.
.

    Many environmental health practitioners find the U.S. legal system confusing. They complain that "the law" seems to say one thing, yet those in the legal profession maintain it says something else. Moreover, even attorneys and judges can not seem to come to agreement on certain issues. The source of these differences in opinion often lies in the body of law which is being interpreted or which supports the particular principle, statute or code at issue. These conflicts may be more comprehensible when it is understood that our legal system is not a coherent system of law derived from a single source, but rather, an amalgam of a number of distinct systems which have resulted in a fragmented body of law composed of varying types and classes of laws, each of which apply to only a portion of total sphere of legal issues.

    Strictly speaking, we can not talk about the development of environmental health law, since, such an entity, composed of a coherent and unified body of law does not exist. What does exist is an amalgam of many types of laws, derived from many sources, which together provide the authority and procedures for regulating environmental factors and human behaviors for the protection of the public's health. Therefore, it is necessary for environmental health practitioners to be cognizant of the major systems and classes of law which are of importance to their practice.

     Law in the United States should be conceptualized as an amalgamation of legal tradition, custom and political philosophy. It has developed out of human events and beliefs as different as the Roman Senate and the pastoral tribes of the ancient Hebrews; as medieval feudalism and "egalitarianism" of the nineteenth century French philosophers; and as the English nobility and the farmer/adventurer of the American frontier. While it tends to be somewhat amorphous and changing, it nevertheless defines the boundaries of acceptable activity within our society. Thus, in a very real sense there is no such thing as "the law" in the United States. Rather, American law and jurisprudence should be viewed as a complex conceptual formula which may be applied to a range of fact situations. It is important to realize that law is a tool used by our society to maintain order by prescribing certain behaviors. As the society moves and changes so must its laws -- though certain cherished liberties will always be protected by the Constitution.

    This article traces the development of our major systems and classes of law, from their early roots to modern times, in order to help environmental health practitioners develop an understanding of our legal system, and why it works (or doesn't work) in the manner in which it does. It is important that individuals working in environmental health programs, whether in public agencies or in the private sector, understand, and appreciate the fluidity and dynamics of law and the legal process as they exist in the United States. This understanding is crucial, if the shifts and changes in the interpretation of constitutional rights, agency authority and the limits placed upon government agencies are to make sense. Moreover, it is impossible to separate the development of the legal system from the development of our form of government since the two are inextricably interrelated and, therefore, this article will also note important events which have contributed to the formation of our federal/republican system of government.
 

HISTORICAL DEVELOPMENT

    This amalgamation, known as American law, has come together through innumerable events and developments in human history. Some of these have been related to each others, while others appear to stand isolated from the rest of history. Regardless, it is possible to trace the development of our key legal concepts and institutions back some eight hundred years and to discern even earlier roots in many earlier civilizations and even primitive societies.¹

Early Developments:

    From the study of archaeology and anthropology emerges a picture of the earliest forms of human society. Our earliest human ancestors were nomadic hunters and gathers who were totally dependent on nature for their food and shelter. Hunting and gathering, especially without tools, requires a large area of land to support a relatively small population, thus, early man lived in small, family groups probably comprised of several adults and their children. With the discovery of tools and weapons, the efficiency of the small bands in obtaining food and shelter increased to the point where they could sustain slightly larger populations. Larger numbers resulted in increased security for the band, but it also provided more excuses for tension and disputes which had to be settled without destroying the band. This lead to the creation of early laws based on custom (tradition) or taboos (attributed to divine dictates)².

    The Old Testament of the Bible contains an account of the evolution of a small, kin-related, pastoral society comprised of nomadic shepherds in what is today northern Africa³. Through the early books of the Bible we can trace the evolution of these people as they came into contact with other groups, developed agriculture, expanded their population, and formed towns and cities. We can also trace the development of their civil and religious laws which are found in the Talmud (the first five books of the Old Testament). Remnants of the ancient Hebraic concepts and precepts have been incorporated into our legal tradition through our common Judeo-Christian heritage.

    Another early influence in our legal history comes from Babylon where the oral laws and traditions were codified. Especially important is the influence of Hammurabi (2067-2025 BCE) a soldier, scholar and king who was responsible for the development of oldest known recorded statutes.⁴

    If we acknowledge that much of the ethical and moral content of our legal tradition has been influenced by our Judeo-Christian heritage, we must also recognize that the structure of our government, and its institutions including the courts, have been influenced by developments in Greece and Rome. The development of Roman law began early in the Roman republic with the establishment of written laws. "To these were added innumerable unwritten laws that ultimately, as a result of the Institutes of Justinian and others, were codified into a system of written law so perfect that even today it serves as the basic law of most European countries."⁵

    The influence of Roman law on American law is due to two series of events. The first was the conquest of most of Europe, including England, by Rome. The second was the conversion of the Emperor Constantine to Christianity somewhere around 312 CE⁶. These two developments resulted in the spread of both the Roman system of government and Christianity throughout Europe during the first centuries of the Common Era. However, by the fourth century, the Roman Empire, especially in the west had begun to decay. As the Roman Empire began to decay, it broke into three parts: the Byzantine world, the Arabic world and the western world.by about 700 CE. "The third segment, . . ., did not look very promising. . . . Barbarian kings were doing their best to rule small kingdoms, but in truth all government had fallen to pieces."⁷

    "The Western barbarians, . . ., were Germanic; and the Germanic influence was to be a distinctive contribution to the making of Europe. Some Germans were Christian by the fourth century, but most were still heathen when they burst into the Roman Empire. Their language had not been written down, but they possessed an intricate folk-lore and religion, in which fighting and heroic valor were much esteemed. . . . They were organized in small tribes, and had a strong sense of tribal kinship, which . . . dominated their ideas of leadership and law. They enjoyed more freedom in their affairs than did the citizens of the Roman Empire. Many of the tribes were rough democracies in that all free men,Ý . . ., met in open fields to hold council; and often the tribe itself elected its leader of king. . . . They had no sense of the state -- of any distant, impersonal, and continuing source of law and rule. Law they regarded as the inflexible custom of each tribe. In the absence of abstract jurisprudence or trained judges, they settle disputes by rough and ready methods. . . . In trial by battle, the winner of a kind of ritualistic duel was regarded as innocent. The gods, it was thought, would not allow wrong to prevail."⁸

Medieval Europe:

    As succeeding waves of Germanic invaders overran those portions of the old Roman Empire now known as Europe, all notion of central government disappeared. Europe, for the most part, was populated by small agrarian communities dominated by a manor, in which resided a lord with his retinue of fighting men. Security was strictly a local affair and depended upon current occupants of the manor being strong enough to withstand the next band of fighters to come down the path. There was almost no commerce and money as a commodity of exchange had virtually disappeared.

    The only exception to this was the Church which still maintained the institutional framework developed under the Roman Empire. The hierarchical organization of the Christian Church permitted some dissemination of news and the tenuous contact throughout Europe, except in places like England where the barbarian conquest was complete.⁹

    At some point, and it varied from place to place, the process of disintegration and decay was halted and a new form of government began to evolve -- feudalism. In theory, feudalism is a two-way hierarchical system in which every noble owes fealty to a higher lord in a pyramidal fashion with the king at the apex. In return the king and higher lords have an obligation to provide protection to their vassals. In practice, the king might be the overlord of a fairly large geographic area such as the Frankish kings descendent from Charlemagne who had at least nominal control of modern-day France and beyond, or he might one of a succession of petty kings vying with each other over relatively small kingdoms such as occurred in the area occupied by present-day Germany. How much actual control a lord had over his vassals often depended more on the strength of his army than on his title, and over much of Europe, lords who nominally owed fealty to some king operated as independent kingdoms of their own.

    However, the increasing stability and security of a region made possible the reintroduction of some commerce and lead to the growth of villages and towns and eventually to cities. Towns began as walled compounds with a court and market, which were chartered (and taxed) by the king or a noble. In time the population outgrew the walls of the original compound and new walls were built.

Development of English Common Law:

    The history of England from the fall of the Roman Empire is similar to that of much of the rest of Europe with the exception that the displacement of Roman culture was even more complete.

    Various Germanic tribes (Angles, Saxons and Jutes) began invading England in the fifth century and settled in different sections of the country; and then spent the next several centuries waring with each other for supremacy. The Anglo-Saxon invasions of England resulted in tribal government headed by a king or chief. A council of freemen and soldiers met infrequently to settle questions of war and peace, migrations, etc., to elect leaders and to try offenders. In 793, another wave of Germanic tribes, the Danes or Northmen, began invading England until stopped by Alfred the Great (871-899).¹⁰ÝIn addition to halting the Danish invasions, Alfred compiled and published a code of laws taken from scripture. He sponsored first volume of the Anglo-Saxon Chronicles and reorganized the shires for administrative and legal purposes.

    The Anglo-Saxons left several important institutions in England which would influence the later development of English and American government and legal systems. The Witan was an assembly of high ranking nobles who assisted the king to frame decrees, select bishops and earls, and acted as highest law court¹¹ and can be seen as one of the predecessors of the modern English Parliament. Another development during this period was the "Hundred" which was originally a territorial division of 100 warriors or heads of families. It had an assembly (called a moot), headed by a reeve selected by the king to keep order and collect dues. Both criminal and civil cases were tried by the moot by witness or trial by ordeal.¹²

    In the Battle of Hastings (1066), a Norman duke, William the Conqueror, defeated the last Saxon King (Harold) and brought to England the Norman concept of centralized feudalism. Among his many accomplishments, William instituted the Great Council to replace the Witanagemot (similar to the earlier Witan); introduced trial by combat, mutilation as punishment; and abolished the death penalty.¹³

    William was succeeded by his son, William Rufus (1087-1100), who tried to maintain control of his father's territory in the face of challenges to his authority both in England and in Normandy. To do this required a lot of money which he raised through extorting monies from the Church and nobility. William Rufus was succeeded by Henry I (1100-1135) who is most noted "for his Charter of Liberties in which he promised to stop all extortionate methods of collecting money from the church and from the nobles . . . This document marks the first significant check on powers of the king."¹⁴ÝHenry was also responsible for establishing a system of itinerant judges empowered to hear cases and render the king's justice. These courts began to replace local practices with a common, written interpretation of "custom" and were responsible for the development of much of English Common Law.¹⁵

    The next king who left a lasting impression on English law was Henry II (1154-1189), the first of the Plantagenets. In 1166 he issued the Assize of Claredon which "required small groups of men in each hundred to report violations of the law to his officials. Such groups were called presentment or grand juries. He also improved the system of itinerant justices; made use of the trial, or petit, jury; and provided jails to lodge accused person until they could be tried."¹⁶ÝIn the Assize of Northhampton (1176) he gave his justices power to try all criminals in local districts . . .. In civil cases he introduced the Writ of Right which made the taking of property without trial illegal. He also permitted some civil cases to be transferred to the royal courts from feudal courts; and, he set up the courts of Exchequer, the King's Bench (Curia Regis) and Common Pleas.¹⁷

    Henry had two surviving sons when he died in 1189: Richard the Lionhearted who spent most of his reign fighting in the Crusades; and John Lackland (1199-1216) the youngest son. John left a lasting legacy, although that was not his intent, when he was forced to sign the Magna Carta (June 15, 1215) by his barons. And while it is true that neither John nor most of the barons paid much attention to the document at the time, it provided the basis for the future "development of a written constitution for England. Some of its provisions also foreshadowed the right to a jury trial and habeas corpus."¹⁸

Development of Parliament:

    Beginning in the 13th Century, there began a series of assemblies which would eventually lead to the development of the modern British Parliament. However, the path from these early assemblies of male nobles to today's concept of representative government for all people was long, and often tortuous. It included: The Great Council (1246), which was an assembly of nobles; Simon deMontfort's Parliament (1265) which was comprised of two knights from each shire; and, The Model Parliament (1295) which included members from each of the three estates -- nobles, church and commoners.¹⁹

    During the 14th and 15th centuries Parliament gained in influence and began to challenge to king's power until by the time Tudors came to the throne in 1485 they ruled under constitutional forms, even though their rule was absolute.²⁰ÝEven though the Tudor kings virtually controlled Parliament, selecting the religious peers for the House of Lords, appointing the Speaker of the Commons, and calling and dismissing Parliament at will, the parliament still possessed an effective weapon in the power to grant or withhold money.²¹

    During this period, at the local level, the old nobility had lost much of its powers to the crown.     However, the squires were still important. and justices of the peace presided over local courts. "There were four classes of ordinary courts: (1) The Petty Sessions, presided over by two or more justices of the peace, which considered minor cases; (2) the Quarter Sessions, which consisted of the justices of the whole county, meeting four times yearly, for more important cases; (3) the Assizes, which met at the county seat, with one or two justices presiding, for minor crimes; and (4) the common law courts at Westminster: the Exchequer, Common Please, and King's Bench. The special courts, which had no jury and were dominated by the crown were: (1) Chancery, which considered cases of equity and important civil cases; (2) Court of High Commission for trying church cases; (3) Court of the North, for North England; (4) Council of Wales, for Wales; (5) Court of Castle Chamber , for Ireland; and (6) Court of the Star Chamber, a creation of Henry VII to curb the nobles."²²

    With the coming of the Stuarts, Parliament began to expand its powers once again. During the rule of James I, the Parliament issued an "'Apology,' in which they denied the doctrine of the divine right [of kings] and claimed that Parliament derived its privileges from law, and not from the sovereign."²³ÝThe position of Parliament was strengthened even more when Charles I was forced to agree to the "Petition of Right" which sought to redress a number of grievances and essentially proclaimed "that the King should govern according to law, and not according to his own arbitrary whim."^24Ý

    The English monarchy was briefly interrupted by the Protectorate under Oliver Cromwell, but was re-established in 1660 when Parliament invited the son (Charles II) of the former King to return from Europe. However, when his son, James II, tried to ignore Parliament, it replaced him with the Dutch sovereign William and his wife Mary who was James' daughter. William signed the "Bill of Rights" in 1689 which "affirmed the rights of petition, habeas corpus, and the bearing or arms; and it also upheld the idea of freedom of debate. It forbade the King to have a standing army without Parliamentary consent, [and] deprived him of his power to suspend or dispense with laws . . .."²⁵ Many of these provisions were incorporated into the U.S. Constitution almost a hundred years later.

    By the time the Hanoverians came to the throne with George I in 1714, Britain was firmly established as a constitutional monarchy, and while there were may significant events and developments during their long reign, the major direction and forms of British government and law had been established. Moreover, the American revolution (during the reign of George III) and the subsequent adoption of the U.S. Constitution signaled the American form of government and legal system would develop along a different path from that followed in England.

Colonial America:

    The settlement of the American colonies coincided with and were inextricably bound to the developments in Europe during the 16th and 17th centuries. The English speaking colonies were established by charter from monarch. Governmental powers were derived from the charter, and authority was limited only by terms of the charter. In time, distance, economics and egos lead to the estrangement of some of the colonists from their English brethren and eventually lead to the American Revolution during the reign of George III (1760-1820).

    The developments during the early years of the Republic are, or should be, familiar. However, it is worth noting the importance of two important documents which were developed during the revolutionary period. The first was the Declaration of Independence (1776) which declared that the thirteen colonies were sovereign states. This document is was firmly grounded in 18th century philosophical concept of natural law and the notion people have a divine right to be free. The Declaration of Independence is important for the insight that it provides into the ethical and political motivations of the revolutionaries. The second was the Articles of Confederation, written in 1776 and replaced by the U.S. Constitution in 1783. The Articles deliberately created a weak central government of almost no authority. The importance of the Articles of Confederation lies in the fact that it didn't work. Despite the prevailing belief in the necessity of a limited governmentÝ and the distrust of central authority, if had become obvious that the lose confederation of state could not survive unless it were provided with certain powers: most important of which were the power of taxation, and the ability to raise and maintain an army and navy.

    The manner in which legal authority is structured and used in this country is a reflection of both English jurisprudence and the distrust in which the early leaders of the country held government -- any government. While recognizing the need for a minimum of government in order to ensure order and commerce in society, they were fearful of the accumulation of unchecked power by any group of individuals. Hence, through the Constitution, legitimate power was divided both horizontally and vertically;²⁶ ". . . that, is the structure of government is fragmented, in a systematic way against the two great principles of the Constitution -- the separation of powers and the division of powers. The processes of government are dictated by the "matrixing" of its powers:Ý [such that] instrumental values (such as protection against tyranny) are given higher priority than substantive ones (such as a maximally efficient postal system)."²⁷

    In addition to structuring our government, the Constitution incorporates some important protections for individuals. Of particular concern to Environmental Health practitioners are the protections contained within the 4th and 14th amendments to the Constitution. The fourth amendment provides that "the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."²⁸ While the fourteenth amendment says, in part, "[n]o state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."²⁹
 

THE LEGAL SYSTEM IN THE UNITED STATES

    In a sense, the Constitution is the culmination of more than two thousand years of evolution in the development of law and legal systems which have come together to form the foundation of our legal system. However, the constitution, by itself, is not the whole of the story. The United States is governed by a combination of two distinct systems of law

1.    Statutory Law:  Statutory law is the codification of custom and usage into written regulations and is based essentially on Roman civil law. Statutory law came to the United States through successive changes -- decline and fall of the Roman Empire, rise of the medieval church, feudalism, Norman Conquest, and rise of nationalism -- as outlined above.

2.    English Common Law:  Statutory law was often too general to be applied to particular cases. In England there developed a system of judges and courts to which people could appeal for justice from law. The major bases for what is today recognized as "the Common Law of England" include the following.

    The Magna Carta which formed basis for institution of checks on the powers of the monarch and eventually to the establishment of a constitutional monarchy and the concept of constitutional rights.

    Custom, or the oral tradition regarding what is right or wrong, permissible or impermissible. In order to be binding, custom must:

a) Have existed for a long time;
b) Have been followed continuously;
c) Have a peaceful purpose;
d) Be definite (not vague) and binding on all parties;
e) Be consistent with all other customs.³⁰

    Stare Decisis, literally the decision stands, is a rule of law which says that a principle, whether based on custom or court recognition, forms a precedent that is to be followed in all similar cases.³¹

    These two basic systems are supplemented, in the United States, by another product of English jurisprudence known as equity. Equity developed in England following the Norman Conquest permitting appeals to the king for assistance (justice) in cases which were beyond the power of the local common law courts. While there were certainly many abuses committed by kings and their agents, there did evolve out of this a notion that the people could appeal to the king for justice above and beyond that which was rendered by their local nobles. Eventually there developed separate courts (Chancery or equity) which were limited to situations for which no adequate remedy at law existed. In the U.S. this system of equity, as a supplement to the written and common law, has been incorporated into the justice system. Few states, however, have separate equity courts. Usually the same court now sits as a court of law (dispensing strictly legal judgments) and as a court of equity (administering relief in cases for which the law, as it exists, offers no adequate remedy.

    Thus, the "law" in each state³² consists of: (1) the U.S. Constitution: (2) the state constitution; (3) all federal statutes which are not inconsistent with the U.S. Constitutions; (4) all state statutes which are not inconsistent with either the U.S. or their state constitutions; (5) the Common Law of England and the statutes of the British Parliament prior to some specified date (usually 1776); and, (6) applicable case law derived from court decisions. With such an array of "laws" it is not surprising that practitioners in any field can be confused at times.

    However, the Constitution is the fundamental block upon which all the rest of the legal system rests. Beyond the Constitution, are the specific statutes and/or ordinances authorizing or compelling certain governmental activities like inspections, sampling, monitoring, enforcement actions and so forth. These laws are usually program specific and so long as they do not infringe upon a protected right are enforceable. However, because they tend to be program specific, authority granted in one program area, may not have been granted, through intention or oversight, in another area. Agency actions based on program specific laws are bounded by the specific authority and requirements of the statute or ordinance. Moreover, an agency action which is permissible in most situations, may be impermissible in certain situations, because it infringes upon a right which is protected either through the Constitution or through custom. Moreover, the interpretation of what is protected and what is not protected continues to evolve over time as our society evolves and as new challenges are brought before the courts. Keeping up with the specifics of new laws and new interpretations requires the services of specialized legal help, however, recognizing the basic requirements which are imposed by the Constitution and by the specific statute which are to be enforced is well within the capabilities of all environmental health practitioners, especially when they understand the something of the entire legal tapestry within which they are operating.
 
 

________________________________
1 Kempin,Frederick G., Jr. Historical Introduction to Anglo-American Law in a Nutshell, West Publishing Company, St. Paul, 1973, pp. 2-3.
2 Hart, H.L.A., The Concept of Law, Oxford University Press, Oxford, 1961 (Reprinted 1984), p. 89.
3 See Genesis and Exodus for a general description of wanderings of the early Hebrews and Leviticus for a description of some of their early laws.
4 Pickett, George and John Hanlon, Public Health Administration and Practice [9th Ed.], Times Mirror/Mosby College Publishing, St. Louis, 1990, p. 161.
5 Ibid.
6 Palmer, R.R. and Joel Cotton, A History of the Modern World [3rd Ed.], Alfred A Knopf, New York, 1965, p. 10.
7 Ibid, p. 17.
8 Ibid
9 Ibid, p. 19.
10 Rickard, J.A., History of England [11th Ed.], Barnes & Noble, Inc., New York, 1965, pp. 15-16.
11 Ibid, pp. 18-19.
12 Ibid, p. 19
13 Ibid, pp. 24-26
14 Ibid, p. 29.
15 Ibid, pp. 30-31.
16 Ibid, p. 34.
17 Ibid.
18 Ibid, p. 38
19 Later the nobles and clergy would be merged to form House of Lords.
20 Op cit. p. 86.
21 Ibid, p. 87.
22 Ibid.
23 Ibid, p. 96.
24 Ibid, p. 101
25 Ibid, pp. 121-122.
26 Gore, William, Professor of Political Science, University of Washington, 1983. The separation of powers divides the government vertically among the legislative, executive and judicial branches, while the division of powers divides the government between the national (federal) government and state and local governments.
27 Ibid.
28 Article IV of the Articles in Addition to, and Amendment of the Constitution of the Unites States of America.
29 Article IV of the Articles in Addition to, and Amendment of the Constitution of the Unites States of America.
30 Pickett, p. 161
31 Black, Henry C., Black's Law Dictionary [5th Ed.], West Publishing Company, St. Paul, 1979, p. 1261.
32 Except for Louisiana whose laws are based on the Napoleonic Code which is a direct descendent of Roman Law.