Американские и европейские кодексы законов и иных нормативных правовых актов: сравнительный обзор

Abstract

The article observes various points of view related to the United States Code (U.S.C.) and the Code of Federal Regulations (CFR). The U.S.C. consists of statutory law and the CFR — regulations issued by the US executive government agencies. The legal nature of these codes is often unclear for European lawyers and legal scientists. For instance, French legal doctrine (René David, Rémy Cabrillac) deems these American codes as not the codes in European sense at all. They see these codes as elegant compilations, alphabetically organized in order to classify and arrange American sources in the framework of some wide areas. This point of view, which undoubtedly has its rational roots, oversimplifies the nature of the U.S.C. and the CFR. Professor Arthur Taylor von Mehren has a partly different opinion. He estimates some parts of the U.S.C. (like the Internal Revenue Code) as provisions that have more coherent structure and principal significance in the respective areas. Analysis of the U.S.C. and the CFR themselves gives more plain understanding of differences and similarities between American and European codes. American codes, definitely, are not equal to European ones, since they generally do not have completeness of European codes and does not serve as the primary source of law. However, the article argues that by analyzing American codes we can see that they have not only alphabetically organized content. The U.S.C., for example, has general provisions, many parts and chapters of the code contains their own general provisions and lists of definitions, the text of many parts or chapters often has coherence that we expect from usual European codes (e.g. in accordance with description of a procedure). Moreover, half of the titles of the U.S.C. are enacted as codified laws. This codification is technically identical to what we call as codification in European sense, because the procedure of that codification involves rearranging the legislation, removing obsolete provisions, rewriting texts, etc. Only the other half of the code can be characterized as a compilation made by non-legislative body. The CFR has, to some extent, different structure, but it is also can be viewed mostly as a codification.