Part 2:  Understand American Law  

 

                                                    Introduction

 

To understand American law, if one only reads the content of law itself, it is easy to become superficial and it will be difficult to comprehend how America as a rule of law nation operates.  It is  also hard to understand how its legal system developed into what it is today. Therefore in the previous section we briefly introduced America's founding and the spirit of the founders so when we discuss the practical legal issues, the reader has some paths to follow.    

 

The United States Constitution is only twenty to thirty pages long.  Its three main content consists of three parts: federal power restrictions, the organization of the government, and the fundamental rights of the people. The Constitution and history are the basis of modern American politics and law. Every person living in the United States, including citizens, immigrants, as well as international students and even tourists, all have a direct and close relationship to them, unlike in many other countries. But we must also note, due to historical factors and the constitutional restrictions on the federal government, a large portion of the law relating to people’s daily life (Such as marriage, wills, transportation, labor, housing, real estate, commerce, etc.), are within the  scope of the state governments.

 

However, whether it is the Constitution, federal, state, or city law, the main principles are still the same. In this part of the book, the third and fourth Lessons will introduce the spirit, principles, and characteristics of American law;  they all relate to the history and development discussed in the first two Lessons. In the United States, the people have equal protection under the law.  When there is litigation, there are proper procedures to follow. They are all derived from the United States Constitution.

 

 

                                                       LESSON 3

                        The Spirit and Principles of American Law

 

 

 Section 1.  The Spirit of the Law - Freedom and Self-Discipline

 

At the core, the purpose of the United States Constitution was to limit governmental power and protect the people’s freedom. The Constitution clarified the people’s rights but did not mention the responsibility or obligations of the people. The reason was because the founding fathers believed human nature was basically good. Unless he took control of all the power, even an occasional very evil person would not cause much impact on society as a whole. The founders believed that as long as a country was not under totalitarian governmental oppression, people could freely and fully maximize their potential. When immigrants pass the immigration test and receiving their citizenship, they pledge their allegiance to the Constitution. When taking the oath, they stress that they devote their loyalty to the Constitution and accept their obligation "freely, without any mental reservation or intentional avoidance."

 

By contrast, China’s “Legalists” such as  Han Feizi and Li Si, believed human nature was bad. In order for a ruler to maintain political power, prosperity and a strong army, it was important to have "severe penalties in ruling during a chaotic time” and exercise strict control over the people while eliminating any opposition and dissenters, and even "burn all the books and throw scholars into the ditch". In the Chinese "Legalists'" dictionary, the word “freedom” does not exist. Thus, we must be clear that the Chinese Legalists’ "rule of law" and modern western society’s "rule of law" are sharply different in spirit and principle. 

 

American liberty is built on the confidence of the goodness of human nature. However, “freedom” is tied to  the concept of  “self-discipline”. The people are asked to comply with the law voluntarily and take initiative to contribute to society.

 

Let us talk about freedom in the United States.

 

“Life is indeed precious; but the value of love is even higher.  For the cause of Liberty, both can be sacrificed".  What a touching slogan! It is unknown how many Americans are really willing to sacrifice their lives and love for freedom. Hollywood movies and television often give the following impression to foreign audiences: Americans are open, free, and full of individualism. We see the American youths wearing jeans, chewing gum, walking and listening to rock or rap music while dancing, with a totally carefree and indifferent appearance. They eat  hamburgers and drink Coca-Cola; they have sexual liberation and take getting together or separating casually... As they envy the carefree and independent lives of American youths, the foreign audience who are introduced to Americans through movies and television may also wonder: In such an indulgent society, how did it become the strongest country in the world? 

 

To answer this question, the easiest way is to invite the audience to watch the 1989 San Francisco Bay Area earthquake documentary.

 

On October 19, 1989, California’s San Francisco Bay Area had a 7.0 magnitude earthquake. A section of the San Francisco-Oakland Bay Bridge collapsed while traffic was congested. Luckily, not too many roads, houses, or cars were seriously damaged and the number of casualties were relatively low. 

 

Within a few days after the earthquake, the San Francisco Bay Area residents followed the requests of relevant organizations to stay at home and stay off the streets for rescue teams and their vehicles to pass through. In the aftermath, there were no turmoil, looting, or panic to buy groceries. Several residential areas were evacuated to open air parks, and restaurants  in the city immediately made meals and used cars to deliver the food to the victims. One by one, citizens took canned goods, blankets and other supplies and sent them to the affected areas. In the dark streets of broken streetlights, people automatically took out flashlights to direct traffic and maintain order in shifts. The area where the earthquake hit  and destroyed the worst was Oakland where a major highway collapsed. This was in a poor African American neighborhood where public safety was not very good. Yet after the disaster, residents took out ropes, ladders and other useful equipment and eagerly assisted in rescuing people. During this crisis, the most selfless heroes who risked their lives were African Americans who on a normal day, were looked down upon by whites and Chinese people.

 

We previously discussed the eighteenth century Enlightenment which talked about the people living in primitive times, wearing animal furs and eating raw meat, and struggling for survival of the fittest in Nature. There were no established organizations or societies of mutual assistance. An individual could only seek survival forever within the stormy sea of instability. When there were collective organizations, there he to  be collective compliance with the rules; the people could get rights and protection, but also needed to fulfill their obligations and pay the price. Those primitive collectively trusted rules already had certain characteristics of the law.  Put this way,  in a collective society, if there is no law, there can be no freedom. The "brother" of freedom is self-discipline. The other side of freedom is self-restraint and respect for the rights of others. The above example of the San Francisco earthquake confirms that Americans basically can exercise self-discipline, have a sense of civic morality and respect for others.

 

I am not here to sing praises for the United States, because Americans and American culture have many shortcomings, especially the abuse of excessive individualism, crime, drug abuse, the proliferation of firearms etc. But if we understand  the  spirit and principle behind this culture in-depth, and observe objectively the lives and behavior of most Americans, we shall comprehend that the shortcomings mentioned earlier are not enough to override our positive evaluation of how Americans balance individual freedom and collective discipline. The Germans and Japanese are well-known law-abiding and disciplined people, but their tradition emphasizes the principle of collective over the individual. Therefore, militarism, authoritarianism and extreme nationalism have all appeared among them. In other words, German and Japanese law-abiding is only “obedience”. American law-abiding is due to the requirement of individual freedom, so they respect the law and have self-restraint.

 

Visitors and immigrants who only understand the United States from one point of view may not have the opportunity to appreciate its civic education. Aside from explaining individual rights, freedoms and constitutional guarantees for the people, civic education also emphasizes  social responsibility among citizens, as well as mutual respect for each other's rights. Whether it is the naturalization of immigrants or the inauguration of the president, they all take the oath of allegiance to the Constitution.

 

This oath is roughly translated to: "I hereby declare …. I will support and defend the Constitution and laws of the United States of America against all enemies, foreign and domestic; 

 

President Obama at the inauguration ceremony, swore allegiance to the Constitution.

 

I will bear true faith and allegiance to the same…. I take this obligation freely, without any mental reservation or purpose of evasion; so help me God.”

 

New immigrants first arriving in the United States often equate freedom with the liberation of all constraints. They think they can do whatever they want and have no responsibility to society.  However, these notions are extreme misunderstanding of American concept of  freedom. Those  immigrants who have been accustomed to living in a totalitarian environment or an environment where people must obey the government, often lack the sense of voluntary compliance with the law and regulations. One of the reasons is that they do not understand the meaning of freedom. Another reason is their lack of civic education and the influence of civilized society. One can find such examples in their daily lives. In areas where many Americans congregate, such as during the busiest times of the commuting period, whether it is on the bus, the subway or other forms of transportation, passengers would automatically and patiently wait in a queue. On the other hand, in areas where many new immigrants gather, all kinds of scrambling, unruly behavior and impolite habits  would unconsciously manifest themselves. 

 

These types of behaviors that show a lack of consideration and self-discipline are not necessarily related to the level of education or income bracket. In affluent Bay Area cities such as San Francisco and San Jose, students of Chinese immigrants  can sometimes cause resentment among local residents, yet their parents' educational level and economic levels are often higher than the average American. In particular, they move to specific communities or do everything possible to obtain local resident qualifications, because the public schools and secondary schools in these areas are better. However, Chinese parents who have children attending these good schools, usually will not participate in charitable and cultural activities at the school, or perform any active service or give donations. Americans are very generous, but they are not stupid. They observe that while the Chinese are capable people but tend only to seek the benefit without regard to making contributions. Therefore, parents of Chinese  descent in many areas are often the target of protests by Americans.

 

 

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