Keith Mack
The American legal system is based on federalism, where the national government has significant powers, but individual states retain powers not exclusively federal. The law in the US is derived from five sources: constitutional law, statutory law, treaties, administrative regulations, and the common law (which includes case law). Case law, or common law, is based on precedents set by previous cases, rather than law based on constitutions, statutes, or regulations. In the US, federal courts can create federal common law in the form of case law, but it must be linked to the interpretation of a particular federal constitutional provision, statute, or regulation.
| Characteristics | Values |
|---|---|
| Basis | Case law is based on precedents, i.e., judicial decisions from previous cases. Statutory law, on the other hand, is based on codes enacted by legislative bodies. |
| Jurisdiction | In the US, jurisdiction refers to the formal power of a court to exercise judicial authority over a particular matter. It also refers to the geographic distribution of courts of particular levels. |
| Sources | Sources of case law include legal encyclopedias, published works of legal commissions, and statutory powers. |
| Schools of Thought | Formalism, legal realism, inclusive legal positivism, and more. |
| Nature of Questions Addressed | Questions such as "What is law?" and "How do judges (properly) decide cases?" |
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What You'll Learn
Federalism and decentralisation
The American legal system is based on a system of federalism, or decentralization. While the national or "federal" government wields significant powers, individual states retain powers not specifically enumerated as exclusively federal. Most states have court systems that mirror the federal court system. This system of federalism or decentralization gives rise to complex questions about the interrelation of the various sources of law, from both the state and federal systems.
Federalism is a term that is often used interchangeably with decentralization. However, some scholars argue that the virtues of federalism are actually the result of decentralization. Decentralization typically involves the transfer of decision-making or administrative authority from a central government to subordinate regional or local governments. This transfer of authority can be symmetrical, with the same level of authority transferred to all regional governments, or asymmetrical, with varying levels of authority transferred. In the private sector, this may involve transfers from a firm's headquarters to its divisions or subsidiaries.
In the context of federalism and decentralization in the American legal system, the central government is the federal government, and the subordinate entities are the individual states. The federal government possesses significant powers, but the states retain authority over matters not specifically enumerated as exclusively federal. This means that the states have the power to make laws and establish court systems that may differ from those at the federal level.
The distinction between federalism and decentralization is important because it affects the effectiveness and efficiency of government and the well-being of citizens. Some scholars argue that unitary systems, where power is centralized in a single government, outperform federal systems. This is because unitary systems can make decisions and implement policies more quickly and consistently, as there is no need to consider the opinions and interests of multiple levels of government.
In conclusion, while the American legal system is often described as federal, it is important to recognize that the benefits and challenges associated with federalism may be due to the system's decentralization. The complex interplay between the federal and state systems in America highlights the unique characteristics of American jurisprudence and governance.
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The role of judges
The American legal system is based on federalism, or decentralisation. While the national or "federal" government has significant powers, individual states retain powers not specifically enumerated as exclusively federal. Most states have court systems that mirror the federal court system. This means that the various sources of law, from both the state and federal systems, interrelate with one another.
Within this system, judges play an essential role at all levels of the US judiciary. Judges are tasked with presiding over trials and maintaining order. They review evidence for any illegality issues, provide instructions to juries, and in the case of bench trials, decide the facts of the case and make a ruling. Judges also sentence convicted criminal defendants.
Judges may refer to various types of persuasive authority to decide a case. Widely cited non-binding sources include legal encyclopaedias, the published work of the Law Commission, or the American Law Institute. Some bodies are given statutory powers to issue guidance with persuasive authority, such as the Highway Code.
In the common law tradition, courts decide the law applicable to a case by interpreting statutes and applying precedents. Precedents record how and why prior cases have been decided. Judges are bound by past decisions, drawing on established judicial authority to formulate their positions. This is known as stare decisis, a Latin phrase meaning "let the decision stand".
In the US, federal judges, from district courts up to the Supreme Court, have the final say on issues that affect the lives of every American, including civil rights, religious freedoms, voting rights, and affirmative action. They lead court proceedings, use established laws and guidance to determine sentencing, and rule on the constitutionality of various laws and legal precedents.
There are no formal constitutional requirements for who may serve as a federal judge, but there are informal, unwritten qualifications. Judges must exhibit knowledge of the law and the Constitution. Attorneys, state or lower court judges, or law professors are most commonly tapped to serve. Judges who have met age and service requirements can take senior status, handling a reduced caseload, and creating a vacancy to be filled by a new judge.
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Statutory law vs case law
Case law, also known as common law, is based on precedents set by previous court rulings. It is established by judicial bodies such as the Fourth Circuit Court of Appeals or the Virginia Supreme Court. Case law is not created by lawmakers but by judges in a court, who use past decisions, or precedents, to inform their rulings on similar cases. This is known as the doctrine of stare decisis, Latin for "let the decision stand". In this way, case law is based on the interpretation of statutes and the application of precedents.
Statutory law, on the other hand, is created by a legislative body, such as the US Congress or a State General Assembly. It is prescribed in specific statutes and passed by the legislature. Statutory law must be passed on different levels of government, such as local, state, and federal, and the process of enacting it may vary depending on the jurisdiction. For example, a federal law is given the number of the US Congress that passed it, along with a chronological number. After passage, a law is codified or published according to its subject category.
Case law and statutory law are distinct but interdependent. Statutory law always overrides common law, but if no statute law applies to a particular situation, common law will be applied. While case law is based on the rulings of individual courts, statutory law is created by legislative bodies and is thus more susceptible to the political, economic, and psychological inclinations of its creators.
In terms of their application, case law is often used when a statute is unclear or ambiguous, and a judge must interpret the law. In this sense, case law can be seen as a form of secondary authority, which is not binding but can be used as guidance to resolve legal issues. Federal courts tend to avoid deciding constitutional issues and may instead decide a case on statutory grounds.
In summary, case law and statutory law are two distinct but interconnected components of the American legal system. Case law is based on precedents set by previous court rulings, while statutory law is created by legislative bodies and prescribed in specific statutes. Understanding these differences is crucial for comprehending how the law functions and is applied in the United States.
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The jurisdiction of courts
The American legal system is founded on federalism, where the national government holds significant powers, but individual states retain certain authorities not explicitly designated as exclusively federal. This interplay between state and federal jurisdictions is a crucial aspect of American federalism. Federal courts have exclusive jurisdiction over matters of national significance, such as patent and admiralty law, while state courts typically have general jurisdiction, allowing them to hear a broad range of cases except those exclusively federal or prohibited by state law.
The determination of whether a court has jurisdiction over a case involves examining both constitutional and legislative factors. For instance, a state court might need permission from its state legislature to hear specific types of cases. Federal courts, on the other hand, have limited jurisdiction, only hearing cases that fall within the scope defined by the Constitution and Congressional statutes. This limited jurisdiction encourages parties to bring cases to state courts when appropriate, preventing excessive federal intervention.
In certain situations, federal and state courts share concurrent subject-matter jurisdiction, providing parties with the flexibility to choose the forum they believe will be most advantageous for their case. However, it's important to note that higher courts typically do not have direct oversight over lower courts and cannot unilaterally overrule their judgments. Instead, litigants must appeal rulings to higher courts, and if a case is not appealed, even if a judge acts against precedent, the decision will stand.
The concept of jurisdiction extends beyond domestic boundaries and influences international law as well. International criminal tribunals, such as the International Criminal Tribunal for Rwanda, also operate within the framework of subject-matter jurisdiction, impacting persons traditionally subject to domestic law. The interplay between direct and indirect jurisdictional standards shapes how legal systems allocate decision-making authority on the international plane.
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Legal schools of thought
Jurisprudence refers to the theoretical approaches to the study of law, which aim to understand its nature, purpose, and function in society. There are several schools of jurisprudence, each with its own unique perspective on the role of law and its relationship with morality, society, and the state.
One of the schools of jurisprudence is Formalism, or Conceptualism, which treats the law as a mathematical or scientific construct. Adherents of this school believe that judges identify relevant legal principles, apply them to the facts of a case, and logically deduce a rule that determines the outcome. This school of thought is often associated with the idea of law as a direction or command of the sovereign.
In contrast, Legal Realism, or the Realist School, challenges traditional legal concepts and values. Proponents of this school, such as Jerome Frank, believe that judges' decisions are influenced by their political, economic, and psychological inclinations, as well as their personal biases and policy choices. This school emphasizes the importance of evaluating the actual practices of courts and individuals in applying the law. There are two types of realist schools: the American Realist School and the Scandinavian Realist School. The American Realists, including John Chipman Grey, emphasize the role of judges in applying codified laws and determining legal rights and duties. They view the law as robust and dynamic, serving specific social purposes. Scandinavian Realists, on the other hand, believe that law can be explained through empirical methods akin to those used by social scientists.
The Historical School of Jurisprudence, founded by Friedrich Karl von Savigny, focuses on the origin and development of law. According to this perspective, law is not created but discovered, emerging from the conventions, customs, religious principles, and economic needs of society. Savigny's theory of Volksgeist emphasizes the influence of a country's historical culture and customs on its legal framework.
Another school of thought is Sociological Jurisprudence, which developed from the work of "free law" theorists and sociologists. This school treats law as a social phenomenon, influenced by and influencing the social conditions in which it operates. Proponents of this school, such as Montesquieu, Auguste Comte, and Herbert Spencer, view law as a social institution that can be improved through human effort, emphasizing its social ends rather than sanctions.
Additionally, there is the school of Analytical Jurisprudence, which includes the Austinian School (named after John Austin) and the Positivist School. This school focuses on the present form of law and is unconcerned with its past or future.
Inclusive legal positivism is another school of thought that asserts that social facts are the ultimate determinants of the content of the law. This school acknowledges that moral facts can play a role in shaping the law, but only if social practices assign them that role.
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Frequently asked questions
American Jurisprudence is a collection of articles that cover a wide range of American law topics, including federal and state, civil and criminal, substantive and procedural.
Case law, or common law, is based on precedents, or judicial decisions from previous cases, rather than law based on constitutions, statutes, or regulations.
Statutory law is made up of codes enacted by legislative bodies.
American jurisprudence includes both case law and statutory law, as well as administrative law.
