Legal Infrastructure Defined
Legal infrastructure underpins the rule and order of our society. As the collection of practices, processes, and institutions that make up the legal system, legal infrastructure serves as a central pillar in national stability. It is the mechanism by which laws are created, adjudicated, and enforced. Legal infrastructure provides the framework by which controversies, disputes, and grievances can be addressed. It is designed to create accountability , clarify roles, apportion responsibilities, and allocate power. It is also intended to provide everyone from the CEO to the intern a level playing field on which they may engage with the law. While it is often tested, legal infrastructure is one of the fundamental components of a healthy society. To that end, understanding the various defining features of legal infrastructure can help us see its true importance.
Elements of Legal Infrastructure
The components of legal infrastructure include the set of binding laws that are enacted and enforced by the government, the regulations that interpret the laws, the judicial system and adjudication process, and the enforcement agencies that investigate violations and prosecute offenders. The interplay between these components defines the legal environment in which corporate operators and new businesses must function.
Laws: A law is an established rule or principle that is enforced by a governing authority. This can be a national government, state, or local government. Laws are developed and codified on a national, state, and local level. Statutes are enacted primarily by legislative bodies, such as congress or state legislatures. Administrative agency rules and regulations translate statutes into concrete rules and regulations. Without laws to describe and define proper behaviors and rules, there would be no legal system.
Regulations: Administrative agencies are created by congress or state legislatures to carry out specific legislated responsibilities. Agencies translate legislated laws into official regulations that delineate and expand upon legislated "rules of the road." Regulations exist at both the federal level and the state level and are the types of "laws" that smaller organizations and enterprises run into when implementing new products and services. And, like all laws, they change over time.
Judicial System: From traffic court to the highest level courts, the judicial branch interprets and applies the laws by hearing and deciding cases. The judiciary monitors the legality and actions of other branches of government and ensures that the legal system is fair, consistent and impartial.
Enforcement Agencies: Enforcement agencies are generally organizations that investigate civil and criminal violations of the laws and regulations of the governing jurisdiction. At the federal level, this includes agencies such as the Securities and Exchange Commission (SEC), Federal Trade Commission (FTC), Federal Communications Commission (FCC), etc. There are numerous other state and local enforcement agencies with specific statutory authority to enforce regulations.
Legal Infrastructure Around the World
The legal infrastructure is not uniform across the world, not even within blocks of adjacent buildings. Apart from the fact that there are different laws in different jurisdictions, be they countries or states or provinces, there are also different legal systems themselves and different combinations of both international laws and domestic laws within those jurisdictions. As you would expect, and for the same reasons as for the architecture, the legal systems vary according to the climates, the environment and the culture.
Just to cite some familiar examples: the law in England and Wales derives originally from the Anglo-Saxon period up until 1066, when it was significantly altered by the Norman Conquest. However customs and court procedures of earlier centuries continue to be valid parts of the law today. Medieval English law was supplemented by statute law (laws made by the legislature, Parliament) and judicial law (laws established by decisions and opinions of judges). The American legal system is based on English common law but modified by the US Constitution and other federal and state constitutions and statutes. The legal system of the Netherlands is based on statutes and relies less on customary law and legal precedents than in other civil-law countries. The Netherlands has a mixed legal system that contains elements of Roman-Dutch law and French civil law. The laws that govern each territory can vary widely. The legal system of Japan is a combination of customary law and statutes, heavily influenced by the codes of civil law adopted from those of France.
The civil law systems of France, Belgium, Spain and Italy list offences that are based on statutes. The system contains detailed codes that set out all aspects of the law but do not allow the judges the power to alter the law. Legal sources are defined according to a hierarchy and the Constitution occupies the supreme position. In Germany, codified statutes and regulations (the Bundesgesetze) are the most important source of law. The German constitution (the Grundgesetz, or "Basic Law") is the supreme law. Judicial decisions are not a formal source of law or a judicial precedent or authority but they are persuasive. Germany also recognises custom and "general principles of law" as sources of law.
South American legal systems are traditionally based on Spanish law. Shortly after gaining independence, most of the countries adopted the Spanish Constitution of Cadiz of the early 19th century. The countries of Latin America still retain the Spanish colonial laws and codes, but the laws are supplemented and complemented by post-colonial laws. Most South American states have civil law systems, although some follow the common law tradition. Brazil, for instance, is a civil law country in contrast to its neighbours. Brazil’s legal system consists essentially of Roman-Germanic, Portuguese and US-American legal traditions. The Constitution of Brazil is the supreme law of the country.
In Africa, English-common-law systems based on the English legal system are found in many former colonies such as Nigeria and Ghana; others are based on the Napoleonic Code, reflective of French influence, such as in Mozambique and Angola. Nations of North Africa usually use the Islamic law (shari’a or shari’ah) as the foundation of their legal system. The African Union works to harmonise laws to foster intra-African trade while the Arab Maghreb Union aims to create a community similar to the EU.
Internationally, new laws are often passed by the EU. For example, directives are laws that are binding on EU member states at a national level, but leave the member states with the option of how to implement the law. Also, the Geneva Conventions (1949) and related treaties form a core body of humanitarian law that seeks to limit the barbarity of war. Whether a nation is a signatory to an Agreement, such as the Washington Convention on the Rights of the Child, or a party to an International Convention, such as the International Covenant on Civil and Political Rights, may also influence the laws of the individual countries.
Legal Infrastructure Challenges
Despite its importance, however, legal infrastructure is not without its challenges. Corruption poses a significant barrier to effective governance and enforcement. In many cases, judicial systems are inefficient or unprotected by adequate safeguards, making them highly susceptible to external influences. In the most egregious cases, the courts are outright coopted or displaced by criminal interest groups. In countries where this is a serious problem, no one is safe from banditry, extortion, or worse. Yet even in systems where corruption is less prevalent, judicial institutions may be ineffective due to lack of adequate resourcing or support. For instance, many developing states have a shortage of attorneys and judges, leading to a quagmire of back-logged cases. Relatively unchanged since Roman times, basic elements of court procedure can seem anachronistic and unwieldy. A single trial can take years, even decades to complete. Embattled by a declining public perception, there is a resultant lack of investment in legal infrastructure. In jurisdictions where investment is nonexistent, let alone sufficient, what little resources might be expended on building or rehabilitating the courts are often inequitably distributed. For instance, while regional capitals may boast well-appointed courthouses, rural areas may lack even the most basic facilities, no matter how many citizens are in need of access to legal recourse. In some places the ousting of colonial structures led to the dismantling of superior courts, followed by the establishment of the basic elements of universally applicable law . The result is that many nations find themselves with legal infrastructures built around good intentions. While seeking uniformity is a noble goal, the impetus to do so at the expense of local considerations has led to an over-emphasis on codified standards without the necessary accompanying services to help citizens navigate the legal system in order to understand and access their rights. Other, more existential threats to legal infrastructure have emerged with the advancement of the digital age. As Internet connectivity reaches the farthest corners of the planet, information grows exponentially. Information asymmetry, wherein the elite few benefit from critical knowledge, has been universally reduced. This means that citizens are now better equipped to hold their governments accountable. Unfortunately, while beneficial for accountability and transparency, the noise generated by the digital era can obfuscate fact from fiction. The proliferation of fake news and deep fake technology calls into question the veracity of everything, including what is ostensibly verifiable data. Moreover, with the free-for-all of the Internet, there is no mechanism to rein in malign actors who would use data to smear opponents and provoke ethnic divisions. As the locus of any transgressions is quite local, it can be difficult to verify claims made online. Even worse, even in jurisdictions where legal infrastructure is already burdened by limitations, there is little appetite for further strengthening.
Technology’s Role in the Legal Infrastructure
Technology is playing an ever-increasing role in reshaping the legal infrastructure of today. Online dispute resolution platforms are becoming more commonplace in divorce, family law, and landlord-tenant disputes. Government bureaucracies are making their own play to reshape the legal landscape by encouraging individuals to resolve their issues through online platforms. For example, the New York City Housing Court has a program called ODR for Evictions.
Artificial intelligence is increasingly common in the legal arena and is transforming the industry. Companies such as LawGeex.com, Casetext.com, DoNotPay.co, and rossintelligence.com are trying to reshape the way that people interact with the law. For example, LawGeex.com will review your contract and tell you what parts you should worry about. DoNotPay will draft an action to write into the system for filing at your local courthouse.
Closed legal databases are allowing those who are already privileged access to information on a level never before seen. Previously hidden from public access legal documents are now being put in the hands of professionals and clients alike. Law firms are working with companies such as Casetext to make legal research service more affordable and easier to access. Analytics allow for a deeper understanding of a particular issue or matter of law. Companies such as Lex Machina and Premonition use artificial intelligence to track the outcomes of cases around the country to give clients an idea of how their affairs may end up before the courts.
Improving Legal Infrastructure
Strong legal infrastructure requires not just a focus on justice, but also a strategy for its support and improvement. This means that reform efforts – both for the new administration in Iraq and for the next administration in the United States – need to be broad and inclusive, and should not be limited to simply reviewing and revising existing laws or codifying new laws to address gaps. While laws are critical elements of legal infrastructure, it is equally important to remember that laws cannot really stand alone. Laws require institutions capable of mobilizing resources and personnel, and they require an administrative structure to resolve disputes fairly and impartially. Strengthening legal infrastructure means developing strong institutions and getting past a mentality that in order to undertake new reforms, old reforms must be repealed.
New resources will almost certainly be needed to accomplish this. Strong legal infrastructure has to come from solid long-term resource mobilization efforts, even if such efforts run counter to the desire of some policymakers to show immediate progress. There will be a strong temptation for law and policy reform initiatives to focus more on writing and codification, evaluation, or other legal fictions as a means of improving the quality of law, rather than improving the capacity of those institutions charged with implementing those laws. Such legal fictions are not the same as reality and merely writing more laws will not improve the quality or capacity of the rule of law in a country.
International cooperation, and especially cooperation between developed and developing countries, is critical to improving global legal infrastructure. Informal networks similar to the one that developed in law and justice reform are particularly valuable as they foster rapid response and flexibility to locally defined priorities. In addition to informal networks , more work could be done to develop partnerships between American and foreign legal professionals, including among law schools. If abroad, foreign law professors and practitioners would obviously enhance their capability through engagement with their American counterparts, but they could offer a balance to the American legal education system as well.
Likewise, we should not forget the vital role of non-legal professionals in efforts to promote a more robust legal infrastructure. We are just learning how information and communications technology can be used to promote good governance and access to justice, and it is essential that those involved in information technology play a larger role in advising on these issues. Considerable engagement from the private sector in the United States will also be needed.
Finally, there is space for political consensus and leadership in improving legal infrastructure. Extensive investments in building global legal infrastructure over the next decade will likely require re-examination of high-level political relationships. Just as the Cold War led to international infrastructure for scholarship and exchange in science and technology, legal infrastructure will be a framework within which relationships are built and political consensus can form. In his farewell address, President Eisenhower warned of the dangers of the ever-increasing influence of the "military-industrial complex" and its ability to shape American public policy and society. An unintended consequence of the enduring emphasis on the importance of military power has been that the influence of scientists and engineers has declined. Legal and policy choices are routinely made by policymakers without sufficient consultation from those whose work focuses on law-related disciplines. Like the Cold War investment in scientific research and industrial development, international involvement in legal education and related disciplines has the potential to be a positive framework of influence.