Sourcesof the Law
Sourcesof the Law
Inthe United States, the law is a way to provide a common ground forpeople to learn their rights and resolve disputes. It originates fromvarious sources at both the state and federal levels. The law can bederived from the statutory law, the Constitution, court rules, commonlaw, and administrative law (Stephens, Scheb & Glennon, 2015).
Thecommon law is based on the judicial decisions and represented in thereports of previously decided cases. Most of these decisions havebeen administered by the common-law courts of England since themiddle ages. From this, the law has evolved to the type of legalsystem now found in the United States and most the countries in theCommonwealth (Strauss, 2003). The common law does not have astatutory basis since the judges establish the law through writtenjudgments that are binding on future verdicts of lower courts in thesame jurisdiction. It is subdivided into broad sections of the lawrelating to contracts, property, and torts, which are mostly withinthe control of a state. Consequently, the common law changes overtime, and currently, each state has a different set of common law toaddress many topics. However, there are areas of the federal commonlaw, which are primarily limited to national matters that have notbeen resolved through the law (Strauss, 2003).
Althoughthe statutes have replaced some sections of the common law, itsmethod of reasoning is still the primary means by which the lawyersevaluate cases and predict the expected outcome based on earlierdecisions on similar cases. A court must follow the prior decision inevaluating subsequent lawsuits in the same legal problems andpresenting similar facts. The policy ensures that the law is precise,stable, and predictable (Strauss, 2003). Therefore, the common law isbased on human experiences in the increasing effort to establish whatis right and just in the society. The court deals with issues arisingin the common law by evaluating if they match with the previousdecision on similar issues. It has to determine if the common law isvalid putting into consideration the social and technologicaldevelopments (Strauss, 2003). Accordingly, it can modify, affirm, ornullify the common law when presented with cases related to this law.The common law decisions are based on daily situations as they arise,inventions, social changes, and discoveries. Thus, sometimes thecourts to look beyond reported judgments for guidance in a case,which is a previously undetermined legal issue. In some lawsuits, thecourt can abolish the common law because it may be irrelevant in thecurrent social setting. Under the common law, disputes are settledthrough an adversarial discussion of evidence and arguments(Stephens, Scheb & Glennon, 2015).
Onthe other hand, the Constitutional law interprets and implements theUnited States Constitution. It handles some of the fundamentalrelationships in the society. For example, interactions amongstates, federal and state governments, the three branches of thefederal government, and rights of an individual in relations to stateand federal governments. The Constitution law established the threebranches of the federal government and detailed their powers(Ackerman, 1989). As such, the state and federal officials arerequired to take an oath to support the Constitution, which meansthat they cannot pass laws or take actions that interfere or violatethe Constitution. The Constitutional laws are small in number, butthey have much significance because they protect the rights that thesociety deems to be of fundamental importance. They provide a meansfor organizations and individuals to protect their interest by filinglawsuits against these who violate their rights (Ackerman, 1989). Thecourt deals with the issues relating to Constitutional law byinterpreting them to determine if any violations of the rights andregulations as stipulated in the constitution (Stephens, Scheb &Glennon, 2015).
Inconclusion, the law can originate from common law or the Constitutionon a state and federal level. The common law dates it origin back tothe England courts. The law operates on the notion that the societyhas a set of values and expectation, which the court seeks tosatisfy. In common law cases, the court uses the previous decisionsto make evaluate a current case under same circumstances andpresenting similar results. However, the law keeps on adjusting tovarious changes in the society. Therefore, the courts’ role incases relating to common law is to affirm, modify, or nullify theprevious decision made in similar cases. On the other hand, theConstitutional law is based on the United States Constitution toprotect individual and organizational rights. Hence, the courts’role is to clarify the provisions in the Constitution and determineif a person has violated it through their actions or decisions.Finally, the law derived from both the Constitution and the commonlaw seeks to promote people’s rights while ensuring that they donot infringe the society and legal requirements.
Ackerman,B. (1989). Constitutional Politics/Constitutional Law. TheYale Law Journal,99(3), 140-547.
Stephens,O. H., Scheb, J. M., & Glennon, C. (2015). AmericanConstitutional Law.Stamford, CT: Cengage Learning
Strauss,D. A. (2003). Common Law, Common Ground, and Jefferson’s Principle.TheYale Law Journal,112(7), 1717-1755.