ПРАВНИ СИСТЕМ САД
THE USA LEGAL SYSTEM

Summary/Abstract: The fundamental characteristic of the American legal system, by which it differs from European, is that judicial decisions or cases represent a source of law and as such are a part of the legal system. This case law, more known under , the name of common law, is not the product of the courts'work deciding the real cases. Namely, when the court tries to solve a particular case, it makes use of the acceptable arguments from another judicial, decision by which the similar case has been.solved. This fact shows us that the common law is created by the courts. But, though the courts create common law, they do not create something that we would call general acts, or prescripts, because the case law, in principle, does not consist of any rules.Common law was born in England'at the beginning.of the middle ages. There exist two fundamental conditions for its rise: first, the fact that legislative power has not been developed, and, second, the prevailing opinion that the legislative power should only express the existing law (custom), and not create the law. Formed in this way, common law has been transferred to the United States. Writing the history of the development of the common law in the United States, author says that in the XIX century there existed a movement for the reappraisal of the whole common law system and conceptions. Actually, this movement developed the idea that legislation and not cases should represent the fundamental source of the law in the legal system of the USA, and that, because of that, legislative power should have supremacy over the judicial power. This movement has been prevented, but it left its influence upon the American legal system.Reasoning which is used while issuing judicial decisions in the American system is reasoning by analogy. Judicial decision gets the characteristics of the rule and is used in the later similar cases. The process of the reasoning has three stages: 1) the similarity between the. present and the past case is found; 2) the rule out of the first case is cited and; 3) this rule is applied in deciding, upon the second case. It is important that the rule out of the first case is always cited in the second one.Common law was already a well known legal system when the first legislative measures have been undertaken in the United States. Because of that, common law is nowdays still superior to the legislation. Because of that there existed for a long period a rule that the statute which is not in accordance with common law should be interpreted strictly. Such interpretation sometimes led to the denial of certain statutes. A statute that pretends to be implemented must gather its basic characteristics, concepts and terminology out of the common law, which dominates it. Because of that, judicial concepts and terminology in American legislative process must be used because legislatiçn gets its legal power through implementation by the courts. Legislator must bring himself in-conformity with the courts, not vice versa. Codification by the legislation can be performed only after its necessity has been realized by the judiciary.The institution of the judicial review shows best the influence that common law performs upon the legislation in the legal system of the USA. So, for example, if both Houses of the Congress pass particular statute, the President signs it, and it is acclaimed both by majority of public opinion and by expert judgement because of its accordance with the Constitution, the Supreme Court of the USA may on occasion of the concrete casé raise the point of statute's constitutionality and declare it unconstitutional. The consequences are such that the statute is legally dead as if it had never existed, and the Congress, President and citizens find themselves powerless.

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