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Altai State University

ANALYSIS OF THE SOURCES OF LAW IN THE CONTEXT OF AMERICAN LEGAL TRADITION

Vishnjakova E.A, Kopylova K.A.

Abstract

The article presents a study of the sources of American law. It investigates their evolution and relations. The sources of law are considered on federal/state level and on the basis of separation of power between legislative, executive and judicial branches.

Keywords: common law, constitutional law, statutory law, administrative law.

The main text

Modern communication and technology have made the world smaller. They have leveled many variations in world culture. Yet, people still speak different languages, wear different clothes, follow different religions, and have different moral values. They are also subject to different laws. Clearly, legal systems are not as different as languages. The world the people live in creates a certain kind of society. This kind of society depends on and welcomes certain kinds of laws. Every nation is used to its laws. The legal system always functions. Law and society both have a long history. The objective of this paper is to investigate the sources of American law. Many people think that history and tradition are very strong in American law. There is some basis for this belief. Some parts of the law come back to the 17^th century, but other parts of the law are quite new.

The oldest form of law in the United States is common law. Common law is the judge-made law. It is derived from custom and judicial precedent. American system law came from England. The English settlers of the original 13 colonies brought with them their own set of rules and principles to be used in their new society. The English common law was quickly adopted throughout the colonies. The common law in the United States has been developed by the judges of both England and the United States. Initially, the 13 original states all adopted the common law. Today, only Louisiana has not adopted the common law in some form. Most states have expressly adopted the common law either by statute or by constitutional authority, although many adopted only parts of the common law. However, approximately half of the states no longer recognize common-law crimes. Modifications to and nullifications of common law come about in many different manners. In some instances, courts have decided that the common law must be changed to meet contemporary conditions. In extreme situations, parts of the common law have been totally abolished. Because the legislatures are charged with the duty of making laws, they have the final word, unless there is a state constitutional provision stating otherwise, on the status of the common law. Some legislatures, however, have expressly given their judiciaries the authority to modify, partially abolish, or wholly abolish the common law as long as the state constitution and the United Stated Constitution are not violated by so doing.

The common law normally is inferior to legislation, so if a legislature acts in an area previously dealt with by common law, the new statute is controlling, absent a statement by the legislature to the contrary.

The most important source of law is the United States Constitution. Everything falls under, and is subordinate to, it. No law may contradict the United States Constitution. Constitutional law is based on a formal document that defines broad powers. Federal constitutional law originates from the U.S. constitution. State constitutional law originates from the individual state constitutions. The Constitution creates the framework for the rest of the laws of the land. First it sets out the procedural rules through which federal laws can be made. The Constitution creates the Congress and tells how to staff it. It stipulates that both houses of Congress must pass laws and that they send the laws to the President for his ascent. If the President vetoes the law the Congress may override the veto by a two-thirds majority in both houses of Congress. But the Constitution also lays out significant substitute limits on the lawmaking powers of the government. First the Constitution gives a list of enumerated congressional powers and allows Congress the authority to pass only those laws necessary and proper to achieving the goals laid out in article 1. Additional substitute limits were added to the Constitution in the form of amendment. The Constitution is at the top of the hierarchy because it is very hard to change. Laws of Congress cannot overturn the provisions of the Constitution. The Constitution can be amended by one of the owners processes laid out in article 5. The Constitution is the supreme law of the land despite its diminutive size. It only has 4440 words. It is the shortest constitution of any major national government but most Americans only know three of the words “We the People”.

The next source of law is statutory law. Statutory law is law that is made by a legislature and codified or written down in code books. Statutory laws can be passed by various government agencies of a country. Thus, there are laws passed by federal and state governments, ordinances passed by towns and cities all having the power of law. New laws are issued to meet the needs of the citizens, to resolve outstanding issues, and to formalize an existing law.

There is administrative law. The federal, state, and local legislatures all create administrative agencies. Administrative law is the body of law that governs the activities of administrative agencies of government. Government agency action can include rulemaking, adjudication, or the enforcement of a specific regulatory agenda. As a body of law, administrative law deals with the decision-making of administrative units of government that are part of a national regulatory scheme in such areas as police law, international trade, manufacturing, the environment, taxation, broadcasting, immigration and transport. The rules and regulations established by an administrative agency generally have the force of law. Like statutes, the regulations can be reviewed by courts to determine whether they are constitutional. The importance of administrative law has grown as the number of federal agencies increased.

The following conclusions can be drawn from the present study:

1. In the United States, the law is derived from various sources. These sources are constitutional law, statutory law, administrative law, and the common law.

2. The USA is an heir to the common law legal tradition of English law.

3. The Constitution is the supreme source of law and it cannot be overturned by any of the other sources of law in the system.

4. The sources of law have both vertical and horizontal dimensions. Vertical dimensions include federal authority and state authority. The horizontal dimension is related to the separation of power between the executive branch, which creates administrative law, the legislative branch, which creates statutes, and the judicial branch, which creates common law.

References

1. Brooks Tina M., Steenken Beau. Sources of American Law. An Introduction to Legal Research. eLangdell Press, 2015.

2. http://www.otto-graph.com/samples/3/sources.html.

3. http://guides.ll.georgetown.edu/history_crime_punish.

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