Which supersedes the other, laws or treaties? The Supremacy Clause of the U.S. Constitution states that the Constitution, laws and treaties are the supreme law of the land. Obviously, the Constitution supersedes both laws and treaties, but which is given more importance, laws or treaties? For example, if the Congress passed a law in violation of a treaty, would that law be valid? If the Senate ratified a treaty in violation of federal law, would that treaty be valid?
The U.S. law rule is that treaties and laws are co-equal and that one does not supersede the other. In the U.S., the rule is that the last passed law or treaty prevails, over earlier passed laws or treaties if they conflict. See, e.g., Julian G. Ku, "Treaties as laws: A Defense of the Last-in-Time Rule for Treaties and Federal Statutes" 80 Indiana Law Journal 319 (2005) citing cases including Whitney v. Robertson, 124 U.S. 190 (1888). But, this is not self-evident, Indeed, it is a minority rule of law to the point of pretty much being an outlier. In the vast majority of countries other than the U.S., domestic laws are subordinate to treaties, and there is some hint in the structure of the U.S. Constitution and the discussions of the Founders regarding the treaty power, that this how the Founders assumed that conflicts between treaties and domestic statutes would be interpreted, even though the U.S. Supreme Court ended up interpreting the constitution differently. Few countries in the world give so little legal effect to international treaties and international law, more generally, as the U.S. does. In contrast, in Europe, many human rights protections arise from international treaty obligations that override domestic laws, rather than from their own domestic constitutional law. Also, while this rule seems simple and mechanical, it rarely presents in the fashion, because there are a variety of tools, such as interpreting treaties and statutes in a manner that avoids a conflict (particularly with respect to questions such as whether a treaty should be considered "self-executing" or not, and a rule of construction that one enactment that does not expressly overrule another should not be deemed to do so implicitly unless there is no interpretation that can resolve the conflict otherwise), that muddy the waters. As Ku, explains in the law review article linked above: Although the Constitution declares that treaties are the "supreme Law of the Land,"the status of treaties in the American legal system is plagued by uncertainty. A court considering a private individual's claim under a treaty must first consider a number of complex questions such as whether the treaty is "self-executing," whether the treaty's effect is otherwise nullified by conditions placed on it during ratification, whether the treaty exceeds constitutional limitations on the exercise of the treaty power, and whether the treaty conflicts with inconsistent federal and state law.... For instance, in recent years the International Court of Justice ("ICJ") has twice found that U.S. domestic law limiting habeas corpus appeals violated U.S. treaty obligations to guarantee consular notification rights to foreign nationals charged with capital crimes.' The ICJ found a conflict between the treaty and U.S. law even though the U.S. government offered a plausible alternative interpretation of the treaty that avoided conflict with domestic law. (Despite these findings, the U.S. did not enforce the alleged treaty obligation.) A good example of this is the case of Bond v. United States, 572 U.S. ___ (2014) (note that it is important to provide a year when discussing the Bond case, because the U.S. Supreme Court made two successive rulings in this case and also established an important precedent in an unrelated case with the same name). Wikipedia's summary of the case explains how the case avoided having to resolve constitutional issues in the case (references to Holland are to State of Missouri v. Holland, linked and discussed below): Carol Anne Bond is a microbiologist from Lansdale, Pennsylvania. In 2006, her best friend became pregnant. When Bond discovered that her husband was the child's father, she attempted to poison her former friend by putting organoarsenic and potassium dichromate on the woman's door knob. Bond was caught, and was convicted under the Chemical Weapons Act. In her appeal, she argued that applying the chemical weapons treaty to her had violated the Tenth Amendment. The Court of Appeals ruled that Bond lacked standing to make a Tenth Amendment claim. On appeal, the Supreme Court reversed by stating that individuals can bring Tenth Amendment claims. The Court then remanded the case for the Third Circuit to decide the case on the merits. On remand, the Third Circuit found that "because the Convention is an international agreement with a subject matter that lies at the core of the Treaty Power and because Holland instructs that 'there can be no dispute about the validity of [a] statute' that implements a valid treaty, we will affirm Bond's conviction." Bond again appealed to the Supreme Court, asking the court to overrule Holland or to find that her actions were not covered by the CWA. The case attracted a great deal of attention, with US Solicitor General Donald Verrilli arguing for the government and former Solicitor General Paul Clement arguing for Bond. Senator Ted Cruz wrote an essay for the blog of the Harvard Law Review, urging the Court to overturn Bond's conviction. Chief Justice Roberts opened his opinion by vividly describing John Singer Sargent's life-sized painting of mustard gas victims. Roberts closed by noting, "There are no life-sized paintings of Bond's rival washing her thumb." In its judgment, the Court unanimously concluded that the convention was not meant to cover local activities such as Bond's poisoning attempt. Writing for the Court, Chief Justice Roberts declined to define the scope of Treaty Clause powers, invoking constitutional avoidance. Because the Chemical Weapons Convention is not self-executing and because it requires implementation by a signatory to be "in accordance with its constitutional processes," Roberts focused his attention on statutory interpretation of the federal criminal code. According to Roberts, one of the key "background principles of construction" is federalism; there must be a "clear indication" by Congress if it intends to "dramatically intrude upon traditional state criminal jurisdiction." The Court concluded that there was no such clear indication in the text of the criminal statute. Roberts rejected the Solicitor General's interpretation of the statute, noting that the government's reading would make it a federal offense to poison children's goldfish and that state authorities are fully capable of punishing burrito poisoners. Finally, Roberts briefly responds to Justice Scalia's interpretation by noting that adopting "the most sweeping reading of the statute would fundamentally upset the Constitution's balance." A well-known line from his opinion is at the end: "The global need to prevent chemical warfare does not require the Federal Government to reach into the kitchen cupboard, or to treat a local assault with a chemical irritant as the deployment of a chemical weapon." Thus, rather than ruling that a law implementing a valid treaty was unconstitutional, the U.S. Supreme Court interpreted the law implementing the treaty in a manner that did not mean something that would potentially make the law unconstitutional. The question states: Obviously, the Constitution supersedes both laws and treaties This is mostly correct under U.S. law (although it took many decades before that rule was established in precedent), but it was not obvious under U.S. law, it is not true in every country, and it is not entirely settled law in the U.S. even today. A plurality of the justices Reid v. Covert, 354 U.S. 1 (1957), which enforced the Fifth and Sixth Amendments against a contradictory treaty, stated: There is nothing in this language which intimates that treaties and laws enacted pursuant to them do not have to comply with the provisions of the Constitution. A plurality decision, however, is not controlling authority that must be followed by lower courts. But, in State of Missouri v. Holland, 252 U.S. 416 (1920) had previously reached an arguably contrary conclusion. The official syllabus to that decision noted that: Protection of its quasi-sovereign right to regulate the taking of game is a sufficient jurisdictional basis, apart from any pecuniary interest, for a bill by a State to enjoin enforcement of federal regulations over the subject alleged to be unconstitutional. The Treaty of August 16, 1916, 39 Stat. 1702, with Great Britain, providing for the protection, by close seasons and in other ways, of migratory birds in the United States and Canada, and binding each power to take and propose to their lawmaking bodies the necessary measures for carrying it out, is within the treaty-making power conferred by Art. II, § 2, of the Constitution; the Act of July 3, 1918, c. 128, 40 Stat. 755, which prohibits the killing, capturing or selling any of the migratory birds included in the terms of the treaty, except as permitted by regulations compatible with those terms to be made by the Secretary of Agriculture, is valid under Art. I, § 8, of the Constitution, as a necessary and proper means of effectuating the treaty, and the treaty and statute, by bringing such birds within the paramount protection and regulation of the Government do not infringe property rights or sovereign powers respecting such birds reserved to the States by the Tenth Amendment. With respect to right reserved to the State, the treaty-making power is not limited to what may be done by an unaided act of Congress. Many legal scholars expected that Bond (2014) would resolve the tension between Reid and Holland, but instead, the U.S. Supreme Court punted, and declined to reach that issue in that case. Arguably, Reid and Holland are not truly in conflict, because Holland addresses the scope of the treaty power in light of federalism concerns, which isn't necessarily identical to the scope power of Congress to enact domestic laws pursuant to U.S. Constitution, Article I, Section 8 in light of federalism concerns, while Reid concerns constitutional provisions which have been interpreted to flatly prohibit the government from abridging certain individual rights at all. U.S. Constitution Article I, Section 8 limits the authority of Congress to enact domestic laws to certain enumerated subjects (with all other powers reserved to the states), while the treaty power is not limited to any particular subject-matter (in part, because states are not permitted under the constitution to enter into international treaties, so the federal government needs to handle treaties involving both national and state level concerns, while states have plenary power to enact domestic laws in all circumstances where they are not expressly prohibited from doing so).
Yes, a contract implied in fact can supersede a written contract: if it both (1) arises after the parties have entered into their initial agreement and (2) if the subject matter of the agreement is not subject to the statutes of frauds (i.e. to a statutory requirement that agreements of this kind must always be in writing). A course of dealings before a written contract is signed if the contract states that it is the entire agreement of the parties, or appears from context to be the entire agreement of the parties, may not be considered pursuant to something known as the parole evidence rule (which is actually a rule of substantive law and not evidence, despite the name). An agreement that is required by statute to be modified in writing, something called a statute of frauds, might or might not be susceptible to being modified in this way. Sometimes, failure to comply with a statute of frauds is excused if the parties have partially performed the unwritten agreement, sometimes the statute is applied more strictly and cannot be overcome. Indeed, in Colorado, where I practice law most of the time, there is actually case law that specifically provides that even if a written contract states that it may only be modified in writing, that any oral or implied in fact agreement which could form a contract in the first place may supersede the written agreement. Proving that the course of dealings actually constituted an actual modification of the contractual obligation, may, in practice, be a challenging matter, however. In practice, there is probably a stronger argument on the available facts in the question, that there has been a waiver of the requirement for further provision of the service that may not be undone retroactively, but may be reasserted prospectively with fair notice to the other party, with the written contract remaining in force. The judge or jury would have to listen to the facts from the parties about their course of dealings and communications, about the nature of the &quot;requirement&quot;, and about the pertinent terms of the written contract, and more generally, the larger context of the transaction, and then would decide which interpretation seemed closer to the truth, or if another explanation of what happened was more plausible. This dilemma and uncertainty is generically a problem any time that the parties course of dealings deviates significantly from a written instrument. These kinds of cases are never clear slam dunks for either party in the event of litigation.
The UK has parliamentary sovereignty, not separation of powers Unlike, say, the United States, where the legislature, the judiciary, and the executive have co-equal power in their respective spheres, in the UK, the judiciary and the executive are subordinate to Parliament. The courts have no power to nullify an Act of Parliament for being unconstitutional like they do in jurisdictions where a written constitution gives them such a power like the USA, Canada, or Australia. The purpose of the Declaration of Incompatibility is to advise Parliament that the law they have passed contradicts the HRA and they should think about that and decide if that’s what they really wanted to do. That means that the UK Parliament could pass the Arbitrary Bollock Removal Act 2023 (ABRA) tomorrow and it would be valid law. The courts can still provide judicial review of the actions of the executive under ABRA but they cannot declare the law a nullity. That is, the Minister’s actions can be scrutinised to ensure they followed the ABRA and other established principles such as procedural fairness and, if they didn’t, declare the executive actions void. However, if they did follow the law, off come your nuts.
In brief: In common law systems, are there specific laws? Yes. Are they written down? Yes, here are the laws of Australia and New Zealand. Or are there only previous court rulings? No. Elaboration: Broadly (and rather vaguely) speaking there are 3 sources of law in a common law jurisdiction: Statute law which consists of the Acts passed by the legislature Administrative law which consists of the rules and regulations made by the administrative arm of government under the powers granted them by the constitution or delegated by the legislature Case law which consists of the decisions made by the courts; this can be decisions based on Long-standing precedents whose origins are lost in the mists of time Interpretations of statute and administrative law It is important to remember that the courts only get involved to resolve conflicts (civil or criminal) - they do not unilaterally make decisions on the law. Judges (if they are wise) never give opinions on the law - that is the role of solicitors and barristers who are the paid advocates of the parties. The role of a judge is to decide how the law fits the circumstances of the particular case before them. To do this they interpret the statutes, administrative rules and decisions made by other judges on similar cases. The decision of a superior court is binding on a subordinate court, persuasive on an equivalent court or a court in a parallel jurisdiction and subject to review by a superior court. The overwhelming majority of cases do not make new case law - most of the arguments in court are about why (or why not) the established law applies to the current facts; they are not about what the law is. Occasionally a decision will be made that modifies the previous interpretation or even more rarely represents a paradigm shift - those are the cases that matter!
1-3: This would be prohibited under Article VI, paragraph 2 of the US Constitution, which provides that federal law, and the ability to enforce that law, has supremacy over state law. As summarized by Cornell Law, the Supremacy Clause: establishes that the federal constitution, and federal law generally, take precedence over state laws, and even state constitutions. It prohibits states from interfering with the federal government's exercise of its constitutional powers... 4: Not legally; see above. 5: Yes, probably a lot of laws. Those charges could range anywhere from interfering with a federal investigation, wrongful imprisonment, assault, or kidnapping. I think it's important to point out that it is highly unlikely the situation would ever escalate to 4, let alone 5. The federal government is incredibly well resourced with regards to being able to move its law enforcement officers throughout the country. And that's not withstanding that the FBI and other agencies (CBP, TSA) are already stationed in any particular state. A non-zero number of those agents are also residents of the state they're stationed in, which would complicate things further.
There is no such law. The US Constitution provides that: The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States; (Article II section 2) The congress shall have the power (Article I section 8) ... To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water; To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years; To provide and maintain a Navy; To make Rules for the Government and Regulation of the land and naval Forces; To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions; To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress; These powers were used to create the military very early in the history of the United States, and the US Army and US Navy have existed ever since. Other branches of the military were created later.
Questions of law can be hard when (among other things): the fact pattern has not been seen before (Bowman v. Monsanto), there is ambiguity in a statute (King v. Burwell), there is conflict between a statute and the constitution (United States v. Windsor), or there is apparently conflicting precedent (Campbell Ewald Co. v. Gomez).
Both civil law and common law have civil codes, so that isn't the difference. It is common in civil law jurisdictions for these to be called civil codes and consolidated into the great big book of law. In common law jurisdictions, the civil code is scattered through legislation, regulation, administrative and case law and often not consolidated although, each piece of legislation typically deals with only one (or a related number) of topics. Adversarial vs Inquisitorial In a common law jurisdiction, the role of the judge/jury is to decide the dispute that the parties have brought to the court based solely on the arguments and evidence that they make. A judge who seeks their own evidence or decides the case based on a law the parties have not argued is making a mistake. The judge is free to say to the parties "But what about xyz law?" and let them make an argument about that but they would be denying the parties natural justice if they decided the case on xyz law if that law was not argued. In civil law jurisdiction, the role of the judge/jury is to find out the truth. They have inquisitorial power and decide the case based on all the evidence, the law that was argued and their own knowledge of the law. Precedence In common law jurisdictions, the cases decided by the courts are just as much the law of the land as the acts passed by parliament. When a court hands down a decision on a certain fact pattern, then all courts lower in the hierarchy must make the same decision when presented by a similar fact pattern. These are binding precedents. In addition, decisions of same level or lower courts (where not actually the ones being appealed) as well as decisions in "parallel" jurisdictions are persuasive precedents. A parallel jurisdiction is anything where the law is close enough that it makes sense to use it: Australian courts will tend to look first to other Australian states, then to England &amp; Wales, Canada, New Zealand and other Commonwealth countries then the United States of America and then to civil law jurisdictions. There is nothing nativist in this, it is just that these are the jurisdictions where the laws are "closest" to one another: partly because the courts have historically done this (which tends to lock the common law together), partly because there has been governmental will in creating harmonized laws in Australia (i.e. enacted in each state and territory but essentially the same law - often word for word) and partly because parliaments, when drafting legislation, nick ideas from other parliaments. If the Supreme Court of Western Australia has made a decision on a similar fact pattern under a similar law, a District Court judge in New South Wales had better have some damn good reasons for deciding this case differently but they wouldn't automatically be wrong if they did. However, if the precedent had been set in the Supreme Court of New South Wales than the District Court judge would be wrong to decide differently. Naturally, a lot of argument in common law courts is about why the facts of this case are sufficiently similar/distinct that the precedent should/shouldn't apply. Also, common law judgments emphasize the reasoning that led the judge from the evidence to the conclusion and include detailed analysis of the case each party presented - this is because they need to be understandable to a wide audience. Court hierarchy can be quite complex, this is the one for NSW, Australia: In a civil law jurisdiction, courts are not bound by the rules of precedence - each judgement is a first principles analysis of the facts and the law. This is not to say that civil law judges do not use other judgments in their analysis but they are not required to do so. Broadly speaking, the common law approach promotes consistency, the civil law approach promotes individualized justice.