Gavin Howe
In the United States, the lawmaking branch of the federal government is Congress. A bill, or proposal for a new law or change to an existing law, can be introduced by a sitting member of the U.S. Senate or House of Representatives, proposed during an election campaign, or petitioned by people or citizen groups. The bill is then assigned to a committee, researched, discussed, and modified before being put to a vote. If the bill passes in one body of Congress, it goes through a similar process in the other body. Once both bodies accept a bill, they must reconcile any differences between their respective versions. The Senate and the House have different procedures for processing legislation: the House uses a majority vote, while the Senate deliberates and debates prior to voting. Once a bill is passed by both bodies of Congress, it is sent to the president for approval. If the president chooses to veto the bill, Congress can override the veto in most cases, and the bill becomes a law. Case law, or precedent, is the body of prior judicial decisions that guide judges in their decision-making. Agency law, a subset of case law, governs the relationship between a principal and an agent acting on their behalf.
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What You'll Learn
Common law and civil law traditions
There are two main types of legal systems in the world: Common Law and Civil Law. Most countries adopt features from one or the other into their own legal systems.
Common Law
Countries that follow a common-law system are typically former British colonies or protectorates, including the United States, the United Kingdom, Canada, Australia, New Zealand, India, and more. Common law functions as an adversarial system, a contest between two opposing parties before a judge who moderates. A jury of ordinary people without legal training decides on the facts of the case, and the judge determines the appropriate sentence based on the jury's verdict. In the common-law tradition, courts decide the law applicable to a case by interpreting statutes and applying precedents, which record how and why prior cases have been decided. Common law systems follow the doctrine of stare decisis, by which most courts are bound by their own previous decisions in similar cases. According to stare decisis, all lower courts should make decisions consistent with the previous decisions of higher courts. Common law systems have greater flexibility in granting different types of security over assets and have the concept of trusts, which is not present in civil law.
Civil Law
Civil law systems have comprehensive, continuously updated legal codes that specify all matters capable of being brought before a court, the applicable procedure, and the appropriate punishment for each offense. Countries with civil law systems include the Nordic countries, France, Algeria, and OHADA countries. Civil law jurisdictions adhere to a tradition that the reader should be able to deduce the logic from the decision and the statutes. Court decisions in civil law traditions are historically brief and not formally amenable to establishing precedent, so much of the exposition of the law in civil law traditions is done by academics rather than judges. In civil law, unless the contract specifies that the parties have agreed to arbitration, the contract will be enforced by the administrative courts.
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The role of the President
The President of the United States does not have explicit law-making powers as per the Constitution. However, the President can influence law-making through two implicit sources of authority. Firstly, the President's inherent powers in the Constitution, such as their role as commander-in-chief of the military and their power to make foreign policy, can be used to create law. These powers can be constrained by Congress and challenged in court but the President has significant autonomy in these areas.
Secondly, the President can exert influence through their power to dismiss some of the highest-level staff in the executive branch, including Cabinet members. The President can order these officials to take any action consistent with existing law. Such orders often direct agencies to take actions that Congress has left to the agency to decide. The President's executive orders are the primary way in which they create and publish law.
The President's role in law-making also involves directing the creation of regulations with the authority of Congress. When Congress passes a law, it often instructs the President, members of the Cabinet, or other officials to create regulations. These regulations, or administrative law, are created differently from statutes but carry the force of law.
The President's role in law-making is further shaped by the concept of agency. Agency refers to the basic legal transaction of appointing another to act on one's behalf. An agency relationship can be express or implied. Implied agency involves permission to act, even if not explicitly established, and is often established by the conduct and communication of the parties. The President's inherent powers and their ability to direct officials through orders contribute to their ability to create implied agency in law-making.
In summary, while the President does not have explicit law-making powers, they can shape law-making through their inherent powers, executive orders, regulation creation, and the ability to direct officials through orders, which can create implied agency in the law-making process.
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The role of Congress
The United States Constitution, ratified in 1788 and in operation since 1789, forms the basis of the country's legal system. It establishes a federal government with three branches: the Congress (legislative branch), the President and federal agencies (executive branch), and the federal courts (judicial branch). While the Constitution grants all lawmaking powers to Congress, it has delegated some of these powers to the executive branch.
Congress plays a crucial role in creating laws and ensuring they are implemented effectively. When Congress passes a law, it often directs the President, members of the President's Cabinet, or other lower officials to create regulations. These regulations, or administrative laws, are created with the authority of Congress and have the force of law. Congress can also constrain the President's powers and challenge their actions in court.
In addition to creating laws, Congress has the power to remove the President through impeachment and conviction. It can also override a presidential veto on a bill with a two-thirds majority vote in both houses. This check on presidential power ensures a balance between the legislative and executive branches.
Congress is also responsible for overseeing federal agencies and their implementation of laws and policies. It conducts investigations, holds hearings, and reviews agency actions to ensure they align with legislative intent. Through this oversight role, Congress helps maintain accountability and transparency in the executive branch.
Furthermore, Congress has the power to propose and pass amendments to the Constitution. This process requires a two-thirds majority vote in both houses of Congress and ratification by three-fourths of the states. Amendments to the Constitution reflect significant societal changes and help adapt the nation's founding document to evolving needs.
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Judicial reasoning and decision-making
Case law is a law that is established following a decision made by a judge or a group of judges. It is developed by interpreting and applying existing laws to a specific situation and clarifying them when necessary. This process then sets a legal precedent that other courts are required to follow, which guides future rulings and interpretations of a particular law. Case law plays a significant role in shaping the legal system and ensures that it evolves when necessary. It provides clarity and guidance to legal professionals on how laws are interpreted and applied in real-life situations and helps ensure consistency in court rulings by drawing on the legal precedents that have informed previous cases.
In common law countries, including the United States, the United Kingdom, Canada, Australia, and others, case law is used for judicial decisions of selected appellate courts, courts of first instance, agency tribunals, and other bodies discharging adjudicatory functions. In the common law tradition, courts decide the law applicable to a case by interpreting statutes and applying precedents, which record how and why prior cases have been decided. Common law courts generally explain in detail the legal rationale behind their decisions, with citations of both legislation and previous relevant judgments, and often interpret the wider legal principles. The necessary analysis, called ratio decidendi, then constitutes a precedent binding on other courts. Further analyses not strictly necessary to the determination of the current case are called obiter dicta, which constitute persuasive authority but are not technically binding.
By contrast, decisions in civil law jurisdictions are generally shorter, referring only to statutes. This is because civil law jurisdictions adhere to the tradition that the reader should be able to deduce the logic from the decision and the statutes. The legal systems of the Nordic countries are sometimes included among the civil law systems, but as a separate branch, and sometimes counted as separate from the civil law tradition. In Sweden, for instance, case law arguably plays a more important role than in some of the Continental codified law systems. The two highest courts, the Supreme Court and the Supreme Administrative Court, have the right to set precedent, which is binding in practice but not formally.
Some pluralist systems, such as Scots law in Scotland and types of civil law jurisdictions in Quebec and Louisiana, do not fit neatly into the dual common-civil law system classifications. While these types of systems may have been influenced by the Anglo-American common law tradition, their substantive law is rooted in the civil law tradition. Because court decisions in civil law traditions are historically brief and not amenable to establishing precedent, much of the exposition of the law in these traditions is done by academics rather than judges.
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Agency relationships
In the United States, the Constitution established a federal government with three branches: the Congress (legislative), the President and federal agencies (executive), and the federal courts (judicial). While the Constitution grants all lawmaking powers to Congress, it has delegated some of those powers to the executive branch.
In the context of agency relationships, the principal is the party that confides in another to act on their behalf, while the agent is the party that acts on the principal's behalf. Implied agency can arise when the agent is deemed to have permission from the principal to undertake certain acts due to the nature of the principal's business or actions and the position of the agent in relation to those actions or that business.
If a principal acts in a manner that leads third parties to reasonably assume an agency relationship exists, the courts may impose an agency even if the principal did not intend to create one. The relationship of principal and agent is typically terminated by the act or agreement of the parties or by operation of law.
Most executive branch agencies in the US federal government have some adjudicatory authority, and agency decision-making is governed by the Administrative Procedure Act of 1946.
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Frequently asked questions
Case law is a law that is established following a decision made by a judge or a group of judges. It is developed by interpreting and applying existing laws to a specific situation and clarifying them when necessary.
Common law courts generally explain in detail the legal rationale behind their decisions, with citations of both legislation and previous relevant judgments, and often interpret the wider legal principles. By contrast, decisions in civil law jurisdictions are generally shorter, referring only to statutes.
Case law is a part of US law called precedent, which means that the logic of earlier court opinions must be applied to future cases.
An agency is a contract, either express or implied, by which one of the parties confides in the other the management of some activity or business to be transacted in their name.
There are two types of agency: actual, either express or implied, and apparent.
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