Distinctive Features of Modern American Law
American law has proceeded along a path of more than two hundred years of autonomous development and therefore differs materially from English law, although it originated from it and belongs to the same legal system. At the same time, American law has experienced the influence of other national legal systems.
Basing ourselves on a detailed exposition of the distinctive features of American law, we point out the following characteristic features:
First, a dual-level of legal development under which in parallel and at the same time the legal systems of the federation and the states operate in interaction. The means for the unification of law on the scale of the federation are distinctive. The federal structure of the United States places on the agenda the question of the unity of the legal system of the country.
Second, the dominant position of the federal Constitution, the weight of which is in practice determined by an interpretation of its provisions by the Supreme Court. The existence of the United States Constitution limits the freedom to act of both legislative and judicial agencies with regard to making changes in the organisation of justice.
Third, The realisation of the principle of the separation of powers is supplemented by the introduction of judicial control over the constitutionality of laws. In so doing, the United States Supreme Court is reminiscent more of a legislative than a law enforcement agency, especially when a norm created by it is disseminated not through the case considered, but in a case which may arise in future.
Fourth, the preservation of the priority role of judicial practice is combined with the intensive development of branch legislation. But its codification, unlike Romano-Germanic law, occurs rather in the form of consolidation of acts and norms. Collections of laws serve as varieties of systematised books of prevailing acts and digests of laws.
Fifth, there is a considerable difference in the legal terminology of England and the United States;
Sixth, American precedent is more flexible than English. The United States Supreme Court and the supreme courts of the states are not bound by their precedents. There are no formal prohibitions against making changes in a decision previously adopted nor to reject a precedent.
Contemporary Trends of Development of American Law
In analysing the correlation between the sources of American law, one can not fail to direct attention to the growth of legislation and normative acts of agencies of executive power. Basing themselves on this fact, certain legal scholars on American law raise the question of the decline of the significance of judicial precedent in the mechanism of United States legal regulation. In our view the processes underway in the modern law of the United States are significantly more profound and should not be given such an unequivocal assessment.
The fact that American judges in their decisions more frequently refer to laws than to judicial precedents testifies not so much to the decline of the last as to the improvement of the United States legal system as a whole. The constant complexity and expansion of the group of socio-economic and political problems which previously did not fall within the purview of judges force them to turn to laws in which social relations are regulated more comprehensively. However, later the courts may refer to a law and to judicial precedent, or only to judicial precedent. And, as formerly, a law becomes operational only when the courts rely on it. Otherwise its norms are dormant.
Thus, the mechanism of legal regulation of the United States, one of the key levers of which is judicial precedent, is changing very slowly in essence. And this is fully in accord with the laws of societal development, since it has more than a thousand years of history and has not existed merely for a year. And the legal mechanisms which have formed over the centuries and constantly are modernised and improved in practice can not be fundamentally altered.
However, the transformation of the United States legal system proceeds. Social development in the early twenty-first century places before American society an entire complex of important problems, among which is the need to improve the legal system. A number of jurists have suggested that the Common law as a whole and the law of the United States in particular is archaic, unwieldy, sluggish, and unadapted to the needs of modern American society. In our view, one can not agree with this thesis.
Thus, the legal system of the United States is a complicated, complex, dynamic phenomenon of objective reality which is in close interlinkage with all processes inherent to contemporary American society. The proper assessment thereof and forecast of the trends of development presuppose a profound knowledge of both the history of the country, in particular the historical evolution of the Constitution and the constitutions of the American states, and of the entire spectrum of internal contradictions and legal problems of contemporary American society.