Introduction: The Structure and Sources of Law
The American government comprises three distinct branches at the state and federal levels: the legislative, judicial, and executive. Each branch contributes to creating laws within its jurisdiction, forming different types of legal rules, commonly known as sources of law (Mckinsey and Burke, 2023). The legislative branch enacts statutes, the judicial branch issues judicial opinions, and the executive branch drafts regulations. Constitutions, however, serve as the foundation for all other sources of law and are considered the supreme source of law.
Constitutions and Legal Positivism
The United States legal system is often characterized as a legally positivist system. Legal positivism is a jurisprudence theory stating that all laws are man-made and only considered valid in a state because people accept them (Mckinsey and Burke, 2023). In his Influential Work, the Concept of Law, H. L. A. Hart, a prominent British legal philosopher, provided a clear explanation of legal positivism.
Harts theory of legal positivism includes the concept of a rule of recognition, which signifies the validity of laws within a jurisdiction (Mckinsey and Burke, 2023). In the United States, the federal governments rule of recognition is the U.S. Constitution, while state constitutions serve the same purpose for their respective state governments. Constitutions obtain their authority from the peoples will and acceptance, making them the ultimate source of law for American legal researchers.
Constitutions also define the processes by which governments create other sources of law. They divide American governments into three distinct branches and provide each branch with a method for creating legal rules (Mckinsey and Burke, 2023).
Statutes and the Legislative Process
According to the American Separation of Powers system, as outlined by various constitutions, the legislative branch creates statutes. Generally, a legislator introduces a bill into their respective legislative house, and once it passes both houses and receives the chief executives signature, it becomes an enacted law (Mckinsey and Burke, 2023).
The legislative branch, or Congress, comprises the House of Representatives and the Senate at the federal level. Bills that pass both houses and receive the Presidents signature become Public Laws, published in a multi-volume set called the Statutes at Large by the Government Publishing Office (GPO). The GPO also...
…American law via statutory interpretation and common law. Many attorneys devote much of their research efforts to case research (Mckinsey and Burke, 2023).Administrative Guidelines
The executive branch, comprising a chief executive and numerous cabinet departments and agencies reporting to the chief executive, is the final branch established by constitutions advocating the Separation of Powers. At the federal level, the United States President is the chief executive, while the Governor holds the same position at the state level. Constitutions typically entrust the chief executive with enforcing or executing their jurisdictions laws (Mckinsey and Burke, 2023).
Naturally, chief executives do not personally enforce all laws within their jurisdictions. Instead, they delegate enforcement responsibilities for various legal areas to different agencies. These agencies often require specific rules to enforce broad statutes, which take the form of administrative regulations. In contemporary times, legislatures delegate regulatory authority to executive branch agencies through statutes, granting regulations legal force (Mckinsey and Burke, 2023).
Although administrative regulations contribute legal rules to the various American legal systems, lawyers generally regard them as the weakest source of law. Because regulatory authority derives from the legislative delegation, legislatures…
References
McKinsey, J. A. & Burke, D.D. (2023). Carper’s Understanding the Law, 7th ed., Cengage Learning Publishers, ISBN 13:978-1-285-42842-0
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