Common law, statute law and equity - structure and articulation of the various sources of American law
- The right to strike in Europe
- The right to strike and the European law
- Conditions the right to strike
- The effects of the strike
- Limiting the right to strike in Europe
- Limits depending on the status
- Limits of units
- Limits by sector
- The minimum service
- United Kingdom: An exception to the rule
- Spain and Portugal: A minimum service in the Constitution
- Italy: A minimum service for the respect of human rights
- The countries of Eastern Europe : A minimum service to maintain the production process
At first glance, the American legal system seems somewhat odd for someone from the civil law tradition.
This legal system claims to be a common law system i.e. a law that is made by judges. This seems a priori that is not surprising for the United States as, after all, it is a former British colony. So it is natural their legal system is built on the on the English legal system.
The first surprise, for a novice, is presented with the legal instrument that represents equity in the common law. This instance, which decides on the concept of equity and not in the letter of the law seems, at first, incomprehensible to a lawyer from the civil law tradition. How can we make laws without any institutions to enforce them?
However, it is here that many lawyers who are called "continental" forget to remember the distinction between the law and the common law.
Another irregularity is the number of statutes that are in existence in the U.S. As it is in France, Germany and other continental countries, the U.S. Constitution is the highest source of law.
However, unlike the existence of a clear hierarchy in the civil law tradition, the United States does not seem to have this.
Common Law and Statute Law:
The statement, ?Legislation is a critical aspect of the common law' pretty much sums up its position in the statute law i.e. the rights of the statutes or laws within the common law.
Principle: Rule of Law
The principle is that the U.S. Constitution is the highest source of law. All the laws that are in force and all the judicial decisions must conform to the Constitution.
The constitution of the United States contains a ?Supremacy Clause that establishes that the constitution is the highest source for American law. The federal laws are the second highest with regard to which source has more authority and must be respected on pain of punishment.
The link between the statute law and common law in the United States is not always clear.
Their legal system is based on that of the United Kingdom and this is where their origins of writing laws arises. The importance of written law is also reinforced by the principle that there is no such thing as a common federal law. Thus, U.S. federal law is rather general when compared to the civil laws.
The federal statute law must respect the areas that the Constitution reserves for the Congress. The United States have a general jurisdiction for police matters and can legislate in areas that are related to the health and well-being of their citizens, provided that they do not encroach on areas that are exclusively federal.
Thus, most states as the federal government codes.
Questioning the rule of law:
The form: Now, in the framework of a common law system, the law is seldom written in a "systemic" code, as is found in the Napoleonic system. The laws thus created often take the form of small articles closely related to each other and focus on a very specific problem. In addition, they are subject to a number of revisions and last-minute compromises before their induction.