An Autodidact's Guide to Learning About the Government, or: What is "the law"?
An Autodidact's Guide to Learning About the Government, or: What is "the law"?
Constitutional // Statutory // Administrative // Case // Mastering the hierarchy of authorities
One key to understanding how the government works in America is first understanding what “the law” is, beyond the basic idea of “legal rules we are obliged to follow” or “a system of rights and responsibilities.” And while there are many ways to answer What is the law?, I think there’s one frame that’s especially helpful—and underutilized—for autodidacts and teachers alike: who makes it.
The law is composite, and there are four kinds that combine to form the hierarchy of authorities:
Constitutional law – written law that outlines the form and essential function of a government, and the highest law of a jurisdiction.
Statutory law – written law passed by a legislative body. One of these is called a "statute,” although in the local (rather than state or federal) context you might also hear statutes called “local laws” or “ordinances.”
Administrative law – written law issued by administrative/executive agencies, such as the federal Department of Transportation. Sometimes called regulatory law. These laws, called rules or regulations, must be issued to carry out the details of already extant statutory/constitutional law. They are reliant on authorization from these other areas of law, and are often created under processes set forth in administrative procedure acts at the local, state, and federal levels.
Case law – law written in judicial opinions, interpreting the meaning and/or proper application of the three kinds of law above. Judges will also interpret and apply common law when making rulings, especially when the three kinds of law above are silent on an issue. Common law is law derived from tradition going back to the American system’s origins in the UK, and isn’t necessarily written down. It exists formally, where it exists at all, largely within judicial opinions.1
The prime benefit of understanding the law like this is that you now have a minimum viable basic knowledge context—the simplest possible model of the whole governmental system that you can grow as far as you want. You have a chief organizing frame. Going forward, whenever you encounter a new governmental organ or a subject-matter grouping of laws (like tort, contract, property, criminal, etc), you can relate it back to the “four kinds.”2
The questions you can now ask about each kind of law are:
Who specifically makes the law? In the case of statutory law, the answer, at the federal level, is Congress (the House of Representatives and the Senate), often together with the President’s authorizing signature. At the state level, New York for example, it is the Legislature (the Assembly and the Senate), often together with the Governor’s authorizing signature. At the local level, New York City for example, it is the City Council, rarely with the mayor’s authorizing signature.
How do they make the law? There is a specific process by which each kind of law is made, and that general process is written down in the law itself somewhere (usually a constitution), although the details are often supplied by the internal rules of the lawmaking bodies themselves. I outlined the simple version of New York City statute production here.3
Where is the law? Where is it written down, and how can you know if you basically have a handle on all of it? If you know that there are four kinds of law, you know that you’re broadly looking for four reservoirs of law when you look at any local, state, or the federal system. There will be a book(s) of constitutional law, a book(s) of statute, a book(s) of administrative law, and a book(s) of case law. Here are the four basic books of law at the federal level, but you can imagine a similar matrix for any level of government:
Constitutional law: the federal constitution
Administrative law: the CFR (Code of Federal Regulations)
Case law: split between the three-level federal court system, with the Supreme Court having the final say on any cases it takes.
Within what formats will I find the law presented? Sometimes the same body of law will be presented in multiple ways, or by multiple publishing services, and it’s important to understand that you’re not actually looking at multiple things, but one thing differently presented. And the four kinds of law are presented in distinct ways too.5
What exceptions and complications exist for this kind of law beyond its basic model? For example, some states allow their citizens to directly amend their book of state statute or constitution via ballot initiatives (California most famously here), so in this instance statute is mostly made by the state legislature, but it can also be changed by the people directly. You might also wonder where treaties fit into this framework, whether zoning laws are statutory or administrative, and where executive orders fit. The list goes on for a while, because the law/government is a highly technical subject. But my advice: get the basic framework down first, and don’t worry about immediately tracking down all the complications to that framework.
You can also ask questions about the system of laws itself:
How do the four kinds of law interrelate? For example: the U.S. Supreme Court famously interprets the meaning of the federal constitution’s text, and that interpretation changes over time. Case law germinates from constitutional law in this instance. But how does administrative law interact with case law? How do statutes interact with administrative law? Etc.
How do the four kinds of law interrelate across governmental levels? For example: how do state statutes impinge upon city statutory or administrative law? How do courts at various levels interact?
Is there a hierarchy? Constitutional trumps statute trumps administrative trumps case? And federal trumps state trumps local? Short answer: yes. There is a so-called hierarchy of authorities, but the lines can sometimes blur in interesting ways.
What are the advantages and disadvantages of putting a law—a legal command—into any of the four different reservoirs of law? They are all differently stable, have different affordances, and are differently powerful.
How do these four kinds of law—and their makers—exist at the federal, state, and local level? Do they exist in the same way at each level, or are there differences in their nature? For example, constitutions do not exist at the local level in the United States (just the state and federal), although there are things like city charters that are colloquially called constitutions; these are distinct from their state and federal counterparts in important ways.
The special problem of having many different words for the same thing
As I mentioned above, the same book of law can be presented in several different formats, by several different publishers. But for many beginners, this is not the most pressing problem they face. Instead, they will find the exact same words being used in different ways, or they will find that different words mean the same thing. Let’s look at two examples.
Civil law—what does it mean? Is it the counterpart to criminal law? Yes it is. But you’ll also hear it put forward as the counterpart to common law (thankfully Gary Winslett has an excellent Twitter thread on this). Here, “civil law” points to two separate things. But both of them are typically kinds of statute, they’re just different conceptual frames on it.6
Regulations—what are they? Well, they are administrative law issued by administrative agencies. But you’ll also hear the word “rules” used synonymously with regulations, and, in fact, in the federal book of admin law, they are legally defined to be the same thing.7 Colloquially, people also use the word “regulate” or “regulation” to apply to anything the government does, including statute it passes.
The law can feel like a conceptual maelstrom, but there is underlying order, especially if you have a robust starting context like the four kinds of law I discussed above.
A few general good resources to explore
GovTrack’s “How Laws Are Made”
Ballotpedia. The website design is quite scattered, unfortunately, but the content is good. Ballotpedia is more than just elections things. They have robust articles about many aspects of American law.
The Library of Congress’s research guides, especially those under the “American Law” section.
Justia and The Legal Information Institute at Cornell Law School. They organize and publish the law across kinds and levels.
Oyez—probably the best site to explore Supreme Court decisions.
The book Law 101, by Jay Feinman, which presents a condensed version of the content you’d see in the first year of law school, and organizes the law by subject (criminal, tort, contract, property, etc).
However, most states have adopted so-called “reception statutes,” which effectively imported the body of English common law prior to the Revolution, where it was not inconsistent with American law. These can be found in both state statutes and constitutions.
For example: “criminal law” is often set forth in a penal code—part of a book of statute. But judges clearly interact with criminal law by both applying and interpreting it, so the whole realm of criminal law will be found in at least statute and case law.
If you start looking into legislative bodies like the federal House of Representatives or the New York City Council, you’ll find that these bodies also have their own internal book of rules called a parliamentary authority, which governs that legislative body in a more detailed way than a constitution or statute would, according to parliamentary procedure, sometimes called parliamentary law. I’ll write a separate post on parliamentary procedure, but for now I’ll say this: it’s a whole other world, and it’s wilder than you imagine.
Use this tool to help visualize the structure of the USC. Also: the USC is a distillation of The United States Statutes at Large: “The United States Statutes at Large is the collection of every law, public and private, ever enacted by the Congress, published in order of the date of its passage. These laws are codified every six years in the United States Code, but the Statutes at Large remains the official source of legislation.” For further information, see “Federal Statutes: A Beginner’s Guide” from the Library of Congress.
Case law is presented in judicial opinions, or cases. These are written is something more resembling plain English, which is distinct from statutes, which can be found in codes, although there is added complication here.
For example, “codified” statute is a book of all passed statute in a jurisdiction, arranged by subject. These laws stay in the code until they’re explicitly removed, which is why you hear about weird, old laws that are still on the books. Codes have their own numbering and organizational system, and I think it’s pretty easy to get the hang of once you dive in.
“Uncodified” statute can manifest in many ways, but one example is called session laws. This is just a collection of all statutes (with resolutions and other things) passed in any given year, presented in the order they were passed. If you hear a phrase like “Law 100 of 2023,” you’ll know you’re hearing a session law reference to the 100th law passed in 2023.
1 CFR 1.1 “Regulation”: “Regulation and rule have the same meaning.”