Michaels, Ralf --- "American Law (United States)" [2006] ELECD 156; in Smits, M. Jan (ed), "Elgar Encyclopedia of Comparative Law" (Edward Elgar Publishing, 2006)

Book Title: Elgar Encyclopedia of Comparative Law

Editor(s): Smits, M. Jan

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781845420130

Section: Chapter 5

Section Title: American Law (United States)

Author(s): Michaels, Ralf

Number of pages: 12

Extract:

5 American law (United States)*
Ralf Michaels


1 The role of law in the United States
Understanding US law is impossible without first understanding the role
law plays both in its political system and in the consciousness of its citizens.
Law is ubiquitous in general culture: literature, cinema, television (Raynaud
and Zoller, 2001). On first impression, law's status appears paradoxical.
On the one hand, there is an almost mystical faith in the power of law to
transcend all conflicts: the rule of law (as opposed to the rule of men) was
the American formula for a just society, in opposition to the absolutist
European government of the time. The US Constitution was the founding
document for the nation, and law has ever since had a defining character for
the country and its self-perception as a beacon of democracy and individ-
ual freedom. While there are struggles within the law, the rule of law and
the Constitution themselves seem beyond discussion: they provide an
almost unquestioned framework for debates (Levinson, 1988). On the other
hand, and for similar reasons, the distinction between law and politics is
much less clear than in European countries. It is acknowledged ­ sometimes
cynically, sometimes approvingly ­ that law incorporates and serves the
political ends of those who shape it. The traditional American distrust of
government encompasses distrust of any claims of neutral, objective,
natural law. Public reactions to the US Supreme Court decision in Bush v.
Gore (2000) demonstrate both these aspects. When a majority ...