What’s so Special About American Law?
Introduction to U.S. Law is generally one of the first course offered to LL.M students when they start studying American Law, and one of the basic question one can have is: What’s so Special About American Law?
The standard answer takes a “legal families” approach – for example Islamic Law, Hindu Law, and, of course, Common Law Family and Civil Law Family. But there are other reasons for being interested in this question.
There is some merit to address the question in the context of what is known as “American exceptionalism“. Why is it that there has never been a powerful socialist movement in the United States? Why does American society has a higher rate of violent crime than other Western countries?
Of course we can find some answers to these questions, but the point is to draw a resemblance between “What makes America different” and our question ” What makes American law different?” Constitution, freedom of speech, religion, most of American law stands in a complicated relationship to American society.
So let’s turn to the question: “What’s so Special About American Law?”
A common law tradition
As we said, the most familiar answer to our question is that American law belongs to the common-law family of legal systems, while so much of the rest of the world follows either the civil law or some other legal tradition.
As such, the main distinction is that civil law countries law is based on a written code, laid down by the legislature, whereas the common law is based on precedents, handled by judges. Now, this is not the best answer because most of American law is also codified either by statutes or by administrative regulations.
Perhaps the difference lies on the use of precedents: in countries like France, judges are not bound by the doctrine of stare decisis – that is a court is only obligated to follow the Code, it is not obligated to follow its own precedents from earlier cases.
In the end, answering that American Law is different because it belongs to the common law system is not an efficient way to answer the question because when we answer what makes Common law different, the two answers that come up – it does not have a civil code, and it relies on precedents, turn out to be not so distinctive after all.
The institutions approach
Another approach to what makes American law special would be to focus on its institutions. Perhaps this would draw a dividing line between American law and other laws.
The first distinction is the civil jury: America has relied on juries of ordinary citizens to resolve its civil disputes, whereas everybody else does not, even England has abandoned it. Another point is about the U.S. Constitution.
America makes an heavy use of judicial review – that is the review by the US Supreme Court of the constitutional validity of a legislative act. In France or in Britain, the Parliament is supreme and the courts have no authority to declare an act unconstitutional.
However, this approach is once again unsatisfactory. It merely distinguishes America from Britain and France, but other countries have also judicial review – Germany for instance has a constitutional court whose role is to review legislative acts.
At this point we talked about two major distinctions – at least on paper – because whatever distinguish American law from the rest of the world, it is not the fact that America follow precedents nor it is the fact that America uses civil jury, or judicial review.
In the end, the differences do not match up, but cut across each other in every possible way. This brings us to a conclusion: a common law/civil law approach is no longer a useful tool of analysis, rather our attention should be on something deeper.
American ideology & the American exceptionalism
American exceptionalism might provide us with an answer to our question. It is important to remember that the modern European states are all the heirs of monarchies. In these old days of Louis XIV, the law was the king – that is the State was the King. The origins of European legal thought therefore lies in the concept of the state.
In America however, there was never a state. Instead there were thirteen colonies – and it is striking that today’s American legal systems does not refer to the concept of state as an analytical legal category but rather to the government.
The American system of federalism, the continued use of civil jury, the elections of judges, the discretion to award punitive damages, all of these points have influenced American Law, and it is perhaps here that we can see what makes American law so special.
In conclusion
There are two conclusions here: first, that the standard answer to our question does not work. The distinction is not whether America use precedents or a codified code. Second, that there are some distinctive features of the American legal system that set it apart from other legal systems, and these features are linked to the way American and Europeans think about the control of state power, and those styles of thought go back to what Bernard Bailyn called the ideological origins of the American Revolution.
In the end, this article did not intend to bring a solid answer, nor does it explore in details the distinctions between American law and other legal systems. Rather the idea was to underline the importance of the question – “What is so special about American Law” and of how much more difficult this question is to answer than seems at first glance.
Now, what does American Law mean to you? Continue the discussion by leaving a comment to this post!
