Формирование американской правовой системы

In the territory of the United States of America, English law was introduced and disseminated by immigrants from England seeking a better life in the New Light. Eventually, the English law and joining the liberated British colonies of Spain led to the emergence of a unique dualistic legislative system which, following its own path of development, developed as an independent legal phenomenon, Having a whole spectrum of features and characteristics not inherent in the legal systems of other countries.

The US is a country with a special history: liberation from colonial dependence, civil war, unique national ideas - all of this has certainly affected all spheres of society, including legal. It is impossible to view American law solely as based on English law, for it is quite unique and represents a fusion of the historical legal experience of Western countries and the high ambitions of a relatively recently formed nation.

The declaration of independence made it necessary to establish a separate legal system. It was during this period that the idea of an independent American legal system emerged and developed in the US, culminating in the adoption of the US Constitution.

The enactment of the US Constitution in 1787 and the subsequent enactment of state constitutions became the starting point for the formation of the US legal system, as it marked the increasing role of legal acts in law enforcement. In essence, this was a departure from the Anglo-Saxon legal tradition and marked the beginning of the formation of its own unique legal system based on both recognition of precedent and application of normative acts [2]. Subsequently, both at the federal level and in specific states, codes were adopted, but legislation was not codified. This process has been going on for years. For example, in the state of Louisiana, work on a draft Penal Code began in 1821 and it was submitted to the legislature in 1826. The New York State Penal Code was introduced in 1965. Many states have also developed and codified civil, criminal, family, labour, administrative and other laws. At the federal level, there is also the United States Code of America (USC), which is a unified and sectional piece of legislation.

All the same, common law remains in force, which indicates the duality of the legal system. The process of development of the US legal system continued in the twentieth century. And in this process, codified acts and laws again played a huge role. In particular, the new spheres of social relations have been actively regulated by both state and federal laws. As a result, this has led to the so-called ‘Era of the Statutes» [3]. Every year the Congress adopts from 300 to 900, and legislatures of states from 10 thousand. to 30 thousand. legislative acts» [3]. With such a volume of legislation, the systematization and codification of legislation becomes a major problem, because even an experienced lawyer is unlikely to be able to understand such a voluminous normative material and effectively apply it in practice.

Therefore, it is absolutely correct to state that the notion of the US traditional legal system as a family common, i.e., case law, is «superficial» [4]. Now consider the peculiarities of the American model of judicial precedent.

1) Relaxation of the principle of stare decisis - a legal principle whereby judges must respect precedents created by previous decisions and must consider past decisions as guidelines for resolving similar cases in the future.» [5]) in relation to the highest judicial authorities of the United States. As a result of this derogation, the Supreme Court is not bound by its decisions in the case. 2) Wide application of the stare decisis principle to all subordinate courts in respect of legal provisions which are not only built up during the trial process, but also as a result of the interpretation of laws and constitutional acts by the highest judicial authorities at federal and state level. The specificity of US case law is also that this principle is strictly applied vertically only. This means that courts are bound in the administration of justice only by decisions of higher courts. On a horizontal level there is no binding case law. Thus, only higher courts, and primarily the US Supreme Court, create judicial precedents. The lower courts, while being obliged to follow the relevant decisions of higher courts, should not take into account previous decisions of their court or another court of its level. This approach clearly distinguishes the US legal system from the classical Anglo-Saxon legal system.

3) The absence of a US judicial authority to generalize the application of regulatory acts by subordinate courts has resulted in the provision of guidance or other precedents [6].

Despite the importance of case law in the US, laws are important. The US legislation has a complex structure, due to the federal state system. Each state creates its own system of legislation and its own system of precedents. Approaches to legislative regulation vary from state to state, such as the different approach to capital punishment, which is applied only in some American states. There is also federal legislation, systematized under the United States Code.

As a result, a legal system has been formed based on the following principles:

–the jurisdiction of the courts of a particular state does not depend on the jurisdiction of the courts of other states, the decisions of the courts of other states are not precedent (as a result in different states in identical situations the courts decide differently); –the decisions of lower courts do not create a precedent for higher courts; –a court decision of any level may be overturned in the event that it is contrary to the US Constitution.

On the other hand, it should be recognized that even in our usual form of codes the system has not worked out in the US, because the process of codification of American legislation is not quite like the process of creation of codes in the Romano-German legal family.

In this connection, A.V. Vankov notes that the American codes do not possess completeness (completeness) and primacy (in relation to precedent) as a source of law. For the most part because there are regulatory areas where law takes priority among sources of law» [7].

Speaking of the early stages of the formation of American legislation, it is definitely worth considering the problems of the formulation of English law. The process of «transmission» of sources of English law has always been accompanied by the absence of clear formal and legal requirements regarding the application of case law and statutory law in England, which is in a public. The political environment and the judicial processes of each colony, which are different in their principles, have led to the failure of a single legal system in each colony [8]. From which it can be deduced that the great role played by the legal system of the young country was not the English law but the common law. The role of legal doctrine in both common law countries and the US, particularly [9].

“Traditionally legal doctrine plays a special role within this legal family in relation to the non-systematization and even casuistry of legislation, fulfilling a kind of system-forming function. It brings doctrinal unity to legislation and enforcement practice, and serves as an important means of filling gaps in both the enforcement process and law-making” [9].

Let’s summarize the above and define the features of the legal system formed in the USA compared to the English legal system.

1) In contrast to the UK, the US has a federal constitution, which makes constitutional control necessary, including over judicial decisions, and promotes the unity of the US judiciary. The US Constitution is a direct legal act. This principle was proclaimed by the Supreme Court of the United States in 1803 and allows to justify constitutional rules adopted judicial decisions. 2) The US legal system is dualistic: it assumes both the existence of a judicial precedent and the application of legislation to resolve specific situations. Duality is thus manifested in the fact that the US legal system combines the characteristics of the Anglo-Saxon legal family and the Romano-German legal family. On the one hand, in the US, the judicial precedent is applied as a source of law. On the other hand, laws, codes and other normative legal acts play a significant role in regulating social relations. This has determined the uniqueness of the US legal system, distinguishing it from countries adhering to Anglo-Saxon law. 3) The case law links US courts vertically, but not horizontally. The lower courts are bound in this respect to follow the relevant decisions of the higher courts and the Supreme Court, but should not take into account their own earlier decisions as well as the judgements of courts of equal status. In addition, state courts have autonomy and are not obliged to invoke the judicial decisions of another state.

4) The US high courts are not bound by their own precedents, which makes the legal system more manoeuvrable and responsive to changes in society, which is undoubtedly a progressive moment.

5) The states have codified legislation, which is not available in the UK, and this makes enforcement more efficient and convenient.

Individual states, for example, Louisiana and California have formed codes of the Roman-German type familiar to us, in other states codified acts have a certain peculiarity, but their very existence makes the existing legal system in the USA unique, different from the traditional Anglo-Saxon system.

6) Legal doctrine plays a huge role in the US legal system and is one way of consolidating statutory rules [10], fulfilling a systemizing function.

Thus, the legal system of the United States of America is unique and differs from the classical English legal system in many respects. Thanks to political, historical, geographical, socio-economic and ideological factors, the US has been able to form its own non-traditional branch of Anglo-Saxon law and create a unique and effective legislative system, The study of which, and in some cases borrowing the most successful solutions, will make it possible to improve the legal system of our state.