Form And Function In A Legal System - A General Study Part 8 potx

P1: PJL 0521857651c09 CB966B/Summers 0 521 85765 1 December 5, 2005 19:24 284 FormsofSanctions and Remedies of expression in a law can also facilitate interpretation and fact-finding required for the application of law. Most law is implemented in developed Western societies through voluntary self-direction by addressees – private citizens, entities, officials, and others – in accord with reasons for determinate action or decision that these addressees have constructed under statutes, contracts, and other species of law. 3 When addressees voluntarily so act, there is no need for the state to impose sanctions, remedies, or the like then and there. Legally well-informed addressees who voluntarily imple- ment the law may be the most important material components of any system. In tolerably well-ordered societies, a major factor that influences addressees voluntarily to act in accord with rules and other valid law is the general respect they have for the law, and for the pre-emptive force of particular legal reasons for determinate action and decision that can be seen to arise under the law. In regard to most laws in these societies, such respect derives largely from the sense that addressees have that law is for the common good, that particular laws themselves are justified, and that the system of law and its manner of operation are acceptable. Relatedly, addressees also respect general duties of societal membership, many of which are recognized in law. One of these duties is simply the duty to abide by the law, though this is not an absolute duty. Still another factor is this. Those who might be adversely affected by nonperformance of a legal duty often stand ready to assert claims of right, thereby inducing compliance. Various nonlegal factors also account for voluntary compliance in a tolerably well-ordered society. Perceived self-interest in following the law is one such factor. Officials readily perceive that it is in their interest to do their jobs according to law. Ordinary citizens and other inhabitants perceive that voluntary compliance with law is not merely a way of staying out of trouble, but generally enables all to live and let live in pursuit of their own interests. Further nonlegal factors influencing voluntary compliance include the fear that others will criticize noncompliance, and the fear that those adversely affected by noncompliance may retaliate. So far, I have identified many of the factors that influence voluntary compli- ance. I have characterized most of these as largely nonlegal. Yet, well-designed form in functional legal units contributes in various ways to the efficacy even of some of these largely nonlegal factors. We have seen how form leaves imprints 3 See generally H.L.A.Hart,The Concept of Law, 124 (2 nd ed., Clarendon Press, Oxford, 1994): ‘In any large group general rules, standards, and principles must be the main instrument of social control, and not particular directions given to each individual separately. If it were not possible to communicate general standards of conduct, which multitudes of individuals could understand, without further direction, as requiring from them certain conduct when occasion arose, nothing that we now recognize as law could exist. Hence the law must predominantly, but by no means exclusively, refer to classes of person, and to classes of acts, things, and circumstances; and its successful operation over vast areas of social life depends on a widely diffused capacity to recognize particular acts, things, and circumstances as instances of the general classifications which the law makes.’ P1: PJL 0521857651c09 CB966B/Summers 0 521 85765 1 December 5, 2005 19:24 Section One: Introduction 285 on material and other components of these functional units, many of which are deep and indelible. For example, the better defined a legal rule, the more clearly it is expressed, and the better it is publicly disseminated, all of which are wholly or partly matters of form, the more likely addressees will understand the rule, and, in turn, respectfully comply. Also, the more understandable a rule (including its rationale), the more focused and intense will prospective criticism or other social pressure be that could ultimately induce voluntary compliance. The foregoing are, in part, empirical claims on behalf of well-designed form, yet they are not really controversial. Still, if a legal system had no capacity to coerce potentially recalcitrant persons through, for example, threats of sanctions for crimes, or threats of sanctions for administrative violations, or through prospective grants of judicial remedies for breaches of contract, for torts, or for other civil wrongs, it is certain that a higher proportion of persons would commit crimes, break contracts, or otherwise take advantage of others in disregard of legal duties. It is also highly likely that any such lawlessness, if widespread and continuous, would eventually erode the general cooperative spirit and morale of many persons who would otherwise fulfill their legal duties. 4 In that event, the social order might even degenerate, as Thomas Hobbes most famously put it, into a war of “all against all” in which life becomes “solitary, poor, nasty, brutish, and short.” 5 Thus, in addition to duly formed and validly adopted rules and other law, formal promulgation and other methods of communicating or making law acces- sible, formal interpretive and other methodologies and the pre-emptive reasons for determinate action and decision arising thereunder, and the non-legal fac- tors tending to induce voluntary compliance, legal systems must also have state sanctions, state remedies, and other enforcive units. Without these, some persons could not be motivated to act in accord with even the clearest and most highly pre-emptive reasons for determinate action that arise under law. Indeed, some persons can be motivated to comply only insofar as they learn of, and come to fear, a state imposed sanction, remedy, or the like. Still others can be motivated to comply only by some combination of (1) the threat of a legal sanction, rem- edy, or other adverse state action, and (2) various nonlegal factors such as fear of criticism, or of retaliation by a victim or someone else adversely affected. State sanctions, remedies, and other discrete enforcive legal units, then, are necessities. Justice and other ends of civil society must be secured to some extent 4 Id.,at197–9. 5 T. Ho bbes, Leviathan,82(M. Oakeshott ed., Basil Blackwell, Oxford, 1960). In the American Federalist Papers (no. 15) published in 1788, it was said: “It is essential to the idea of a law, that it be attended with a sanction. . . . If there be no penalty annexed to disobedience, the resolutions or commands which pretend to be laws will, in fact,amount to nothing more than advice or recommendation.” A. Hamilton, “The Federalist No. 15,” in A. Hamilton et. al, The Federalist: A Commentary on the Constitution of the United States,at91(Random House, New York, 1950). P1: PJL 0521857651c09 CB966B/Summers 0 521 85765 1 December 5, 2005 19:24 286 FormsofSanctions and Remedies by force. Enforciveunitsare socio-legal creations and due form is required for their very existence and operation, as well. Yet, these units are neither free-standing nor self-sufficient. Sanctions and remedies, like other functional legal units, must be integrated and coordinated within operational techniques for the creation and implementation of law. In this chapter, itwill be sufficient to treat the overall forms, constituent features, and complementary material or other components of only two major types of functional legal units that are enforcive: the sanction of state imprisonment for crime, and the judicial grant of compensatory damages as a remedy for breach of contract. I will also identify further ways that form and formal features enter into the overall coercive capacity of a legal system. My primary focuswill beonhow studyoftheoverall forms ofimprisonmentand of contract damages advances understanding of the makeup, unity, instrumental capacity and distinct identity of these units, and on how credit is due these forms for ends realized. Some of the claims to credit I assert here on behalf of form are, like others in this book, partly empirical, yet not controversial. Still other claims I assert are not empirical at all. For example, without sufficiently well-designed form, sanctions and remedies could not be defined and organized as functional legal units. Hence, they could not exist at all. Ihavegiven enforcive units a place in the typology of functional legal units selected for consideration in this book for two main reasons. First, sanctions and remedies are different from the other types of functional units so far considered. Forexample, the sanction of imprisonment is far from equivalent to any specific rule of the criminal law, e.g., against theft, that may be broken and for which such a sanction may be imposed. Also, a compensatory damages remedy for breach of contract is far from equivalent to the contract term that has been broken. More- over, sanctions and remedies are plainly far from equivalent to the very judicial institution required to impose sanctions or grant remedies, and far from equiv- alent to the legislative or other institutions that may have created such enforcive units in the first place. Thus, sanctions, remedies, and other enforcive units have their own autonomy, although they, too, are not functionally independent. They presuppose legislatures, criminal prohibitions, courts, contracts and contracting processes, and still other functional units. Second, enforcive units are essential to the viability of a legal system. One influential legal theorist even claimed that a legal system, in its entirety, is a “coer- cive order.” 6 Although in this chapter, I draw illustratively from Anglo-American systems, the major types of enforcive legal units in developed Western systems are broadly similar. 6 See generally H. Kelsen, General Theory of Law and State (A. Wedberg, trans., Harvard University Press, Cambridge, 1945). P1: PJL 0521857651c09 CB966B/Summers 0 521 85765 1 December 5, 2005 19:24 Section Two: The Forms of Enforcive Functional Units – General 287 section two: the forms of enforcive functional units – general State-administered enforcive unitsare numerous and varied. They include impris- onment, fines, capital punishment, compensatory remedies, orders requiring spe- cific action, disgorgement of gain, forfeitureof property or other rights, revocation of licenses, and so on. Each enforcive unit takes its own overall form – its own purposive systematic arrangement – and has its own complementary material or other components. Yet most share several formal features that go to the very essence of enforcive units. These shared features together comprise the key to understanding such units. These features and complementary components also serve policies and other ends of the specific laws at stake, general values of the rule of law, and fundamental political values including legitimacy, rationality, and justice. Here, much credit is due enforcive forms. Before turning to the specific formal features that leading enforcive units share when suitably designed, I will identify the primary facet that figures in all such functional units. This primary facet is, in its nature, adverse to the addressee and is state-imposed. For example, imprisonment or other restriction of liberty is adverse. A fine is adverse. A court judgment requiring that a party pay money damages is adverse. Official confiscation of property to pay damages is adverse. Andsoon. Of course, many varieties of action by private persons can be similarly adverse, too. For example, a private victim of serious harm might thereafter seize and lock the wrongdoer up in a room. This would not, however, be state-imposed imprisonment, though its adverse character could be highly similar in impact. A private victim of a breach of contract might simply grab property of the contract breaker as recompense. This would, likewise, not be a state-imposed remedy, yet the immediate adverse effects on the contract breaker could be very much the same. Inawell-designed system, an element of adversity must be combined with various formal features and other complementary components before the unit can qualify as a state-imposed sanction or a state imposed remedy. First of all, the overall form of a state sanction or remedy provides that the specific adversity it entails can generally be authoritatively imposed only by state officials (often only judges), and not by the party harmed. The rights of a harmed citizen to impose a sanction or to exercise a remedial power of “self-help” are severely limited in all Western legal systems with which I am familiar. For example, the family of a victim of a criminal assault cannot lawfully lock up the wrongdoer in a room, nor can the victim of even a serious breach of contract lawfully confiscate property of the wrongdoer against the latter’s will. Also, a victim cannot lawfully hire another private party to “impose a sanction” for an offense, or “exact a remedy” by way of taking the wrongdoer’s assets as compensation. Such acts would be unlawful P1: PJL 0521857651c09 CB966B/Summers 0 521 85765 1 December 5, 2005 19:24 288 FormsofSanctions and Remedies and illegitimate. The overall form – the purposive systematic arrangement of an enforcive functional unit – typically provides that the adversity of a state sanction or a state remedy can only be imposed by authorized officials of the state. The roles of such officials are themselves defined and organized by institutional form. Second, the overall form of a state-imposed sanction or remedy requires a rec- ognized legal rationale for such adverse official action. The act of locking someone up in a room, or the act of taking someone’s property is certainly adverse to the party affected and without an appropriate legal rationale, it would be lawless and illegitimate, even though imposed by officials of the state. In a well-ordered society under the rule of law, not even the state can act adversely to inhabitants without a legal rationale. The imposition of what is truly a legal sanction, remedy, or other enforcive device thus cannot be simply an “act of hostility” toward an individual, as Hobbes put it. 7 The lawful imposition of a state sanction or remedy presupposes arationale to the effect that the individual to be adversely affected has in some relevant way been legally errant.The overall forms of such discrete enforcive units as sanctions and remedies share the feature that state-imposed adversity of this nature can only be an authorized response to a party’s wrongful action or other failure to fulfill a recognized legal duty arising under a rule, a contract, or other law. Third, the overall form of a sanction, remedy, or other enforcive unit also gen- erally has the further feature that the core adversity involved is characteristically delimited. It is not amorphous, open-ended,ill-defined, or otherwise indeter- minate. That is, in general this adversity is not unlimited constraint, arbitrary confiscation of any amount of property, or the like. Nor, generally is the adversity to be disproportionate to the wrong. The adversity of the duly designed sanction, remedy, or other enforcive unit is characteristically determinate and proportion- ate. The purposive systematic arrangement of the unit – its overall form – defines, specifies, circumscribes, and de-limits the adversity to be imposed, in advance of any such imposition. Without this constraining feature, the adversity could easily, in the hands of state officials, become an illegitimate and lawless instrument of arbitrariness, injustice, inhumanity, or even tyranny. Developed Western systems generally do not recognize an uncircumscribed element of “state coercive power” that may be freely imposed adversely. With one general exception to be consid- ered later, a developed system has only well-designed highly organized sanctions, remedies, and other enforcive units that are duly defined, duly circumscribed and duly de-limited in scope. Fourth, another feature of the overall form of an enforcive functional unit is that those authorized to impose the adversity involved can, in general, only do so pursuant to due process of law, which is itself defined and organized through form. 7 T. Hobbes, supra n. 5, at 204. See also J. Bentham, Of Laws in General, 134 (Athlone Press, London, 1970). P1: PJL 0521857651c09 CB966B/Summers 0 521 85765 1 December 5, 2005 19:24 Section Three: The Sanction of State Imprisonment for Criminal Offenses 289 In general, a sanction, remedy, or other enforcive unit can be imposed against the will of a person only after a public proceeding, usually in a court of law, in which the alleged criminal or civil wrongdoer has a fair opportunity to contest the law and the facts as to the occurrence of the asserted wrong and to contest the law and the facts as to the appropriateness of any given sanction or remedy. Fifth, the foregoing features of the overall forms of enforcive functional units and their complementary material or other components are also generally pre- scribed in reinforcive and other rules in due form laid down publicly in advance. This is not to say that these rules are explicitly formulated in the language of form. They seldom are. Still, to be rules at all, they must take the overall form of rules. It is also difficult to believe that enforcive legal units could effectively exist and operate if not provided for in writing (or print), a formal feature. Each discrete enforcive sanction, remedy, or other device, then, takes its own overall form, with the foregoing constituent features. The above five features of the overall form of an enforcive sanction, remedy, or other device, together satisfy the general definition of overall form as refined to fit such a unit. Again, this general definition was introduced and defended in Chapter Two.Each discrete enforcive unit is thus purposively and systematically arranged and has its own complementary material or other components. Some features of this overall form are also independently recognized in our lexicons as formal. This is true, for example, of the feature of authoritativeness. 8 It is true of the feature definitively circumscribing each unit. 9 section three: the sanction of state imprisonment for criminal offenses Apart from punishment by death, the most drastic enforcive phenomenon in developed Western societies is the punitive sanction of imprisonment for the com- mission of a serious crime. Such imprisonment may be for life or for a shorter term.The judicial imposition of imprisonment of offenders, duly publicized, not only punishes the offenders but also makes the general threat of such imprison- ment credible as a deterrent, and limits the capacity of the persons to commit further offenses during the period. Publicizing the proceedings has a legitimizing effect, as well. The sanction may be said to enforce the relevant criminal prohibition – the legal precept at stake. For this, and for other reasons, the sanction as a whole is entitled to some credit for the realization of security, justice and other ends and values at stake. The overall form of the sanction, along with its material and 8 The Oxford English Dictionary,vol. 6,at “form,” I.11.a (2 nd ed., J. Simpson andE. Weiner eds., Clarendon Press, Oxford, 1989). 9 Id., vol. 6, at “formal,” A.5. P1: PJL 0521857651c09 CB966B/Summers 0 521 85765 1 December 5, 2005 19:24 290 FormsofSanctions and Remedies other components must share in this credit. Study of this form also advances understanding of the sanction. Imprisonment for a serious crime presupposes many major varieties of func- tional legal units: institutional, preceptual, methodological, and others. Further- more, it is integrated and coordinated with other functional units within that overall operational technique I have denominated the penal technique, a subject treated in Chapter Ten. The discrete functional unit of imprisonment for serious crime is to be analyzed in terms of its overall form and the constituent features of that form. It is also to be analyzed in terms of complementary material and other components. These components includeallresourcesrequiredforimposition oftheadversity involved, that is, the duly circumscribed deprivation of liberty: prisons, prison officials, various material resources such as weapons and other equipment required by prison officials, food and water to provide sustenance for prisoners, and so on. The overall form of this unit defines, organizes, and renders intelligible the sanction of imprisonment for crime. There is, then, far more to this functional legal unit than merely the “sheer force” of state prison walls, armed guards, and other material components. Generally, a state sanction could not even exist without being purposively defined and organized as such – without taking a duly designed overall form with constituent features. This is one major variety of credit due to form, and this claim is not empirical in nature. The overall form of the sanction of impris- onment for serious offenses in developed Western societies generally consists of well-defined and duly organized provision for judicially ordered deprivation of the liberty of a convicted offender at the hands of authorized state officials within quarters maintained by the state. The constituent features of this purposive sys- tematic arrangement – of this overall form – typically provide for: (1) the organized adversity involved, that is, duly circumscribed, determinate, and proportionate deprivation of liberty for a period of time pursuant to court order, (2) of a person who has violated a nonminor criminal statute, (3) who has been duly convicted thereof in a public proceeding in a court of law, after fair opportunity of the alleged offender to contest (or waive) the officially asserted applicable law and facts found, (4) who has been duly sentenced to prison pursuant to court order after a sentencing hearing in public at which the offenderhas had the opportunity to contest (or waive) the lawfulness and appropriateness of the penalty, and with, (5) the foregoing being subject to appeal for errors of law or fact, (6) the foregoing being prescribed in rules in due form and content. P1: PJL 0521857651c09 CB966B/Summers 0 521 85765 1 December 5, 2005 19:24 Section Three: The Sanction of State Imprisonment for Criminal Offenses 291 The overall form of the sanction of imprisonment is thus systematically arranged. The founding purpose informing this overall form is that of defin- ing, organizing, and bringing such a discrete sanctioning unit into being so that it can, in turn, serve its further purposes. With a duly organized arrangement for imprisonment of offenders in existence, the imposition of this sanction in partic- ular cases serves the further immediate purpose of enforcing criminal law rules for the breach of which sanctions are provided. Without the reality of, and without the threat of, such punishment, the ultimate and more external purposes that crim- inal law and its sanctions are to serve would be in dire jeopardy. These purposes include reinforcement of the general sense that certain conduct is wrong, general deterrence of wrongdoers, preservation of the sense of security against murder, violence, theft, fraud, and so forth, and encouragement of citizens to exercise the freedoms of daily life in a well-ordered society. Another purpose of the foregoing systematic arrangement of the discrete sanc- tion of imprisonment is one that may also be considered ultimate and external, namely, that of publicly demonstrating in particular cases the legality, legitimacy, and justice of any state sanctioned incarceration of those particular individuals so imprisoned. Here, provision within the arrangement for various procedures such as public hearings, and for publicly announced imposition of the penalty, serves such purposes. This feature of overall organized form and complementary content limits and regulates the exercise of the coercive power of the state to restrict the freedom of citizens through imprisonment. Here, form also serves general values of the rule of law. Other purposes of the overall form and complementary content of the sanction may be considered internal in the sense that they are to be realized primarily through the workings of the sanction itself during the time it is being imposed. Among the important internal purposes served here are: vindicative justice for the victim of the crime and for relatives of the victim, the meting out of just deserts to the offender including not only the deprivation of freedom but also the moral opprobrium attaching to the conviction, incapacitation of the offender, and rehabilitation of the offender. Again, the very realization of such purposes depends (1) on the availability of the sanction, which is itself, in part, dependent on form, and (2) on the correctness of the imposition of the sanction, which in turn, is partially dependent on the formal features listed above. Form that is not well-designed simply cannot sufficiently serve the foregoing purposes. Again, a sanctioning unit, like all discrete legal units, is not independently functional. It functions within, and is dependent upon, that overall operational technique of a system of law identified in this book as the “penal technique.” 10 The imposition of a criminal sanction pursuant to this technique presupposes that a 10 See infra Chapter Ten, Section Six for a general account of this technique. P1: PJL 0521857651c09 CB966B/Summers 0 521 85765 1 December 5, 2005 19:24 292 FormsofSanctions and Remedies crime has been committed. Crimes are prohibited by rules and, as we have seen, rules take a distinctive preceptual form. The formal features of rules, studied in Chapters Five and Six,define and organize the contents of many laws, including criminal prohibitions. Without these prohibitions, the sanction of imprisonment for crime could not be imposed. Furthermore, a legislative institution typically enacts the rules thatprohibit crimes, and we have seen how dueformisrequired for the very existence of a legislature. We have also seen how the formal procedural, structural, and other features of a legislature can contribute to the quality and efficacy of the form and content of statutory rules generally, including those prohibiting crimes. In addition, impositionof the sanctionofimprisonmentpursuantto thatoverall legal modus operandi here called the penal technique presupposes the existence of judicial institutions, which must also be defined and organized through form. Courts could not exist without duly designed form. In developed Western societies generally, only an authorized judge can order the sanction of forcible deprivation of liberty for commission of a crime. Also, this can, in general, only be done after a procedural determination by fair process that the offender has, in fact, committed an imprisonable offense, and only after opportunity for a fair sentencing hearing at that. 11 In order for a person to function as a judge (or a juror), the relevant features of judicial institutional form must be present, including the compositional, the jurisdictional, and the procedural. Insofar as these features are well-designed, they will contribute to the quality of the processes involved and the quality of the exercise of judgment by judges and any jurors. Given the judicial role in the penal technique, the features of overall judicial form with their complementary material and other components, take on major importance here, too. Furthermore, form facilitates judicial fact-finding in many ways. The more definite the basic criminal prohibition in question – a formal feature – the more focused the fact-finding. When the procedural feature of the form of a court is well designed to provide for the testing of proferred evidence, the truth is more likely to emerge. The quality and efficacy of the procedural feature of overall judicial form has special importance here. When well-designed, procedure assures fair notice, fair opportunity of the accused to defend, and fair determination of issues of guilt or innocence. In a well-formed and otherwise rational sentencing process, due consideration will be given to such factors as the nature and circumstances of the offense, the history and circumstances of the defendant, the seriousness of the offense, what is required for just punishment including consistency with similar past dispositions, deterrent efficacy of proposed sentences, and rehabilitation of the offender. How sentencing discretion is structured is itself a formal feature that can contribute to rational exercise of this discretion. 11 In the American federal system, see 18 U.S.C. §3553 (2000). P1: PJL 0521857651c09 CB966B/Summers 0 521 85765 1 December 5, 2005 19:24 Section Three: The Sanction of State Imprisonment for Criminal Offenses 293 The functional legal unit of punishment by imprisonment is sometimes sim- plistically reduced to such complementary material components as armed guards, prison walls, and various other state symbols of “sheer force.” Yet,imprisonment is better viewed not as “force-backed” law, but as “form-backed” and “law-backed” force. 12 Due form lawfully backed, tends to secure legitimacy here. It is true that armed guards and high prison walls are necessary. Yet to be legitimate, even the guards must be duly authorized, and the prison facility duly authorized. As I have explained, various features of form define and organize the whole of this punitive functional unit, and rules, which take their own overall form, prescribe impris- onment. This does not mean this enforcive unit is reducible to such rules. A duly functioning prison is not a rule, or even a set of rules. Study of the overall form of the sanction of imprisonment is required to advance understanding of the nature of this enforcive functional unit as a whole. Form defines, organizes,andrendersintelligible themake-up,unity,instrumentalcapac- ity, and distinct identity of the unit. A form-skeptic might object that what I call the very core of the overall form of this sanctioning unit – the organized provision for imprisonment of offenders – is in truth, not formal at all. According to the skeptic, this core should be characterized as nonformal, along with the related material components such as the prison-facilities themselves, the required personnel such as jailers and the judges, the necessary material resources for the maintenance of the facilities, and the provision of food and medical supplies for the imprisoned. Here, the form-skeptic errs in reducing overall form to complementary material components. The form-skeptic also fails to see the proper place of the deep and indelible imprints of formal features on these components and on imprisonment as such. What the skeptic considers to be the “core” of the phenomenon – the defini- tively organized provision for imprisonment of offenders – is really the core of the overall form of the functional unit as a whole. Without this organized provision for authorized imprisonment, the form of the unit could not exist, and, as I have demonstrated, without this form, the functional unit of imprisonment could not exist. The form of any such unit must have purposes that inform its systematic arrangement. Here, the founding purpose is that of bringing into being the orga- nized provision for authorized imprisonment of offenders. The resulting purpo- sive systematic arrangement qualifies as the core of this overall form. We can easily imagine the complementary material and other components “standing alone.” A building with people in it being watched over by armed persons could exist, but that would hardly make it a state prison. A state prison is not a pre-legal or an a-legal phenomenon. It requires an overall organized form. This form providing 12 See also, R. Collingwood, The New Leviathan, 180 (Rev. ed., D. Boucher ed., Clarendon Press, Oxford, 1992), where this is said to be the greatest discovery (a discovery by Hobbes it is said) in political science since Aristotle’s many discoveries. [...]... 0 521 85 765 1 December 5, 2005 19:33 The Overall Form of a Legal System as a Whole things, too Administrative agencies mainly administer, though they may engage in rule-making and even in versions of adjudication Courts mainly adjudicate, although in the course of this, they administer and create law Private entities, including individuals, and corporate bodies, create and perform contracts and other... have major systematizing significance beyond the allocation of law-making and other authority, and beyond unification and ranking of the general criteria within the system for identifying putative law as valid law The foregoing systematizing devices and their resulting formal features also centralize, coordinate, and prioritize with respect to various nonlaw making activities of institutions, too That... order.7 In general, then, constitutional law generally prevails over all contrary law, statutes generally over all remaining law, ordinary judge-made law generally over most administrative rulings, authorized state law mandatory in nature over private contract, and so on As a result of such priorital ranking, the law’s addressees (with any needed legal advice) can then know which of two or more conflicting... “personality,” etc.; (6) frameworks and processes for the creation and administration of contractual and other privately made law; (7) interpretive, drafting, and other methodologies for creating and applying state-made law, and privately created law; (8) state-made rules and other precepts of substantive law; (9) state-made rules and other precepts of procedural law; (10) contractual terms, property interests,... jurisdictional sphere, e.g., legislative, judicial, administrative, contractual, and other private-ordering, etc., the ultimate authority of law-making and law-applying institutions and entities involved is centralized and ordered hierarchically 1 A centralized hierarchical order of ultimate authority within each jurisdictional sphere – legislative, judicial, administrative, contractual, and other private-ordering... of a particular remedy against a prospective contract breaker is a factor that can induce performance in some proportion of instances A particular judicial grant of the remedy renders the general threat credible in other instances and affords just compensation to the aggrieved party for losses sustained from the breach The standing availability of such a remedy also facilitates settlement of contract... centralized and hierarchically ordered legislature would, so far as applicable, be valid and binding on all local legislatures The case law of a supreme court would be valid and binding on all other courts within its sphere Decisions of a supreme administrative entity would be valid and binding on all other administrators within its sphere Similarly, private parties and other entities making and performing... the state and the assets of the contract breaker Well-designed overall form – the well-organized provision of a damages remedy and its imprints – are major parts of what more there is I will now consider briefly the bearing of the institutional form of the remedygranting court, and also of relevant preceptual and methodological form In most Anglo-American systems, a judgment against the breaching party... severally (and synergistically) systematize the whole, thereby largely accounting for its overall unity and distinct identity as a system As a result of the systematizing effects of each device, a highly complex, yet duly systematized feature of the legal system comes into being Law-making and lawapplying institutions and entities operating within the same jurisdictional spheres are centralized and. .. party may, however, choose to answer in court and defend against an aggrieved party’s claim, and if proved liable for breach, only then pay damages The contract damages remedy is also better viewed not as “force-backed” law, but as form- backed” and “law-backed” force Features of form define and organize the remedial unit as a whole These features are prescribed to an extent in reinforcive rules that have . deter- mination (with or without a jury), in accord with substantive law and procedure and via applicable fact-finding and law-applying methodologies, that the breach- ing party committed an unexcused. communicating or making law acces- sible, formal interpretive and other methodologies and the pre-emptive reasons for determinate action and decision arising thereunder, and the non -legal fac- tors. prospective contract breaker is a factor that can induce performance in some proportion of instances. A particular judicial grant of the remedy renders the general threat credible in other instances and affords