Cameron Miranda
The law in the United States is derived from five primary sources: constitutional law, statutory law, treaties, administrative regulations, and common law (which includes case law). The primary sources of law in the United States are the United States Constitution, state constitutions, federal and state statutes, common law, case law, and administrative law. The process of enacting federal law involves statutes, which typically include a preamble, definitional, procedural, substantive, and construction section. Common law, on the other hand, refers to legal traditions and history rather than codified legislation, while case law arises directly from court decisions and interpretations of the Constitution, statutes, or common law.
| Characteristics | Values |
|---|---|
| Primary sources of law | United States Constitution, state constitutions, federal and state statutes, common law, case law, and administrative law |
| Secondary sources of law | Legal dictionaries, legal encyclopaedias, law reviews and journals, legal treatises, manuals and guides on how to practice law |
| Statutory sections | Preamble, definitional, procedural, substantive, and construction |
| Statutory sections definitions | Preamble explains why the law has been passed; definitional defines key terms; procedural illustrates how and when the law takes effect; substantive lays out the terms for the law; construction provides guidelines for interpreting the law |
| Law types | Procedural law, substantive law, criminal law, tort law |
| Law creation | All branches of government produce laws and regulations |
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What You'll Learn
The US Constitution, state constitutions, federal and state statutes
The US Constitution is the supreme law of the United States of America. It superseded the Articles of Confederation, the nation's first constitution, on March 4, 1789. The US Constitution contains only 4,543 words, and it outlines the doctrine of the separation of powers, dividing the federal government into three branches: the legislative, the executive, and the judicial. The Fourteenth Amendment (1868) expanded the protections of the Constitution by granting citizenship to former slaves and all persons "subject to US jurisdiction".
Each state in the US also has its own constitution. State constitutions are more detailed than the US Constitution, typically exceeding 8,000 words, as they outline the day-to-day relationships between the government and the people. They address a wide range of issues that are deemed important enough to be included in the constitution rather than in an ordinary statute. State constitutions often include a bill of rights, an outline of the state government's structure, and a general framework for each branch's functions.
The commonwealths of Puerto Rico and the Northern Mariana Islands do not have organic acts but operate under their own constitutions. The Constitution of Puerto Rico, for example, controls the relationship between Puerto Rico and the United States. The Constitution of the Northern Mariana Islands was drafted in 1976 and approved by the US government in October of that year.
Federal statutes and regulations are published in the Federal Register, which is a daily publication. The Federal Register constitutes the counterpart to session laws and includes notices of hearings, investigations, committee meetings, agency decisions, rulings, and more. The Library of Congress maintains the US Statutes at Large, which are published by the Government Publishing Office.
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Common law, case law, and court decisions
Common law, also known as judicial precedent, judge-made law, or case law, is a body of unwritten laws based on legal precedents established by the courts. It is deeply rooted in the concept of stare decisis, which means "to stand by things decided". In other words, common law is largely based on precedent—judicial rulings made in previous similar cases. In a common law jurisdiction, several stages of research and analysis are required to determine "what the law is" in a given situation. This includes ascertaining the facts, locating relevant statutes and cases, and extracting the principles, analogies, and statements by various courts.
Common law is not passed by a legislature but is applied by courts based on tradition and the legal history of the United States, dating back to the legal system in medieval England. It is a dynamic system that allows for the adaptation of the law to situations not previously contemplated by the legislature. However, it has also been criticised for its potential to marginalise or disempower certain groups, as outdated or biased past decisions can continue to shape future rulings until societal changes prompt a judicial body to overturn the precedent.
Case law refers to law that comes directly from court decisions. It consists primarily of judicial interpretations of the Constitution, statutes, or common law. It includes Supreme Court and lower court decisions. In common law countries, such as the United States, case law is used for judicial decisions of selected appellate courts, courts of first instance, agency tribunals, and other bodies discharging adjudicatory functions.
Common law courts generally provide detailed explanations of the legal rationale behind their decisions, including citations of legislation and previous relevant judgments, and interpretations of wider legal principles. This analysis, called ratio decidendi, constitutes a precedent that is binding on other courts. Further analyses that are not necessary for determining the current case, known as obiter dicta, are considered persuasive authority but are not binding.
Court decisions can be used to guide the application of the law, but they may be overturned by higher courts. They help determine the actual applicability and limits of a law rather than the creation of law itself.
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Procedural law and substantive law
The primary sources of US law include the US Constitution, state constitutions, federal and state statutes, common law, case law, and administrative law. Statutes are created by federal, state, and local legislatures, which are made up of elected officials with the power to create laws.
Statutes at both the state and federal levels contain several sections, including preamble, definitional, procedural, substantive, and construction. The procedural section illustrates how and when the law is intended to take effect, while the substantive section lays out the terms for the law itself.
Substantive law and procedural law are two distinct types of law. Substantive law establishes the rights and obligations that govern people and organisations, and includes all laws of general and specific applicability. It is the law that creates the right being claimed or the law under which charges are brought. It is the meat of the law and determines guilt or innocence, outlining what elements the prosecutor must prove beyond a reasonable doubt. Substantive law can vary by state and jurisdiction but is primarily concerned with the behaviour or conduct involved in a crime.
Procedural law, on the other hand, establishes the legal rules by which substantive law is created, applied, and enforced, particularly in a court of law. It sets forth the steps and requirements to place litigation before the courts and through the trial. It determines when, where, and how the claims are made and how the case is handled before the court. Procedural law deals with how guilt is determined, including rules relating to the venue of the case or the jurisdiction of the court.
The distinction between substantive and procedural law is important in legal contexts. For example, in the context of §2255 motions, SCOTUS can allow new constitutional rulings to be applied retroactively, but this retroactivity applies only to substantive and not procedural issues.
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Primary and secondary sources
The materials used for legal research are generally divided into two categories: primary sources and secondary sources. Primary sources establish the law and include cases, statutes, regulations, treaties, and constitutions. They are the actual law and include the texts of legal bodies that govern a jurisdiction. All branches of the government produce laws and regulations. The primary sources of law in the United States are the United States Constitution, state constitutions, federal and state statutes, common law, case law, and administrative law. Constitutions define how governments are organised and the power and responsibilities of those governments.
Statutes are created by federal, state, and local legislatures, which are made up of elected officials with the power to create laws. Courts must apply statutes to the facts of a case. If no statute exists, courts defer to common law or case law. Common law refers to law that has not been codified or passed by a legislature but is applied by courts based on tradition and the legal history of the United States, even dating back to English law. Case law refers to law that comes directly from court decisions and includes Supreme Court and lower court decisions.
Secondary sources explain the law but do not establish binding law. They include books and articles written about the law, such as treatises, law journals, and Restatements. They may restate the law, but they also discuss, analyse, describe, explain, or critique it. Secondary sources can influence the creation and interpretation of the law, but they are not determinative. They are used to help locate primary sources of law, define legal words and phrases, or aid in legal research. In short, anything that is more than the actual law is considered a secondary source.
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Federal and state law
The United States has three systems of government: federal, state, and tribal. Each of these governments has its own set of laws and the authority to address the social, economic, safety, and cultural needs of its citizens. The law in the United States is derived from five sources: constitutional law, statutory law, treaties, administrative regulations, and the common law (which includes case law).
Federal law originates with the Constitution, which gives Congress the power to enact statutes for certain limited purposes like regulating interstate commerce. Congress is the lawmaking branch of the federal government. A bill is a proposal for a new law or a change to an existing law. The idea for a bill can come from a sitting member of the U.S. Senate or House of Representatives, be proposed during their election campaign, or be petitioned by people or citizen groups. Once a bill is introduced, it is assigned to a committee whose members will research, discuss, and make changes to the bill. The bill is then put before that chamber to be voted on. The president then considers the bill. The president can approve the bill and sign it into law, or veto it. If the president chooses to veto a bill, Congress can vote to override that veto and the bill becomes a law. However, if the president does not sign off on a bill and it remains unsigned when Congress is no longer in session, the bill will be vetoed by default, which is called a pocket veto.
State law is primarily derived from the same sources as federal law, including constitutional law, statutory law, treaties, administrative regulations, and the common law. Many federal and state statutes have remained on the books for decades after they were ruled to be unconstitutional. For example, the Federal Arbitration Act, which has been interpreted to cover all contracts arising under federal or state law, and the Volunteer Protection Act, which limits the liability of people who commit torts under state law. Tort law is primarily a matter of state law and is usually developed through case law from state appellate courts. It rarely concerns federal law.
In addition to these sources, tribal governments may have their own unique sources of law. Some tribes have adopted the Separation of Powers doctrine, dividing governmental authority among legislative, executive, and judicial branches. However, not all tribes have provided their departments or agencies with the authority to implement or enforce the laws passed by the legislative body.
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Frequently asked questions
The primary sources of US law are the United States Constitution, state constitutions, federal and state statutes, common law, case law, and administrative law.
Primary sources of law are the actual laws, such as constitutions, court cases, statutes, and administrative rules and regulations. Secondary sources explain, discuss, or help locate primary law. Examples include legal dictionaries, encyclopedias, law reviews, and legal treatises.
Common law refers to law that has not been codified or passed by a legislature but is applied by courts based on tradition and legal history. Case law comes directly from court decisions and includes judicial interpretations of the Constitution, a statute, or common law.
Procedural law controls the procedure by which legal rights and duties are vindicated. Substantive law is the actual substance of the law, usually expressed in the form of various legal rights and duties.
