Sources Of Law Essay ⋆ Political Science Essay Examples ⋆ EssayEmpire

The sources of law have changed over time. It is not possible to find one single source or form of law in any society. Various streams of authorities flow into the whole of a particular legal tradition. Which sources of law are predominant depends on the nature of the political system and historical legal development.

Common-Law Tradition

America’s tripartite (three-part) government provides three major sources of law: legislative, judicial, and executive. The legislature, or elected representatives of the people, enacts statutes that are enforced by the executive branch. Administrative law and regulations are promulgated by executive agencies to carry out the legislative intent of statutes. The courts—state or federal—interpret statutes, administrative rules and regulations, and other cases to determine the outcome of litigation. As part of America’s inherited English common-law tradition, judicial precedent is important. The doctrine of stare decisis plays a major role in American jurisprudence. By placing great weight on prior court decisions (precedent) at either the state or federal level, the judiciary seeks to provide stability, certainty, and continuity for America’s polity. On questions of constitutionality and other particular kinds of cases, federal courts have original jurisdiction. As with those of other modern nation-states, the U.S. Constitution is written and granted supremacy over state law. Issues fundamental to American political society may be adjudicated by the U.S. Supreme Court. However, the importance of the judiciary in America is not universal. In England, parliamentary sovereignty overshadows the role of the courts. Yet, even though legislation has been on the increase since the rise of Parliament after the Glorious Revolution (1688), the common law as originally developed from a combination of German customary law, feudal law, and Roman-canonical law has considerable force and power in shaping the English Commonwealth. Perhaps the fact that the English constitution remains unwritten underscores this historical belief in the common law as an organic source of political authority.

Civil-Law Tradition

The civil law dates as far back as the Twelve Tables in Rome (450 BCE) and is the predominant legal system in the world. The origin of the common law is dated at 1066 when William the Conqueror won the Battle of Hastings; however, the customs, practices, and traditions of the Anglo-Saxons had been rooted in societal legal norms before this time. In contrast to the Anglo-Saxon common-law tradition, where judge-made law and customary practices of the populace are paramount, and where the law of equity developed giving discretionary power to judges, the civil-law tradition relies on legislative codification. Roman emperor Justinian authorized the Corpus Juris Civilis (Justinian Code), which when completed in 533 served as a source of codified law for later comprehensive statutes, such as the Code Napoléon of 1804.

The canon law of the Roman Catholic Church integrated the Roman legal tradition into its form and substance. The Roman-canonic jus commune, which developed in the medieval period, transcended localities, communities, and nations and provided a legal structure for feudalism. Modern nation-states eventually replaced the jus commune with legal positivism. A rejection of the jus commune on the continent and adoption of nationalistic positive legal systems gave sovereignty to the state that had belonged to the royal rulers under the divine right of king’s theory.

In addition to Roman law and church canon law, commercial law developed within the civil-law tradition, forming the basis for international law. The International Court of Justice located at The Hague, Netherlands, has jurisdiction over cases arising under private international law and public international law, such as the United Nations Charter.

The predominant source of law in the civil tradition is statutes—legislative acts pursuant to the sovereign power of the state. Implementation of statutes requires administrative regulations as a second source of law. There is customary law, but it does not hold the same influence as the common law does in Anglo-Saxon jurisprudence. In civil-law legal systems, the statute has the higher authority over regulations and customs.

Division Of Jurisdiction Of Courts

The types of courts in a common-law system differ from that of civil law. Typically, in a common-law country, such as the United States and Britain, there is a unified system wherein civil and criminal cases are adjudicated within a hierarchy of laws—the Supreme Court being the highest in the United States. Both civil and criminal procedures apply, depending on the case with constitutional guarantees of right to trial by jury, due process, the right to remain silent, and so on. In common-law systems, there can be administrative courts, as in the United States, which give executive agencies judicial power to decide cases within their statutory authority. Notwithstanding, an appeal to a judicial court is available to the losing party of an administrative hearing. Cases at law and equity are divided along lines of remedies for particular kinds of legal actions. For example, the remedy of specific performance under a contract is available under the law of equity, most likely to be decided by the same court and judges as a cause of action under ordinary law. Whether it is a legal action involving constitutional law, commercial law, civil law, or criminal law and whether it is based on a common-law right, statute, or constitution, the adjudication of a claim follows the course of a unified system. A basic trust in the judiciary and the overlapping, yet separate, powers of the legislative, executive, and judicial branches account for confidence placed in ordinary courts in the United States.

In civil-law countries, separate courts, each with its own hierarchy, is more typical. This corresponds to the stricter separation of powers between the legislative, executive, and judicial branches. The ordinary courts in France have various sources: elements of jurisdiction formerly distributed among the civil courts of the jus commune, ecclesiastical courts, commercial courts, and the special tribunal created after the French Revolution (1789–1799) to interpret statutes. In addition, there is a separate, independent system of administrative courts—the Council of State—which has developed what is known as the droit administratif, a large body of administrative law determining the rights and duties between the state and its citizens. This law derives its authority from executive power, not the judiciary, consistent with the less influential role judges play in the civil law. Because of the comprehensive codification of law in statutes, legal science and scholarly interpretations have more influence. And, although a Constitutional Council was established in France during the mid-twentieth century, it does not have the power of judicial review that an American court possesses. It serves more of a political than judicial role, as the executive courts of administrative law make the ultimate determination.

Even though common-law and civil-law traditions have fundamental differences in history, development, and attitude toward law, there are unifying sources of law, such as customary, statutory, administrative, judicial, and constitutional, which in various degrees of substance and form function within a polity to achieve order and justice, and ensure the individual rights of its citizenry. The particular characteristics of a judicial system arise from the political philosophy of a society about where to place sovereignty and whether or not it is centralized or divided into a balance of power between the legislative, executive, and judicial branches.

Bibliography:

Dicey, Albert Venn. Introduction to the Study of the Law of the Constitution. Indianapolis: Liberty Fund, 1982.
Hall, Ford W. “The Common Law: An Account of Its Reception in the United States.” Vanderbilt Law Review 4 (1951): 791–825.
Merryman, John Henry. The Civil Law Tradition: An Introduction to the Legal Systems of Western Europe and Latin America, 2nd ed. Stanford, Calif.: Stanford University Press, 1985.
Van Caenegem, R. C. An Historical Introduction to Private Law. Cambridge: Cambridge University Press, 1992.
Zane, John Maxcy. The Story of Law, 2nd ed. Indianapolis: Liberty Fund, 1998.

This example Sources Of Law Essay is published for educational and informational purposes only. If you need a custom essay or research paper on this topic please use our writing services. EssayEmpire.com offers reliable custom essay writing services that can help you to receive high grades and impress your professors with the quality of each essay or research paper you hand in.