Legislation and Common Law:The American Legal System

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ELEMENTS OF JURISPRUDENCE: INTRODUCTION TOLEGAL METHODS

2010

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Legislation and Common Law: The American Legal System

-by Gaurav Rai

BBA.LLB (H) (Pursuing) 1st

year (2010)

National Law University, Orissa

Submitted to:-

Abhik Majumdar

Assistant Professor of Law

NLU Orissa


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2010

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CONTENTS

1. Introduction2. Methodology3. Chapter -1(Common law)

y Origin of common law in the Worldy History of common law The United States of Americay Common law and The American Judiciary

4. Chapter 2(Legislation)y Legislation Basic conceptsy Statutes and The American Legislature

5. Chapter 3(A critical analysis)y Convergence of the two systems An answer to the question of research.

6. Conclusion7. References


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Introduction

Legislation and common law come together as a topic of research with a very wide scope . It

basically aims at distinguishing the authority and relevance of the two. Legislation and common

law are both distinct systems of law which has in the recent past converged to form a hybrid .

One such country where this complex system exists is the United States of America . Both case

law (common law) and statutory law (legislation) are important pillars of the American

legal system.

Common law is a more ancient concept where the laws are based on ordinary sense of man .

Hence the role of precedents is vital in common law because it sets guidelines for judgments of

cases thereafter. Legislation on the other hand is relatively new. It traces its origins to the setting

up of governments which were democratic in nature. This is because its application is possible

only in the presence of an authority or governing body, which is a primary feature of a

democratic structure of the government.


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Methodology

By this paper I aim at successfully answering the question of my research, which is:-

y How have the two systems converged to make the unique system of law that is nowprevalent in the United States?

I aim to use the data available to approach my research analytically and subjectively. An in-depth

analysis and extensive research will be some primary features of this paper. Moreover the

Bluebook1

will be used for the necessary citations.

The paper will be chronological in nature because I intend to give a brief outline of the history

and development of the two systems of law first in the world then in context of the United States

of America. After building a prominent idea about the way the two systems work I will work

upon answering the question of my research. This approach will help a layman understand the

concepts of legislation and common law and also help in understanding their convergence which

in my case is limited to the United States of America.

1Bluebook uniform system of citation


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Chapter-1 (Common law)

yOrigin of Common law in the World

Common law traces its origins to England. Common law emerged after the Norman conquest of

1066 AD. By virtue of having conquered England, William I proclaimed that all rights based on

land was now under the king. Keeping of court came under this definition and hence the courts

came under the administration of Norman rule. The clear intentions of the king were to enjoy

monetary benefits of the court. Hence the institution of Eyre was developed. It was used as a tool

to centralizing control over local court; the Eyre provided the structural basis for the

development of a common law for England. The Eyre consisted of four judges appointed by the

king. Their main function was to review the activities of the county courts and hear cases of

appeal.

The decisions made by the Eyre concerning the common pleas brought before them produced a

body of legal precedents known as common law, because the dispute settlement rules became

common to all of England. Because common law was built on a case-by-case basis the terms

"Common law" and "Case law" are sometimes used synonymously.

The development of English common law was not merely the institutionalization of traditional

English customs. The rules of law established by the king's courts were often unprecedented.

Thus, the common law of England was "the by-product of an administrative triumph: the way in

which the government of England came to be centralized and specialized during the centuries

after the conquest."

By seeking to eliminate variations in settlements arising from differences in local custom, '-the

establishment of common law gave rise to a concept of justice the emphasized the uniform

application of standardized laws and procedures. This concept was embodied in the doctrine of

stare decisis that emphasized the importance of legal precedents established in previously settled

cases.


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Common law was primarily oriented not toward protecting individuals from ordinary threats to

person and property but toward maintaining social peace by regulating the economic

arrangements characteristic of feudal land tenure and consolidating royal power under this

system.


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y History of common law The United States of AmericaCommon law is a collection of judicial decisions, customs, and general principles that began

centuries ago in England and continues to develop today. England may have shifted from the

rigours of common law over the years, But since the United states imported the system, a search

for its origins always points to England .The first complete study of the American political

system and judicial structure was done by Frenchman Alexis de Tocqueville in 1835. Since the

study, the American and European legal practices have been seen as distinct. The European legal

practices are inclusive of England. So even though America evolved from the common law that

originated in England, there have been considerable changes that took place which has led to

formation of a unique judicial system in the United States . According to Tocqueville2 the thing

that set the US apart was procedural exceptionalism. This view was further substantiated by

Robert. A. Kagan in his thesis3 . He has defined the above term as policymaking, policy

implementation, and dispute resolution by means of lawyer-dominated litigation4.

The civil law model in continental Europe was based on centralized implementation of

regulatory standards by expert legislators and bureaucrats. The common law model especially in

the US, distrusted bureaucratic administration and hence courts became the centre of

administration. Even Kagan traced the origins of adversarial legalism in US to a set of

governmental structures that reflect mistrust of concentrated power5. The fragmentation in the

American executive and legislative structure is also an effect of this mistrust.

2ALEXIS DE TOCQUEVILLE: Democracy in America.(1835)3ROBERT.A.KAGAN:Adversarial Legalism: The American Way of Law. Cambridge: Harvard University Press.

4 Kagan 2001:35 Kagan 2001:15


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y Common law and The American judiciaryThe American judges have always had the habit of using their common law powers by

application of their judicial experience to the cause at hand. They do not tend to use the

pigeonhole theory i.e. they do not use they tend to neglect the application of the exact piece of

legislature. Thereby common law slowly but surely invades the legislation system of law. Noted

American jurist Roscoe Pound expressed similar views way back in the 1920s6. He has viewed

the presence of common law in good light, but has also expressed some conflicting opinions.

The conditions of judicial lawmaking in the United States are by no means those which are

demanded for the best development of common law in an era of growth.7

The system of common law in America is very strong because it has very strong roots which are

difficult to uproot. Moreover there exist some unique features which have provided the judiciary

with some special powers. Judicial review is one such unique feature which was established in

the US in the celebrated case ofMarbury v Madison.8In this case, for the first time the court had

over ruled a law as unconstitutional. There have been a lot of criticisms regarding judicial review

but today it is one of the most important features of democratic and republican systems of law.

Many jurists have accepted these criticisms and hence tried to re-define the purpose of judicial

review. Most notable of them being Hamilton who said that:-

Constitutional interpretation by the courts does not by any means suppose a

superiority of the judicial to the legislative power. It only supposes that the power

of the people is superior to both; and that where the will of the legislature,

declared in its statutes, stands in opposition to that of the people, declared in the

Constitution, the judges ought to be governed by the latter rather than the former.

6ROSCOE POUND: The spirit of the common law (1921)

7 Id [7]8 5 U.S.(1 Cranch) 137 (1803)


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They ought to regulate their decisions by the fundamental laws, rather than by

those which are not fundamental.9

This particular statement shows the trust that the Americans have in their judiciary. They view

the power of the judicial review as a power of the judiciary to protect the people from unjust

laws. Frenchman Alexis De Tocqueville had studied the features of the American government.10

He has described the American judiciary as a model which has all the basic features that a

judiciary should have. In those features he has impliedly accepted the power of judicial review

and has appreciated the operations of the American judiciary.

The Americans have retained the three distinguishing characteristics of the

judicial power; an American judge can only pronounce a decision when litigation

has arisen, he is only conversant with special cases, and he cannot act until the

cause has been duly brought before the court. His position is therefore perfectly

similar to that of the magistrate of other nations; and he is nevertheless invested

with immense political power. If the sphere of his authority and his means of

action are the same as those of other judges, it may be asked whence he derives a

power which they do not possess.

The cause of this difference lies in the simple fact that the Americans haveacknowledged the right of the judges to found their decisions on the constitution

rather than on the laws. In other words, they have left them at liberty not to apply

such laws as may appear to them to be unconstitutional.11

Moving on we can easily agree to the fact that the common law system in America has

developed according the environment it received. Jurists all over the world have accepted the

fact that America has allowed common law to develop but has also forced it to maintain the

basics of any common law legal system. Even then it can be said that common law cannot stand

9The Federalist No.78 (1937).10

Alexis de Tocqueville: Democracy in America translated by Henry reeves.11

supra note 11at 118


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alone. We can give the courts liberty to interpret the statute in whichever way that suits them, but

to interpret a statute we need statutes. Hence the role of legislation and statutes in America

cannot be undermined because they form a very important part of their legal system.


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Chapter-1 (Legislation)

yBasic concepts of legislation

Legislation is law which has been introduced in the legislature or any other law making body .

Before any item of legislation becomes a law it is referred to as a bill, still then it is referred to as

legislation to distinguish it from other forms of law. Legislation is also known as statutory law. It

is a system of law in which the executive governs the people under their jurisdiction using a set

of rules, laws and codes.

Legislation is usually proposed by a member of the legislature or by the executive, whereupon it

is debated by members of the legislature. Most legislatures do not enact all the bills which are

introduced in the house. Whether a given bill will be proposed and enter into force is generally a

matter of the legislative priorities of government. Legislation is one of the three main functions

of government. It is distinguished from the executive and the judiciary under the doctrine of

the separation of powers. Those who have the formal power to legislate are known as legislators,

whereas the judiciary has the formal power to interpret legislation.

Legislation is a feature which can exist only where there is an authority in the form of a

government. It mostly resides in democratic and republican government systems. The United

States being a democratic system of government has a legislature by the name of Congress,

which include members of the house and the senate. The process of law making is a long and

tedious process involving a total of 14 steps hence only a few bills cross over the line to be

recognized as law.


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y Statutes and the American legislatureThe Constitution vests power in the Congress to pass legislation. The proposal made by a

congressman is called a bill. If a majority of each house of the Congress consisting of two third

majorities to adopt a bill and the president accepts it becomes a law. Unlike other democratic

countries the president of United States has a lot of power, basically referring to the Veto power.

The laws made by the Congress are called federal laws. They are also known as statutes. The

United States Code is a codification of federal statutory law. The Code is not itself a law, it

merely presents the statutes in a logical arrangement. The American legislature is hence unique

in its structure. Being federal in nature, the central legislature or the congress does not have

jurisdiction over a large area. This is because each state in America has their own set of laws

statutes and even constitution! Hence most of the laws made by the central legislature consist

mostly of Defense, foreign policies and budgets. The laws made by the state are applicable only

to the state itself. The overall jurisdictions of each set of laws remain confined to a very small

area, geographically. So the confusions and ambiguities that have been set between legislation

and common law in America all come down to the following questions:-

y Which one between Legislation and Common law has gained importance over the

other in the recent past in context of the United States?

y How have the two systems converged to make the unique system of law that is nowprevalent in the United States?


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Chapter-3 (A critical analysis)

y Convergence of the two systemsWhen there are no statutes or constitutional provision that control a certain issue, then both the

federal and state courts refer to common law for help. In many of the states in the US case law

holds an important role in cases involving dispute of contracts. This is because the state

legislatures are not seen fit to pass statutes covering every possible contractual elements. It has

been widely accepted more due to the authority it possesses that both the Constitution and

statutory law supersede common law, but courts continue to apply unwritten common law

principles to fill in the gaps where the Constitution is silent and Congress has not legislated.12

Roscoe Pound has done one of the most extensive researches in this field. In one of his most

acclaimed articles he explained four ways in which the American legal system could work to

remove the conflict between the two systems of law prevalent in America.

Four ways may be conceived of in which courts in such a legal system as ours

might deal with a legislative innovation.

(1) They might receive it fully into the body of the law as affording not only a rule

to be applied but a principle from which to reason, and hold it, as a later and

more direct expression of the general will, of superior authority to judge-made

rules on the same general subject; and so reason from it by analogy in preference

to them.

(2) They might receive it fully into the body of the law to be reasoned from by

analogy the same as any other rule of law, regarding it, however, as of equal or

12Outline of the US Legal System

Bureau of International Information Programs United States Department of State

http://usinfo.state.gov


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co-ordinate authority in this respect with judge-made rules upon the same general

subject

(3) They might refuse to receive it fully into the body of the law and give effect to

it directly only; refusing to reason from it by analogy but giving it, nevertheless, a

liberal interpretation to cover the whole field it was intended to cover.

(4) They might not only refuse to reason from it by analogy and apply it directly

only, but also give to it a strict and narrow interpretation, holding it down rigidly

to those cases which it covers expressly.

The fourth hypothesis represents the orthodox common law attitude toward

legislative innovations. Probably the third hypothesis, however, represents more

nearly the attitude toward which we are tending. The second and first hypotheses

doubt less appeal to the common law lawyer as absurd. He can hardly conceive

that a rule of statutory origin may be treated as a permanent part of the general

body of the law. But it is submitted that the course of legal development upon

which we have entered already must lead us to adopt the method of the secondand eventually the method of the first hypothesis.

13

The third hypothesis that Roscoe pound has referred to shows that the present attitude of the two

systems of law are liberal towards each other. Moreover a system where none of the two systems

abuse the power they have in order to maintain the sanctity of the government of United States .

Harlan. F. Stone expressed similar views in his article which shows that the opinion of Roscoe

Pound is the opinion of the majority. In his article he wrote:-

13Roscoe Pound: Common law and legislation. Harvard Law Review Vol-21, (1908) at 25


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Distinguishing characteristics (of American judiciary) are its development of

law by a system of judicial precedent, its use of the jury to decide issues of fact,

and its all-pervading doctrine of the supremacy of law that the agencies of

government are no more free than the private individual to act according to their

own arbitrary will or whim, but must conform to legal rules developed and

applied by courts. Any attempt to appraise the progress of the common law in the

United States or to predict its future must be concerned with at least some of these

features of the system. It is a common place that both the jury system and the

doctrine of supremacy of law have persisted and have been extended here more

than in other common-law countries.14

The basic outline of this article remains that the American legal system have gone ahead of other

common law countries by laying the principles of common law and statutory law on common

ground. The pride the Americans have in their legislature and judiciary is that there isnt any

explicit conflict between these two wings of the government.

14Harlan F. Stone: The Common Law in the United States. Harvard Law Review, Vol-50, No.1(1936)


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Conclusion

Hence an honest conclusion can be made regarding the present form of legal system present in

America i.e. the American legal system is a complex of two systems of law namely statutory law

and Common law. Both of which have their lacunae but support each other in filling in the gaps

in them and overall have an approach towards each other which is not about who dominates the

other but is about how they can converge with each other to form a strong judiciary in the United

States of America.


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Bibliography

y Books and ArticlesAlexis De Tocqueville: Democracy in America. New York: Vintage Books, 1945.

Robert. A. Kagan: Adversarial Legalism: The American Way of Law. Cambridge: Harvard

University Press.

Roscoe Pound: Common law and legislation. Harvard Law Review Vol-21, 1908

Roscoe Pound The Spirit of the Common Law

Eugene V. Rostow: The Democratic Character of Judicial Review

Alexander Hamilton Federalist No. 78(1788)

Harlan F. Stone: The Common Law in the United States. Harvard Law Review, Vol-50, (1936)

y Websiteswww.jstor.org

books.google.com

Documents

Legislation and Common Law:The American Legal System