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The World's Legal Systems Lecture 5
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Extensive notes of lecture 5 of The World's Legal Systems
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The World’s Legal Systems – Lecture 5Modern Common Law in the UK and US
Characteristics of law in the US
Differences from UK
o Federal system: historical background. You have competition, diversity of law divided
between the federal level on the one hand and the state level on the other hand.
Whereas in the United Kingdom, there had been a centralized state from the Late
Middle Ages onwards, so the regional autonomy is a very recent development in the
English history. Whereas In the United States, from the start on this was a federal
state. So states have gathered force against the federal states and these states still
have a lot of autonomy and legal competences. As was the case with common law in
the United Kingdom, this can only be understood from within an understanding of the
background history of the United States.
o Economic legal reasoning. The judges and lawyers in the United States consider law as
being based on a conflict of interest between different groups in society. And when a
legal solution has to be found, they base themselves upon that conflict of interest. This
is much more in the US than in the UK. In the UK this is mostly based on the tradition
of case law and also much on the interests that live in society.
o Statutes (also UK, but more). There are also statutes in the UK, but in the US they are
much more important, especially at the level of the states.
o Constitution: political legal reasoning. The UK does not have a constitution in the sense
of a written document, which can be used in order to check the content of law, it can
be used in order to check whether the law that is issued by the parliament is legally in
sound or in conformity with the constitution. For the US, this is the case since the end
of the 18th century. The constitutional thinking of American lawyers is profound and it
explains how law is practiced in the US. There is a lot of political legal reasoning next
to this economic legal reasoning. This is a crucial difference between the United States
and the United Kingdom.
Federalism
Thirteen colonies:
o 17th century: law = control of public order
o 18th century: more English law + stricter control from England
1776: Confederation
1787: Federation – Constitution
o Legislative: Congress
o Executive: president
o States-federal level: residuary powers with states + federal jurisdiction from the
Constitution
o Judiciary: federal – states
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