British and American Law (New Version)

Author: (Japanese) Tatsuya Mochizuki
Publisher:
Publishing 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 naturally more appropriate to focus on private law rather than public law—limited by space, it is not easy to cover both aspects simultaneously—as is also the case in the volume's "Comparative Constitution" by Haruo Hayashi, which touches on the public law of Anglo-American law. 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., the law of damages), 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 the parts that are significantly different from English law are described. Such a narrative method may not strictly be a way of elaborating on 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, efforts are made to clarify the essence of the items being discussed. This is because the book focuses on Anglo-American law as a legal culture and aims to teach the characteristics of its 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 not normal and differs from the usual narrative conventions in Anglo-American law books or papers. This narrative method in this book is only a way for beginners to better 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 presented at the beginning of each chapter (clues to individual research can also be found in these general overviews). Japanese literature is deleted except for cases 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 Anglo-American law research compiled by Tanaka and Horibe (Bibliography of Anglo-American Law Research, Tokyo University Press, 1977), as well as the Anglo-American Law Bibliography: Supplements and Additions appended to the American Law journal of the Japan-American Law Society, collects all Japanese literature related to this book's topic. It is sincerely hoped that readers will refer to them. The book is divided into three parts: General Introduction to Anglo-American Law, Tort Law, and Contract Law. It precisely and concisely explains the basic principles and historical development of Anglo-American law. The discussion of tort law and contract law is particularly clear and concise, and it deeply and simply explains the emergence, development, and basic principles of the common law system, one of the two major legal systems.