Sources of American Law

The law is not secret, but it is complex. Many of the processes and procedures in the law have evolved over time. They are a combination of the will of the federal and state governments, longstanding traditions about right and wrong, and society’s values. It is no wonder that finding out what law applies to a particular situation is sometimes puzzling.

This chapter has already discussed several sources of law:

• U.S. Constitutional law
• U.S. federal law
• State constitutional law
• State laws

Now it is time to put these sources in context for the American legal system. This next section discusses the general sources of law and how they relate to one another.

Common Law

The common law is a body of law that is developed through legal tradition and court cases. The U.S. common law is a body of law and legal principles inherited from England that changes very slowly—it develops as judges decide court cases. Therefore, it is sometimes also known as case law or judge-made law.

In the common law, courts decide cases by referring to established legal principles and the customs and values of society. They also look at decisions made in earlier cases to see if the cases are similar. If the cases are similar, a new case should reach a similar result. Finally, formal principles of logic and reason are used to help reach a decision when the result is unclear.

Parties arguing a common law case use a similar approach. Attorneys may argue that the customs and values of society have changed such that a new result is appropriate. Attorneys also may attempt to distinguish the facts of the current case from the facts of earlier cases. In all instances, attorneys must use logic and reason to form the basis for their arguments.

The American legal system generally follows the common law tradition. Many countries colonized by the English have adopted similar systems. After the Revolutionary War, common law grew in America and was heavily influenced by “new” American social and economic values. The common law has continued to evolve, and judicial decisions continue to influence it. The development of the common law continues so long as its decisions and conclusions are not in conflict with other laws, such as constitutional documents or state and federal statutes.

Common law principles are often included within the code law of the federal or state government. An example of this is privacy torts. There are four privacy torts that came to be recognized as torts through the evolution of common law. Courts gradually heard cases regarding issues related to the subject matter area of these torts. As they heard the cases, some courts would recognize the tort and allow the cause of action. Some would not. Gradually, many states adopted the four privacy torts and some states have even written the torts into their statutes.

In the United States, the common law continues to be very influential in civil law areas such as torts, contract law, and property law.

Code Law

Code law is law that is enacted by legislatures. It is also sometimes called statutory law. This is the written law that is adopted by governments. In its truest form, code law attempts to state the complete system of law for a state or federal government. Citizens and members of the legal profession are all bound by the terms of the written law.

In the United States, the common law and code law work together in most states to form the laws that society must follow. There has been a strong movement within the law to codify the common law. This is to help make sure that citizens understand the law. Many states have codified their common law criminal principles into written law. Some states also have codified parts of their civil (noncriminal) laws. Once a code or statute provision is made that addresses the common law, it supersedes the common law in that area. The principles and traditions of common law are transformed into a code of laws.

Constitutional Law

The U.S. Constitution is the final source of authority for issues involving U.S. federal laws. When federal laws are disputed, they are subject to scrutiny to determine whether the law is constitutional. If the law is not constitutional, it is invalid. If the law is constitutional, then it is the source of authority for its particular subject matter.

Similarly, state constitutions are the final source of authority for issues involving state law. So long as the state constitutional provision itself is not in conflict with the U.S. Constitution or federal law, then it will be the final decision on state laws. If a state law is constitutional (under both the state and, if challenged, U.S. Constitution), then it is the source of state authority for its particular subject.

How Does It All Fit Together?

The American legal system contains many different levels of written (codified) and unwritten (uncodified) laws. This is why it is sometimes hard to figure out what the “law” is with respect to a new situation. When an attorney or judge has to analyze the law that applies to a certain situation, he or she applies the rules of statutory construction for looking at an issue. The rules of statutory construction generally mean that the laws of the legislature (code law) are given greater deference than the laws of the courts (common law). If codes are in conflict with the common law, then the text of the code should control the outcome of the case. The problem in analysis occurs when a code has ambiguous terms.

When reviewing a legal issue, an attorney or court might start by first reviewing whether the issue involves a question that can be answered by the U.S. Constitution or a state constitution. If the legal issue involves a question of federal law, the U.S. Constitution is the first authority that should be consulted. The same principle applies for questions of state law.

If the legal issue cannot be resolved by looking at constitutional laws, the next step is to look at the code law. For federal issues, federal statutes would be reviewed. For state issues, state statutes would be reviewed. The attorney or court will look to see that the issue fits clearly within the scope of the code law. If the issue is clearly resolved by looking at code, then the analysis is complete.

When the issue cannot be resolved by looking at the code, attorneys and lawyers turn to the common law to find the guidance needed to resolve the case. For federal issues, federal common law doctrine and federal court cases need to be reviewed. For state issues, state common law doctrines and court cases need to be reviewed. Key in the review of common law is the influential role of precedent, which is discussed later in this chapter.