Could the USA abandon common law? I understand that the USA has a &quot;common law&quot; system and that ambiguous written legislation is turned into unambiguous law by courts, such as has happened in many famous Supreme Court rulings. My understanding is that there is an alternative system (&quot;statute law&quot;?) in which ambiguous legislation stands until courts produce outcomes which are bad or inconsistent enough to force legislators (via the democratic process) to rewrite bad laws or write new ones. If I've misunderstood please correct me. Anyway let's say the people favored switching to statute law (or however it is known). Could this be done?
You are confusing a few concepts. One is the distinction between what are known as &quot;common law&quot; jurisdictions derived from the English legal system, and &quot;civil law&quot; jurisdictions derived from one of the continental European legal systems that is ultimately derived from Roman law. Another is the distinction between determining the meaning of ambiguous legislation, which all courts do by definition, and the power of judicial review, which overturns legislation which is invalid for some reason rather than merely trying to interpret an ambiguous provision. Ambiguous means &quot;unclear&quot; or &quot;capable of being interpreted in more than one way&quot; and every time every court encounters unclear legislation it must decide what it means, even if it is not invalidated. In contrast, some judiciaries that have the power of judicial review and those that do not. Judiciaries that can declare a law to be invalid have the power of judicial review. Judiciaries that cannot declare a law to be invalid do not have the power of judicial review. Every state and federal U.S. Court at every level (not just the U.S. Supreme Court) has the power and obligation to declare that a law violated the U.S. Constitution. In many countries, no court, or only a &quot;constitutional court&quot; has the power to make declare legislation to be invalid by exercising judicial review. Every time that a legislature passes a statute on a subject covered by common law (i.e. judge-made law derived from case decisions that serve as precedents), it shrinks the scope of common law relative to statutes. And, in principle, almost all of the common law could be replaced by statutes without all that much difficulty. But, in civil law countries, statutes are frequently comprehensive and are the sole source of legal authority about their subject matter superseding all case law, while in common law countries, statutes are often piecemeal tweaks to a common law background that is assumed by the statute. For example, every civil law country would have a comprehensive statute setting forth the principles of contract law, while a typical common law jurisdiction might have a statute that declares that certain contracts must be in writing but does not comprehensively set forth the law of contracts in all circumstances. There are some features of civil law countries, such as the absence of jury trials, which cannot be constitutionally changed to the civil law system, even in jurisdictions such a Puerto Rico and Louisiana in the United States which have civil law roots prior to joining the U.S. (at least in criminal cases and in the federal courts). The power of judicial review (i.e. the power of courts to declare a statute unconstitutional and void) is also inherent in the U.S. Constitutional system of government and could not be removed without a constitutional amendment. There are common law countries, e.g., England, which did not historically have the power of judicial review, which was an innovation for a common law countries such as the United States when it was first invoked. (For what it is worth, India goes one step further; its Supreme Court asserts and exercises the right to declare portions of its own constitution to be unconstitutional.) There are other aspects of civil law legal systems which would probably also be declared unconstitutional in the United States as well, such as the lack of a prohibition on the introduction of hearsay evidence in criminal trials which violates a provision of the U.S. Constitution's Bill of Rights known as the &quot;confrontation clause.&quot; It is unclear to me whether the principle that case law precedents have binding legal effect in future cases, which is part of the common law system that is absent in the civil law system, has a constitutional dimension or could be displaced by law. But, most aspects of a civil law legal system could be adopted in the United States if the relevant legislatures so desired. Indeed, many aspects of the U.S. legal system have moved in that direction. For example, only a handful of U.S. states now recognize the concept of a &quot;common law crime&quot;. Almost all states now only allow criminal sanctions for crimes codified by statute, which was not the case at the time of the American Revolution, when few crimes were codified. Obviously, with a constitutional amendment, almost any change to the U.S. legal system is possible.
Yes, legislative bodies can pass legislation that constrains the interpretation of the rest of their legislation. In the U.S., see 1 U.S.C §1-8. In Canada, see The Interpretation Act. In British Columbia, see The Interpretation Act. As an example of a back-and-forth between the courts and congress regarding a setting a standard of review, consider the passage of the Religious Freedom Restoration Act (RFRA). Summarizing from Holt v. Hobbs 574 U. S. ____ (2015): In Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 U. S. 872 (1990), the Supreme Court held that "neutral, generally applicable laws that incidentally burden the exercise of religion usually do not violate the Free Exercise Clause of the First Amendment". Congress desired a stricter test that prohibited the burdening of religion regardless of whether the laws are neutral or generally applicable. Congress passed RFRA in 1993, which required that "[g]overnment shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability, unless the government demonstrates that application of the burden to the person — (1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest". RFRA was passed with the goal of setting the standard of review for all other legislation that burdens a person's exercise of religion. Without RFRA, the standard of review would have been that used in Smith, based solely on First Amendment protections. With RFRA, the standard of review became stronger, basically strict scrutiny. An example of Congress setting the factors to be used in a balancing test is the addition of fair use via the Copyright Act of 1976. Prior to 1976, courts had been applying a fair use exception based on common law rather than statute. The act encoded in statute the four factors that Congress wanted to be considered and listed several purposes for which fair use was explicitly applicable. In this case, Congress basically codified the fair use doctrine as it was being used at the time by the courts. It could be considered an expression of approval for the existing interpretation of the time and a desire to prevent drift in that analysis.
In the United States, individual members (States) of the union are allowed to make their own constitutions and state laws &amp; regulations. This includes laws that may contradict Federal law, although this is a grey area. It usually comes down to enforcement: Federal laws are usually enforced by Federal law enforcement as they can not force states to do so. Further more, State prosecutors will usually not attempt to prosecute you for a Federal law infraction. Only Federal prosecutors OR the department of justice will do this. To see a more detailed explanation on this, look at this &quot;How Stuff Works&quot; article.
Absent newly enacted law in response to the end of the separate sovereigns doctrine, the first case to which jeopardy attaches (generally speaking when a jury is sworn and the first item of evidence is presented to it) would bar subsequent prosecutions, without regard to whether it arose in state or federal court. It would be a race to the court house rule. This is how it works if there are multiple prosecutions within a state, for example, one commenced in a municipal court that is not part of a state court system, and another commenced in a state court of general jurisdiction.
The main impediment is identifying exactly what "a law" is. When people talk (casually) about "the law", that can refer to statutes enacted by Congress, regulations set forth by administrative agencies to articulate specifics of those statutes, and Supreme Court rulings as to what "the law" is or says. The canonical example of "a law" is a statute passed by Congress. Under that understanding, you could point to the US Code and ask the question "how many", though you may have to also subtract things ruled unconstitutional by SCOTUS (they aren't removed from The Code, unless actually repealed by Congress). In the US code, there isn't an enumerable element "a law". Title 17 pertains to copyright; Title 18 pertains to crime. There isn't just one law about crime and one law about copyright. There are 12 chapters in Title 17; Chapter 1 has a couple dozen sections. Sections can get fairly minutely subdivided: there is no clear point at which you can say "this is one law, this is another". However, it is legally irrelevant how many there are – unless Congress passes a law that counts likes ("must repeal two laws for every new one passed"). The immediate product of congressional enactments is the US Code; the immediate product of administrative rule-making is the Code of Federal Regulations. Supreme Court decisions are also published in United States Reports, though I don't if there is an exhaustive online compendium of all rulings. Also note that things passed by Congress are "Laws" (some public, some private). Things in the US Code originate in such acts of Congree, but not every act of Congress affects the US Code, for example PL 118-81. When new subject matter is first introduced it is usually entirely contained in the corresponding law passed, but subsequently it can be amended, and an amendment to copyright law could be snuck into a bill generally about terrorism. I think that the stuff in the US Code corresponds to what most people think "a law" is, but it's better to look at the US Code as a single thing – "the law" – rather than try to count individual laws. If you are armed with access to all of these resources, you would also need to know where to find relevant law. Once you find all of the applicable text, you simply apply general legal principles to reach a conclusion, then hire a lawyer to determine where you went wrong, then hire another lawyer to determine where he went wrong. At least in difficult cases. Fortunately, although enacted bills often glue stuff together in crazy ways, when it is assembled into the US Code, it is organized more sensibly. Still, not all crimes are defined in title 18 (there 1re 52 other titles to search to find crimes).
Strictly speaking, that principle isn't even true everywhere in the US. The maxim "nulla poena sine lege" (i.e. "no punishment without a prior penal statute") was historically applicable to civil law systems, such as are found in continental Europe. In common-law systems, there was never a tradition in which a crime wasn't a crime unless it violated a penal law, because crimes themselves were traditionally defined by court precedent instead of by statute. In US federal court, the only allowable common-law offense is contempt of court. This is due to a court decision (United States v. Hudson), in which the Supreme Court ruled that federal courts do not have the constitutional authority to hear a case in which someone is accused of committing a common-law crime. Even so, and even though there is a federal contempt statute, the Supreme Court has ruled that contempt is an inherent power of any court, and statutes around it only regulate the power (but the power would be there even without a statute). At the state level, some states have explicitly passed laws saying something is not a crime if it doesn't violate the penal code (although this doesn't necessarily apply to contempt); see section 6 of the California Penal Code for an example. In other states, like Florida, common-law crimes still exist; Florida has a statute saying that any common-law offense is still a crime unless a statute has explicitly covered that same subject matter (section 775.01), and specifies a generic penalty for anything which is an offense at common law and not addressed by any Florida penal statute (section 775.02). While this is sort of statutory (as it's a statute giving the penal provision), it's also basically not (as no statute has to say "X is illegal," because it's enough that English common law makes X illegal).
Your premise that &quot;the law did not exist previously&quot; is, from the perspective of how courts work, mistaken. The law always existed, it's just that some people (maybe even judges) mistakenly thought the law didn't exist (actually, &quot;meant something else&quot;). Many people have wrong ideas about what the law says, but ignorance of misunderstanding of the law is no excuse. Even having an understandable wrong belief is no excuse. There is an area in which ignorance of the law is excused. Violation of a person's civil rights under color of law is a civil wrong for which the officer can be sued. See Hope v. Pelzer, 536 U.S. 730 and citations therein: Respondents may nevertheless be shielded from liability for their constitutionally impermissible conduct if their actions did not violate &quot;clearly established statutory or constitutional rights of which a reasonable person would have known.&quot; Thus an officer may not use a qualified immunity defense if the court finds that an action is a civil rights violation and this &quot;clarification&quot; of the law is new.
Congress cannot be sued for enacting a law. Period. The courts do not have the power to punish Congress for passing a law, they cannot forbid Congress from passing a law, they have no say over what the wording of a law can be. Only Congress has the power to determine what laws they pass. The courts do, of course, have the power to interpret and even strike down a law that they deem to be unconstitutional. This is the essence of constitutional separation of powers.