1. The historical evolution of American law

American law has a deep historical relationship with British law. From the beginning, it has been marked with British law and is an inheritance. and a unique legal system formed based on the transformation of British law. Its development can be roughly divided into four periods.

1. American law during the colonial period

During the colonial period, after Britain defeated other powers, British common law was used in various colonies. However, before the mid-18th century, the laws implemented in various colonies were still relatively primitive and crude, and some colonies even used the Bible as the basis for judging cases. English law did not gain dominance in North America. With the deepening of colonial oppression by British colonists and the changes in colonial social conditions, especially the publication of "An Interpretation of British Law", British law became popular. By the mid-18th century, English common law had gained dominance in the North American colonies.

2. American law after the Revolutionary War

This period was the formation period of American law. Based on English law and with reference to legal documents from continental Europe, a unique American law was formed. After 1830, the publication of the Interpretation of American Law and the emergence of various American law monographs marked the critical absorption of American law from British law and its independent development.

3. American law after the Civil War

This was a period of reform and development of American law. During this period, American law carried out democratic reforms and the legal system gradually improved. Specifically reflected in: the constitutional amendment to abolish slavery officially came into effect; the free transfer system of land was established in property law; the cumbersome litigation procedures were reformed; the case law theory with American characteristics was established; the legal education center started from lawyers Law firms transferred to law schools; there was a trend toward uniformity of state laws.

4. Modern American Law

In order to adapt to the political and economic concentration that entered the period of monopoly capitalism, American law has undergone major changes compared with before the end of the 19th century:

(1) Statutory laws have increased significantly and the systematization of laws has been significantly strengthened. The Law Society was established in 1923, and subsequently published important legal documents such as the Restatement of the Laws and the Compilation of United States Laws (or the United States Code).

(2) Due to the expansion of the power of the executive agency headed by the president, the role and status of executive orders have become increasingly prominent.

(3) A large number of legislation for state intervention in the economy have been promulgated. For example, during the "New Deal" period, a series of laws were promulgated to rectify industry, banking, agriculture, and labor, and antitrust law became a new legal department.

2. The origin of American law

1. Statutory laws

Both the federal and state states in the United States have statutory laws.

Federal statutory laws include the federal constitution and federal laws. Article 1, Section 8 of the Federal Constitution clearly lists the scope of federal legislation, and the legislative power of Congress is called the "express power." From a formal point of view, the "right of express expression" is limited. However, the "McCulloch v. Maryland" case in 1819 confirmed the theory of "implied rights", allowing the federal Congress to obtain legislative power derived from the "express rights" of the Constitution, thus expanding the power of the federal center. The validity of federal laws abides by the principle of "the law that comes later cancels the law that preceded it", that is, federal laws or treaties concluded under federal authority do not enjoy any status that exceeds that of subsequent federal legislation that conflicts with it.

The statutory laws of each state include the constitutions and laws of each state. The Tenth Amendment to the Federal Constitution stipulates: Powers not granted to the United States by the Constitution or prohibited from being exercised by the states are reserved by the states. Accordingly, states enjoy legislative powers beyond the scope of federal legislation stipulated in the federal constitution.

2. Common law

The United States uses English common law as the basis for establishing new laws. After the founding of the United States, there was a development process for the United States to accept the tradition of British common law. After the American Revolutionary War, there was political opposition to Britain and legal rejection of British common law. Some states expressly prohibited the continued application of British court precedents.

Although due to many factors such as economic and cultural factors, the United States ultimately chose English common law as the basis for establishing new laws in the United States. However, every state in the United States has adopted common law and supplemented and modified it according to their own needs, rather than copying it wholesale. As Justice Joseph Story pointed out in the case of Van Ness v. Packard: "Not all of the common law of England can be regarded as the common law of the United States. Our ancestors regarded the general principles of English common law as brought over them as their birthright, but they brought and adopted only that part which suited their circumstances. "There is no uniform set of federal common law rules in the United States; the common laws of the states are their own systems. .

3. Equity

Before the independence of the United States, the British equity method was first adopted in the Crown Territories and chartered colonies. Since there were no ecclesiastical courts in North American states, some cases that were governed by ecclesiastical courts in England were also governed by the courts of equity. After the independence of the United States, both the federal government and the states adopted equity. In order to adapt to the development of capitalist production relations and unify the legal system, the United States has made major reforms in the judicial procedures of equity. The Judicial Ordinance of 1789 stipulates that equity cases shall be handled by the federal courts and there will be no separate equity courts. In 1848, the Code of Civil Procedure promulgated by New York State abolished the distinction between common law and equity in the form of litigation. Since then, other states have made similar provisions. In 1938, the U.S. Congress enacted the Federal Code of Civil Procedure to unify the litigation procedures in U.S. law. Now, in most states, equity cases are handled by the federal courts and there is no separate chancery court. Only five states, Alabama, Arkansas, Delaware, Mississippi and Tennessee, have separate chancery courts. .

3. The United States Constitution

(1) The formulation of the Constitution

The Declaration of Independence was issued after the American Revolutionary War. After that, each state successively formulated state constitutions, united into an alliance and passed the Articles of Confederation, establishing a federal government. But this government is not a complete and unified government and cannot meet the needs of the American bourgeoisie. To this end, in 1787, the Confederate Congress invited state representatives to hold a secret meeting in Philadelphia to amend the Articles of Confederation and draft a constitution beyond its authority. The meeting became known as the Constitutional Convention. On March 4, 1789, the first federal Congress of the United States opened and officially declared the federal constitution into effect. On April 30, 1789, the first federal government with Washington as president was established according to the Constitution.

(2) The main contents and amendments of the Constitution

1. The main contents of the 1787 Federal Constitution

The 1787 Federal Constitution consists of a preamble and seven articles. According to the interpretation of the Federal Court, although the preamble is in the full text of the Constitution, it is not part of the Constitution and cannot be quoted in judicial activities. The main contents of the Constitution include: legislative power, executive power, judicial power, powers granted to states, procedures for proposing and adopting constitutional amendments, emphasizing that the Constitution and the laws enacted in accordance with the Constitution and the treaties concluded are the "supreme law of the country", The question of ratification of the Constitution itself. The Constitution establishes the principles of separation of powers, the principle of checks and balances, and the principle of limited government.

2. Constitutional Amendment

Since the U.S. Constitution came into effect in 1787, it has gone through more than 200 years of development and is still in effect today. Over the past 200 years, the content and system of the Constitution have changed greatly, but the strict constitutional amendment procedure stipulated in Article 5 of the Constitution has remained unchanged. Because of this, the U.S. Constitution is called a "rigid constitution."

A constitutional amendment is the only formal form of constitutional change provided by the United States Constitution. According to the provisions of Article 5 of the Constitution, constitutional amendments may be proposed by Congress when 2/3 of the members of each house deem it necessary, or by an enacting conference convened at the request of 2/3 of the state assembly, whichever way it is proposed. All amendments must be approved by 3/4 of the state legislatures or 3/4 of the state constitutional conventions before they can become part of the constitution and take effect.

Since the establishment of the Constitution in 1787, there have been 29 amendments to the United States Constitution (Article 29 is the amendment proposal). As of 1995, the first 26 amendments have been approved by each state and entered into force. Among them, the first 10 amendments to the Constitution on civil rights (the "Bill of Rights") have a significant impact. The main content of the first 10 amendments is: Congress shall not enact a bill that restricts citizens’ freedom of speech or press, or deprives citizens of their rights to peaceful assembly and petition; citizens’ rights to be free from unreasonable searches and seizures of their persons, homes, documents, and property shall not be Violation; no one may be twice exposed to danger to life or body for the same criminal act; no one may be forced to testify against himself in any criminal case; no one may be deprived of life, liberty, or property without due process of law. In addition, there are also the amendments that abolished slavery and recognized the right to vote for black people after the Civil War, and the amendments that expanded the right to vote and gave equal rights to men and women since the 20th century.

Constitutional amendments are an important part of the U.S. Constitution and represent the basic development direction of the U.S. constitutional system.

4. The judicial system of the United States

(1) Dual-track court organization in the United States

The United States has two court organization systems: the federal court organization system and the state courts organizational system.

1. Federal Court Organization System

Federal courts include the Federal Supreme Court, the Federal Court of Appeals and the Federal District Courts.

(1) Federal Supreme Court. It is the highest judicial level in the federal court system. It was established in 1790. It was initially composed of 1 chief judge and 5 judges and 6 people. It was adjusted several times and was finally fixed to 1 chief judge and 8 judges. It consists of 9 judges. Supreme Court justices are nominated by the president and appointed with the consent of the Senate. They serve for life and cannot be removed from office without impeachment by Congress. The cases heard by the Supreme Court mainly include: first-instance cases involving foreign affairs and in which a certain state is a party; appeals against the judgment of the state supreme court that involve federal legal issues and the judgment of the federal appeals court; appeals against the federal appeals court or the state supreme court. The case is dissatisfied with the court's decision and upon special application, the Supreme Court judges voted to transfer the case in the form of a writ of certiorari to the Supreme Court. Except for cases of first instance, the Supreme Court only reviews the legal issues involved in the case. The decisions of the Federal Supreme Court are binding on all courts across the country.

(2) Federal Court of Appeals. Also known as the Circuit Court of Appeals, it is the second-instance court in the federal court system. In 1869, according to an act of Congress, the 13 states in the United States were divided into three circuit districts, and each circuit district had a circuit court. Hear appeals from lower courts. When hearing a case, the Court of Appeal only examines legal issues and does not examine the factual part. There are currently 13 appeals courts in the United States. The judges of the Court of Appeal are nominated by the Chief Justice of the Supreme Court, appointed by the President, and serve for life. The number of judges is determined by work needs. Among the 13 appeals courts, the Federal Court of Appeals in Washington only hears appeals related to federal matters, such as appeals from the Federal Tax Court, the Court of Federal Claims, and appeals from quasi-judicial decisions by independent agencies such as the Patent and Trademark Office. . In effect it is the Court of Appeal of the specialized courts.

(3) Federal District Court. It is the basic court of the federal court system and the court of first instance for general civil and criminal cases. District Court judges are nominated by the Chief Justice of the Supreme Court, appointed by the President, and serve for life. Court hearings are conducted by jury system. In addition to general civil and criminal cases, we also hear cases involving the U.S. Constitution and laws and the federal government as a party. There are currently 98 federal district courts in the United States. In addition, there are specialized courts such as Tax Court, Bankruptcy Court, Court of Federal Claims, etc.

2. State Court Organization System

The establishment of state courts in the United States is stipulated by state laws, so the names of the court systems in each state are different. The state court system generally consists of three levels: state grassroots courts, state courts of appeals, and state supreme courts. Some states only have two levels: preliminary trial and appeal. Except for the jurisdiction of federal courts, which is provided by the Constitution or provided by Congress under constitutional authority, most civil and criminal cases are under the jurisdiction of state courts.

In cases where the federal court and state court have equal jurisdiction, the plaintiff has the right to decide whether to sue in federal court or state court. The state supreme court also has the power to interpret the constitution and laws of the state.

(2) The judicial review power of the U.S. Supreme Court

Refers to the judicial system in which the Supreme Court of the United States reviews and decides whether legislation and administration are unconstitutional through judicial procedures. The "Marbury v. Madison" case, which began in 1803, established the constitutional principle of judicial review: the Constitution is the supreme law, and all other laws must not conflict with the Constitution; when hearing cases, the Federal Supreme Court has the power to rule on all matters. Whether the law or a certain provision of the law involved violates the Constitution; a law or legal provision that has been ruled unconstitutional by the Federal Supreme Court no longer has legal effect.

As a power and system, judicial review is based on the bourgeois principles of separation of powers, checks and balances, and the rule of law. It maintains the bourgeois democratic system, adjusts conflicts between the federal and state governments, and adjusts administrative It has played an important role in the relationship between the three organs of the Communist Party of China, the Legislature and the Judiciary.

5. The formation and characteristics of the common law system

(1) The formation of the common law system

The common law system is also called the common law system and the British legal system The case law system is a worldwide legal system based on British common law. Together with the civil law system, it is known as the two major legal systems in the world today. It was gradually formed along with Britain's external colonial expansion. By the 19th century, when Britain became a veritable "empire on which the sun never sets," the Anglo-American legal system was finally formed.

(2) Characteristics of the Anglo-American legal system

1. Case law is the main source of law. Countries are influenced by English law, and the sources of law are generally divided into common law, equity and statutory law. Among them, case law has a very high status.

2. Take Germanic law as its historical origin. The core of the common law system, English law, was developed on the basis of the relatively pure Germanic law, Anglo-Saxon law.

3. Judges play an important role in the development of law. Case law is gradually created through the judges’ long-term trial practice. The judges’ judgments themselves have legislative significance. The common law system is known as “judge-made law”.

4. Inductive reasoning method. When judges and lawyers apply the law, they make abstract generalizations and comparisons of legal principles that exist in a large number of cases, and then they can most appropriately apply them to specific cases.

5. There is no strict distinction between public law and private law.

(3) Characteristics and historical status of American law

1. Characteristics of American law

First, case law is the main form of expression. The principle of "following precedent" is implemented in judicial practice, and inductive reasoning is adopted in the trial style, emphasizing the importance of procedure.

Second, the legal system is complex. The federal government and states have their own legal systems. The federal government and states in the United States have independent legislative bodies and judicial systems.

Thirdly, there are few feudal factors. This is because the feudal system did not originally exist on the North American continent, and the obvious feudal elements were not adopted when English law was introduced.

Fourth, there is a strong color of racial discrimination.

2. The historical status of American law

American law is a legal system with American characteristics that is suitable for the national conditions of the United States and is established on the basis of criticizing and absorbing British law. In the Anglo-American legal system occupies an important position. This is reflected in: (1) The United States created modern constitutional ideas and systems that had a profound impact on the Constitution, formulated the world's first bourgeois written constitution, established the basic pattern of the bourgeois constitution, and influenced the constitutional practice throughout the modern period. had a profound impact. (2) Created a dual-track system of legislation and justice. This system and its operation provide a platform for the coordination of relations between the central and local governments. (3) The American criminal law took the lead in creating the probation system and introduced educational and humanitarian concepts into the reform of criminal law. (4) The earliest antitrust regulations were established.

American law has a strong spirit of criticism and innovation in the process of inheriting common law and establishing domestic law. Of course, American law also contains some negative content, such as some anti-democratic legislation such as anti-labor legislation and racially discriminatory legislation.