Sources of Law

The unique characteristic of American law is that a very substantial part of it is not to be found in statutes enacted by legislatures but rather in cases decided by the courts. This concept of decided cases as a source of law comes to the USA from England. As a matter of fact, the US legal system is patterned after the English legal system rather than that of the rest of Europe or any other part of the world.

The continental countries have codified their laws — reduced them to statutes — so that the main source of law in those countries is to be found in the statutes rather than in the cases.

In the USA statutes must be in keeping with the constitutions - federal and state - and the courts can overrule a statute that is found to violate constitutional provisions. Statutes and constitutions are classified as "written law". Also included under this heading are treaties that by the federal constitution are also a part of the law of the land.

Case law, as opposed to written law, is not set forth formally but is derived from an analysis of each case that uncovers what legal propositions the case stands for. It is nor proper to call this "unwritten" law because it is in fact in writing. However, it must be distinguished from statutory law in that it is not the product of the legislature but is rather the product of the courts. When a court decides a case, particularly upon an appeal from a lower-court decision, the court writes an opinion setting forth among other things the reasons for its decision. From these written opinions rules of law can be deduced, and these make up the body of what is called case law or common law. The basic characteristic of the common law is that a case once decided establishes a precedent that will be followed by the courts when similar controversies are later presented.

A third source of law is administrative law. Federal, state, and local administrative agencies make law by promulgating rules and regulations as well as by making decisions concerning matters under their jurisdiction.

In summary, in the USA law comes from written laws such as constitutions, statutes, ordinances and treaties; from case law, which is based on judicial decisions; and from the rules and decisions of administrative agencies.

The Constitution of the United States and the constitutions of the various states are the fundamental written law in this country. A federal law must not violate the U.S. Constitution. All state laws must conform to or be in harmony with the federal Constitution as well as with the constitution of the state.

There are two very important principles of constitutional law that are basic to the US judicial system. They are closely related to each other and are known as the doctrine of separation of powers and the doctrine of judicial review.

2820 symbols

Case Law

Case Jaw, or common law, is based on the concept of precedent and the doctrine of stare decisis, which means "to stand by decisions and not to disturb what is settled".This means that the case has established a precedent. The doctrine of stare decisis must be contrasted with the concept of res adjudicata, which means that the "thing has been decided". Res adjudicata applies when, between the parties themselves, the matter is closed at the conclusion of the lawsuit. The losing party cannot again ask a court to decide the dispute. Stare decisis means that a court of competent jurisdiction has decided a controversy and has, in a written opinion, set forth the rule or principle that formed the basis for its decision, so that rule or principle will be followed by the court In deciding subsequent cases. Likewise, subordinate courts in the same jurisdiction will be bound by the rule of law set forth in the decision.

Stare decisis, then, affects persons who are not parties to the lawsuit, but res adjudicata applies only to the parties involved. Stare decisis provides both certainty and predictability to the law. It is also expedient. Through reliance upon precedent established in prior cases the common law has resolved many legal issues and brought stability into many areas of the law, such as the law of contracts. The doctrine of stare decisis provides a system wherein a businessman may act in a certain way with confidence that his action will have a certain legal effect. People can rely on prior decisions and, knowing the legal significance of their action, act accordingly. There is reasonable certainty as to the results of conduct. Courts usually hesitate to renounce precedent and generally assume that if a principle or rule of law announced in a former judicial decision is unfair or contrary to public policy, it will be changed by legislation. It is important to note that an unpopular court ruling can usually be changed or overruled by statute. Precedent has more force on trial courts than on courts of review; the latter have the power to make precedent in the first instance.

The common-law system as used in the United States has several inherent difficulties. First of all, the unbelievably large volume of judicial decisions, each possibly creating precedent, places "the law" beyond the actual knowledge of lawyers, let alone laymen. Large Law firms employ lawyers whose sole task is to search the case reports for "the law" to be used in lawsuits and in advising their clients. Legal research involves the examination of cases in hundreds of volumes. Because the total body of ruling case law is beyond the grasp of lawyers, it is obvious that laymen who are supposed to know the law and govern their conduct accordingly do not know the law and cannot always follow it, even with the advice of legal counsel.

2851 symbols