Lecture 7. Legal system of the united states
1. Formation of American Law
2. Concept and Principal Categories of Legal System of United
States
3. Sources of American Law
4. Distinctive Features of Modern American Law
5. Contemporary Trends of Development of American Law
Formation of American Law
English settlers who based themselves on the territory of the United States brought English law with them. Beginning in 1607 - the date of the formation of the first English colony -it was considered to be the sole law in force; customs and traditions of the local population were ignored as something uncivilised and hostile.
Certain American legal scholars believe that the law of the United States formed from 1800. In Karl Llewellyn, Traditions of the Common Law, three periods are singled out for the development of American law: the first, from 1800 to the Civil War; the second, from the Civil War to the First World War, and the third, from the First World War to the present time. Bogdanovskaia singles out four stages in the development of American law. The first is the stage of affirming the law of precedent in the colonial period. The second stage commenced after obtaining independence and continued until 1830. The third stage, from 1830-60, was characterised by a number of changes in the law of precedent. The fourth stage lasted from the second half of the nineteenth century to the present time.
However, English law underwent certain changes in the colonies. This was conditioned by the fact that the socio-economic conditions and procedures in the colonies were free from mediaeval stratifications which materially differed from the situation in the metropolitan. The need for the regulation of new relations being formed in the colonies, in the absence of centralised central power, facilitated the affirmation of the idea of the need for written codified law.
English law applied with the reservation "to the extent to which its norms correspond to the conditions of the colonies" (the so-called principle of "Calvin's case" ).
The American Revolution advanced to the forefront the notion of an autonomous national American law breaking with its "English past". The adoption of a federal written Constitution in 1787 and the constitutions of the states within the United States of America was the first and major step along this path. The complete repudiation of English law was proposed, and together with it repudiation of the principle of precedent and other characteristic features of the Common law. In a number of states criminal, criminal procedure, civil, and civil procedure codes were enacted and references were prohibited to English judicial decisions rendered before the adoption of the Declaration of Independence.
However, the transition of American law to the Romano- Germanic family did not happen. Only certain states, previously French and Spanish colonies (Louisiana, California) adopted codes of the Romanist type which, however, thereafter gradually were swallowed up by the Common law.
On the whole a dualist system formed in the United States, similar to the English: the law of precedent in interaction with legislative law.
The noted French comparatist, Rene David, justly wrote that in England and the United States there is one general conception of law and its role; in both countries there exists in general one division of law, the same concepts are used, and the same interpretation of norms of law. The categories of "Common law", "law of equity", and "trust" are understood and natural both for English and American jurists. For both, law is only the law of judicial practice. Norms worked out by the legislator actually enter into the system of American law only after they are repeatedly applied and construed by courts, when it is possible to refer not to the norms themselves, but to judicial decisions which have applied them.
The law of the United States, consequently, as a whole has a structure analogous to the structure of the Common law. But this is only as a whole; as one embarks upon the consideration of a particular problem, numerous structural differences are elicited between American and English law, many of which are truly material and can not fail to be taken into account.
One such difference, exceedingly material, is linked with the federal structure of the United States. The states within the United States have been endowed with extensive competence within whose limits they create their own legislation and their own system of precedential law. In this connection one may say that there exist 51 systems of law in the United States - one federal and fifty states.
The courts of each state effectuate their jurisdiction independently of one another and therefore it is not at all obligatory that the decisions adopted in the courts of one state will be followed by the courts of other states. Although the trend towards uniform judicial practice is not strong, nonetheless instances are common when the courts of different states adopt with regard to analogous cases dissimilar, sometimes even expressly contradictory, decisions. This creates conflicts which are deepened by the possibility of divergencies of the decisions of the courts of states (which consider the overwhelming majority-of cases) and federal courts, which have particular jurisdiction over various categories of cases.
Annually in the United States more than 300 volumes of judicial practice are published and, despite the extensive use of modem computer technology, the search of precedents continues to remain not an easy task.
Decisions of the United States Supreme Court are published in several publications: US Law Week, United States Reports, and others. Since 1882 the West Publishing Company has published the Supreme Court Reporter, and Lawyer's Cooperative Publishing Company, the Lawyers' Annotated Reports. The latter company also issues the American Law Reports, which consists of four series. Not all decisions appear in the reporter; only those which have practical significance.
Other reports exist for the decisions of other federal courts and state courts. One should single out the National Reporter System and two legal encyclopedias: Corpus Juris Secundum and American Jurisprudence Second, in which one may find the texts of necessary decisions placed in respective subject-divisions.
The legislation of states contributes no less and perhaps more to the differences and divergencies in the law of the country. In many respects it is different in various states. Thus, in some the regime of common property of spouses has been established, whereas in others, separate property. The grounds for divorce differ, measures of criminal punishment for the same act, and so on. All this makes the legal system of the United States more complex and confused than the English system.
There is yet another distinction between American and English law - the somewhat differing, freer operation of the rules of precedent (often called stare decisis). The highest judicial instances of the states and the United States Supreme Court sometimes are not bound by their own precedents. Hence their greater freedom and manoeuvrability in the process of adapting law to changing conditions depending upon specific conditions of place and time. Thus in the case Hertz v Woodman (1910) the United States Supreme Court held that the rule stare decisis, although directed towards establishing uniformity of decisions and the achievement of constancy, all the same is not a strict rule. To follow or depart from preceding decisions is a question which is left to the free discretion of the court.
Such freer treatment of precedent is of special significance in the light of the powers of American courts (unknown to English courts) to effectuate control over the constitutionality of laws. The supreme court of a state or the United States Supreme Court may, thus, repudiate a precedent of constitutional interpretation. The right of constitutional control, used by the Supreme Court especially actively, stresses the special role of judicial power in the American legal system.
In the view of Cross, a distinctive feature of American law is the historically-formed multiplicity of individual states isolated by jurisdiction and the comparatively frequent recourse of American courts to the consideration of important constitutional questions.
The great possibilities of judicial impact upon legislation do not change the fact that legislation in the legal system of the United States has great weight and is more significant than statutory law in England. This is linked above all with the existence of a written constitution and, more precisely, an entire system of constitutions. As noted above, the states have been granted rather broad legislative competence and they actively use it. Hence a block of legislation significant in scale - statutory law on the level of the American states.
Centralisation, of which the development of the American federation is characterised, has led to a significant increase of the amount of federal legislation, and also to the growth of norm-creation of the highest links of executive power: president, federal civil service, and so on.
There are many codes in the statutory law of the United States that are unknown to English law. In several states civil codes operate, in twenty-five states, codes of civil procedure; and in all states, criminal codes; in a few, codes of criminal procedure. But except for the states of French origin, mentioned above, in all the others, the codes are not reminiscent of the European. In the codes are seen the fruits of consolidation, more or less successful, but not the basis for working out and developing a new law, as in the countries of the Romano-Germanic legal family. It is presumed that the legislator wanted to reproduce in the code previous norms created by practice.
The creation in the United States as a special form of codification of so-called uniform laws and codes whose aim is to establish possible uniformity in those countries of the Common law where this is especially essential. The preparation of draft laws and codes is effectuated by the National Commission of Representatives of all the states jointly with the American Law Institute and the American Bar Association. For a draft to become a law, it must be adopted as such-by the states. The Conference was first convened in 1892 at the initiative of the American Bar Association; it received its current name in 1912, that is, when all states were represented in it. It had recommended for adoption in 1962 some 68 uniform laws and 18 model laws.
Among such codes the first and best known is the Uniform Commercial Code (UCC), which was officially approved in 1962. The UCC consists of nine basic sections in the following sequence:
(1) general provisions;
(2) sales
(3) commercial paper
(4) bank deposits and collections;
(5) letters of credit;
(6) bulk transfers;
(7) warehouse receipts, bills of lading, and other documents of
title;
(8) investment securities;
(9) secured transactions, sales of accounts and chattel paper.
It does not encompass all trade law, but which is within its scopeis regulated in great detail, especially the norms on sale of goods, negotiable documents, and secure transactions. It is not difficult to understand why recourse was had first to a unified codification of trade law. The interests of business have predominated as the basic orientation of unification of private law also in the content of the Code. The UCC at present has been adopted in all states except Louisiana.
Uniform laws and codes should not be confused with private systematisations of precedential law, above all the multi-volume publication of Restatements of the Law. This publication, which is prepared by the American Law Institute, enjoys authority and it is referred to injudicial decisions, including of the United States Supreme Court. The publication of the Restatement testifies that in 95-98% of the instances the decisions of courts of various states coincide. Nineteen volumes of the Restatement of the Law have been published. They are devoted to the law of contract, agency, conflicts of laws, torts, property, security, restitution, and judicial decisions.
As in England, the significance of customary law in the United States is great in the domain of the functioning of the mechanism of State power. The United States Constitution is old, does not illuminate many material aspects of State organisation, and this gap is filled not only with the assistance of current legislation, but also by means of recognising usages which have formed, stable traditions.
Custom has in the sphere of private law a significantly lesser role, where it acts in the form of so-called trade customs. The last are defined as formed by practice, or the procedure of business relations, and as such render a normative impact not only on the development of respective social relations, but also on the settlement of disputes which arise in this connection. It should be noted that the process of Americanisation of the legal system borrowed from England is a process of imparting to it properties thanks to which it has become to a large degree adaptable to the current requirements of the American State. An orientation towards "flexible law-creation", endowing courts with unlimited powers with regard to the creation and review of legal norms, legal dualism reared under conditions of American federalism - all this has led to the fact that the law of the United States in the course of tune has been transformed into a conglomerate of, on one hand, clearly obsolete and, on the other, modern norms.
Thus, the legal system of the United States was formed under the influence of the legal traditions of Great Britain and historically emanates from the English Common law. In the process of development the borrowed English legal institutions were subjected to material changes. New legal institutions have emerged which distinguish American law from English. As a result, a new legal system has been formed, the specific features of which have been determined by the federal structure of the State, the existence of written constitutions (the United States Constitution and constitutions of the states), and also by a number of distinctive features of socio-economic and political development.