1

 Topic. 6. The US legal system, as a subgroup of

the Anglo-American legal family and other
legal systems of the Anglo-American legal
family.
Plan
1.Legal system of the USA.
 1.1. Stages of the formation the USA legal system.
 1.2. Features of sources of law in the USA.
 1.3.Specific features of the American legal system.
2

2.Legal system of Scotland.

3.Legal system of the legal system of Ireland.
4. Basic features of the legal system of Canada.
5. The Legal system of Australia
2. Anglo-American (Anglo-Saxon) type of legal system or Common Law (England,
Northern Ireland, USA, Canada, Australia, New Zealand, to some extent - former
colonies of the British Empire (now 36 countries are members of the Commonwealth),
etc.).
Within the Anglo-American type of legal system, there are two subtypes or two
groups:
English Common Law
(England); American law
(USA)

In addition, the division of the Anglo-American type of legal system is possible in two
groups:
- European Common Law (England, Ireland);
- outside European Common Law (USA, Canada).
The Law of every country outside of Europe has acquired broad
autonomy within the Anglo-American type of legal system
4 Reasons for differences of English law in the United States
and in the United Kingdom of Great Britain:
 1) Continental location, independent location from
England;
 2) the absence of a feudal system like in continental
Europe, the development of bourgeois relations;
 3) the existence of a republican form of government and
federal government (England - a parliamentary monarchy);
 4) necessity to create an independent legal system that
breaks with its colonial English past (after the
proclamation of US independence).
5
The desire for independence from England:
 In some states, even before the proclamation of US
independence in 1776, criminal, criminal procedure codes
were adopted, which prohibited reference to English court
decisions.

 Only in the states that were formerly French and Spanish

colonies (Louisiana, California) were Roman-style codes
adopted.

 In the rest of the states, common law has been declared in

force, but in accordance with statutory law with precedent
priority.
6
1.1. Stages of the formation the USA legal system.
(Associated with historical development)

1. is the stage of colonial law (formation).

2. the US legal system is becoming independent, began after

independence (the American Revolution) and continued until the
Civil War.

3. lasts from the Civil War to World War II, when the United States
faced several crises, as a result of which the legal system
underwent significant changes.

4. After World War II, the fourth stage began, in which the
American legal system took on a modern form.
 1. is the stage of colonial law (formation).
7

There is a case law in the American colonies of England. Since 1607 - the date
of the establishment of the first colony (Virginia) .
English law was considered the only valid law in the territory of American
colonies.
The local law was abolished in favor of the "natural justice“ (in the case of
Calvin - 1608) in the process of colonization .

case of Calvin – 1608

The English court, in resolving this case, formulated the following
provision: when colonization concerns non-Christian societies,
local law is by fact abolished in favor of "natural justice."
Formally, it is not about English common law, but it corresponds
to the British concept of natural justice. However, there were
reservations about the need to take into account the specific
features of the colonies.
8
 Characteristics of the colonial period:
 It is more simplified character of the American
law and quick judicial procedures;
 reception of norms and customs not only of
England, but also other European states;
 tolerance to the different religions of migrants of
different religions (Puritanism is a puritan code of
the Massachusetts colony "Corps of Freedom" in
1641 and Quakerism);
 divergences in the legal regulation in each of the
states (as a consequence of the geographical
position, economic development).
 2. the US legal system is becoming independent,
began after independence (the American Revolution)
The second stage: and continued until the Civil War.
9
 American revolution = the first plan the independent national American
law, independent from English law
 proclamation the independence of USA (Declaration the independence of
the USA of 1776 - confession by Britain in 1783), Acceptance of
Constitution of Federation, 1787, and constitutions of the states (The first
constitution was accepted by the state New Hampshire in 1776).
 The Americans planned to complete rejection of English law. For example,
there were the forbidden reference on the decision of the English courts,
Declarations of independence has taken away after acceptance.
 But only some states which were before the French and Spanish colonies
(Louisiana, California) accepted the codes of Roman type (1808).
 There is common law was kept with his dividing into a common law and
law of equity. The 10th Amendment to the United States Constitution (1791)
allowed individual states to establish separate laws, but within the
framework of American law.= 10th amendment to Constitution of the USA
(1791).
10 3. lasts from the Civil War to World War II, when the United States
faced several crises, as a result of which the legal system
underwent significant changes.

Was enshrined the consequences of the war:

• the abolition of slavery, giving blacks the right to
vote.
• It has been established that the legislative,
executive and other state bodies have no right
to violate or cancel the constitutional rights of
citizens.
• In the 70s of the XIX century. Federal criminal law
was codified ( tried unification codes for all
states)
• judges were given broad powers in
interpretation The Constitution
11

4. After World War II, the fourth stage began, in which the
American legal system took on a modern form.

• In 1954 decision of the US Supreme Court in the case of Brown v.

Council on Education, the practice of racial segregation (separation)
was abolished.
• In the 60s of the twentieth century. Ensuring equal opportunities for all
Americans, regardless of race, ethnicity, gender, age, health, or
sexual orientation.
• Normative legal acts have been adopted^
• the Civil Rights Act (1964), the Age Discrimination in Employment Act
(1967), amendments to the education legislation (1972), the Age
Discrimination Act (1975), and the Education Act for the Disabled
(1990).
12

Consequently,
 the legal system of the USA to a great extent originates
from the English common law,
 formed under act of legal traditions of England and on
the whole has a structure, analogical the structure of the
English law,
 keeps a technique and methods of common law.
 As a result, the United States has developed a new
legal system, the specifics of which were determined
by the federal structure of the state, the existence of
written constitutions, as well as the peculiarities of
socio-economic and political development.
 1.2. Features of sources of law are in the USA.
13
 1. Main sources (forms) of law in USA it is a legal precedent and law.
 According to the US Constitution, “… the judiciary power spread to all cases decided in accordance with
the law and the law of equity. The US Constitution provides for the possibility of supplementing and
amending through amendments which become an integral part of the Constitution.

In fact, codification
also takes the form
of consolidating
precedents, rather
than creating new
rules.
14

There are civil codes and criminal proceedings.

in all states it is criminal.
The Supreme Court of the United States is an
authority to enforce state sovereignty.
Constitutional control is exercised by the
general courts - the Federation and the States
and by The Supreme Court (there is no such
thing in England). Each State may declare the
federal law unconstitutional.
15 2. A legal doctrine is the source of law which is
developed of separate judges corporations.
A doctrine approves the role of courts at interpretation of
precedents in an order to carry out control above
constitutionality of laws.

3. A legal custom is a second-rate source of law. It was

saved through the presence of certain political traditions in
executive power. (For example, political parties, to flame
Congress operate on the basis of customs, but not laws).
16

 3. International agreements – on the status equated

with national legislative acts.

 It distinguishes from rules in the Roman-Germanic

legal family, where in the case of collision of
international and national laws give advantage
international agreements.

 Here is, principle operates «Lex posterior derogate

lex priori». The last law abolishes previous».
17
 1.3.Specific features of the American legal system.
1. A precedent is the main source of law, but legislation has a greater
proportion in the United States than in England.
Because of:
a) the presence in the United States of the federal constitution (1787) and the
constitutions of states. (The first constitution was adopted by the state New -
Hampshire in 1776);
b) the absence of a written constitution in England.
2. Existence and development of the American law on two levels (states
and federation).
The courts of every state make the jurisdiction independent of each other.
18  3. Originality of the American law, as well as English,
consists in that norms, formed judicial practice, are
reproduced in laws.
 According René David René «If there are not
precedents, the American lawyer will say gladly: The Law
is silent their. Even if there is present a norm of law on a
particular question.
 A constitution contains positions of general and indefinite
character, which need specification, and interpretation
which doing Supreme Court of the USA.
19  4. The legislation has a large value.
 5. Unlike English law, American law has a freer effect of the
rule of precedent.
The highest courts of the states and the Supreme Court of the
United States have never been bound by their own precedents!!!;
It gives them possibility in any moment to change the legal
practice.
In contrast to Britain, the Court of Appeal and the House of Lords
of the United Kingdom were bound by their precedents. (Before the
constitutional reform of 2005).
Courts in Great Britain are bound by their precedents. So for
example the Court of Appeal is bound to follow earlier decisions
of the Court of Appeal on the same point.
 6. The role of such forms of systematization of law as
codification and consolidation has increased.
20
 7. The institute of jurors saved a greater value in the USA, than in
England. In England jurors are greater dependence on courts.
In the USA a citizen has the right to demand that his case be considered a jury if the
price of a claim exceeds $ 20.
 8. Constitutional control is carried out general courts — federation
and states (does not exist in England).
 9. A concept «private law» and «public law» is often enough used».
Private law contains institutes: contracts, obligations under offenses,
property, family law, law of trade and enterprise, business.
Public law is united by a constitutional, administrative,
labor, criminal law and the law of regulation trade relations.
Additional Information:
https://www.youtube.com/watch?v=riRzKjtdjfI
https://www.youtube.com/watch?v=hjPtEWzMRbA&t=120s
21
2.Legal system of Scotland.
Scotland is united with England in 1707.
Managed by English parliament and
government, but also to this day keeps
originality and relative independence.
The legal system of Scotland was created
one side, under act of the English judicial
system, case-law, and from other —
influence of the Roman law as a result legal
orientation which was set after «wars for
independence» with England (1298—1326).
 Features of Scotland's legal system
22

 Similarity to the Romano-German ic

Similarity with the Anglo-
legal family=
American legal family.
=Scotland perceived:
=Scotland perceived:
 individual institutes of Roman civil
=
law,
 However, like English
 legal terminology,
law, Scotland's law
 separation of the law to private and
does not codified.
public.
 Similarity of case law
 interpreting the norm is based from
with English.
the general principle to the concrete.
 There is no division in Scotland of the
law to the common law and the law of
equity so characteristic of English
law.
The Scottish system has retained its own specific traits, customs and
traditions that have formed over the course of independent historical
development.
23
Sources of law in modern Scotland:
• legal precedent;
• a legal treatise having “institutional
significance” (legal doctrine);
A legal treatise is recognized only if it is
institutional, that is, it teaches and comments
on the field of Scottish law or all law
according to the Justinian system of
institutions.
• law; + acts of delegated legislation;
The acts of the delegated legislation — norms of the
civil and criminal legal proceeding which is established
by Session court and High court — the greatest courts
of Scotland. Parliament delegates its judicial powers to
the courts (according to historical developments).
+ act of the EU.
24

3. General characteristics of the legal system of

Ireland
From ancient times to the conquest of Ireland lived by
England of population of Ireland after the norms of
own customary law, they were changed by the
customary English law.
And only after creation of the independent Irish state
(1921—1922) there was the fixed beginning forming of
it independent legal system.
In 1949 Irish Republic was created.

The Constitution of 1937 - all existing laws that existed

before the Constitution may be applied, provided that
they do not contradict the Constitution.
25

The main features of the legal system of Ireland:

1) The main sources of law are the law and judicial precedent;
2) the English doctrine of judicial precedent is recognized,
according to which the decisions of higher courts are
considered binding on themselves and lower courts;
3) judicial precedents continue to apply, which include
decisions of the Supreme Courts of Ireland implemented before
accession (приєднання) to England. Precedents norms are part
of the system of Irish common law and have a number of minor
differences from English law in the field of land relations and
treaties;
4) Characteristic is not codification, but consolidation of
legislation.
5) Active development of delegated legislation.
26

3,4,5. The main features of the legal systems of Canada,

Australia and New Zealand

Influence of English Long-term connection with English law with

law direct effect in the territories
-Transposition of the English common law, not
just the rules of precedent.
-Similarity of many legal provisions of these
countries
Development of -after granting the status of dominions:
national law Canada - in 1867, Australia - in 1900, New
Zealand - in 1907.
-Full legal independence: Canada - 1982,
Australia - 1986
27
3,4,5. The main features of the legal systems of
Canada, Australia and New Zealand

Influence of the US on the  Federal structure (Except

legal systems of Canada New Zealand)
and Australia  Existence of a written
constitution (Except New
Zealand)
 Institute of Constitutional
Control (- // -)
Legal science Own legal science and
formation of the legal
profession on the basis of
Anglo-American doctrine
28 3,4,5. The main features of the legal systems of Canada,
Australia and New Zealand

Constitution  Formation of national constitutions with the

participation of the British Parliament.
 New Zealand: The Constitution consists of a
number of decrees
 Canada: the written Constitution, does not
constitute a complete document and is not
codified, contains 25 basic acts enshrined in
the 1982 Constitutional Act
 Australia: approved by the Act of the
Constitution of Australia, adopted by the
British Parliament in 1900. The act consists of 9
articles.
29 3,4,5. The main features of the legal systems of
Canada, Australia and New Zealand

Institutions of In Australia and Canada

constitutional control

Territorial system The federal system of countries (also

reflected in all major elements of the
legal system) - -except New Zealand,
which is unitary
Interaction and The possibility of using certain sources of
interpenetration law of these countries within the
(взаємопроникнення) national legal systems of others.
of sources of law
30
Sources of law in Canada, Australia and New Zealand

The main sources of law

Common Statutory Delegated Custom

law law legislation +-
31
Sources of law in Canada, Australia and New Zealand

Common law

Precedent nature - only for decisions of higher courts (Obligation of

court decisions of higher courts)
«Overflow» "circulation" (перетікання, циркуляція) of precedents in the
legal systems of the Anglo-American legal family.
32
Sources of law in Canada, Australia and New Zealand

Statutory law

Law
The important role of the law as an act of the national parliament from
the very beginning of the formation and development of the legal
system
Canada, Australia: laws passed by the federal parliament and laws
passed by the legislatures of their federation

Consolidated nature of civil, family, labor and related branches of law

High degree of codification of criminal law

 33

Other sources of law are Canada, Australia

and New Zealand

Delegated
Custom
legislation

Legal customs of the

Second place after
indigenous population
common law in terms International legal (more and more
of legal regulation agreement important lately)
 It cannot be a direct
source of national law
 The application requires
the publication of a
specific law