Origin, USA method

1 common law

Based on a variety of reasons, based USA ultimately choose to the common law as USA new laws. But, as1829Years of justice Storrie in "Vannes v. Packard" decision points out: "the English common law and not all of them can be used as a common method America, our ancestors to the general principles of English common law came in, and use it as their birthright, but they only bring and use the suitable for them in the."
USA states use the ordinary method according to their own needs to be supplemented and modified, so the self system of common law states. And, in the administration of justice, federal court jurisdiction in criminal cases is unable to exercise the right of common law, the common law has no jurisdiction in civil cases.

　　2The equity method

America after independence, the federal and state inherited the equitable tradition. But in order to adapt to the development of capitalist production relations, the unity of the legal system, for equitable judicial procedure USA made great reform.

  1798The "Regulations" provisions in judicial cases, unified equitable by the federal court and a court of equity, not.

  1938Years, USA Congress enacted "federal civil procedure law", United America legal proceedings, now, with a separate court of Chancery American only Alabama, Arkansas, Delaware, Mississippi and tennessee.

　The 3 Law

And the federal America states have enacted law:
(1Federal law) including the Federal Constitution and federal laws.

The federal constitution article1Article8Expressly enumerated the scope of legislation, including: the federal defense, diplomacy, tax, monetary, trade, immigration, patent, maritime and bankruptcy.

America constitution Congress legislation called "express right". From the formal point of view, "express" is limited. But,1819The Federal Supreme Court Chief Justice John Marshall in "Micah Rock v. Mali Lanzhou" case in the recognition of "implied rights" theory, the Federal Parliament was obtained from the legislative constitution "expressly right" out, thus expanding the powers of the federal center. Effect of federal law to comply with the "law before the law" principle, namely the federal law or a federal under the authority of the treaty, does not enjoy any more than the later and it inconsistent with federal legislation status.
(2) state statute law includes the Federal Constitution and federal laws. States have legislative power outside the federal constitutional federal legislation range.

　　Characteristics of two, USA method

The common point of 1 USA law and English law

(1America) was used in the English common law, the traditional form of equity law, law, and inherited the concept of English law and principle of law, especially in the legal style consistent.
The precedent is the main legal form.

The main part of USA legal precedent law, formation and development, legislation, legal principle of law interpretation is often achieved by precedents.

Although19The 1950s enacted numerous statutes, but always keep case law's main body status, pursue the case law doctrine.
USA also implement "stare decisis" principle. In judicial practice, the judge not only enjoyed the judicial authority, and enjoy the power of judicial interpretation and decided by "stare decisis" are actually the legislative power;

In the trial style, using the same inductive reasoning;

In the law and procedure law to treat solid attitude, more emphasis on the importance of procedural law.

USA also does not use the division of public law and private law, no independent Department of civil and commercial law.

(2There are two) origin.

  English case law and statute law, in conformity with the American conditions, as USA sources of law or persuasive origin.

2 different points USA law and English law
(1The critical spirit of law transplantation).

  America law inherited from the British common law tradition, many common law precedent Britain were USA direct references, but the use of American on English law in accordance with American condition as a precondition, not suitable for not applicable.

The performance of the most prominent is the:

The reform in British law, unwritten constitutional tradition, created a written constitution and the distinctive constitution system;

The common law legal system, distinguish the abolition of the "common law suit" and "equitable suit", simplify the procedure;

Through making method to eliminate the feudal land law;

In the application of "stare decisis" principle, American method believed that, if the development of fair treatment to precedent is not conducive to the case or not conducive to the law, will not abide by the precedent. Therefore, Anglo American legal comparison, British law often too much emphasis on traditional, conservative, and America rule more criticism and innovation.
(2) dual structure of legislative and judicial.

 Unlike the unitary structure in Britain, the legislative USA are exercised by federal and state according to the constitution, the system. The court is divided into federal court system and the state court system, the independent exercise of their respective powers.
(3Case law and statute law both).

Compared America law and English law, which demonstrated the importance towards law. Especially19Since the second half of a century, law of emergence and development of legislation, Congress has become an important way to reform and perfect the legal system. Therefore, many scholars USA evaluation method is a kind of case law and statute law as "mixed system".
(4The flexibility of legal interpretation). USA Court precedent, are entitled to judicial interpretation power to make law provisions, this explanation is often caused by the rule of legal precedent and the law content meaning great scalability.
(5Racial discrimination is a strong color).

 This characteristic, not only reflected in the relevant code USA Independent States enacted before, and obviously in1787Years in the constitution. After the civil war, although the constitution abolished slavery, but the black and other minority rights are still subject to various restrictions, until today, justice on the racial discrimination still visible.