Law of the United States
The law of the United States was originally largely derived from the common law system of English law, which was in force at the time of the Revolutionary War. However, the supreme law of the land is the United States Constitution and, under the Constitution's Supremacy Clause, laws enacted by Congress and treaties to which the U.S. is a party. These form the basis for federal laws under the federal constitution in the United States, circumscribing the boundaries of the jurisdiction of federal law and the laws in the fifty U.S. states and territories.
General overview
Sources of law
In the United States, the law is derived from four sources. These four sources are constitutional law, administrative law, statutory law, 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 passes a statute that conflicts with the Constitution, the Supreme Court may find that law unconstitutional. 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.
Also, certain practices traditionally allowed under English common law were outlawed by the Constitution, such as bills of attainder general search warrants.
American common law
The United States and most Commonwealth countries are heirs to the common law legal tradition of English law; 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. Some reception statutes impose a specific cutoff date for reception, such as the date of a colony's founding, while others are deliberately vague. 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 such as the heightened duty of care traditionally imposed upon common carriers.
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.
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. 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. The number of published volumes of American reports soared from eighteen in 1810 to over 8,000 by 1910. 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."
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, 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.
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.
State law
The fifty American states are separate sovereigns with their own state constitutions and state governments. 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.
Nearly all states started with the same British common law base, with the notable exception of Louisiana; Louisiana law has always been strongly influenced by the French Napoleonic Code. The passage of time has resulted in enormous diversity in the laws of the states. State courts have expanded the old common law rules in different directions (through their traditional power to make law under the doctrine of stare decisis), and state legislatures have passed various statutes expanding or overriding many judge-made rules.
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. 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.
Criminal law
In the arena of criminal law, all states have somewhat similar laws in regard to "higher crimes" (or felonies), such as murder and rape, although penalties for these crimes may vary from state to state.
For public welfare offenses where the state is punishing merely risky (as opposed to injurious) behavior, there is significant diversity across the various states. For example, punishments for drunk driving varied greatly prior to 1990. State laws dealing with drug crimes still vary widely, with some states treating possession of small amounts of drugs as a misdemeanor offense or as a medical issue and others categorizing the same offense as a serious felony.
Tort law
United States tort law varies widely across the states. For example, a few jurisdictions allow actions for negligent infliction of emotional distress even in the absence of physical injury to the plaintiff, but most do not. For any particular tort, states differ on the causes of action, types and scope of remedies, statutes of limitations, and the amount of specificity with which one must plead the cause. With practically any aspect of tort law, there is a "majority rule" adhered to by most states, and one or more "minority rules."
Attempts at "uniform" laws
Efforts by various organizations to create "uniform" state laws have been only partially successful. The two leading organizations are the American Law Institute (ALI) and the National Conference of Commissioners on Uniform State Laws (NCCUSL). The most successful and influential uniform laws are the Uniform Commercial Code (a joint ALI-NCCUSL project) and the Model Penal Code (from ALI).
Apart from model codes, the American Law Institute has also created Restatements of the Law which are widely used by lawyers and judges to simplify the task of summarizing the current status of the common law. Instead of listing long, tedious citations of old cases (in order to invoke the long-established principles contained in those cases), they can simply cite a Restatement section to refer to a particular common law principle.
Local law
States have delegated lawmaking powers to thousands of agencies, townships, counties, cities, and special districts. And all the state constitutions, statutes and regulations are subject to judicial interpretation like their federal counterparts.
Thus, at any given time, the average American citizen is subject to the rules and regulations of several dozen different agencies at the federal, state, and local levels, depending upon one's current location and behavior.
Odd exceptions
As noted above, much of Louisiana law is derived from the Napoleonic Code; the adherence to French legal traditions stems from its time as a French colony. Puerto Rico is also a civil law jurisdiction of the United States. However, the criminal law of both jurisdictions has been necessarily modified by common law influences and the supremacy of the federal Constitution.
Many states in the southwest that were originally Mexican territory have inherited several unique features from the civil law that governed when they were part of Mexico. These states include Arizona, California, Nevada, New Mexico, and Texas. For example, these states all have a community property system for the property of married persons (Idaho, Washington, and Wisconsin have also adopted community property systems, but they did not inherit them from a previous civil law system that governed the state). Another example of civil law influence in these states can be seen in the California Civil Code, where the law of contracts is treated as part of the law of obligations (though the rules actually codified are clearly derived from the common law).
Many of the western states, including California, Colorado, New Mexico, and Wyoming use a system of allocating water rights known as the prior appropriation doctrine, which is derived from Spanish civil law. It should be noted that each state has modified the doctrine to suit its own internal conditions and needs.
Innovations
"American law is, by international standards, a series of innovations and exceptions... the United States has charted a distinctive and idiosyncratic legal path."
Several legal innovations first arose in the United States, and some of those innovations have been adopted by other countries.
The most broadly influential innovation of 20th century American law was the rule of strict liability for defective products, which originated with judicial glosses on the law of warranty. In 1963, Roger J. Traynor of the Supreme Court of California threw away legal fictions based on warranties and imposed strict liability for defective products as a matter of public policy in the landmark case of Greenman v. Yuba Power Products.. The American Law Institute subsequently adopted the Greenman rule in Section 402A of the Restatement (Second) of Torts, which was published in 1965 and was very influential throughout the United States. Outside the U.S., the rule was adopted by the European Economic Community in the Product Liability Directive of July 1985, by Australia in July 1992, and by Japan in June 1994.
By the 1990s, the avalanche of American cases resulting from Greenman and Section 402A had become so complicated that another restatement was needed, which occurred with the 1997 publication of the Restatement (Third) of Torts: Product Liability.
The term criminal law, sometimes called penal law, refers to any of various bodies of rules in different jurisdictions whose common characteristic is the potential for unique and often severe impositions as punishment for failure to comply. Criminal punishment, depending on the offense and jurisdiction, may include execution or , loss of liberty, government supervision (paroleprobation), or fines. There are some archetypal crimes, like murder, but the acts that are forbidden are not wholly consistent between different criminal codes, and even within a particular code lines may be blurred as civil infractions may give rise also to criminal consequences. Criminal law typically is enforced by the government, unlike the civil law, which may be enforced by private partieriminal law history
The first civilizations generally did not distinguish between civil and criminal law. The first written codes of law were produced by the Sumerians. Around 2100-2050 BC Ur-Nammu, the Neo-Sumerian king of Ur, enacted the oldest written legal code whose text has been discovered: the Code of Ur-Nammu[1] although an earlier code of Urukagina of Lagash is also known to have existed. Another important early code was the Code Hammurabi, which formed the core of Babylonian law. These early legal codes did not separate penal and civil laws.
The similarly significant Commentaries of Gaius on the Twelve Tables also conflated the civil and criminal aspects, treating theft or furtum as a tort. Assault and violent robbery were analogized to trespass as to property. Breach of such laws created an obligation of law or vinculum juris discharged by payment of monetary compensation or damages.
The first signs of the modern distinction between crimes and civil matters emerged during the Norman Invasion of England.[2] The special notion of criminal penalty, at least concerning Europe, arose in Spanish Late Scolasticism (see Alfonso de Castro), when the theological notion of God's penalty (poena aeterna) that was inflicted solely for a guilty mind, became transfused into canon law first and, finally, to secular criminal law.[3] The development of the state dispensing justice in a court clearly emerged in the eighteenth century when European countries began maintaining police services. From this point, criminal law had formalized the mechanisms for enforcement, which allowed for its development as a discernible entity.
Criminal sanctions
Criminal law is distinctive for the uniquely serious potential consequences of failure to abide by its rules. Every crime is composed of criminal elements. Capital punishment may be imposed in some jurisdictions for the most serious crimes. Physical or corporal punishment may be imposed such as whipping or caning, although these punishments are prohibited in much of the world. Individuals may be incarcerated in prison or jail in a variety of conditions depending on the jurisdiction. Confinement may be solitary. Length of incarceration may vary from a day to life. Government supervision may be imposed, including house arrest, and convicts may be required to conform to particularized guidelines as part of a parole or probation regimen. Fines also may be imposed, seizing money or property from a person convicted of a crime.
Five objectives are widely accepted for enforcement of the criminal law by punishments: retribution, deterrence, incapacitation, rehabilitation and restitution. Jurisdictions differ on the value to be placed on each.
- Retribution - Criminals ought to suffer in some way. This is the most widely seen goal. Criminals have taken improper advantage, or inflicted unfair detriment, upon others and consequently, the criminal law will put criminals at some unpleasant disadvantage to "balance the scales." This belief has some connection with utilitarianism. People submit to the law to receive the right not to be murdered and if people contravene these laws, they surrender the rights granted to them by the law. Thus, one who murders may be murdered himself. A related theory includes the idea of "righting the balance."
- Deterrence - Individual deterrence is aimed toward the specific offender. The aim is to impose a sufficient penalty to discourage the offender from criminal behavior. General deterrence aims at society at large. By imposing a penalty on those who commit offenses, other individuals are discouraged from committing those offenses.
- Incapacitation - Designed simply to keep criminals away from society so that the public is protected from their misconduct. This is often achieved through prison sentences today. The death penalty or banishment have served the same purpose.
- Rehabilitation - Aims at transforming an offender into a valuable member of society. Its primary goal is to prevent further offending by convincing the offender that her conduct was wrong.
- Restitution - This is a victim-oriented theory of punishment. The goal is to repair, through state authority, any hurt inflicted on the victim by the offender. For example, one who embezzles will be required to repay the amount improperly acquired. Restitution is commonly combined with other main goals of criminal justice and is closely related to concepts in the civil law.
Criminal law jurisdictions
International law
Public international law deals extensively and increasingly with criminal conduct, that is heinous and ghastly enough to affect entire societies and regions. The formative source of modern international criminal law was the Nuremberg trials following the Second World War in which the leaders of Nazism were prosecuted for their part in genocide and atrocities across Europe. In 1998 an International criminal court was established in the Hague under what is known as the Rome Statute. This is specifically to try heads and members of governments who have taken part in crimes against humanity. Not all countries have agreed to take part, including Yemen, Libya, Iraq, Israel and the United States.
United States
In the United States, criminal prosecutions typically are initiated by complaint issued by a judge or by indictment issued by a grand jury. As to felonies in Federal court, the Fifth Amendment to the United States Constitution requires indictment. The Federal requirement does not apply to the states, which have a diversity of practices. Three states (Connecticut, Pennsylvania, and Washington) and the District of Columbia do not use grand jury indictments at all. The Sixth Amendment guarantees a criminal defendant the right to a speedy and public trial, in both state and Federal courts, by an impartial jury of the State and district wherein the crime was committed, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of Counsel for his defense. The interests of the state are represented by a prosecuting attorney. The defendant may defend himself pro se, and may act as his own attorney, if desired.
In most U.S. law schools, the basic course in criminal law is based upon the Model Penal Code and examination of Anglo-American common law. Crimes in the U.S. which are outlawed nearly universally, such as murder and rape are occasionally referred to as malum in se, while other crimes reflecting society's social attitudes and morality, such as drug prohibition and alcohol laws are referred to as malum prohibitum.
England
Criminal law in England derives from a number of diverse sources. The definitions of the different acts that constitute criminal offenses can be found in the common law (murder, manslaughter, conspiracy to defraud) as well as in thousands of independent and disparate statutes and more recently from supranational legal regimes such as the EU. As the law lacks the criminal codes that have been instituted in the United States and civil law jurisdictions, there is no unifying thread to how crimes are defined, although there have been calls from the Law Commission for the situation to be remedied. Criminal trials are administered hierarchically, from magistrates' courts, through the Crown Courts and up to the High Court. Appeals are then made to the Court of Appeal and finally the House of Lords on matters of law.
Procedurally, offenses are classified as indictable and summary offenses; summary offenses may be tried before a magistrate without a jury, while indictable offenses are tried in a crown court before a jury. The distinction between the two is broadly between that of minor and serious offenses. At common law crimes are classified as either treason, felony or misdemeanor.
The way in which the criminal law is defined and understood in England is less exact than in the United States as there have been few official articulations on the subject. The body of criminal law is considerably more disorganised, thus finding any common thread to the law is very difficult. A consolidated English Criminal Code was drafted by the Law Commission in 1989 but, though codification has been debated since 1818, as of 2007 has not been implemented. Scotland has a completely separate legal system.
Selected criminal laws
Many laws are enforced by threat of criminal punishment, and their particulars may vary widely from place to place. The entire universe of criminal law is too vast to intelligently catalog. Nevertheless, the following are some of the more known aspects of the criminal law.
Elements
The criminal law generally prohibits undesirable acts. Thus, proof of a crime requires proof of some act. Scholars label this the requirement of an actus reus or guilty act. Some crimes — particularly modern regulatory offenses — require no more, and they are known as strict liability offenses. Nevertheless, because of the potentially severe consequences of criminal conviction, judges at common law also sought proof of an intent to do some bad thing, the mens rea or guilty mind. As to crimes of which both actus reus and mens rea are requirements, judges have concluded that the elements must be present at precisely the same moment and it is not enough that they occurred sequentially at different times.
Actus reus
Actus reus is Latin for "guilty act" and is the physical element of committing a crime. It may be accomplished by an action, by threat of action, or exceptionally, by an omission to act. For example, the act of A striking B might suffice, or a parent's failure to give food to a young child also may provide the actus reus for a crime.
Where the actus reus is a failure to act, there must be a duty. A duty can arise through contract, a voluntary undertaking, a blood relation with whom one lives, and occasionally through one's official position. Duty also can arise from one's own creation of a dangerous situation. Occasional sources of duties for bystanders to accidents in Europe and North America are good samaritan laws, which can criminalise failure to help someone in distress (e.g. a drowning child).
An actus reus may be nullified by an absence of causation. For example, a crime involves harm to a person, the person's action must be the but for cause and proximate cause of the harm.[11] If more than one cause exists (e.g. harm comes at the hands of more than one culprit) the act must have "more than a slight or trifling link" to the harm.
Causation is not broken simply because a victim is particularly vulnerable. This is known as the thin skull rule. However, it may be broken by an intervening act (novus actus interveniens) of a third party, the victim's own conduct, another unpredictable event. A mistake in medical treatment typically will not sever the chain, unless the mistakes are in themselves "so potent in causing death." \
Mens rea
Mens rea is another Latin phrase, meaning "guilty mind." A guilty mind means an intention to commit some wrongful act. Intention under criminal law is separate from a person's motive. If Mr. Hood robs from rich Mr. Nottingham because his motive is to give the money to poor Mrs. Marion, his "good intentions" do not change his criminal intention to commit robbery.
A lower threshold of mens rea is satisfied when a defendant recognises an act is dangerous but decides to commit it anyway. This is recklessness. For instance, if C tears a gas meter from a wall to get the money inside, and knows this will let flammable gas escape into a neighbour's house, he could be liable for poisoning. Courts often consider whether the actor did recognize the danger, or alternatively ought to have recognised a risk. Of course, a requirement only that one ought to have recognized a danger (though he did not) is tantamount to erasing intent as a requirement. In this way, the importance of mens rea has been reduced in some areas of the criminal law.
Wrongfulness of intent also may vary the seriousness of an offense. A killing committed with specific intent to kill or with conscious recognition that death or serious bodily harm will result, would be murder, whereas a killing effected by reckless acts lacking such a consciousness could be manslaughter. On the other hand, it matters not who is actually harmed through a defendant's actions. The doctrine of transferred malice means, for instance, that if a man intends to strike a person with his belt, but the belt bounces off and hits another, mens rea is transferred from the intended target to the person who actually was struck.
Strict liability
Strict liability can be described as a "but for" cause of harm on part of the defendant. "But for" the action or product that caused the harm, nothing bad would have happened. Not all crimes require bad intent, and alternatively, the threshold of culpability required may be reduced. For example, it might be sufficient to show that a defendant acted negligently, rather than intentionally or recklessly. In offenses of absolute liability, other than the prohibited act, it may not be necessary to show anything at all, even if the defendant would not normally be perceived to be at fault. Most strict liability offenses are created by statute, and often they are the result of ambiguous drafting unless legislation explicitly names an offense as one of strict liability.
Fatal offenses
A murder, defined broadly, is an unlawful killing. Unlawful killing is probably the act most frequently targeted by the criminal law. In many jurisdictions, the crime of murder is divided into various gradations of severity, e.g., murder in the first degree, based on intent. Malice is a required element of murder. Manslaughter is a lesser variety of killing committed in the absence of malice, brought about by reasonable provocation, or diminished capacity. Involuntary manslaughter, where it is recognized, is a killing that lacks all but the most attenuated guilty intent, recklessness.
Settled insanity is a possible defense.
Personal offenses
Many criminal codes protect the physical integrity of the body. The crime of battery is traditionally understood as an unlawful touching, although this does not include everyday knocks and jolts to which people silently consent as the result of presence in a crowd. Creating a fear of imminent battery is an assault, and also may give rise to criminal liability. Non-consensual intercourse, or rape, is a particularly egregious form of battery.
Property offenses
Property often is protected by the criminal law. Trespassing is unlawful entry onto the real property of another. Many criminal codes provide penalties for conversion, embezzlement, theft, all of which involve deprivations of the value of the property. Robbery is a theft by force.Fraud in the UK is a breach of the Fraud Act 2006 by false representation, by failure to disclose information or by abuse of position.
Participatory offenses
Some criminal codes criminalize association with a criminal venture or involvement in criminality that does not actually come to fruition. Some examples are aiding, abetting, conspiracy, and attempt.
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