Sources of American Law
A key question in understanding the essence of the functioning of the United States legal system is the evolution of the sources of law of the United States and their relationship among themselves. To sources of law are relegated: judicial precedent, legislation, normative legal acts of executive power, customs, and the law of equity.
Judicial Precedent. The American legal system by reason of its roots comes from the English system of Common (precedential) law. The fundamental principle thereof is the principle of followingjudicial precedent (stare decisis), the essence of which comes down to the fact that courts, when considering cases, are obliged to follow previously established judicial decisions in analogous cases.
In the United States the principle of following precedent has its distinctive features. In particular, judicial practice is characterised by a flexible application of this principle and the adaption thereof to political and socio-economic conditions in each historical stage of the development of the country.
The law of precedent created a certain succession in the constitutional development of the United States. It enables the Constitution to develop since in the constitutional domain more than in any other judges do not endeavour to bind themselves by their earlier decisions. If it is true to say that the Constitution is the centre of a legal system but the foundation thereof comprises judicial precedents, one may conclude that judicial precedent is the foundation of the legal system of the United States.
The activity of the United States Supreme Court is concentrated around interpreting the Constitution. In interpreting it, the Supreme Court has worked out may concepts: "police power", "distribution of powers between the federation and the states", and others.
Legislation. Statutory law is the second important source and component of American law. It encompasses legal norms established by legislative agencies. Throughout the entire history of the existence of the American State, the Congress of the United States and legislative agencies of the states played an active role in the creation of legal norms regulating various aspects of the life of society. Legislation significantly augments the digest of norms created by judicial precedents.
Among the federal laws, the Constitution of the United States occupied the central place. This is not a law like the others. A law usually is regarded in countries of the Common law as something alien to the Common law, capable merely of making certain additions to and clarifications of law. The United States Constitution should not be regarded from this standpoint. It is a Fundamental Law, and one may consider that the Common law itself derives its force in accordance with the ideals of the natural law school which dominated in 1787.
The United States Constitution is an expression of a social contract which unites citizens and is a legitimation of power. It is the Basic Law determining the very foundations of society. It can not be regarded as on the same level as other laws, directed towards augmenting or clarifying the law of judicial practice and form certain private norms. The United States Constitution which rules under the corpus of Common law is a law of the Romanist type which does not pursue the direct aim of the consideration of disputes, but establishes norms of a general character concerning the organisation and behaviour of the administration.
The Constitution is the supreme law of the country. It is the highest authority. No person, no branch of power - not the President, nor Congress, nor the police at the crossing - have the right to ignore the Constitution; its text and its rules are lex [закон]. The courts are the transmitters of the Constitution. They possess the right to subject unconstitutional acts to verification with a view to declaring their invalidity and as having no force.
However, interpretation of laws and the practice of their application are determined by the norms of the Common law. That is, the supremacy of judicial precedent was and remains one of the underlying principles of the American legal system.
In the period after the Second World War the role and scale of legislative law-creation materially increased. Normative acts of the United States Congress and legislative agencies of the states encompass a broad group of political and socio-economic problems.
The systematisation and codification of legislation is carried on in the states and at the federal level. There are three official publications of federal laws. The texts of laws are published in full only in two of them. The first is issued periodically in the form of a book. The texts of laws adopted by the Congress of the United States and international agreements and treaties ratified by the United States, as well as certain important normative acts of agencies of executive power, are published in chronological order in it. The second contains unbound prints of laws which are numbered and published as they are adopted in the United States Congress. Finally, the third publication of federal legislative acts is the United States Code Annotated, in which the provisions of a normative act are set out in various chapters and sections, depending upon the subject of legal regulation.
Administrative Norm-Creation of Agencies of Executive Power. This represents the third source of American law, constantly growing in importance. The basis of this orientation of activity of the federal administrative apparatus is the powers delegated to agencies of executive power by legislative agencies. In practice, administrative acts (orders, rules, directives, instructions), adopted for the purpose of concretisation and detailisation of laws, in many instances substitute for them. This administrative law is semi-administrative and semi-judicial in character, as the former law of equity, but was, worked out and applied by agencies functioning under the control of the traditional courts.
Custom. Together with the sources mentioned above, there exists a fourth source of American law - custom. It is of secondary significance and does not bear comparison with the principal sources of American law.
American law is not customary law. Although this opinion arose among many European jurists because they adhered only to two alternatives: law may be either written, based on codes, or not written and, consequently, customary. American law was never customary: it is the law of judicial practice.
However, custom has played a large role in the origin and evolution of the legal system of the United States. Now its significance is great in the domain of the functioning of the institutions of State power. Many of them were formed and function by virtue of traditions of political practice and not on the base of precedential or statutory law. For example, such institutions as permanent committees of the chambers of the United States Congress, the cabinet, and political parties are regulated by customs, and not by laws or by the Constitution, which does not provide at all for their existence.
Law of Equity. A number of institutions of the law of equity occupy a certain place among the sources of American law. To avoid an ambiguous interpretation, the concept of "equity" is now used in England in the understanding of justness on the European continent. In this last instance the concept of "justice", "fairness", and "good conscience" arc used. It arose and existed in Great Britain in parallel with the Common law and was a distinctive addition thereto.
Before 1875 the law of equity was distinctive from the Common law by reason of five fundamental parameters. Its norms, created by the Chancery Court, had a different historical origin than the norms of the Common law, created by the Westminster courts. Norms of the law of equity could be applied only by the Chancellor; courts of I he Common law were not allowed to do so. The procedures of the law of equity differed from the Common law in that juries were unknown to il. In the Chancery Court it was possible to request decisions unknown to the Common law. Finally, the order issued by the Chancellor at the end of considering the case was of a discretionary character.
The development of relations between the Common law and the law of equity after the judicial reforms of 1873-75 proceeding along the path which made a certain rationalisation of English law possible. However, that process did not exceed the traditional frameworks and, in particular, did not lead to a renunciation of categories deeply-rooted in the consciousness of jurists as the Common law and the law of equity.
In those instances when norms of the Common law could not settle a particular dispute, the parties were obliged to turn to the courts of equity, which formulated their decisions in the form of orders. The peculiarities of the development and improvement of the American legal system led to the fact that gradually the law of equity lost its autonomous significance. However, in practice American courts issue judicial orders which either prohibited or prescribed a certain action.
By reason of the absence of special courts in the United States applying canon law, the courts of equity included in the sphere of their activities those questions which in England were relegated to church jurisdiction. For example, inasmuch as a husband and wife are regarded as one person, the law did not give them the possibility to bring suit against one another. Therefore, the conception of the law of equity received in America a dissemination which caused surprise among English jurists. Cases concerning the deeming of a marriage to be invalid were considered in this way so long as a respective law did not appear in the world.