British and American law

Author: (Japanese) Kizaburo Mikami
Publisher:
Publication Date: 2005-09-01
Features: This book is a general overview of English and American law. The basic principle of writing is to explain the fundamental points of Anglo-American law as concisely as possible. For this purpose, the following methods are adopted. , the focus of the narration is placed on private law. Anglo-American law is a distinctive "judicial" system, and the core of its legal system lies in traditional private law. Based on this understanding, it is natural to focus on private law rather than public law—limited by space, it is not easy to cover both aspects simultaneously—as is appropriate (the public law of Anglo-American law has also been discussed in Hikosuke Tanimoto's Comparative Constitution in this collection). Such a focus selection is also reflected in the scope of the "General Introduction" section, for example, in the chapter on the "history" of Anglo-American law, the evolution of public law history is largely omitted. Second, in private law, only tort law and contract law are covered. Although the law of property, which is parallel to it, is also a foundation of private legal systems and holds an important position in the socio-economic structure, it is relatively difficult to discuss its characteristics compared to Japanese and civil law—this does not reduce its importance as a comparative legal studies research object—it requires more space; additionally, tort law and contract law have some close connections (e.g., tort compensation law), whereas, both historically and currently, the law of property is an independent world. Therefore, this book does not include the law of property in its discussion. For tort law and contract law, the relevant content of English law is first explained, and for American law, only those parts that are significantly different from English law are narrated. Such a narrative method is not necessarily a strict definition of the exposition of American law, but it is sufficient to achieve the purpose of an introductory book. Third, not only in the "General Introduction" section but also in the explanations of tort law and contract law, the essence of the items to be narrated is clarified. This is because the book focuses on teaching Anglo-American law as a law culture and its characteristics of legal thinking. However, as an introductory book that outlines the legal system, it cannot deviate from the purpose of an introductory book, and the result is a compromise. Fourth, cases are cited only when necessary to illustrate abstract legal propositions. Deriving legal principles from the handling of specific cases (cases) is the premise of case law, and thus such treatment of cases is abnormal and different from the usual narrative conventions of Anglo-American law books or papers. This narrative method of the book is only a way to help beginners understand the basic structure of the law (in recent years, introductory books on Anglo-American law have also adopted this method. For example: Fleming, Introduction to the Law of Torts, 1967; Atiyah, Introduction to the Law of Contract, 2nd ed., 1971, etc.). However, to study Anglo-American law in-depth, it is of no value to explore it solely based on formulaic principles; it is necessary to rely on numerous specific cases to achieve meaningful results. Fifth, references are minimized as much as possible. In principle, Anglo-American literature is limited to general overviews, which are revealed at the beginning of each chapter (clues to individual research can also be found in these general overviews). Japanese literature is deleted except for those that can directly supplement the parts omitted in this book. This indeed requires some courage. Of course, Japan has rich research achievements in Anglo-American law, and without the accumulation of these achievements, there would be no success in my own research. This deletion is mainly to save space (citations are not just lists but must also explain their content and relationship to the book's narration). Fortunately, the bibliography of Research on Anglo-American Law compiled by Tanaka and Horibe (University of Tokyo Press, 1977), as well as the Anglo-American Law Bibliography: Supplements and Additions attached to the American Law magazine (Japanese-American Law Society), collects all Japanese literature related to the theme of this book. It is sincerely hoped that readers will refer to them. The book is divided into three main parts: General Introduction to Anglo-American Law, Tort Law, and Contract Law. It precisely and concisely explains the fundamental principles and historical evolution of Anglo-American law. The discussion of tort law and contract law is particularly clear and concise, and it deeply and simply explains the origin, development, and fundamental principles of the common law system, one of the two major legal systems.