Concept and Principal Categories of Legal System of the United States
Legal terminology in a number of instances testifies to the differences between two legal systems and, in a number of instances, on the contrary, masks such difference. The same conception may be expressed in different terms, or the same term may have different meanings in England and America. A foreign jurist must know this and not use an English legal dictionary when studying particular questions of American law.
There is no single view in American legal literature with respect to defining the concept of a legal system. Despite the abundance of definitions, it is advisable to subdivide them into individual groups independent from one another. Whereas some legal scholars actually identify the concept of a legal system with law, other define this concept more broadly. We cite a number of examples. Golding expresses the view that a legal system exists in a society if the following conditions are complied with:
first, in a society laws exist;
second, in a society institutions exist which create and changelaws;
third, in a society there are institutions which determine violations of laws;
fourth, in a society institutions function which ensure the application of laws and settlement of disputes between individuals.
By the concept of a legal system the author actually encompasses law, law-creation, and law enforcement. The last bloc of this system has its own structure.
Turner offers a more precise definition of a legal system. All legal systems, he writes, consist of four base elements: first, systems of law; second, process of law-creation; third, process of settlement of disputes or courts; fourth, law enforcement institutions.
In analysing the linkage of these structural blocs within a single system, Turner believes that the concept of legal system is a complex, constantly changing dynamic structure in close interlinkage with other elements of social reality. When traditional forms of social control enter into contradiction with such key institutions as the economy, politics, or religion, the structural development of the legal system becomes a sort of "answer" to integration problems put by this differentiation. Moreover, the development of a legal system under the respective conditions may create institutional relations which accelerate the process of development in American society.
An interesting definition of a legal system was offered by Friedman. To the concept of legal system he relegates norms of law as such and those structures, institutions, and processes which breathe life into them.
When investigating the legal system of the United States, the question inevitably arises of the structure thereof since this category enables the concept to be analysed statistically.
In American legal literature there is no uniform view with regard to this problem. In a study of American law prepared by the Encyclopedia Britannica, seventeen elements were incorporated into the legal system: common law, legislation, constitution, federal system of law, supreme court, administrative law, taxation, criminal law, civil rights and freedoms, legal status of women, law of corporations, banking law, debts and credits law, law of ownership, law of obligations, testatmentary law, legal education, legal profession, and legal assistance.
These seventeen structural units were combined into five blocs. The first embraced common law, courts, and their connection with legislation. The second concerned only federal law. The third considered law in its interlinkage with business. The fourth characterizes the link between law and private individuals. The fifth was devoted to the institution of juries, the process of rendering legal assistance, and training of legal personnel.
A broader interpretation of a legal system is given by Coughlin. Actually identifying law with legal system, he introduces twenty-four elements into its structure. Among them are the legal profession, judicial system, court procedural law, contracts, torts, ownership, defamation, negligence, inheritance, maintenance of disabled persons, commercial documentation, labour and management, corporations, partnerships, marriage, divorce, separation, annulment, law of immoveables, indebtedness and credit institutions, criminal law, purchase and sale, patents, copyright, trademarks, consumer protection, system of law, and supreme court.
Unlike other works by American writers, Coughlin most fully introduces institutions into the legal system inherent to the Common law as a whole and the traditions of the United States in particular. Only in this way can the structure of the legal system of the United States be explained, orientated towards the traditional institutions of the Common law. To the branches of law as a concept, which emerged in the Common law as a result of the influence of Romano-Germanic law, the author relegates an insignificant part of his study.
In the descriptions of the legal system of the United States above the approach particular to that country for an analysis of phenomena of legal reality through a prism characteristic for the legal consciousness of countries of the Common law which differs fundamentally from the legal thinking of scholars and practitioners of countries of other legal families is well traced.
The approach to the study of a legal system proposed by Friedman is interesting. He believes that structure, essence, and culture are relevant. To structure he relegates the skeleton, the internal part thereof which has existed for a lengthy indeterminate period and imparts form to the entire concept as a whole. Another important aspect of a legal system is, in his view, the essence, which acts in the form of prevailing norms of law detennining the behaviour of people within the legal system. And finally, the last element of a legal system is legal culture, by which should be understood the attitude of people towards law and the legal system: their values, ideas, hopes, and expectations. In other words, that part of general culture which concerns the legal system.
None of the three basic elements comprising law - structure, essence, and culture - can have significance divorced from the others. Federalism is a real existing structural fact. He also gives rise to essence - rules concerning power relations of the states and of the State as a whole. In turn it influences legal culture. At the same time, legal culture (that about which people think and in which they believe) fills federalism with the living part of law, and structure - with sense. But legal culture itself is not static. It changes together with society.
By its origin the term "Common law" encompasses that part of the law of England which is juxtaposed with statutory law and was common for the entire country as compared with local law. This concept still may be used in the sense applicable to the law of early England in the period preceding the dissemination of legislation.
In the United States the concept of "Common law" may be used at least in three variants:
First, this concept is defined as law created by courts in juxtaposition to legislative agencies. In this connection a number of terms arc used: "ease law" is used in this sense; "decisional law" encompasses legal norms created together with courts by other agencies, for example, administrative tribunals; "statute law" is applied with respect to the normative acts of legislative agencies; "legislation" often is used in the wide sense, encompassing such sources of law as constitutions, treaties, administrative rules, and rather often is actually a synonym for statute law.
Second, the significance of the concept of "Common law" means the aggregate of legal norms to be applied by courts of the Common law in juxtaposition to the equity.
Third, the significance of this concept may concern the United States as a country of the Common law in contrast to countries of Romano-Germanic law (civil law) which historically emanate from the Romanist legal traditions.
Together with the above already named, there are a number of terms and concepts which require elucidation when analysing the legal system of the United States. Among them are: civil law, public law, private law, and living law.
The concept of "civil law" in the United States has two meanings: one frequently is used to designate the law of the country or part thereof in contrast to international law; the aggregate of legal norms as contrasted with criminal law is encompassed by this concept; that is, the term "civil" is contrasted with "criminal" and is not linked in its origin with a civil code. American civil law includes legal norms which regulate the establishment, change, or satisfaction of the rights of private persons.
In the legal literature of the United States the term "private law" and "public law" is often encountered. These cateories are not traditional and have been borrowed from the terminology of Romano-Germanic systems of law, but only with regard to form and not content. In particular, in American law the concept of "private law" embraces six institutions: contracts, torts, property, family law, commercial law, and business enterprises.
Certain theoreticians of American law use the concept "living law". It is understood to mean the aggregate of legal norms. Friedman defines it as follows: "Living law is the law which lives in the legal system".