Chapter 1: A Brief Introduction to U.S. Law [Excerpt]
Before delving into the various aspects of intellectual
property law that are the focus of this book, it would be useful to briefly explore
some general background information about the unique nature of law in the
United States that must be kept in mind by any lay person trying to obtain
information about any substantive or procedural area of law.
The Common Law and Civil Law Traditions
In order to understand our system of law and some of the
unique challenges it presents for anyone seeking to acquire functional legal literacy,
we should begin by understanding what makes our legal system different and more
complex than that of most other nations.
A good place to begin is with a brief introduction into the two major
competing systems of law around the world, the civil law and common law
systems.
The Civil Law Tradition
The oldest and overwhelmingly prevalent system of law is
the civil law system that dates back more than four thousand years. Under the civil
law system, law is passed
down from the lawgiver (the king, or a legislative body) to the people and is
strictly enforced by judges whose job it is to enforce the law. Traditionally
under civil law systems, judges act as finders of fact and apply the law as
written in deciding cases before them. They have little power to question,
reverse, expand or define the law as they decide cases as that function is
reserved to the lawgiver (e.g., the ruler or a legislative body appointed by
the ruler to oversee that function).
Traditionally, the civil law system required laws to be written down in a public
place in clear language so that they could be understood by the common
citizenry. The most famous comprehensive codification of law under this legal
tradition dates back to the Code of Hammurabi, an ancient Babylonian king who
ruled from approximately 1792 B.C. to 1750 B.C. in ancient Babylonia (modern
day Iran). The Code of Hammurabi was chiseled on a massive cylindrical stone
more than seven feet in height and contained 282 laws covering a variety of
subjects.[1]
The Code was also available on clay tablets, some fragments of which also
survived to this day. The stele containing the Code of Hammurabi or clay
tablets containing the Code would have been available in strategic locations
for public viewing so that Hammurabi’s subjects could know the law and be held
accountable for its breach. The concept of chiseling the law onto stone is also
a good metaphor for the permanence and immutable nature of law, which for
Hammurabi was divinely inspired and intended to reflect universal, permanent
ideals of justice.
The same tradition of writing down the law and making it
accessible to the people who were expected to abide by it continued under the
Twelve Tables of Roman law where, in 450 B.C., twelve bronze tablets
specifying a code of law applicable in the Roman Empire were attached to the
orator's platform on the Roman Forum in an attempt to make the law accessible
to all Roman citizens. These bronze tablets would have been found around the
orator’s platforms in any Roman city where the citizens of Rome could
presumably consult the law throughout the empire. And the tradition was
continued by the Byzantine Emperor
Justinian I who in 533 A.D. integrated 1000 years of Roman law into a single
code that he called Corpus Juris Civilis--the
body of civil law—and is now commonly referred to as the Justinian Code. The
most notable attempt in modern times to codify the law into a comprehensive
civil code was carried out by a commission appointed by Napoleon Bonaparte in
1800 that resulted in the 1804 Code Civil, more commonly referred to as the
Napoleonic Code.
The common thread that binds the civil law tradition from
its earliest roots through the modern day is the idea that the law must be
written down and made available to the people in language that they can
understand. Although much has changed since Hammurabi’s time, and the law has
grown increasingly complex in civil law jurisdictions as well as common law
jurisdictions, as a general rule, law still changes slowly over time in civil
law jurisdictions, is more accessible, predictable and easier to understand in
civil law jurisdictions than in common law jurisdictions. And as a rule, making
law is still in the hands of legislators, not judges.
The Common Law Tradition
The civil law tradition never took hold in England.
Whether because of its status as an island nation or lack of strong unifying
kings before being incorporated into the Roman Empire, law in England was
regional in nature, changing from location to location in keeping with the
local customs, traditions and wisher of the local rulers. After the fall of the
Roman Empire, England returned to its common law roots. When William I (William
the Conqueror) completed the
Norman conquest of England in 1066, he found a country without a centralized
system of law and set about to consolidate English law into a unified body of
law that could be applied throughout the realm. He established the King's Court (Curia
Regis) as an advisory
body to the barons. The court had both legislative and judicial powers that
eventually led to the development of Parliament and the English court system.
He also created the first circuit judge system, where royal judges traveled
from district to district on a set route to hear cases in local courts. These circuit
judges first began writing down their decisions to serve as guidelines for
local magistrates and themselves in future cases. This tradition of writing
down decisions to serve as guidelines, or precedent,
for deciding future cases formed the basis for our modern common law system.
Unlike civil law systems in which judges apply the law to cases before them,
judges in common law systems make law as they decide cases, defining, creating
and changing the common law in the course of handing down decisions that become
precedent for other future cases.
The English common law system was exported to the former British colonies,
including The United States. While the rest of the world largely follows the
civil law system, The United States and the former colonies of Great Britain
generally follow the common law system. Also unlike judges in most civil law
jurisdictions who generally have little power or discretion to interpret or
nullify laws passed by legislative bodies, judges in the United States have a
great deal of power to reinterpret or nullify the laws passed by federal and
state legislative bodies based on their interpretation of the U.S. Constitution
and the state constitutions.
[1] An English translation of the
Code of Hammurabi by L.W. King is available at
http://avalon.law.yale.edu/ancient/hamframe.asp
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The above is a brief excerpt from Chapter 1 of Intellectual Property Law: A Practical Guide to Copyrights, Patents, Trademarks and Trade Secrets (C) 2011 Victor D. Lopez. All rights reserved.
