Sources of law
In the United States, the law is derived from four sources. These four sources are constitutional law, statutory law, administrative regulations and the common law (which includes case law). The most important source of law is the United States Constitution. All other law falls under, and is subordinate to, that document. No law may contradict the Constitution. For example, if Congress enacts a statute that conflicts with the Constitution, the Supreme Court may find that law unconstitutional, and declare it invalid.
Notably, a statute does not disappear automatically merely because it has been found unconstitutional; it must be deleted by a subsequent statute. Many federal and state statutes have remained on the books for decades after they were ruled to be unconstitutional. However, under the principle of stare decisis, no sensible lower court will enforce an unconstitutional statute, and any court that does so will be reversed by the Supreme Court. Conversely, any court that refuses to enforce a constitutional statute (where such constitutionality has been expressly established in prior cases) will risk reversal by the Supreme Court.[2]
Also, certain practices traditionally allowed under English common law were outlawed by the Constitution, such as bills of attainder[3] and general search warrants.[4]
[edit] American common law
The United States and most Commonwealth countries are heirs to the common law legal tradition of English law;[5] for example, U.S. courts have inherited the principle of stare decisis.
English law was formally "received" into the United States in several ways. First, all U.S. states except Louisiana have enacted "reception" statutes which generally state that the common law of England (particularly judge-made law) is the law of the state to the extent that it is not repugnant to domestic law or indigenous conditions.[6] Some reception statutes impose a specific cutoff date for reception, such as the date of a colony's founding, while others are deliberately vague.[7] Thus, contemporary U.S. courts often cite pre-Revolution cases when discussing the evolution of an ancient judge-made common law principle into its modern form[8], such as the heightened duty of care traditionally imposed upon common carriers.[9]
Second, a small number of important British statutes in effect at the time of the Revolution have been independently reenacted by U.S. states. Two examples that many lawyers will recognize are the Statute of Frauds (still widely known in the U.S. by that name) and the Statute of 13 Elizabeth (the ancestor of the Uniform Fraudulent Transfers Act). Such English statutes are still regularly cited in contemporary American cases interpreting their modern American descendants.[10]
However, it is important to understand that despite the presence of reception statutes, much of contemporary American common law has diverged significantly from British Commonwealth common law. The reason is that although the courts of the various Commonwealth nations are often influenced by each other's rulings, American courts rarely follow post-Revolution Commonwealth rulings unless there is no American ruling on point, the facts and law at issue are nearly identical, and the reasoning is strongly persuasive.
Early on, American courts, even after the Revolution, often did cite contemporary English cases. This was because appellate decisions from many American courts were not regularly reported until the mid-19th century; lawyers and judges, as creatures of habit, used English legal materials to fill the gap.[11] But citations to English decisions gradually disappeared during the 19th century as American courts developed their own principles to resolve the legal problems of the American people.[12] The number of published volumes of American reports soared from eighteen in 1810 to over 8,000 by 1910.[13] Today, in the words of Stanford law professor Lawrence Friedman: "American cases rarely cite foreign materials. Courts occasionally cite a British classic or two, a famous old case, or a nod to Blackstone; but current British law almost never gets any mention."[14]
Some adherents of originalism and strict constructionism such as Justice Antonin Scalia of the United States Supreme Court argue that American courts should never look for guidance to post-Revolution cases from legal systems outside of the United States, regardless of whether the reasoning is persuasive,[15] with the sole exception of cases interpreting international treaties to which the United States is a signatory. This position follows inevitably from the philosophy of originalism, which posits not only that the Constitution is the ultimate source of judicial authority in the U.S., but that the only proper analysis of the document consists of discerning the document's original meaning at the time of its adoption. Therefore, discussion of British law that postdates the Constitution is irrelevant as it sheds no light on the original meaning of the Constitution. Others, such as Justices Anthony Kennedy and Stephen Breyer, disagree, and cite foreign law from time to time, where they believe it is informative, persuasive, useful or helpful. However, foreign law has never been cited as binding precedent, but merely as a reflection of the shared values of Anglo-American civilization or even Western civilization in general.[16]
[edit] Federal law
Federal law originates with the Constitution, which gives Congress the power to enact statutes for certain limited purposes like regulating interstate commerce. Nearly all statutes have been codified in the United States Code. Many statutes give executive branch agencies the power to create regulations, which are published in the Federal Register and codified into the Code of Federal Regulations. Regulations generally also carry the force of law under the Chevron doctrine. Many lawsuits turn on the meaning of a federal statute or regulation, and judicial interpretations of such meaning carry legal force under the principle of stare decisis.
In the beginning, federal law traditionally focused on areas where there was a express grant of power to the federal government in the federal Constitution, like the military, money, foreign affairs (especially international treaties), tariffs, intellectual property (specifically patents and copyrights), and mail. Since the start of the 20th century, aggressive interpretations of the Commerce and Spending Clauses of the Constitution have enabled federal law to expand into areas like aviation, telecommunications, railroads, pharmaceuticals, antitrust, and trademarks. In some areas, like aviation and railroads, the federal government has developed a comprehensive scheme that preempts virtually all state law, while in others, like family law, a relatively small number of federal statutes (generally covering interstate and international situations) interacts with a much larger body of state law. In areas like antitrust and trademark, there are powerful laws at both the federal and state levels that coexist with each other.
[edit] State law
Volumes of the Thomson West annotated version of the California Penal Code, the codification of criminal law in the state of CaliforniaThe fifty American states are separate sovereigns with their own state constitutions and state governments.[17] They retain plenary power to make laws covering anything not preempted by the federal Constitution, federal statutes, or international treaties ratified by the federal Senate.
The law of most of the states is based on the common law of England; the notable exception is Louisiana, whose law is based upon the Napoleonic Code. The passage of time has led to state courts and legislatures expanding, overruling, or modifying the common law; as a result, the laws of any given state invariably differ from the laws of its sister states.
Many American states have codified some or all of their statutory law into legal codes. Codification was an idea borrowed from the civil law through the efforts of American lawyer David Dudley Field. New York's codes are known as "Laws." California and Texas simply call them "Codes." Other states use terms such as "Revised Statutes" or "Compiled Statutes" for their compilations. California, New York, and Texas have separate subject-specific codes, while all other states and the federal government use a single code divided into numbered titles.
In some states, codification is often treated as a mere restatement of the common law. Judges are free to liberally interpret the codes unless and until their interpretations are specifically overridden by the legislature.[18] In other states, there is a tradition of strict adherence to the plain text of the codes.
The advantage of codification is that once the state legislature becomes accustomed to writing new laws as amendments to an existing code, the code will usually reflect democratic sentiment as to what the current law is (though the entire state of the law must always be ascertained by reviewing case law to determine how judges have interpreted a particular codified statute).
In contrast, in jurisdictions with uncodified statutes, like the United Kingdom, determining what the law is can be a more difficult process. One has to trace back to the earliest relevant Act of Parliament, and then identify all later Acts which amended the earlier Act, or which directly overrode it. For example, when the UK decided to create a Supreme Court of the United Kingdom, lawmakers had to identify every single Act referring to the House of Lords that was still good law, and then amend all of those laws to refer to the Supreme Court.[19]
法律多是多,但不是没有用,你只要知道遇到什么问题找拿方面的法律专家就行了。
又比如说现代科学的分支众多,有几个人能掌握其万分之一?但这不能说科技没用。
美国属于联邦制国家 除宪法和一系列宪法性文件以外 各州法律不同 其次 美国是英美法系国家 判例是其法律渊源之一 可以作为审判依据 所以美国法律难以计数。
(Survey of the law of the United States) 美国法来源于英国法,又根据美国政治、经济和文化特点作了较多的改变。美国建国初期就制定了成文的联邦宪法,但联邦和各州都自成法律体系。联邦除在国防、外交和州际商业等方面外,无统一的立法权;刑事和民商事方面的立法权基本上属于各州。
宪法的特点
①按三权分立和制衡原则建立总统制的资产阶级民主政体。国会分参众两院,为最高立法机关。两者现在都由各州选民直接选举产生。参议员为100名,各州不论大小,一律两名;任期6年,每2年改选三分之一。众议员按人口比例选举产生,现固定为435名。法律须经两院通过,有分歧时组成两院联席会议解决。国会主要职权为立法、修改宪法和进行弹劲等,以及专由参议院行使的批准条约和审议重要官员的任命。总统任期4年,主要由民主党和共和党两大党提名候选人,经普选产生的选举人间接选举产生。总统兼为国家元首、政府首脑和三军统帅。国会只能按弹劾程序,由最高法院首席法官主持参议院审理通过,方得罢免总统。总统有否决两院通过的法案的权力;但如两院再以三分之二多数通过,法律即有效。美国最高法院由总统提名并经参议院同意任命的9名终身法官组成,审判独立。
②联邦与州分权较复杂。各州均有其宪法与法律,但应符合联邦宪法。联邦的权力主要在外交、国防、货币、联邦预算、全国性财经政策、国际贸易和州际商业方面,至于卫生、教育、福利和税收等,各州都享有较大权力。
③法院享有司法复议权,可以受理对联邦和各州立法、行政法规和行政措施违宪的控告。这是从19世纪著名的“马伯里诉麦迪逊案”的判例肇始的。
④对公民权利的保障,特别是诉讼权利的保障,有较详细的规定。