United States law

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The law of the United States (English Law of the United States ) originally came mainly from common law from England , which had legal force at the time of the American War of Independence . Since the United States Constitution came into force, it has become the ultimate source of law, along with federal law and international treaties to which the United States is a party. These represent the basis, but also the restrictions, for all federal law and the law in the 50 states .

The codified mixing system of Louisiana has substantial private law of the content and procedures Roman Germanic law from its affiliation with the Spanish and French Empire maintained and is in this respect a special feature among the 50 American states.

Legal sources

In the United States, law is derived from four types of legal sources:

  • Constitutional law,
  • Administrative ordinances,
  • Law,
  • Judicial law (jurisprudence).

The most important source of law is the American Constitution, since all other sources of law are subordinate to it. Law that tries to break the provisions of the constitution is pointless and ineffective. For example, if Congress passes a law that is inconsistent with the Constitution, the United States Supreme Court can declare the law unconstitutional and invalidate it.

American common law

Although the United States, like many of the Commonwealth of Nations, is heir to British Common Law, American law differs significantly from it. This is largely due to the long period in which American law developed independently of British law. Accordingly, the courts in the United States usually only look into the early 19th century when analyzing any applicable British legal principles in common law.

While it is common in the Commonwealth of Nations for courts to import decisions and principles from other Commonwealth of Nations, this is rare in American case law. The only exceptions are if no relevant American cases at all can be found, the facts are almost identical, and the justification is extremely convincing. Early American decisions often cited British cases, but such quotes disappeared during the 19th century when the courts found clearly American solutions to local conflicts. In current case law, almost all citations refer to American cases.

Some followers of originalism and strict legal text design ( strict constructionism ), such as the late Federal Supreme Court Justice, Antonin Scalia , are of the opinion that American courts never should check foreign cases that were decided after the Revolutionary War, regardless of whether the reasoning is convincing or not. The only exception to this is seen in cases involving international treaties ratified by the United States. Other judges, such as Anthony Kennedy and Stephen Breyer , take a different view and use foreign jurisdiction when their reasoning is convincing, useful or helpful to them.

Federal law

Federal law is derived from the Constitution of the United States, which places all legislative powers at the federal level in Congress. The competences that actually belong to the federal level are strictly limited by the constitution due to the federalism sought . Almost all laws are codified in the United States Code . Many laws give executive authorities the power to make regulations with full legal force. Such are published in the Code of Federal Regulations . Many legal proceedings are decided based on federal laws or regulations. The judgments in these cases are legally binding due to the stare decisis requirement and must be observed in subsequent cases. (see also precedent )

State Law

As partially sovereign political units, the fifty federal states have their own constitution and retain the right to independently create law in all areas that have not been expressly transferred to the federal government by the constitution. Almost all states began with the same common law basis, with the law in Louisiana in particular being heavily influenced by the French understanding of law. Over the centuries, however, great differences have developed between the legal areas of the various states. The state courts developed the same common law principles through stare decisis in different ways, while the state parliaments independently passed laws that expanded or reinterpreted these principles.

Unlike other countries that are governed by common law, all American states have codified part of their law created by law. This idea was guided by the traditional continental European view that only legal texts have unambiguous legal force.

In some states, the currently valid common law is only re-expressed in the compilation with the idea that judges can interpret these restatements liberally, provided that parliament does not pass specific laws on the subject. In other states, judges are expected to adhere to the exact wording of the law.

One of the advantages of compilation is that once parliament has got used to drafting new laws as amendments to old laws, the code always reflects the current state of democratic decision-making. Accordingly, in many other common law jurisdictions it is much more difficult to determine what the currently valid law actually is. For this purpose, very early laws passed by parliament must be read and then historically examined which subsequent laws influenced this original law. When the United Kingdom's Supreme Court was created in 2005, the law passed had to identify all of the current passages in old law that should refer directly to this new court.

Unification tendencies

Several organizations have tried to state congresses for adoption of uniform laws (Engl. Uniform laws ) to move, but are been there only occasionally successful. The most successful of these attempts were the Uniform Commercial Code ( Uniform Commercial Code ) and the Model Penal Code ( Model Criminal Law ).

In addition, the American Law Institute has also issued new versions of the common law - the restatements of the law - which are used by judges and lawyers in particular as a substitute for the lavish collections of cases that are otherwise common.

Constitutional law

Criminal law

In the field of criminal law , the legal provisions between states for serious crimes such as murder and rape are relatively similar. In other cases, especially when it comes to protecting the public, the penalties vary considerably. Up until the 1990s, the penalties imposed for drunk driving differed greatly.

Contract law

In American contract law , a contract is a legally binding exchange of promises between the contracting parties. The promises can be exchanged in writing, verbally (so-called parol contracts ) or tacitly (so-called implied contracts ). The legal liability arises from consideration .

Contracts can also be differentiated in terms of the number of promises exchanged. A so-called bilateral contract consists of two or more mutual promises, while a unilateral contract (so-called unilateral contract ) consists of an offer and acceptance (if the provider offers the recipient of the offer the payment of a fee for the performance of a certain service - the recipient of the offer obliges , he has signed the contract).

Contracts can also be differentiated with regard to their invalidity: A void contract that is void from the start has no legal effects (e.g. an agreement to commit a crime). An ineffective contract (so-called voidable contract ) can be canceled by either party. As long as the contract is not challenged, it remains valid. A uneinklagbarer contract (so-called. Unenforceable contract ) is valid but of course, not be legally enforceable.

In the USA, legally binding contract law is mainly regulated by the individual states. That is why there are around 50 different contract law compilations and jurisdictions ( common law ) in the USA . For this reason, various efforts have been made in the USA to standardize contract law to a certain extent.

For example, the NCCUSL ( National Conference of Commissioners on Uniform State Laws ) issued the (legally non-binding) “Uniform Commercial Code” (UCC) (which has been revised many times since the first edition in 1954).

Many federal laws (so-called state statutes ) are based on the UCC and adopt its individual paragraphs or articles in part verbatim. In contrast to the UCC, these compilations are legally binding in the respective states.

The American Law Institute (ALI) has published another legally non-binding standardization of contract law: the “Restatement of Law, Contracts”.

Nevertheless, there are some in the US federal laws (so-called. Federal statute ) that shod each a small part of contract law, such as the Consumer Credit Protection Act of 1968, or the Magnuson-Moss Warranty Act 1975.

Secured Transactions

As a credit security (. Engl Secured Transactions ) refers to an area of law that deals with the protection of the repayment of loans and other credit operations (such as buying on credit) by a loan security (collateral) occupied: In case of payment delay or failure ( default ), the Creditors (creditor) sell the collateral and satisfy themselves with the proceeds. It is regulated in Article 9 of the Uniform Commercial Code . It is not legally binding, but states can incorporate it into state law. Two important steps are required after the UCC to ensure full security: attachment and perfection.

Civil procedural law

Tort Law (~ tort law)

American tort law , the US counterpart to tort law , varies widely between states. For example, “ negligent infliction of emotional distress ” allows claims for damages in some states, even without physical damage, while this is not the case in other states. Most of the unauthorized acts have mostly applied principles, which, however, are not observed by some states, depending on the subject matter. One example is the attractive nuisance doctrine for the benefit of damaged children.

Property Law (~ Sachenrecht)

Evidence

Law of Evidence is a largely unknown area of ​​law in continental Europe. In the USA, evidence is generally admissible in trials (~ main proceedings). It is one of the most important areas of law in the United States. It acquires its special importance on the one hand through the possibility of jury trials not only in criminal proceedings, but also in civil proceedings and on the other hand through the validity of the adversational procedural model (especially with examination-in-chief and cross-examination ) even in criminal matters . The rules of evidence are intended to prevent the jury made up of lay judges from being misled by misleading evidence.

Each state has its own Rules of Evidence. The Federal Rules of Evidence (FRE) apply at the federal level . The main areas of the law of evidence include: 1. relevance, including the admissibility of character evidence (~ repute proof), 2. the examination of witnesses (witnesses) including the vibration of their credibility (impeachment of witnesses), and 3. the rules on admissibility of persuasion hearsay (hearsay evidence).

Local law

The states have delegated some of their legislative power to a myriad of agencies, counties , cities, and special districts. Accordingly, a large number of legal provisions are in force at the same time in every location, the applicability of which must be constantly re-examined by the local courts.

Public law

Public law in the sense of continental European understanding does not exist in the United States, nor does the separation between private law and public law have any fundamental separating function in practice or jurisprudence. Professors and practitioners often deal with matters that, according to continental understanding, are caused by the dichotomy of public vs. Private law are strictly separated from each other. A separation of jurisdiction is also unknown. To the extent that a dichotomy is recognized at all, it exists between civil law and criminal law. The civil law is defined purely negative as non-criminal. When interpreting international treaties, this often leads to discrepancies between the United States and other member states of an agreement.

See also

literature

introduction

Encyclopedias

  • Corpus Juris Secundum . A contemporary statement of American law as derived from reported cases and legislation . West, St. Paul, Minn. 1936.

Individual aspects

  • Marc Gerding: Trial by Jury. The probation of the English and US jury systems. An idea in the context of constitutional and social change . Julius Jonscher Verlag, Osnabrück 2007, ISBN 3-9811399-0-9 .
  • Marcus Schladebach, Sabrina Schönrock : Basic structures of administrative law in the USA . In: VerwArch . Vol. 93, 2002, pp. 100-128.
  • Kermit L. Hall, Paul Finkelman, James W. Ely: American Legal History: Cases and Materials. 5th edition. Oxford University Press, New York 2017, ISBN 978-0-19-025326-4 .

Web links

Individual evidence

  1. ↑ Elizabeth Gaspar Brown: Frontier Justice. Wayne County 1796-1836. In: Wythe Holt (Ed.): Essays in Nineteenth-Century American Legal History. Greenwood Press, Westport (CT) 1976, pp. 676-703, here p. 686. (This source notes that decisions made in the territory of Michigan between 1808 and 1828 changed from a complete reliance on British law to an increased recourse to American cases walked.)
  2. ↑ [1]
  3. ↑ Archived copy ( memento of the original from January 4, 2007 in the Internet Archive ) Info: The archive link was inserted automatically and has not yet been checked. Please check the original and archive link according to the instructions and then remove this notice. @1@ 2Template: Webachiv / IABot / www.nccusl.org
  4. ↑ a b Statutory law (English WP)
  5. ↑ A list of all states with links to the respective laws that have implemented the respective provisions of the UCC can be found at http://www.law.cornell.edu/uniform/ucc.html
  6. ↑ http://www.ali.org/