Sources of American Law

American law, strongly influenced by its English background, has four
main sources – common law, equity, constitutions and statutes.

England, the British Commonwealth, and the United States follow the common law. Whereas Civil Law attempts to state the whole law in a comprehensive code, the common law is found in the collected cases of the various courts of law. American common law began with the common law of England. It includes the English common law and all sub­sequent legal developments, including the principle of stare decisis.

Common law codes should not be confused with Civil Law codes. In the common law, a code is a collection of statutes passed by a legislature; a civil law code is intended as a full and comprehensive statement of the whole law.

Equity began as an independent legal system based on concepts of fair play. It covers injunctive relief, specific performance of con­tract, and certain contract revisions, as well as parts of family law. Many of the principles and maxims of equity have been merged into the common law. There is no jury trial in an equity case.

Constitutions and Statutes. In contrast to these two forms of judge-made law – common law and equity – are two varieties of "legislative" law—constitutions and statutes. Judge-made law is inductive; on the basis of a number of individual decisions a general rule is constructed. Legislative law is deductive; a general principle is stated by a consti­tutional convention or a legislature and then is given meaning as it is applied in deciding a series of individual controversies.

The special problems of constitutions as sources of law have already been noted. Constitutions tend to state very general principles and they are hard to amend, so they require or permit great latitude in interpretation. Statutes are typically more limited in their scope and language; they aim to solve particular problems or lay down rules covering defined situations. Nevertheless, statutes also require interpretation when they are applied.

During the past century, judge-made law proved increasingly unable to deal with the problems of an industrialized society. Legislatures responded to the challenge with an enormous output of regulatory and social-welfare legislation. Just as the common-law courts initially resisted the rise of equity, so judges in the United States initially resented statute law replacing the standards of the common law, and they restricted the impact of the new legislation by narrow and hostile interpretation. But this was a tactic that could not long prevail. Today, statutes are by far the most substantial source of the law that American courts apply.

Vocabulary

comprehensive code n единый кодекс; всеобъемлющий кодекс

controversy n 1 спор; 2 правовой спор; судебный спор

latitude n свобода действий

lay down (rules) v установить (правила)

output n выпуск

relief n 1 средство судебной защиты; 2 помощь; injunctive relief судебный

запрет, средство правовой защиты в виде судебного запрещения

resent v пересматривать

scope n охват

social welfare n социальное обеспечение

substantial adj 1 существенный; 2 реальный

Дата добавления: 2015-11-14