Anglais Fiche sur l'origine et le développement du droit américain et du gouvernement

I. The origin and development of American law and government

A.

American legal is a common law system, which means that there are two general sources of law – statute and case law – and the judge determines what law is.

Procedural and structural elements are unique to common law systems :

- Jury trials for civil as well as criminal cases

- Adversarial system, in which party has an advocate arguing before a neutral judge.

B.

US: federal republican: each of which has its own constitution, government and legal system in addition to those of the national – or federal – level, which function alongside and atop the various states. Sovereignty us shared between the different levels, with the various powers and competencies distributed among the levels according to constitutional norms.

C.

The various states are still responsible for the vast majority of the country’s legal maters. Each state has its own statute law, as enacted by its own legislature, as well as its own common law.

D.

The reasons for the structure and complexity of the legal and political system of the US are rooted in its early history. History plays a far more important role in legal and constitutional practice that in any other country. Common law is based on cases that arise out of local conditions, and are to be decided according to settled custom and practice.

The following text presents some of the information from Chapter 1, Section 2 (Further Resources, pp. 20-34) in a different, condensed form.

A. The Colonies v. Great Britain: the Constitutional Crisis

Between the beginning of the 17th century, when the first English colonies in the New World were established under royal authority, and the middle of the 18th century, the colonies were allowed a considerable degree of autonomy. Their distance from Great Britain made it difficult for the King and Parliament to exercise strict control. At the same time, colonial society developed under the influence of English legal and political traditions, with full awareness of being part of the Empire.

The Seven Years' War (1756-1763) included a North American conflict between France and Britain, in which France lost most of its control over areas to the north (present-day Maine, Vermont, eastern Canada...). Just after the war, the British Parliament considered that the English colonies, which benefited from the victory, should help to pay off its debt from the war and to finance military defense on their territories. Therefore it passed the Sugar Act and Stamp Act to impose certain taxes on the colonists, but these Americans judged them to be an abuse of power and showed immediate resistance, voting against them in assemblies, boycotting taxed goods, refusing to pay or (as juries) to convict those who did not.

Parliament first reacted by repealing those Acts, but then passed the Declaratory Act of 1766, which asserted its legislative power over the colonies, and followed with new taxes in the Townsend Acts (1767) and the Tea Act (1773). Again the colonists protested that their constitutional rights were thus violated.

One of the principles of government in the British Constitution—based on law and convention—was protection against unjust taxation (as in Magna Carta 1215 and the Bill of Rights 1689 for England). Parliament—rather than the King—had authority to levy taxes because it was a representative body. Here Parliament claimed that its power extended to the colonies automatically. Americans rejected that argument because no members of Parliament were elected in the colonies, so there should be "no taxation without representation!" (their famous protest cry).

The colonists had to stop British tea imports to avoid paying taxes on tea: any payment would create a legal and constitutional precedent that would be difficult for them to violate afterwards. This was why local opponents organized the Boston Tea Party (1773): they boarded three ships in the port of Boston and threw the boxes of imported tea into the sea.

Parliament then passed severely repressive measures known in America as the Intolerable Acts (1774), which led leaders from the colonies to join forces that same year and create their first unified representative body, the First Continental Congress, a major step towards seeking a union for self-government in America.

B. Declaring Independence

In 1775 fighting began near Boston between British troops and local militia, and the Second Continental Congress decided to provide for common defense by creating the Continental Army under George Washington. As the war gained in intensity, Congress met again and, using philosophical arguments from the writings of Locke (1690) and Thomas Paine (1776), Thomas Jefferson led the committee that drafted the Declaration of Independence, which was approved by delegates representing the thirteen colonies on July 4, 1776. The document contains an indictment against the King and Parliament for their violation of the colonists' constitutional rights and justifies the violent overthrow of tyrannical government. The Revolutionary War continued. After France became an ally of the states in 1778, decisive battles were won up to final victory in Yorktown (1781) and Britain's recognition of the states' independence (Treaty of Paris, 1783).

C. The First Union

From 1776 to 1780 each individual, newly-independent state prepared and ratified its own, separate constitution, which was inspired by historical protections of Englishmen's rights and liberties (and thus often contained a bill of rights), but also generally gave considerable power to the legislature, limiting that of the executive (governor) and judiciary. However, the states were fighting to achieve independence "together", so they knew that they also needed to establish some form of permanent alliance to ensure cooperation and common defense. For this reason, the Second Continental Congress drafted the Articles of Confederation in 1777, creating "the United States of America" as "a perpetual union". The Articles, ratified in 1781, established a weak central government, a confederation, under the authority of the state legislatures.

D. The Making of the Constitution

The Confederation soon proved to be an inadequate form of government. Trade disputes arose between bordering

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