Legal Literacy Is An American Value With Roots in Early Colonial America

Literacy is commonly defined as the ability to read and write in a manner sufficient to function in society. Similarly, legal literacy is having the knowledge and familiarity with the laws and one’s rights and responsibilities sufficient to function in society.  The purpose of this piece is to reflect on the extent to which the values of legal literacy is important to the Book of the General Laws and Liberties Concerning the Inhabitants of the Massachusetts, the first American legal code, published in 1648, and what we should draw from this precedent.   

It is important to recognize that legal literacy plays a role in all societies. In tyrannical regimes, legal literacy means having the knowledge and familiarity with the likes and dislikes of the person or persons with control over the military and police forces. In many voluntary non-governmental associations like religious and cultural societies, it means a commitment to a myriad of rules and regulations governing numerous aspects of daily living.  In a democratic-republic such as ours, it means a general familiarity with rights and responsibilities of one’s enterprise, a general familiarity with one’s obligations to one’s neighbors and others with whom one interacts, one’s rights to secure a legal remedy when faced with a legal cognizable harm, and one’s rights to petition and influence the government.

My view that legal literacy is an essential American value is not original to me or merely an aspect of the age in which we live, although that impression is understandable given the newness of various legal literacy organizations.  The Book of the General Laws and Liberties Concerning the Inhabitants of Massachusetts is first legal code in the Colonies, instituted in 1648.  Its introduction specifies that legal principles incumbent on members of society should be “drawn out into so many of their deductions as the time and condition of that people may have use of” [them].  I interpret that language as meaning that the writers contend that laws should be promulgated in a manner that is understandable and usable to the average citizen. The introduction also indicates that a primary purpose of publishing the 1648 legal code, and specifically using the mechanism of organizing materials alphabetically by topic, is designed to make sure the statutes are “more readily…found” and “more easily…apprehended.”

In "Codification of the Law in Colonial Massachusetts: A Study in Comparative Law,” published in the Indiana Law Journal in 1954, George L. Haskins asserts that “when [the code was] completed,  it was  believed  by  the  colonists  to  be  a  complete  and  comprehensive statement of the laws,  privileges,  duties, and rights in force  within the  jurisdiction.

Various writing on the Code have at least implicitly focused on why the Code can’t be seen as having the weight of precedent to our set of statues.  For instance, various articles on the Code have focused on the express references to Christianity in the Code. The Code specifically references its “Lord Jesus Christ” and identifies the political government established by God to “his people Israel” to be a legal system that was “more righteous than the other nations.” The Code provides the death penalty for certain religious crimes like blaspheme and the worship of entities other than the deities of Christianity. Additionally, many clauses in the Code specifically cite to Biblical clauses.  In fact, a cursory look at the titles and themes of the many sections within the code, namely laws prohibiting certain sects of Christianity, blasphemy, fornication, gaming, and heresy all seem completely inapplicable to our visions of what governments are authorized to legislate and enforce.  

In History of American Law(2005), Lawrence M. Friedman writes that this code became dead and forgotten quickly in part because “the legal needs of a small settlement run by clergymen …were fundamentally different from the needs of a bustling commercial state.”

However, notwithstanding any and all ways in which the Code may seem inapplicable to today or foreign to our current situation, we who care about legal literacy among the population in general can and should look to this Code as important precedent for the notion that a good code is written with the design to inform all citizens about their rights and responsibilities—and should not be formulated in a manner so confusing that the average citizen must preserve their life savings for the purchase of hourly attorneys to explain to them the rules of societal engagement.

I do not disagree with Friedman’s assertion that the legal needs of a small settlement is fundamentally different from the legal needs of a bustling commercial state, but I believe that the need for legal literacy in the bustling commercial state is fundamentally similar to the needs of a small settlement run by clergymen.