Comparison Between Legal System of USA, France & Germany

Running head: COMPARATIVE LAW
COMPARISON BETWEEN THE LEGAL SYSTEMS OF THE USA, FRANCE & GERMANY
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COMPARATIVE LAW1
Introduction
According to Hart, the Legal positivism theory includes a ‘rule of recognition’, which
warns residents of jurisdiction regarding the legitimacy of the law of the land. For a legal rule to
be effective in the United States, it needs to be established by a procedure defined in the relevant
constitution. Therefore, for the federal government of the U.S., the Constitution acts as the code
of recognition which is also considered to be the ultimate source of law. The doctrine of
separation of power, therefore, is called a theory and not a rule of law. Through this system, the
governance of a state is portrayed. Three branches of government, such as the executive, the
legislative, and the judiciary, are defined by this concept along with the strong distinction
between these branches, to avoid the abuse of power. This internal and administrative process
often regulates the power of a specific State. Numerous academics and historians think this
practice is an essential aspect of constitutionalism. Each division has its autonomous powers and
responsibilities under this theory. Hence, it is necessary to ensure that the powers of one branch
do not interfere with the other branches1. As some scholars are of the view that the idea of power
separation is old-fashioned, thus it is not adequately represented in the current legal system. This
paper mainly focuses on the discussion of the legal systems of the USA, France, and Germany
concerning this aforesaid statement. While discussing the same, it also sheds light on the
comparison between the legal systems of the USA, France, and Germany.
Discussion
‘Trias Politica’ model is another name of the model of the separation of power. This
theory is distinct from the constitutional merger of powers and the semi-presidential arrangement
of similarities between the executive and legislative branches. At the time of writing the
1 Michaels, Jon D. "An enduring, evolving separation of Powers." (2015) Colum. L. Rev. 115: 515.

COMPARATIVE LAW2
Constitution, the Founding Fathers restricted the authority of central government in distributing
powers, and they even split the federal government into three independent branches. After the
Federal Government was established with the U.S. Constitution, each US state take on related
provisions in its constitutions2.
In general, power separation generally refers to the division of responsibilities divided
into separate branches of government in such a way so that one branch would not be able to
exercise the responsibilities of another. The legislative branch has the responsibilities of making
the rules. The laws were sanctioned by the executive and construed by the judiciary. The
objective behind this principle being implemented is to avoid the abuse of forces by numerous
checks and balances. Montesquieu is the individual who articulated the principle of power
separation. The writer of the famous novel, ‘The Spirit of the Laws’, is written by Montesquieu
in which he stated that when the legislative power is added to executive power, there is no
independence due to tyrannical law. According to him, to avoid dictatorship it is important to
divide the identical but diverse forces between the individuals and authority. If the
responsibilities are not sufficiently distributed between the various departments, then there could
be a misunderstanding which will create problems in the future. The government cannot impose
an infinite amount of power on one individual or group of persons without the division of
power3.
The US Constitution is a perfect example of the separation of powers. In fact, at the time
of drafting the US constitution, the Founding Fathers had also divided the federal government’s
powers into three independent branches. Thus, every US state has introduced similar clauses of
2 Rosenbloom, David H. "3a. Public Administrative Theory and the Separation of Powers." The Constitutional
School of American Public Administration. (Routledge, 2016). 78-94.
3 Bradley, Curtis A. International law in the US legal system. (Oxford University Press, USA, 2015).