
that they believed would not be responsive to the will of the people and would
not allow them to maintain the personal freedoms they had gained by leaving
those countries in the first place.
4. The need to establish a permanent government structure in order to manage issues
on a local basis, raise a military for defense, and avoid rule by another country
was realized. Despite some movement toward creating many small independent
nations, representatives of the colonies agreed success was more likely if there
was a unified front.
5. The concept of crime being equal to what was considered wrong or sinful as
defined by those in authority was based on the naturalist theory—a belief that all
persons were born with the ability to distinguish the difference between right and
wrong and the knowledge of their responsibility to act in the proper manner.
See Practical Application1.1 and the Point for Discussion.

2
6. Increases in population from different cultures with different mores, values, and
rules resulted in a more diverse group of legal representatives and different
opinions of right and wrong. This in turn led to the need for a more detailed and
developed legal system.
7. The first formal and international action by the colonies as a collective group was
their issuance of the Declaration of Independence. Today most Americans
consider it the bedrock of our nation, but originally it was more or less a
formality. Essentially, independence was in name only, and at first was defended
by a largely unsophisticated, poorly armed, and disorganized band of citizens
against the potential threat of Great Britain and other governments.
8. The new central government was guided by the adoption of the Articles of
Confederation. The Constitution was not passed until 11 years later in
September 1787.
9. The Articles of Confederation bore little resemblance to the current Constitution.
Under the Articles of Confederation,
• each state sent delegates as members of Congress who then nominated and
elected a president among themselves;
• the delegates wrote and passed all laws;
• the delegates acted as judges in disputes among the states;
• the delegates negotiated treaties; and
• the duties assigned the president were to preside over sessions of Congress and
act as an ambassador to, and receive representatives of, other governments’ all
legal disputes with respect to individuals continued to be dealt with by each
state’s own system of justice.
10. The Articles of Confederation and Congress were largely ineffective on a local
level. The national government had none of the following:
• Enforcement power
• Judges
• Jails
• Ways to force collection of the monies that each state was supposed to contribute
• Money of its own and no way to get it other than by voluntary contribution
• Organization to support a national army
• Staff of government employees to operate the government when Congress was
not in session
11. An early and real issue for the permanent government was whether to allow the
states to continue in existence in any sort of individual fashion. Several delegates,
including some from the South, believed individual states should be abolished and
all people and legal issues should be governed by a central authority. In history,
small states within a country often ended up in conflict with one another. In this
instance, however, the idea failed to gain popular support. The citizens were
fiercely independent and sought to preserve as much personal freedom from
government as possible.
12. Separate state governments and a unified national government with specific
functions were created. The states were left intact to respond effectively and
quickly to the needs of citizens and individual state economies. The national

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Lecture Notes for Introduction to Law, 7th Edition

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