Sources of Law Analysis

The United States criminal justice system has over the years been guided by the commission formed by the president in 1967 and which was founded on administration of justice and law enforcement grounds. The commission came up with a report stating over two hundred recommendations that the federal government could adopt in fighting crime. In its operations, the system makes use of various sources of law which help effectively decide criminal cases presented to the courts and thus effectively fighting crime in the American society.

In essence and as with many other countries there are various sources of law in United States. These sources include the constitution, case law, common law, precedent and statutes among others (Henry, 1990, pp. 141). In definition, a constitution is a codified system of government that provides the principles and rules that a given autonomous political entity follow in maintaining it structure, powers and duties towards its citizens besides providing the fundamental rights to these citizens.

In this context, it can be referred to as the written law that bids the government together with the citizens including the functioning of the government and the duties of the citizens towards the state and other citizens. The first thirteen original United States adopted constitutions in their operation in 1776 and 1777 under the influence of the earlier European constitutions and through the influence of British colonization. In later years, other states later adopted their own constitutions to help run government affairs.

For example, Connecticut adopted its constitution in the year 1818 changing from colonial charters. In particular, United States constitution was ratified in the year 1789. This ratification was founded on the influence of British constitutional system, united provinces political systems besides the influence of writings by some scholars such as Montesquieu and Locke. From then on, the document was adopted codified constitutions written and adopted later and as a bench mark for the republican.

In present times, the constitution plays a very big role in defining not only how power should be shared amongst the three arms of government but also defines areas under which any one can be held liable to criminal proceedings following a certain act of commission or omission. Under the provisions of a constitution, a supreme court which acts as the court of last resort is established. In this sense, any cases expect to those that the Supreme Court has original jurisdiction must first be heard in a lower court. Unlike the statute law, the constitution is also seen as the supreme law of the land.

In this context, statutes as a source of law is seen as being a subordinate of the established constitution and any statute conflicting with the constitution is usually declared void and null. In definition, a statute is an enactment which has been officially written by the legislative authority governing a given country. In essence, statutes are enacted to prohibit or command something or in declaring a certain given policy by the legislature. Sometimes, statutes are referred to as legislation and are considered a primary authority as a source of law.

Before becoming a law, it must be agreed and endorsed upon by the highest authority in the legislative body before been published as a code (Clarence, 1957, pp. 647). Another source of law is the case law which can be defined as those rules of law and principles that are set forth from law courts and judicial opinions. Case law as a source of law incorporates decisions made by courts of law in individual cases and the interpretation of constitutional provisions and statutes by these courts. Still, it can incorporate interpretations of administrative regulations besides laws which originate from the law courts.

Though a major source of law in United States, it is like statutes subordinate to the constitutional law and may therefore be declared void if conflicting with the provisions of the constitution (Kmiec, 2004, pp, 34). Out of common law, precedents are formed and which guides law courts in making decisions concerning similar cases in future. Thus a precedent can be defined as a binding decision of a higher court in the court hierarchy system and which any lower court should follow in making future decisions regarding similar cases.

In other words, a precedent can be seen as a legal case which establishes a rule or a principle that a law court is supposed to adopt while deciding sub sequent court cases which have similar facts of issues. In relation to precedent, we have stare decisis which mean that a decision reached by a court of law is done on the merit of another case preceding it in ruling. It comes from the Latin phrase ‘to stand by what has already been decided. In this context, courts follow the decisions made in precedents in deciding similar cases in the context of facts and other issues (Gerald, 1983, pp.

220). Finally we have common law as a source of law in deciding cases in law courts. Common law can be seen as law which is derived from the morals and norms of the society. In other words, it derives its authority from universal immemorial practice and consent of the society. Common law stems from England common law and has no statutory basis in the sense that it is established by the law courts through judicial opinions which thereafter act as binding to all other lower courts in the context of court hierarchy.

Reference: Clarence Ray (1957). The Development of Crime in Early English Society, Journal of Criminal Law, Criminology, and Police Science, Vol. 47, pp, 647 Gerald Gall (1983). The Canadian Legal System, 2nd ed. Toronto: Carswell Legal Publications, pp, 220 Henry Campbell (1990). Black’s Law Dictionary, Sixth Edition. United States, West Publishing, pp. 141 Kmiec, Keenan (2004). The Origin and Current Meanings of “Judicial Activism”, California Law Review, pp, 34