The Sources of Law in the United States - Essay Example

Question #1 Legal commentators have rightly argued that the most important characteristics of the U.S. legal system are its common law heritage and origins, the role of its written Constitution, and the federal-state division of power. This argument is corroborated with the fact that the initial documents that authorized the founding of the American colonies coupled with the British laws served as the basis of the judicial system of the USA (Burnham, William. 2006). The same is true even today. The American jurisprudence largely depended on those archives. Careful study of American law history testifies this fact. Actually both the Scotland and England had a deeper impact on the present day legal system in America (Black’s Law Dictionary). West's Florida Digest 2d, Volume 5 notes that the Common Law of England forcefully expanded on the courts of America today. However the original common law of England and now that of USA has deep roots in the Christian philosophy. Thus if not in total, at least the majority of the US common laws come from the England (Lawrence M. Friedman, 2005). The example is the law on the benefits of clergy in England owing to the presence of Anglican clergy that does not exist in USA (Norbert Reich, 2005). In the American courts references are often made to the precedence’s from the ancient English common law. Hence there are certain commonalities that still exist in English and American legal systems that still exist around this time. A Treatise on Equity Jurisprudence as administered in the United States of America; provides us further evidence in that connection (Lawrence M. Friedman, 2004). The principles of equity adopted by the English court of chancery have now been fully incorporated in a larger way by the American municipal law. Although the legislative working of the two systems is same, because both the systems draw legal strength from the precedents , judgments and opinions of the superior courts in individual cases where ever there is some difficulty in interpreting the law. However, this does not mean that English and American legal systems are quite identical. Rather it would be safer to say that the two systems are more similar to each other (Burnham, William. 2006). The English role of monarchy in the legislative and judicial system is not included in the American legal system. Some people still argue that the common law’s heritage may be discontinued as it has become very old (Daniel A. Farber and Suzanna Sherry 2008). But this seems very difficult analogy because common law is so deeply embed in the American legal system that it seems almost impossible to get it uprooted. The sources of law in the United States are derived from the constitution, statutes, administrative regulations and the famous common law, including case laws. But no law can be in contradiction to the constitution. If there is any law that is found in contradiction with the constitution, the US Supreme Court can declare that law as null and void. If any such statute is found unconstitutional by the Supreme Court it is not as deleted from the list of laws but a subsequent statute is issued that declares the previous statute null and void (Burnham, William.2006). Therefore no court enforces an unconstitutional law. As a tradition and heritage in the Britain and most of the commonwealth countries the common law is used in the United States as well. Bill of attainder and general search warrants are the exception in the common law of the United States which was not adopted by US being unconstitutional and against the principles of human liberty. In above case the principle of stare decisis is applied by the judges of the common law courts. Except for the state of Louisiana the received statutes of the common law of England were adopted and applied liberally in the United States courts (Burnham, William. 2006). Judge made common laws are also predating revolution and the formation of colonies of America. Statute of Frauds and Statute of 13 Elizabeth are the two clear cut examples in this connection. For the persuasive reasons and on the basis of learning and influence from each other the American states liberally accepted the common law. But there is little evidence that United States took up any common law or its practices from England and Scotland in the post revolution era. Generally citations from the England’s law almost disappeared in USA (Burnham, William. 2006). However recently it has come to knowledge that most of the lawyers in the states perforce and habitually quote the England’s common law from the present period and tries to fill the gaps wherever the find it fit. But this tend is only to fill the gaps in the short case and the voluminous details are not found in such case. But this trend is generally found in the lawyers only and judges in the courts are not found inclined towards such trend. The second most important feature of the US legal system is the United States written Constitution which was authored by the delegates of Philadelphia Convention on 17th Sep, 1787 and was ratified on 21st June 1788 with the main purpose of replacing the existing articles of confederation. The constitution of the United States is the supreme law of the land. It defines the strongest framework for the organization of 3 branches of the government. The bicameral legislature is consisting upon the senate, House of Representatives. The executive is headed by the President, while the judiciary is headed by the Supreme Court (Miller, William S2005). The US constitution is the shortest and oldest written document of supreme law of the country. The constitution essentially transformed the United States from a confederation to the federation. There were several new ideas, which were drawn from the literature on republicanism in the United States, and ultimately a sort of mixed government was achieved. Common law was derived from Magna Carta of 1215. The preamble of the United States refers to perfect union, perfect justice, domestic tranquility, common defense, welfare, and liberty for present and future generations of the USA (Burnham, William. 2006). . This constitution is consisting upon 7 main articles including legislative, executive, judicial powers. Article 4 refers to powers and limits of the states. Article 5 gives process of amendments, article 6 describes federal powers and article 7 refers to the ratification process. Later the subsequent amendments in the constitution further elaborates the powers of the state verses federation and in powers the citizens without discrimination on the basis of race, religion and culture etc (Burnham, William. 2006). This is the constitution of the United States that has given a strong basis for the economy of the country to strengthen by leaps and bounds in the years to follow particularly in the earlier years of nineteenth century. In essence, this was the constitution of USA that set a roadmap for the undeterred power for the country in economy, technology and international community. Civil liberties set a trend of unlimited development for the country. How the constitution feature importantly in the legal system of USA is described through its articles. Article 1, section 8 of the US Constitution clearly states, courtesy 16th amendment, Congress is given a full power to lay and collect taxes on income and clause 1 of this section tells that the congress shall have power to levy and collect taxes, duties, imports and excises to pay the debt and provide for the common defense and general welfare of the USA, but all the duties, imports and excises shell be uniform throughout the US (Burnham, William. 2006). Whereas under the article 8 of Articles of Confederation, expenditures by the United States were to be paid by funds begotten from the state legislatures duly apportioned on to the states on the basis of their real property. The congress actually had no power to raise, levy or collect funds under the articles of confederation but under the constitution the congress had appropriate powers wasted in it also to the federal power under article 6. Where as article 4 of constitution gave powers to the states and limited these powers. The states are also empowered to impose and collect local taxes other then the federal taxes. Under the constitution of USA all the federal taxes like income tax, custom duties, excise duties, sale tax, wealth tax, value added tax etc are imposed legislated and collected by the federal government by the treasury department under the congressional powers. In fact the constitution sets out the legal limits of the federal law giving the constitutional acts of the congress, international treaties ratified by the congress, regulatory frame work of the executive branch of the government, and those cases that originate from the federal judiciary (US Constitutional Reform Act 2005). Hence it can be said that the constitution coupled with the federal law are the supreme foundations of the US legal structure. The whole edifice of American federalisms lies on this system. However the beauty of the system also lies in the delegation of powers to the states where these can make and implement the local laws. These laws are valid as far these are not in conflict with the federal laws (Burnham, William. 2006). The living contract laws, criminal laws, family laws are primarily state laws. Federation and States have clearly demarcated areas of powers under the US constitution. Federal law emanates from the constitution which gives congress due powers to enact the statutes for regulating the business of the country for instance the inter-state commerce is regulated by the federal law(Burnham, William. 2006). The agencies of the federal government’s executive branch are empowered to make their own rules and regulations subject to certain limitations. The rules are published the federal register commonly in other countries as the federal gazette. These rule, regulations and statutes are codified under the code of federal regulations. Such rules and regulations are carriers of force and can not be rejected unless found ultra vireos by a higher court or declared unconstitutional by the Supreme Court of the United States. Congressional Powers to make Federal law is derived from the constitution where there is their clear cut jurisdiction like military, finances, external affairs, international cooperation and treaties there under, import export tariffs , intellectual property rights etc. Now from 20th century the federal laws have expanded from their original jurisdiction and the subjects like aviation, rail networks, trade marks, telecommunications and pharmaceuticals are being legislated upon by the congress in the United States (Burnham, William. 2006). Trade marks, family laws, and other smaller issues like employment laws and insurance laws are intermingled between the federal and state powers to legislate upon. But such intermingling has seldom created any problem. When ever the federation felt that a state can better legislate and implement a law in such subjects, the space is left for the states avoiding any conflict (Burnham, William. 2006). The only condition is that such legislation should not be in contradiction of an express federal law or the constitution of the United States. Hence it can be safely said that clear power distribution between federation and states makes the United States legal system more vibrant and dynamic in essence and spirit. However the difficult question arises when the federal judicial powers become binding precedents for the states. Here the principle of stare decisis comes to the rescue of this situation. Here both the federal and state courts get published the agreed statutes after thorough deliberations on the procedures to be followed in the wake of such rules. But there is always a scope of rejection of a precedent by one judge the opinion of other judge after through deliberations and having established his own decision on the basis of a new analogy according to the principles of justice and equity (Burnham, William. 2006). Such a practice is followed purely on the basis of the argument that a scientist can reject the theory of another scientist on the basis of newer facts coming to knowledge. Therefore, it can be said that the question of judicial power of federal and state judges are always in a continuous process and the beauty of US judicial lies in this process. This is how the judicial procedures are built on case to case basis. But the most significant aspect of this practice is that every step in this process has to be in line with the US constitution. At this juncture of discussion it is also worthwhile to note that all the states of USA have their own constitutions, state governments, their judicial systems and their own courts. They contain, retain and maintain the plenary powers to make their own laws within their own delineated jurisdictions (Burnham, William. 2006). These powers are also derived from the US constitution and these laws can not be in conflict with the federal laws. Similarly the international treaties, conventions and agreements there under can not be trespassed. Therefore under such a situation the federal courts almost hear about 280,000 civil and criminal cases, whereas state courts hear about 28 million cases. Needless to re-emphasize that common law of England mostly operates in the state courts of the USA (Burnham, William. 2006). The state legislatures enact their own statutes and promulgate them in their jurisdictions. Similarly the regulations are being issued under broader framework of the state laws. And ordinances are also issued on the need basis in the states. The states have also codified their own laws, statutes and regulations and accordingly notify those in their state registers. These laws and regulations may be different in content and purpose in different states. But the same and similar can also be. For instance Louisiana and California have many different laws and regulations from each other. Some states call such regulations as simple codes, while others call them complied statutes and revised codes (Burnham, William. 2006). But more often such codes are the restated common laws according to the local conditions. State legislatures reflect the democratic spirit of the United States. However there have also been attempts to make all the state laws as uniform on the forum of American Law Institute (Fletcher, George P.2006). Only the uniform commercial code has so far been the success in this context that can be reckoned for its significance. Model penal codes are another effort that may go a long way in getting the uniformed state laws. States have further delegated their law making powers to the municipalities of cities, townships, counties and districts. Thousands of agencies have also got such powers. These smaller entities have also got their own constitutions under which those laws are regulated and implemented (Burnham, William. 2006). But these laws are also and always subject to further interpretation by the federal courts and counterpart agencies. Therefore all the ordinary US citizens and those who specially live in the metropolitan cities normally live under five to six layers of laws. They are supposed to abide by all those layers of laws until and unless any laws conflict with each other. Similarly several agencies impose their different and multifarious laws and regulations over their citizens (Michael J. Gerhardt 2004). It can therefore be said that USA is a law state where rule of law is the first concern of the state. There are various and diversified forms of laws for which a variety of legal experts and lawyers are available to the citizens of USA. These are the procedural laws and substantive laws in general and in tradition. Procedural laws discern the processes and procedures followed by the courts of law and the parties to the courts (Burnham, William. 2006). Substantive laws are the laws and rules that most of the people think that are the actual laws. However, criminal procedure and civil procedure are the contents of the procedural laws. The criminal procedure codes in the United States are actually interwoven between the federal and state statutes. These laws are the foundation stones on which the law enforcement agencies operate in the country. Therefore, in order to have uniformity in these procedural mechanisms these codes are more or less same in all the states of the country. This is called the exclusionary rule in the simple legal language. However, by the convicts the Civil Rights Act of 1871 and Bivens actions are used against the police brutalities. The private parties use the civil procedure during judicial proceedings of civil nature. In 35 states civil procedure codes have been adopted in such a way that some modifications have been incorporated in them where states have broader powers while federal powers are relatively limited. Such modifications have been significant in the California and Illinois state where state legislatures have particularly played a proactive and prominent role. Therefore, the beauty of strength in the legal system of the United States lies in the duality of law making authority. One that exclusively lies with the congress at the centre and the subsidiary powers that are enjoyed by the states and further delegation of such authority at the level of counties, municipalities and the districts(Burnham, William. 2006). This balance leaves a greater scope for all the entities to operate comfortably within the US legal system. This is in the above back drop that the judiciary in the US, the bench, bars, legal education, and prosecution at all levels in the country work quite successfully (Stephen Elias and Susan Levinkind, 2005). It can therefore be summed up that the most important characteristics of the U.S. legal system are its common law heritage and origins, the role of its written Constitution, and the federal-state division of power. Question #2 Jury is the legal forum of fact finding in the United States. Some times the jury also makes the decisions. Members of the jury themselves investigate a matter, consult with each other and pass their verdict by the way of majority (Meador, Daniel John 2009). In the common law system in the country the juries also adjudicate on the serious criminal case. In USA like in Canada the regular use of Jury system is made. These juries also act as the arbitration panels on the disputes between parties. But the main feature of jury still remains the avoidance of the adversarial system of pleading the case before bench by the advocates pitched against each other (Melone, Albert P. & Allan Karnes.2008). This system was inherited in America from the years of the Revolutionary War. By that time more serious criminal case were frequently tried by the juries. By that time Juries were given frequent and more serious criminal case under the common law system. Now the convening of a jury trial for a particular system depends upon the availability of relevant penal of jurists (Mark A. Kinzie & Christine F. Hart, 2002). It clearly means that the juries in America are available for the civil suits where monetary damages are sought by the parties against each other under the contract agreement. But these juries are rarely available for those criminal law suits where punishments and physical injunctions are to be sentenced to the criminals under criminal procedures codes and torts laws of the substantive nature. But the fact remains that the jury emerged out of the common laws and not from the civil laws in the America (Moliterno, James E. & Fredric I. Lederer.2010). Again these juries are mostly used in the single hearings and not for the multiple hearings and mainly used for the fact finding forums for the regular or higher courts. But the tradition of juries is a permanent and inseparable part of the US legal system in essence. However juries are also aptly considered as an effective check against state power (Burnham, William. 2006). Through the juries the community norms, practices, culture and values are also not only practiced but also preserved. And juries further beautify the justice dispensation system in the United States (Burnham, William. 2006). Through juries citizens also get educated in self governing system. How the jury system works in the United States and how it does affect the legal system in the country is through common law in the country. So far as the substantive law is concerned it is the criminal law and prosecution that takes cognizance of the wrong doers in the country and across the country. These wrongdoings include the breach of sovereign peace. Crimes are generally punished in the states according to their laws, regulations and statutes (Lawrence v. Texas, 538 U.S. 558 2003). However the state citizens generally face the federal laws when commit the crimes like income tax or custom duties evasions etc. Laws on felony and drunk driving generally vary between states but these laws are also interwoven with the federal laws. It can therefore be said that federation and states have clear cut roster of powers to make, enact and enforce laws according to their jurisdiction and areas. These jurisdictions do not only mean the physical boundaries of the federation and states (Burnham, William. 2006). But the areas of functions are also included in such jurisdictions. For instance the income tax laws are uniformly applied in the United States, but driving licensing is not uniform in all the states of the country (Johns, Margaret Z. & Rex R. Perschbacher.2007). The most uniform law in the country is the contract law. This is properly codified in the country. Contract law is the legal code under which the sale, purchase of goods and services for monetary or non monetary considerations are dealt. The legally enforceable agreements are called the contracts (Paul Bergman and Sara J. Berman-Barrett 2008). Similarly the tort laws based upon the general wrongdoings and their punishments are also almost same in the country (David S. Clark & Tugrul Ansay, 2002). But American law institute, despite her best efforts could not standardize the torts law of the country. This is because of rejection of some of the restatements of such laws by some of the states. In the twentieth century the most significant development was the enactment of warrantees for the consumer goods under the public policy. However a restatement was issued in 1997 in the form of publication of the Restatement (Third) of Torts: Products Liability. However in Louisiana, the laws are generally derived from the French and Spanish origin. This is especially true in the case of civil laws of Louisiana State. But the criminal laws of Louisiana State are still found to be greatly influenced by the common laws of England and the supremacy of the US federal constitution. In Puerto Rico all the court proceedings, statutes, and regulations are commonly in the Spanish language. While in all other states American English is the official language of the law and courts proceedings except the California courts where an option of various languages is duly exercised by the litigants and courts etc (Hegland, Kenney F2008). But it is desirable and almost compulsory that the bar examinations have to be taken by the law students in the English language only. In the southern and western states the property and contract laws are also a bit different from each other. This variance is particularly exhibited in the inheritance and property laws. However it is argued that juries are susceptible to media pressures, ethic feelings and emotions at some times of trials. Jurors are selected through voter’s lists, driving licenses and upon having their consent on forms. Theses’ jurors state their bio-data and qualifications, both educational cultural and mental, and they assent to be the jurors (Feinman, Jay M.2010). All that process of the selection of jurors in the United States makes it a unique and cumbersome exercise. Therefore, it is also argued that some jurors suggest harsh punishments than the normal courts in the United States. Jurors, because of their limited knowledge, training and skills are generally known as lie detectors and mere fact finders. People from outside world criticize them as untrained hands in the serious human matters (Hay, Peter.2002). That’s why not all the states in the United States allow juries in the family laws matters. Number of jurors being 5 to 12 has also to be unanimous in their opinion about a decision. Therefore, it is also a big difficulty in the case of juries in the United States. The right to a jury is granted to all the citizens of the state through article three of the US constitution. 6th amendment to the constitution expanded this right to all the citizens of the United States. 7th amendment to the constitution recognizes the right to the jury in the civil cases also. This amendment provides for that the case of a party under trial or decided by a jury will not be otherwise opened by a civil court. This right of the citizens insured them speedy and fair trial at their own choice (Benítez, Alberto Manuel, 2006). Through the 14th amendment to the constitution lesser criminal case without involving the fines were allowed to be tried through juries. The Supreme Court had further clarified that in those cases where sentence of less than six months imprisonment was involved the trial by jury was not necessary (Segal, Jeffrey Allan, Harold J. Spaeth, & Sara C. Benesh 2005). However a defendant has always a right to forego his or her right of jury subject to the waiver approved by the court and the prosecution i.e. government. Since choice of a jury is recognized by the constitution as a civil liberty or a civil right, therefore, questions of facts are given more importance by the juries than the questions of law as in the courts of law. In this context the defendant’s relief can not be over-ridded by a jury and in the same manner the jury’s relief can not be done away with normally by a judge of the court in order to avoid double jeopardy in the legal system (Osborne M. Reynolds, 2009). Similarly a judge can not order a jury to convict an accused. Therefore on basis of above analysis it can be said that the jury system is inherent to the legal system of US which has become almost inseparable from it (Burnham, William. 2006). It has the status of civil right under law. The disadvantages are outweighed by the advantages of juries in the US common law because the citizens are accustomed to it. US common law and the jury system in the country are integral to each other (Englander, Marilyn & Curtis Karnow 2008). Sources 1. Lawrence M. Friedman, A History of American Law, 3rd ed. (New York: Touchstone, 2005), 307 and 504-505. 2. Paul Bergman and Sara J. Berman-Barrett, Represent Yourself In Court: How to Prepare & Try a Winning Case, 6th ed. (Berkeley: Nolo, 2008), 481. 3. Lawrence M. Friedman, American Law in the Twentieth Century (New Haven: Yale University Press, 2004), 575. 4. Lawrence v. Texas, 538 U.S. 558 (2003), in which the majority cited a European court decision, Dudgeon v. United Kingdom, 5. Michael J. Gerhardt, the Power of Precedent (New York: Oxford University Press, 2008), 59. 6. Daniel A. Farber and Suzanna Sherry, Judgment Calls: Principle and Politics in Constitutional Law (New York: Oxford University Press, 2008), 70-71. 7. Constitutional Reform Act 2005, from the UK Office of Public Sector Information. 8. Osborne M. Reynolds, Jr., Local Government Law, 3rd ed. (St. Paul: West, 2009), 33. 9. Mark A. Kinzie & Christine F. Hart, Product Liability Litigation (Clifton Park, NY: Thomson Delmar Learning, 2002), 100-101. 10. Norbert Reich, Understanding EU Law: Objectives, Principles and Methods of Community Law (Antwerp: Intersentia, 2005), 337. 11. Benítez, Alberto Manuel. An Introduction to the United States Legal System: Cases and Comments (KF385.A4 B42 2006). 12. Burnham, William. Introduction to the Law and Legal System of the United States (4th ed.) (KF385.B87 2006). 13. Feinman, Jay M. Law 101: Everything You Need to Know About American Law (3d ed.) (KF387 .F45 2010). 14. Fletcher, George P. American Law in a Global Context: The Basics (KF380 .F59 2005). 15. Hay, Peter. Law of the United States: An Overview (KF385 .H393 2002). 16. Hegland, Kenney F. Introduction to the Study and Practice of Law in a Nutshell (5th ed. 2008) 17. David S. Clark & Tugrul Ansay, eds.) Introduction to the Law of the United States ( (2d ed.) (KF385 .I58 2002). 18. Johns, Margaret Z. & Rex R. Perschbacher. The United States Legal System: An Introduction (2d ed.) (KF386 .J64 2007). 19. Melone, Albert P. & Allan Karnes. The American Legal System: Foundations, Processes, and Norms 2d ed. (KF386 .M45 2008). 20. Moliterno, James E. & Fredric I. Lederer. An Introduction to Law, Law Study, and the Lawyer's Role (3d ed.) (K237 .M65 2010). 21. Stephen Elias and Susan Levinkind, Legal Research: How to Find & Understand The Law, 14th ed. (Berkeley: Nolo, 2005), 22. 22. Englander, Marilyn & Curtis Karnow. How the Courts Work: A Plain English Explanation of the American Legal System (KF387 .E54 2008) 23. Meador, Daniel John. American Courts (3d ed.) (KF8720 .M43 2009). 24. Miller, William S., A Primer on American Courts (KF8720 .M55 2005). 25. Segal, Jeffrey Allan, Harold J. Spaeth, & Sara C. Benesh. The Supreme Court in the American Legal System (KF8742 .S433 2005). Read More