LESSON 4

 Special Characteristics of American Law

 

                                                    Section 1.  "That's Unconstitutional!”

 

"That's unconstitutional!" is a commonly used American catch phrase that is also a special characteristic of American society. 

 

Of course, other counties have constitutions and constitutional debates as well. However, it is mostly the parliament, politicians, political parties, and elite intellectuals that take part in the debates. The United States is probably unique as a country where the lives of ordinary people are closely related to the Constitution and the media often discuss constitutional issues. 

 

In the preface of this book, I mention my experience of studying in the United States. Although I studied history, I still found American Constitution to be chaotic and difficult to understand. Little wonder when most foreigners hear the mention of "Constitutional mandates" or "that is not constitutional" so frequently, they are astounded. 

 

                                            Section 2. “Don't make this into a Federal Case!”

 

“Do not make this into a federal case!” is another one those common phrases that Americans often say. It means to not make a big deal or fuss out of something minor. Again, this is a sentence related to the American Constitution and its Judicial system.  

 

The American judicial system is the same as the administrative system in that there are clear divisions between federal, state and local powers. The relationship between federal and state systems is not like one between a superior and his subordinate. It is equally true in the  way they handle legal cases. The United States Attorney, Federal Bureau of Investigation (FBI), the United States Marshall, of the Federal Judiciary handle different category of cases compared to the State judiciary and do not overlap or infringe on each other.  

 

The basic division of power between the Federal and State judiciaries are: Federal and State administrations have judiciary divisions of authority. If something occurs within a state and does not involve any other states, then that state’s judicial and law enforcement departments will be responsible for dealing with the situation. However, if there is a situation that involves or affects more than one state, then federal departments will be responsible for solving the problem. An example is for the local police officers to concentrate on sweeps to clear streets out drug traffickers,  but the FBI and federal prosecutors will investigate interstate and international drug cartels. The federal government only deals with big cases. So telling someone not to turn something into a federal case means not to make a big fuss.

 

However, we should not misunderstand this sentence. The concept must be clear that, although the federal authorities tend to handle bigger cases, the size of the case does not determine who has  jurisdiction. Some examples will illustrate the different scopes of jurisdiction of the federal, state, and local governments.

 

If here was a case with murder by arson in a residence, it is under the jurisdiction of local judicial and law enforcement. Murder and arson may be very serious and multiple deaths might even have resulted, but the FBI is not entitled to intervene, because the crimes belong to the jurisdiction of the state.

 

In the United States, each residence usually has an unlocked mailbox by the front door for the convenience of the postman delivering mail. If a person steals someone else’s letter from his mailbox, the seemingly minor crime is actually a federal crime covered under the federal judicial and enforcement departments because mail service falls within the jurisdiction of the federal government.   

 

If in the above murder and arson case, after committing those crimes the criminal kidnapped a woman as hostage, kidnapping would still be handled by local law enforcement. But if the fugitive took the hostage and drove beyond state boundaries into other states, then the FBI has the right to participate in the investigation, arrest suspects, and the United States Attorney  (KOC note:  of the U.S. Department of Justice) has the right to prosecute the criminal. When crimes cross over state lines, they become federal cases.

 

Let’s cite two more examples. A child is kidnapped by bandits and the bandits call and email the child’s parents to extort one hundred thousand dollars as ransom. Although this crime takes place in a local area, the federal government has the right to intervene because postal and telephone services are within the scope of federal jurisdiction.

 

A bank is robbed within a state. The local police would have authority, but the FBI has the right to intervene. On what grounds? The reason is that though the bank is local, the customers' deposits are  guaranteed by the Federal Insurance (FDIC), so when the local bank is robbed, the federal government has the right to intervene.

 

Although the so-called powers of the federal and local judicial and law enforcement divisions are clear, there is still often controversy that occurs. To the Conservative parties in  the United States, the federal government's authority seems be almost all-pervasive. “Don't make this into a federal case!” has always been their slogan. This is also related to the founding spirit and the historical development of the United States. 

 

Most of America's first European immigrants came to escape European monarchies.and religious persecution. They feared governments that had too much power. During the  founding of the United States, the thirteen original colonies united with their common interest for business and need for defense, so they formed a federal government. The thirteen colonies became the thirteen states. In the beginning, the federal government did not have a source of power. Its power depended on and was given by the states joining together. This relationship between the federal government and local governments was different from any other country in the world. The Federal Government’s power changed from nothing to something, from limited to extensive, reflecting the trends in the relative power balance between the federal and local governments in the last two hundred plus years. 

 

The United States still only has two major parties. The Republican party (the conservative party) wants to limit the power of the federal government and return power to the state government. The Democratic Party (the liberal party) tends to advocate expanding federal powers.

 

      Section 3. Common Law and Continental (Civil) Law

 

The American legal system originated from the British tradition, adopting basically "Common Law”. Hong Kong also uses the Common Law, so for readers in Hong Kong, American law is to a certain extent easily understandable. But for readers in Mainland China or Taiwan, it may be unfamiliar.

 

The so-called Common Law has no absolute or succinct definition. In general, "Common Law" is a cumulation of the customs and habits passed down from ancient times in Britain, the cumulative interpretation of the law and case precedents by British judges in the past thousand years, and the legislations of the British Parliament. This legal system prevail in the British commonwealth nations, and the United States originally was also one of the countries that inherited the Common Law tradition. But most of the tradition has already been incorporated into the law codes of the federal and state governments when they legislated. 

 

If the reader finds the definition of "Common Law” broad and vague, it simply cannot be helped, because, an important feature of the Common Law is to respect history  that has not been clearly defined, and customs, habits and traditions. In the local law of Hong Kong, there are many such examples. A typical example is permitting concubinage which is legitimized in  "Laws of the Great Qing” and accepted by the traditional customs in China.  In the first hundred plus years of British rule of Hong Kong, out of respect of customs such permission became Common Law.  After many years of debate of this law and under pressure of the new society, in 1972 the law was changed to  a "one man, one woman" law. However, the concubines who had been taken before 1972 would still be lawful.  

 

When a case is adjudicated in a contemporary British or American court, it is called a "Trial". The term originally was derived from the one to one combat by two knights in ancient and Medieval eras to achieve justice through this duel. The system of jury originated from England also has a history of several hundred years. The most visible symbol of the conservation and respect of tradition is of course wearing a wig by judges and lawyers in Britain.  

 

A legal system that is equally important in the world as the Common Law is the Continental Law. It grew out of the Roman Empire law. In the sixth century AD, Emperor Justinian massively organized the legal tradition. When Napoleon dominated Europe in the Nineteenth Century, he ordered the re-organization of the chaotic customs and laws of France and turned them into the famous "Napoleonic Code". The Napoleon Code remained the basis of French law to this day. As the legal systems of the other counties on the European Continent are similar to that of France, the system is collectively called "Continental Law".

 

Let us use an example to understand the important difference between Common Law and Civil Law in regards to a defendant. Early in 1995, the British Bahrain Bank collapsed (it was later acquired by a Dutch bank ABN AMRO) and Nick Leeson who had shaken the world was arrested in Germany. This twenty-eight year old futures trader conducted speculative trades in Singapore for six months and as a result, Bahrain lost ten billion dollars which shook up the entire financial world. Leeson was accused of and arrested for theft, embezzlement and other criminal charges,  However, for a long time which country was going to prosecute and try him remained undecided. Leeson petitioned to be sent back to Britain for trial, but Singapore, where the Bahrain Bank crime actually occurred, also asked Germany to extradite him back to Singapore for trial.

 

Leeson naturally wanted to avoid facing Singapore law, world renowned for its harsh and grim punishment, but he absolutely also did not want to stay in Germany for trial because Germany has adopted Civil Law. Being extradited to Britain might mean confronting his fellow Britons who detested him, but the law there was most favorable for him. There are two very important distinctions for an accused under Common Law and Civil Law:

 

First, in the Common Law system, judges have the power to make laws. For example, under the United States Constitution, the police cannot enter a house and conduct search and seizure of property or articles without reason. The Supreme Court in a case decided that if the police violate the Constitution, to punish their action, the evidence they seized could not  be presented in court during the trial. After the Supreme Court rendered its decision, all the state and Federal courts in the country must comply with the decision of the Supreme Court. 

 

However, under the Civil Law system, even its highest court has no authority to make laws. The only law the judge can make is limited to what is applicable to the particular case. The court's opinions and precedents can be referred to by other courts and judges, but it does not have any controlling power. Under the Civil Law system, only the Legislature has such controlling power and the judge can only follow the legal code and his status is less than that of a Common Law judge. However, the different power of the judges was not the reason Leeson did not want to stay in Germany for trial.

 

Second, the defendant under Common Law is “presumed innocent until proven guilty”. Producing evidence to prove the guilt of the defendant (burden of proof) entirely belongs to the government until the "beyond reasonable doubt" standard is met. In theory, the defendants does not need to present any counter-evidence. By contrast, under the Civil Law system, the  government’s power is strong while individual's rights are relatively weak. Under Civil Law, the criminal defendant is presumed guilty; if the defendant does not produce evidence sufficient to overcome the assumed guilt, he will be convicted. However, the trend of modern Civil Law is to accept and integrate the Common Law principle of “presumed innocent until proven guilty”. Places such as mainland China and Taiwan are beginning to accept this principle in their criminal law.

 

I have a French friend who is a criminal lawyer in France. She came to the United States a few years ago and I took her to the San Francisco court to observe American law which I explained. She was very surprised and envious of America's preferential treatment of criminal defendants. In her many years of practice under the French system where the defendant is presumed to be guilty, she could count very few times when she could produce sufficient evidence to get the defendant acquitted.

 

Let us cite an interesting example to illustrate the Common Law: a man and his girlfriend, who never had a formal wedding ceremony or a marriage certificate, openly lived together for over seven years and had a child. In most modern states or governments, the status of a legal marriage will not be granted to just living together without going through formal marriage and a marriage license, or a certificate of cohabitation. However, in places that practice and apply the Common Law, this man and women are considered to have a marriage relationship. According to the Common Law tradition, as long as both man and woman agree and live a couple's life openly for seven years, they have the same legally married status as a marriage officially registered with the government. 

 

I am reminded of an interesting case that took place a few years ago in the United States. A wealthy movie star had fallen out with his girlfriend, who had lived with him for many years and had his children. They lived in North Carolina, but after the falling out, the girlfriend immediately moved to the adjacent state of South Carolina. Later, when the movie star went to visit his children, his girlfriend suddenly filed for a divorce with a complaint that required the move star to pay substantial alimony, child support, and other forms of compensation. Of course the movie star refused and said to the court that he never “married” this women so how could he have a divorce? But soon he realized why his ex-girlfriend had moved to the state of South Carolina. It was because in the state of South Carolina, marriage law still recognized the Common Law tradition. In other words, although the parties did not get married, they had lived together for over seven years and had children; their relation had the same legal status as a marriage that had been officially registered. The girlfriend had moved to South Carolina and immediately became a resident of the state and was protected by the marriage law of the state. Under the law she was already recognized as the spouse of the movie star.