Legalization Research Paper

1. Legalization Generally

Taken over long periods, legalization as a process has been part of the development of all but the smallest of human societies. Placing responsibility for the control of many aspects of human behavior in the legal system is central to civilization itself. In the long run, legalization replaces the unfettered decision of rulers, the bonds of custom, and religious authority with the rule of law, at least considering the rule of law in its broadest constitutional sense of applying predictable and stable legal rules to the citizenry equally, and avoiding the imposition of arbitrary power. A familiar example is the growth of the common law in England over several centuries, as legal principles and policies absorbed rules and traditions of various institutions that once held sway over most aspects of life, including family, work, property, religions, and political relations.

But legalization can be understood in narrower senses in which the spread of law and law-like institutions need not be synonymous with the rule of law or constitutional order. Throughout the twentieth century, communist societies and certain others, most notably fascist Germany, dispensed with constitutionalism in fact while pretending to it in theory, even as legal decrees and rules infiltrated numerous activities, including the economy and social relations, that had been much freer of control under the prior regime.

Nor does legalization necessarily imply any particular content to laws, which may be as liberal or repressive as the regimes that promulgate them. Laws regulating travel across political borders, which were instituted as early as the sixteenth century, have varied considerably over the centuries, and from country to country, in the strictness of the compulsory passport system that most nations have created. Except during the American civil war, no passports were required to enter or stay in the United States until World War I. Quite the opposite prevailed in France, beginning in the 1790s, and until the middle of the nineteenth century in much of Europe. Likewise, as a means of regulating internal travel, many countries adopted internal passport requirements, while others, notably the United States, have maintained steadfastly a constitutional right to travel without hindrance or papers.

In modern times, the process of legalization can be discerned most clearly in three primary developments: (a) the increasing legal regulation of activities and behaviors previously unregulated or regulated by other means; (b) the growth of private rights of action by which individuals may press legal claims against other individuals and the state; and (c) the spread of legal relations into the international sphere. The first two developments are closely connected, most especially in the United States.

2. Increasing Legal Regulation

In 1881, Oliver Wendell Holms Jr, the future US Supreme Court justice, declared in his classic book The Common Law that ‘the general principle of our law is that loss from accident must lie where it falls, and this principle is not affected by the fact that a human being is the instrument of misfortune’ (Holmes 1963, p. 76). But at that very time, American law was undergoing a sea change: the law of negligence would transform many accidents into legally compensable events, and the courts were pulling down a barricade of rules that they had constructed laboriously during much of the nineteenth century against defendants’ liability. The growth in American law followed closely on the rise of industrialization, the explosion of technological development, and the spread of the market economy. Not all increase in the number of statutes and judicial decisions can be counted as legalization, since refinement and improvement in law is not necessarily the same as the spread of law and legal relations to new areas. Nevertheless, much of the outpouring of new law was part of the legalization of the country, a fitful though eventually sweeping movement toward ‘total redress’ (Lieberman 1981, p. 31) or ‘total justice’ (Friedman 1985). Throughout the twentieth century, the state has endeavored to refashion the theory of harm, and to encompass innovative ways of deterring and redressing the manifold injuries that came to be recognized as products of changing economic and social relations. This legalization of harm has unfolded in four principal ways.

First, from the 1880s to the time of writing, the legislatures of the states and the US Congress have enacted a tidal wave of statutes, dwarfing all previous eras of legislative enactment in all other countries. Since this is not a history of law-making, the list that follows is not intended as a chronology but rather as a snapshot of the kinds of activities that have been enveloped by law during the twentieth century: labor and employee relations (including working conditions, pay, health, safety), environmental pollution, consumer concerns (including banking and credit, housing, product safety, and advertising), the market mechanism (including antitrust, corporate structure, securities regulation, and the like), communications, elections, transportation, education, discrimination (by a host of institutions, public and private, on a variety of bases, including race, sex, ethnicity, religion, and disability), family relations (including marriage and divorce, child custody, and welfare), public assistance (including unemployment insurance, welfare benefits, and old-age security), and personal relations (including sexual relations and procreation), to name only the most prominent of the areas that have come under legal sway. Statutes operate in four ways: (a) they occasionally declare specific rules that require changes in behavior (e.g., a reduction of pollution by a certain percentage no later than a specific year); (b) even when they are not specific, statutes put decisions formerly private at risk of being second-guessed by public decision makers, including courts, prosecutors, administrators, and adversaries; (c) statutes aimed at altering complex business and other practices almost invariably wind up being enforced by bureaucracies with considerable discretion to define the law on their own terms: and (d) frequently, legislators empower individual private litigants, as well as public prosecutors, to enforce statutes in court.

Second, as just noted, legalization has been enshrined in administrative bureaucracies created to manage a host of private relations. Although some statutes spell out bright-line rules (for instance, setting the drinking age at 21 years, or placing a ceiling on interest rates that may be charged), legislatures routinely delegate not merely enforcement power to administrative agencies to carry out major regulatory programs but also the very power to define the law. One measure of the scope of administrative law in the United States at the close of the twentieth century is contained in the pages of the Federal Register, the US government’s official digest of proposed and promulgated federal regulations; it runs to around 60,000 pages annually. The impulse to legalize has thus created a vast bureaucracy and undercut the rule of law as understood by one of its leading proponents, A. V. Dicey, who, speaking of the British legal system in the nineteenth century, said ‘there can be with us nothing really corresponding to the ‘administrative law’ (Dicey, 1959, p. 203).

Third, alongside the legislatures and administrative agencies courts themselves have multiplied legal rights. The common-law understanding of harmful Activity has expanded to encompass, for example, strict liability in tort, so that manufacturing operations that were once legally unapproachable in the absence of statutes have been regular fare at the judicial feast. Likewise, the courts in the United States have expanded vastly the panoply of public rights, particularly in the arena of the Fourteenth Amendment’s command that the states provide due process and equal protection of the laws.

Fourth, as a direct consequence of the preceding three developments, individual litigants have gained the right to take their multiplying grievances to court, as discussed in the next section.

3. Growth Of Private Rights Of Action

The widely observed penchant of Americans to sue springs from a rich tradition. As long ago as 1835, Alexis de Tocqueville observed, in an often quoted passage in Democracy in America, that ‘there is hardly a political question in the United States which does not sooner or later turn into a judicial one’ (de Tocqueville 1966, p. 248). Nevertheless, during the last quarter of the twentieth century, it became the conventional wisdom of many observers that the United States was suffering from something new: a ‘litigation explosion’ (Olson 1991). Though the term is obscure, and such statistics as are available are subject to different interpretations (Galanter 1983, 1993, 1996, 1998), it is clear that the types of actions that plaintiffs may bring to court were greatly extended during the twentieth century. Many activities once entrusted to other domains—for example, politics—or left wholly unregulated and open to the whims of individuals, have become objects of legal oversight.

The most notorious example of the trend toward legalizing what was once purely political was the investigation of US presidents and high-ranking executive officials by so-called ‘independent counsel.’ Although in form a public prosecutor, the independent counsel was in effect a combination of a private lawyer and a client, since the executive branch was precluded from effective oversight of the prosecution. The independent counsel movement had its origins in the Watergate scandal in 1973, when the US attorney general authorized the appointment of a private lawyer as a special prosecutor, and promised to keep the government’s hands off the investigation. President Nixon’s discharging of Archibald Cox, the first Watergate special prosecutor, led to a federal statute providing for the appointment of independent counsel by the federal court. Ultimately, the independent counsel system ensnared President Bill Clinton in a series of investigations, culminating in the squalid inquiry into his sex life and subsequent impeachment in 1998. The independent counsel law was allowed to lapse in 1999, stemming from widespread revulsion against the legalization of such questions, and the inept tactics of Kenneth Starr, the independent counsel.

Other notable examples: The overthrow of racial segregation laws in the United States primarily began with cases filed in individual courtrooms in the 1950s. Apportionment of legislative districts, once solely a matter for political resolution (even in the face of constitutional commands widely disregarded by the legislators themselves), has become a cottage industry of litigation in the United States since the 1960s. In the 1970s, manufacturing and other practices were subject to sweeping oversight in court efforts to clean up the environment. Sexual harassment, a still evolving concept, became justiciable as the result of statutes and court decisions in the 1980s, overturning a centurieslong practice of remitting women to their private suffering in the face of it. In the 1990s, the tobacco industry was forced to agree to pay hundreds of billions of dollars in health-related claims, largely through settlements in the wake of legal claims, and a similar effort to control the distribution and sale of guns was mounted in the late 1990s. At the beginning of the twenty-first century, animal rights activists are attempting to prevent medical experimentation on animals by seeking to persuade courts to declare animals not merely property but possessors of rights. Less generally remarked are the legal devices that serve as a spur to further legalization. In the Sherman Antitrust Act, a federal law enacted in 1890, Congress authorized private individuals to sue for restraints of trade and monopolization by business interests, and the act permitted winning plaintiffs to recover both treble damages and their lawyers’ fees from losing defendants. Other devices include contingent fees in personal injury suits; the class action, which permits the consolidation of small claims arising from the same event into a single suit, thus giving the plaintiffs’ lawyers a financial incentive to proceed with the case; and the relaxation of so-called ‘standing’ rules that determine who is the proper party to file a suit—The US courts have occasionally been receptive, for example, to members of Congress who file suits against the President and the executive branch to try to reclaim in court what they lost in the give-and-take of legislative voting.

Legalization through private rights of action is not limited to the lawsuit itself. Understanding that lawsuits are always possible as the final outcome of legal relationships has led people to redefine personal relationships as legal ones. Since innumerable examples are possible, this one will serve as emblematic: a magazine report in 1999 declared that ‘some celebrities have asked wedding guests to sign nondisclosure agreements as a condition of attending a ceremony that might attract the interest of the tab[loid]s’ (Beam 1999, p. 64).

4. Legalization In And Of The International Arena

Historically, legalization is an internal affair of each nation. Relations between nations have been governed by diplomatic and political process and, failing that, by war. But following World War II, the prosecutions of Nazi war criminals laid the groundwork for the principle that government officials are not legally free to do whatever they wish as leaders of sovereign nations, and may not always claim immunity when finally caught. The Nuremberg trials established the concept that war crimes and crimes against humanity are justiciable, and in modern times have promoted the increasingly popular notion that the shield of diplomatic immunity may be penetrated by the courts under certain circumstances. Although large numbers of war crimes since then have doubtless gone unpunished (only one major Vietnam war crimes case, concerning the massacre at My Lai, was prosecuted in the United States), by the 1990s a new sentiment led to the tentative creation of the International Criminal Tribunal, situated in the Hague, with jurisdiction to investigate and prosecute acts of genocide and other war crimes in the former Yugoslavia and Rwanda. In 1999, it indicted then President Slobodan Milosevic of Serbia, the first sitting president to be indicted by an international tribunal, and other high officials of the regime, and in 2000 it began a series of prosecutions that garnered international attention.

Other portents include successful civil suits against the estate of Ferdinand Marcos, the Philippine dictator, for human rights violations, and the British proceedings, in 1998, against former Chilean dictator Augusto Pinochet, who was arrested in London on a warrant issued by Spain, charging him with numerous civil rights violations during his 17-year rule in Chile, including murder, torture, and kidnapping. The British courts denied his claim to diplomatic immunity, although he was released in 2000 for health reasons. In the United States, the courts have been amenable increasingly to civil suits by victims of terrorism against their attackers. In 1998, US federal courts awarded more than $300 million in two suits against Iran for its involvement in supporting terrorists involved in killing and kidnapping, and in 2000

Iran was ordered to pay $300 million in damages to one of the hostages taken in Teheran in 1980. Also in 2000, thousands of Filipino slave laborers conscripted by the Japanese Army during World War II filed a class action under California law against Japanese companies or their successors that forced them to labor in mines and plantations. In that same year, Congress enacted legislation enabling victims to collect damage awards from assets in the United States of nations that sponsor terrorism.

5. Legalization Outside The United States

Although the trend toward legalization is more advanced in the United States than in other countries, there is evidence that the direction of legal change is toward more law, not less; the increase in law is occurring in both industrialized Western nations and less developed nations worldwide, and for the same reasons that the rule of law emerged in the West. A globalized economy demands stability, and globalized communications demonstrate to peoples everywhere the gap between stable and unstable legal systems. Not every nation fits this abstraction: despite its emerging markets, communist China maintains a strong political hold on its courts, just as religiously fundamentalist countries prefer clerical decrees to secular legal rules. In the West, what few comparative studies exist suggest that litigation rates in certain European countries, adjusted for differences in costs, are not appreciably different from rates in the United States (Galanter 1992, p. 10). Two articles from the New York Times in 2000, chosen at random, suggest that the impulse toward legalization may be growing in radically different societies. A Chinese citizen sued Canon, Inc., a Japanese company, for $12 million for mental distress, because a computer disk promoting Canon’s ink-jet printers said that China, Hong Kong, and Taiwan are separate countries, thus allegedly undermining China’s sovereignty (Smith 2000). In Canada, the four major Christian Churches (Anglican, Roman Catholic, Presbyterian, and United Church) may be bankrupted by thousands of suits filed against them for sexual, physical, and ‘cultural’ abuse by Indian former boarding school students (Brooke 2000) .

6. Measuring Legalization

No good measures of legalization exist, in part because the topic is not studied conventionally, and in part because legal data particular to individual countries and cross-national comparative data are compiled only haphazardly. Even in the United States, a welldefined measure of litigation rates does not exist. One measure sometimes propounded is the gross number of lawyers or lawyers per capita. In the United States, lawyers numbered about 285,000 in 1960, and more than tripled to nearly one million in 2000; per capita, the ratio rose from one lawyer for every 631 Americans in 1960 to one lawyer for every 272 in 2000. By comparison, in Japan, lawyers number around 100,000, for a per capita ratio of one lawyer for every 1260 Japanese. Whether these differences are meaningful, and if so, in what way, remains controversial. The number of lawyers may be explained at least as convincingly by the number and nature of transactions and interpersonal contacts as by some tendency to greater legalization. Quantifying legalization is a research task that remains to be undertaken.

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