Unit 4 Sources of Modern Law
Before you read
Discuss these questions.
1Can you explain the doctrine of “precedent”?
2Can you name two main systems of law?
3What system of law operates in your country?
Text A
Historical and Political Background
In order to understand why a particular country has a particular legal system it is necessary to look its history, political structure and social values. Despite civil wars in the fifteenth and seventeenth centuries and enormous social changes associated with industrialization, England and Wales have retained many laws and legal principles that originated eight centuries ago.
Each country in the world, even each state of the United States, has its own system of law. But there are two main traditions of law in the world. One is based on English Common law, and has been adopted by many Commonwealth countries and most of the United States. The other tradition, sometimes known as Continental, or Roman law, has developed in most of continental Europe, Latin America and many countries in Asia and Africa which have been strongly influenced by Europe.
Text B
Common Law Systems
Common law, or case law systems, particularly that of England, differ from Continental law in having developed gradually throughout history, not as the result of government attempts to define or codify every legal relation. Customs and court rulings have been as important as statutes (government legislation). Judges do not merely apply the law in some cases they make law, since their interpretations may become precedents for other courts to follow.
Although local and ancient customs played their part, uniform application of the law throughout the country was promoted by the gradual development of the doctrine of precedent.
By this principle, judges attempted to apply existing customs and laws to each new case, rather than looking to the government to write new laws. If the essential elements of a case were the same as those of previous recorded cases, then the judge was bound to reach the same decision regarding guilt or innocence. Once a decision had been made, there was a tendency to decide subsequent cases involving the same problem in the same way. Thus arose the rule of stare decisis meaning "adhere to the decisions" or "let the decided cases stand."
If no precedent could be found then the judge made a decision based upon existing legal principles, and his decision would become a precedent for other courts to follow when a similar case arose. The doctrine of precedent is still a central feature of modern common law systems. Courts are bound by the decisions of previous courts unless it can be shown that the facts differ from previous cases. Sometimes governments make new laws – statutes – to modify or clarify the common law, or to make rules where none existed before. But even statutes often need to be interpreted by the courts in order to fit particular cases, and these interpretations become new precedents. In common law systems, the law is, thus, found not only in government statutes, but also in the historical records of cases.
The general principles of law established in this way came to be called the common law because, in contrast to the law or custom of particular localities, it was "common" to the whole of England. The common law comprised the wisdom and experience of many generations of judges and laid down many important principles protective of individual rights of person and property.
Another important feature of the common law tradition is equity. By the fourteenth century many people in England were dissatisfied with the inflexibility of the common law, and a practice developed of appealing directly to the king or to his chief legal administrator, the lord chancellor. As the lord chancellor’s court became more willing to modify existing common law in order to solve disputes, a new system of law developed alongside the common law. This system recognized rights that were not enforced as common law but which were considered "equitable", or just, such as the right to force someone to fulfill a contract rather than simply pay damages for breaking it, or the rights of a beneficiary of a trust. The courts of common law and of equity existed alongside each other for centuries. If an equitable principle would bring a different result from a common law ruling on the same case, then the general rule was that equity should prevail.
One problem resulting from the existence of two systems of justice was that a person often had to begin actions in different courts in order to get a satisfactory solution. For example, in a breach (breaking) of contract claim, a person had to seek specific performance (an order forcing the other party to do something) in court of equity, and damages (monetary compensation for his loss) in a common law court. In l873, the two systems were unified, and nowadays a lawyer can pursue common law and equitable claims in the same court.
Although courts continually have to find ways of interpreting existing common law for new cases, legislation has become the most important source of new law. When the government feels that existing common law, equity or statutes are in need of revision or clarification, it passes new legislation. In this way courts avoid the obligation to follow precedent. Parliament passes hundreds of new laws every year on matters that need to be regulated more precisely than the common law has been able to do and on matters that never arose when the common law was developed. For example, modern society has produced crimes such as business fraud and computer theft which require complex and precise definitions. Some modern legislation is so precise and comprehensive it is rather like a code in the Continental system.
The spread of common law in the world is due both to the once widespread influence of Britain in the world and the growth of its former colony, the United States. Although judges in one common law country cannot directly support their decisions by cases from another, it is permissible, for a judge to note such evidence in giving an explanation. Nevertheless political divergence has produced legal divergence from England. Unified federal law is only a small part of American law. Most of it is produced by individual states and reflects various traditions. The state of Louisiana, for example, has a Roman civil form of law which derives from its days as a French colony. California has a case law tradition, but its laws are codified as extensively as many Continental systems.
Vocabulary
| backgroundn 1 предыстория; предпосылки; исходная ситуация; 2 фон |
| beneficiaryn бенефициарий (получатель доходов/ выгод от имущества, находящегося в доверительном управлении) |
| break a contractv нарушить контракт /договор |
| claimn 1 требование; 2 заявление |
| common lawn 1 общее право (как прецедентное право в отличие от статутного права); 2 общее право, англосаксонское право (в отличие от континентального права)щее право, англосаксонское право статустного праваравленииble to do Latin America and many countries in Asia and Africa whic); 3 общее право Англии, обычно common law of England(как совокупность прецедентного и статутного права) |
| common-law courtn суд общего права |
| comprehensiveadj понятный |
| continental lawn континентально-европейское право; synRoman (Civil) law римское право |
| damagesn возмещение убытков |
| equitableadj справедливый |
| equityn 1 справедливость; 2 право справедливости; equity court суд “права справедливости”, суд системы “права справедливости” |
| fraudn мошенничество, обман; business fraud мошенничество в бизнесе |
| guiltn вина; виновность |
| innocencen невиновность |
| justicen 1 правосудие; 2 справедливость; system of justice система правосудия |
| lord chancellor, Lord Chancellorn Лорд-канцлер (главное судебное должностное лицо, спикер палаты лордов, член кабинета министров) |
| performancen исполнение;specific performanceреальное исполнение |
| preciseadj точный |
| promotev способствовать; содействовать |
| pursuev преследовать; искать в суде |
| regardingadv относительно |
| retainv сохранять |
| rulingn 1 решение (суда); 2издание норм, правил; court rulingsрешения суда |
| seek (sought, sought) v добиваться; требовать |
| stare decisis[`sta:ri di`saisis]лат.following precedent “стоять на решённом” (формула функционирования и развития права на основе судебных прецедентов); обязывающая сила прецедентов |
| theftn кража; computer theftкража с использованием компьютера |
| trustn траст, доверительный фонд |
Reading tasks
Comprehension check
ARead the text to decide whether the statements below are true (T) or false (F).
1 The law in England is the same as the law in France. _______
2English law has evolved gradually. _______
3Most of English law has been codified. _______
4The common law was developed by the judges. _______
5All the courts in the system are of equal authority. _______
BStudy the following definitions of COMMON LAW. Translate them into Russian.
TEXT 1: Roger Bird, Osborne's Concise Law Dictionary, Seventh Edition
common law. That part of the law of England formulated, developed and administered by the old common law courts, based originally on the common customs of the country, and unwritten. It is opposed to equity (the body of rules administered by the Court of Сhancery1); to statute law (the law laid down in Acts of Parliament); to special law (the law administered in special courts such as ecclesiastical law, and the law merchant); and to the civil law (the law of Rome).
It is 'the commonsense of the community, crystallised and formulated by our forefathers'. It is not local law, nor the result of legislation.
 |
1 the Court of Chancery амер. суд системы “права справедливости”
TEXT 2: The Encyclopaedia Britannica
common law, also called ANGLO-AMERICAN LAW, the body of customary law, based upon judicial decisions and embodied in reports of decided cases, which has been administered by the common-law courts of England since the Middle Ages. From this has evolved the type of legal system now found also in the United States and in most of the member states of the Commonwealth of Nations. Common law stands in contrast to the rules developed by the separate courts of equity, to statute law (i.e., the acts of legislative bodies), and to the legal system derived from civil law now widespread in western Europe and elsewhere.
TEXT 3: Powell R. Law today. 1993.
common law. A system in which legal decisions are based upon decisions in previous cases (Doctrine of precedent) and on custom, rather than on detailed written laws. It is sometimes called case law and originally developed in England. Common law is an important part of the legal systems of many countries which have been influenced by English law, such as the USA and India.
CAnswer these questions.
1 What do you understand by common law?
2What was the original source of common-law principles?
3Would a codified system of law make the law more a) certain, or b)flexible?
4Why is it important for judges to be independent?
5What is stare decisis?
6What is the name of the court which administered equity?
7What other countries apart from England have a common-law legal system?
8In what sense is the “constitution” of England a “creature” of the common law?
Language focus
Put the words in brackets into the correct form, active or passive. Translate the text.
The English legal system 1) _____ (centralize) through a court structure which is common to the whole country. It is hierarchical, with the higher courts and
judges having more authority than the lower ones. Some important
characteristics of English law are:
1English law 2) _____ (base) on the common law tradition. By this we 3) _____ (mean) a system of 'judge made' law which continuously 4) _____ (develop) over the years through the decisions of judges in the cases brought before them. These judicial precedentsare an important source of law in the English
legal system. Common law systems are different from the civil law
systems of Western Europe and Latin America. In these countries the law
5) _____ (codify)or systematically collected to form a consistent body of legal rules.
2English judges have an important role in developing case law and stating
the meaning of Acts of Parliament.
3The judges are independent of the government and the people
appearing before them. This 6) _____ (allow) them to make impartial decisions.
Vocabulary tasks
AMatch the following English words and phrases with their Russian equivalents.
| 1legal system 2adopt 3the Commonwealth countries 4legal relations 5application of the law 6subsequent cases 7bound by the decisions 8inflexibility 9fulfil a contract 10legal divergence | aпринятие закона bнегибкость cпоследующие дела dпринимать eправовая система fправовая противоречивость gисполнять контракт hсвязанный решениями iправовые отношения jстраны Содружества |
BMatch each word or phrase on the left to the correct definition on the right.
| 1law 2code 3civil law 4common law 5court 6Magna Carta 7judge 8statute | aone of the greatest common-law documents blaw as developed and pronounced by the courts in deciding cases ("case law"), based on the common law of England and judicial precedent ca person with authority to hear and decide disputes brought before a court for decision dthe law passed by a legislative body ecodified law based on the Roman code of Justinian; the basis of the legal system of the most western European countries fany rule that society will enforce gin the common law, a collection of statutes enacted by legislative bodies, including Congress and state legislatures ha person or group of persons with authority to hear and decide disputes by interpreting and applying rules of law; also the place where cases are heard |
CUse an appropriate word or phrase from the box to complete each sentence.
| law case court Magna Carta applying code litigation statutes legal lawyers precedent attorney common law judicial |
The "constitution" of England is unwritten and is largely based on precedent; hence it is a true creation of the common law. Several documents, such as the
1) ______ and the English Bill of Rights, are incorporated into the precedent.
Unless changes are constitutionally prohibited, Congress or the state legislatures may enact laws (statutes) that modify the common law. These 2) ______ also subject to 3) ______interpretation, are collected into codes - along with case law, the codes from the law generally applied in court. Unlike Civil Law codes, common law codes are not intended to be entire statements of the whole law.
As 4) ______ developed, a judge confronted with a puzzling new 5) ______ would search the literature for a similar case to determine whether a 6) ______ been established. If so, the judge would follow the prior decision.
If there are no modern American or English precedents for a specific case, a
7) ______can, and sometimes do, consider Justinian's 8) ______. Some areas of the common taw, such as the law of negotiable instruments, are derived from Roman 9) ______.
The fact that there are many precedents in the common law system, and hence, much scope for arguments and disagreement, encourages 10) ______, which produces a need for 11) ______.
An 12) ______ should: handle cases competently, zealously advocate the client's cause, remain true to his/her duties as an officer of the court, keep the client reasonably informed, abide by the strictures of attorney/client privilege, and try to protect a client from problems caused by the attorney's withdrawal from a case.
Attorneys can be used not only to resolve problems, but also to prevent them. Familiar with general 13) ______ principles, the lawyer directs his/her knowledge toward finding and 14) ______ the law to a particular set of facts.
Over to you
Case-law or codes?
What are the relative advantages and disadvantages of a legal system based on case-law and a legal system based on codes?
CASE-LAW CODES
|
| |||||
| difficulty of finding the law | rigid |
Text C
Common Law and Equity
Over the years, however, the common law tended to become rigid, both in its principles and its remedies. Writs (court orders) were developed for certain specific purposes, and if alitigant needed relief that could not be supplied by one of those writs, the common-law courts could not help him. Basically, the remedy the courts were prepared to supply was money damages to compensate for a wrong. They were unable to prevent or abate the wrong itself. Smith might be threatening to cut down trees belonging to Jones, but Jones could do nothing at common law except wait until the trees were cut down and then sue Smith for the value of the trees. But what Jones really needed was some legal method of preventing Smith from destroying the trees.
Historical Development
After the conquest of England by William the Conqueror (A.D. 1066), Norman kings created an independent, but parallel, system of justice alongside the developing common law, with ultimate judicial responsibility residing in the king himself. This system, the equity system, had exclusive jurisdiction over injunctive relief (court-ordered action). The ordinary meaning is justice or fairness.Equity developed because in many situations there was no legal remedy available at common law.
Our main purpose is to draw a distinction between common law and equity and the way the courts apply the rules of these two areas of law. The differences arise from their historical development. First let us consider what we mean by the words ‘common law’:
1It is law which is common to the whole country – national law in contrast to local law.
2It is law which is based on judicial decisions (case law) in contrast to the law which is made by Parliament (statute law).
3It distinguishes the common law legal systems based on precedents from civil law jurisdictions based on civil codes.
4It comprises the rules developed by the common law courts in contrast to the rules developed by the courts of equity.
Do the rules of equity remain different from the rules of common law?
To answer this question we must remember the purpose of equity which is to achieve justice and fairness. To do this the courts have developed a set of rules to govern the application of equity. These are called the 'maxims' of equity. They are different from the rules which apply in the common law and these maxims are the reason why the British continue to distinguish between common law and equity. There are many equitable maxims of which the following are just brief examples:
a Equity will not suffer a wrong to be without a remedy.Equity will only intervene when there is no adequate common law remedy.
b Equity follows the law.Equity recognizes legal rights and does not take the place of the common law.
c He who comes to equity must come with clean hands.A litigant who has behaved unfairly in the dispute will be denied an equitable remedy.
d Equitable remedies are discretionary.Litigants do not have a right to an equitable remedy. The courts will decide whether to grant a remedy after considering the individual circumstances of each case.
These examples illustrate the wider principles and interests which the courts will consider before granting an equitable right or remedy. One of the most important features of equity which distinguishes it from common law is the maxim that equitable remedies are discretionary.
As the equity system functioned alongside the common law courts, the two systems of law gradually merged. Equity maxims – "He who comes into equity must come with clean hands," and many other "fair play" principles – were adopted by the common law and are currently cited in judicial decisions.
Equity absorbed a number of functions involving the family (divorce, annulment, adoption). These equity responsibilities became part of the general legal system – and part of the common law – that developed in the United States.
Although law and equity are today merged into a common system, the old equity domain (injunctive relief, specific performance of contract, contract modification, family law, divorce) is particularly influenced by the idea of fairness and is deliberately more relaxed in its concept of justice. Also, jury trial is not available in an equity-type proceeding.
Vocabulary
| abatev 1отменять; прекращать; 2уменьшать |
| abolishvотменять |
| adoptionn усыновление; удочерение |
| annulmentn 1судебное решение о признании брака недействительным; 2лишение родительского права |
| conquestn завоевание |
| conquerorn завоеватель;William the ConquerorВильгельм Завоеватель |
| discretionaryadj дискреционный; предоставленный на усмотрение |
| domainn область; сфера |
| equityn правосправедливости;equity systemсистема, основанная на праве справедливости;equitableadj основанный на праве справедливости; справедливый |
| fairness nчестность; справедливость; беспристрастность |
| grant a remedyv предоставить судебную защиту |
| injunctive reliefn судебный запрет |
| intervenev 1вмешиваться; 2вступать в процесс |
| justicen 1справедливость; 2 правосудие |
| litigantn тяжущаяся сторона; сторона в судебном деле |
| maxim (of law) 1(юридическая) максима; 2правовой принцип; 3 правило поведения |
| mergev сливаться; объединяться |
| reliefn помощь, судебная защита |
| remedyn средство судебной защиты |
| reside inv принадлежать; быть присущим |
| rigidadj жёсткий; негибкий |
| writn судебный приказ |
Reading tasks
AAnswer these questions.
1What is equity?
2Why did the need for equity arise?
3Why did equity develop?
4What do you mean by the words “common law”?
5Do the rules of equity remain different from the rules of common law?
6What is the purpose of equity?
7How are the rules of equity called?
8Name some of the equitable maxims.
9What happened to two systems of law?
10Does your legal system contain rules of equity?
BComprehension check
Mark these statements T (true) or F (false).
1Equity is a complex area of English law.
2Equity is concerned with the law of property.
3Common Law does not contrast with equity.
4The purpose of equity is to achieve justice and fairness
5Parliament developed a set of rules called the ‘maxims’.
6Common law and equity are different legal systems nowadays.
7Common law and equity are two separate bodies of legal principles which
are now administrated by the same courts.
Language focus
Complete the text below by using the appropriate prepositions.
The plaintiffs owned a house next door 1) _____ the defendant's factory. Sometimes black smoke from the factory chimneys would blow across the plaintiffs' garden. The plaintiffs sued the owners of the factory complaining 2)_____ damage caused 3)_____ plants in their garden 4) _____ the smoke and loss of enjoyment of their property. They sought (= past tense 'to seek') damages and an injunction to prevent the defendants using their premises as a factory.
Held1:That the owners of the factory were liable 5) _____ the plaintiffs
6) _____ the tort of private nuisance. The plaintiffs were awarded damages 7) _____ the loss of their plants and granted an injunction restricting the use of the defendants' property. It was reasonable that the defendants should use their premises as a factory but not 8) _____ a way which would cause nuisance 9) _____ adjoining property. The injunction would apply until the defendants were able to control the smoke 10) _____ their chimneys.
Held1 – суд решил; решено
Vocabulary tasks
AMatch the English words and expressions with their Russian equivalents.
| 1adopt 2legal 3injunction 4prevail 5fair play 6cite 7judicial decision 8involve 9equity principles 10absorb 11performance of contract 12concept of justice 13follow the law 14right of remedy | aцитировать bпринципы справедливости cсудебное решение dисполнение контракта eпоглощать fпринимать gконцепция справедливости hсудебный запрет iправо на судебную защиту jследовать закону kправовой lвключать в себя mпреобладать nцитировать | ||
| For You to Know Court of Chancery 1Канцлерский суд (в Великобритании до 1873г.); 2амер. Суд системы «права справедливости» chancellor 1канцлер; 2главный судебный представитель суда справедливости (в некоторых штатах Америки) Lord ChancellorЛорд-канцлер (главное судебное должностное лицо, спикер палаты лордов, член кабинета министров) Judicatureсудоустройство; юрисдикция King’s BenchСуд королевской скамьи (до 1873 г.); Court of King’s Bench Supreme CourtВерховный суд | |||
BMatch the legal terms with their definitions.
| 1equity 2Court of Chancery 3remedy 4maxim 5King’s Bench 6case 7Judicature | alegal relief that prevents a wrong, enforces a right, or compensates a party for harm ba judge’s function, or authority chistorically, the highest common-law court in England dthe body of principles constituting what is fair and right ea question or problem that will be dealt with by a law court fa traditional legal principle ga court of equity |
CComplete the text with the words from the box.
| common (2) criminal barons Supreme maxims equity judge-made civil decentralized King’s Bench permanent facts redress Chancery Judicature justice remedies judges decided fairness separate |
Before the Norman Conquest the law in England was 1) ______ . Fear of the power of local 2) ______ led Henry II to create a 3) _______ royal court in London called the 4) ______ . 5) ______ from this court would travel the country hearing 6) ______and 7) ______ cases. The central court in London 8) ______ the legal issue in a case and this would be applied to the 9) ______in the regional courts. In this way a 10) ______ system of law was developed which was 11) ______ to most parts of the country.
Equity was developed by the Court of 12) ______. It introduced new 13) ______ to provide 14) ______ for disappointed litigants. The common law courts were 15) ______ from the Court of Chancery until a single court was established by the 16) ______ Act 1873. Each branch of the 17) ______ Court of Judicature can administer 18) ______ law and 19) ______ . However, the difference between the two is still important because of the 20) ______ of equity. These illustrate that equity is based on 21) ______ and 22) ______.
DWrite down the Russian equivalents for the words in bold type.
Equity came into being in the Middle Ages because common law was not always able to give redress to all litigants. The Court of Chancery provided equitable relief when it thought that the common law remedy was inequitable. Until 1875 there were two courts – the common law court and the Court of Chancery. The Judicature Court established a single court, the Supreme Court of Judicature. When the common law and laws of equity conflict, the laws of equity should prevail.
Over to you
Discuss this problem.
Thedefinition of common law contrasts the body of law developed by the common-law courts and statute law, with Equity - the body of law originally formulated and developed by the Lord Chancellor and the Court of Chancery. Equity is a complex area of English law, mainly concerned with the law of property. The purpose of Equity was to add to or supplement common-law rules in cases where these were too rigid to give justice. These two parallel systems of justice exist side by side in English law and since 1873 they have been administered by the same courts.
The following example will show the different effect of common law and Equity in an actual case:
Suppose that Smith and Jones form a contract in which Smith agrees to sell Jones a certain piece of land. Smith later changes his mind and breaks the contract. At common law the court will order Smith to pay Jones money as compensation for the land he has lost. In Equity the court has discretion to order Smith to perform his part of the contract (to transfer the piece of land to Jones) if this is fair in the circumstances.
What is the difference between the result given by Equity and common law in the example?
Text D
Sources of American Law
American law, strongly influenced by its English background, has four
main sources – common law, equity, constitutions and statutes.
England, the British Commonwealth, and the United States follow the common law. Whereas Civil Law attempts to state the whole law in a comprehensive code, the common law is found in the collected cases of the various courts of law. American common law began with the common law of England. It includes the English common law and all subsequent legal developments, including the principle of stare decisis.
Common law codes should not be confused with Civil Law codes. In the common law, a code is a collection of statutes passed by a legislature; a civil law code is intended as a full and comprehensive statement of the whole law.
Equity began as an independent legal system based on concepts of fair play. It covers injunctive relief, specific performance of contract, and certain contract revisions, as well as parts of family law. Many of the principles and maxims of equity have been merged into the common law. There is no jury trial in an equity case.
Constitutions and Statutes. In contrast to these two forms of judge-made law – common law and equity– are two varieties of "legislative" law—constitutions and statutes. Judge-made law is inductive; on the basis of a number of individual decisions a general rule is constructed. Legislative law is deductive; a general principle is stated by a constitutional convention or a legislature and then is given meaning as it is applied in deciding a series of individual controversies.
The special problems of constitutions as sources of law have already been noted. Constitutions tend to state very general principles and they are hard to amend, so they require or permit great latitude in interpretation. Statutes are typically more limited in their scope and language; they aim to solve particular problems or lay down rules covering defined situations. Nevertheless, statutes also require interpretation when they are applied.
During the past century, judge-made law proved increasingly unable to deal with the problems of an industrialized society. Legislatures responded to the challenge with an enormous output of regulatory and social-welfare legislation. Just as the common-law courts initially resisted the rise of equity, so judges in the United States initially resented statute law replacing the standards of the common law, and they restricted the impact of the new legislation by narrow and hostile interpretation. But this was a tactic that could not long prevail. Today, statutes are by far the most substantial source of the law that American courts apply.
Vocabulary
comprehensive code n единый кодекс; всеобъемлющий кодекс
controversyn 1 спор; 2 правовой спор; судебный спор
latituden свобода действий
lay down(rules) v установить (правила)
outputn выпуск
reliefn 1 средство судебной защиты; 2 помощь; injunctive relief судебный
запрет, средство правовой защиты в виде судебного запрещения
resentv пересматривать
scopen охват
social welfaren социальное обеспечение
substantialadj 1 существенный; 2 реальный
Reading tasks
Answer these questions.
1What are four main sources of American law?
2How do American sources of law differ from the sources of English law?
3What is the difference between the Civil Law and the common law?
4What does American common law include?
5What does term “code” mean in the Civil Law system and in the common law system?
6What are the special problems of American constitution as a source of law?
7What are statutes?
8How does the role of the judge in your system differ from his or her role in the American system?
Language focus
Put the words in brackets into the appropriate form, using the passive where necessary.
1If law _______ not _______ (enforce), it has no effect on society it _______ (ignore).
2If government _______ (pass) many laws but does not attempt to police them, the citizenry _______ (lose) its respect for government and law, and society _______ greatly _______ (weaken).
3Case law _______ (collect) in the opinions of the appellate courts of the states and of the United States. Opinions of trial courts _______ usually not _______ (publish), except for federal trial courts.
4Besides the statutory annotations, case law may _______ (find) in legal encyclopedias, textbooks, treaties, case digests, and computer data banks. All law books _______ (base) on principles developed and enunciated in the cases.
5Statutory law _______ (find) in a state code or in the federal code. These codes _______ (publish) with annotations, footnotes, and cross references to other statutes and to key cases interpreting and applying the statute in question.
6If a case_______(arise) for which no modern American or English precedent can _______ (find), the court sometimes bases its decisions on the Justinian code, from which some areas of the common law _______ (derive). In the absence of a precedent, a court may_______ (follow) its own sense of justice or fairness, with due regard for prevailing custom or morality.
Vocabulary tasks
AMatch each word or phrase on the left to the correct definition on the right.
| equity | a | legal process in which a court of law examines a case to decide whether someone is guilty of a crime | |
| background | b | to make addition to a law | |
| constitution | c | the branch of government responsible for making statutory laws | |
| stare decisis | d | the redress or benefit that a party asks of a court | |
| legislature | e | help that is provided by government for people with social problems (very poor, unemployed) | |
| statement | f | the circumstances, facts on events that influence, cause or explain something | |
| injunctive relief | g | historically in England and the United States, a parallel and independent legal system based on principles of “fair play” or equity; now merged into general court system, with responsibility for family law, injections and specific performance of contracts | |
| trial | h | “stand by the decision”; a requirement that a court follow its own and higher court precedent | |
| amend | i | a nation’s or state’s supreme set of laws, outlining the basic organization, powers, and responsibilities of the government and guaranteeing certain specified rights to the people | |
| social welfare | j | a formal and exact presentation of facts |
BUse an appropriate word from the box to complete each sentence.
| law professor relevant codify attorneys on-line services law application take precedence provisions research case law cases |
Law students and lawyers from non-Anglo-American countries learn that Anglo-American 1) ______ is "case law" or "judge-made law." That's true to an extent, but in reality a significant portion of the law of the United States is 2) ______ [written in the form of statutes]. Of course, it is true that in some cases no statutory or constitutional 3) ______ will apply. Under those circumstances, 4) ______ must rely solely on earlier 5) ______ ("the common law") on the issue; however, constitutional provisions and statutes 6) ______ over case law.
One considerable difference that exists between common and civil law countries is the amount of 7) ______ an attorney must do. Once an attorney finds the 8) ______ statutory law in a common law country, his or her research doesn't stop
there. Nor is it sufficient to read one or two explanatory commentaries written by
a 9) ______ as it might be in a civil law system.
American attorneys will search to find the 10) ______ relating to a statute before they can say they have thoroughly researched the problem. Without locating and reading the cases that explain the 11) ______ of the statute or constitutional provision, they have not even begun their research. Modern 12) ______ have made it faster and more efficient tofind cases that might be relevant, but it is still hard work.
Over to you
1How could you characterize this case?
Bernhard Goetz shot and wounded four young men who apparently were attempting to rob him in a New York subway in 1984. He had been robbed before under similar circumstances. Discuss.
2Name at least four general, ethical duties of an attorney.
Text E
Continental Systems
Continental systems are known as codified or Civil Law legal systems. They have resulted from attempts by governments to produce a set of codes to govern every legal aspect of a citizen’s life. Thus it was necessary for the legislators to speculate quite comprehensively about human behaviour rather than simply looking at previous cases. In codifying their legal systems, many countries have looked to the examples of Revolutionary and Napoleonic France, whose legislators wanted to break with previous case law, which had often produced corrupt and biased judgements, and to apply new egalitarian social theories to the law.
The lawmakers of new nations sometimes wanted to show that the legal rights of their citizens originated in the state, not in local customs, and thus it was the state that was to make law, not the courts. In order to separate the roles of the legislature and judiciary, it was necessary to make laws that were clear and comprehensive. The lawmakers were often influenced by the model of the canon law of the Roman Catholic Church, but the most important models were the codes produced in the seventh century under the direction of the Roman Emperor Justinian. His aim had been to eliminate the confusion of centuries of inconsistent lawmaking by formulating a comprehensive system that would entirely replace existing law. Versions of Roman law had long influenced many parts of Europe, including the case law traditions of Scotland, but had little impact on English law.
It is important not to exaggerate the differences between these two traditions of law. For one thing, many case law systems, such as California's, have areas of law that have been comprehensively codified. For another, many countries can be said to have belonged to the Roman tradition long before codifying their laws, and large uncodified areas of the law still remain.
|
Sources of Civil Law
As society became increasingly complex, various "lawgivers" attempted to provide orderly systems of laws that would promote security and justice. There are four landmark "codes," each of which represents distinct progress in the development of law:
| Lawgiver Hammurabi (Babylonian) | Date 1792-1750 B.C. | Noteworthy Aspects Designed to promote "justice" but based on the lex talionis. A well-ordered system of 285 laws, arranged by titles. |
| Solon (Athenian) | 594 B.C | Established astable government operating under a system of rules imposed by a consenting citizenry. "Citizens" were equal under the law. |
| Justinian (Roman) | A.D. 533 | Summarized and systematized the civil law of Rome; remains the basis for the laws of most of western Europe. |
| Napoleon (French) | A.D. 1804 | Preserved many democratic achievements of the French Revolution, such as civil equality and jury trial. Influenced modern law, for example, the modern law of the state of Louisiana. |
Vocabulary
biased adj предвзятый; пристрастный; предубеждённый
canon lawn каноническое право
citizenryn гражданство; граждане
consentingadj согласный
corruptadj коррумпированный; продажный
egalitarianadj эгалитарный; уравнительный
impactn влияние, воздействие
inconsistentadj 1 непоследовательный; 2 противоречивый
judgementn 1 судебное решение; 2 мнение; суждение
judiciaryn судебная власть
landmarkadj знаковый (документ в истории); поворотный (в истории)
latituden свобода действий
lawgivern законодатель; законодательная власть
lawmakern законодатель
legislaturen законодательная власть; легислатура
lex talionis лат.“the law of retaliation” (an eye for an eye) “закон равного возмездия”, т.е. закон, основанный на принципе: око за око, зуб за зуб
speculatev размышлять; делать предположения
Reading tasks
AAnswer these questions
1How do Continental systems usually differ from common law systems?
2Give an example of a country with a legal system based on the written codes.
3What was the significance of the Roman Code of Justinian?
4How did the Code of Napoleon influence modern law?
5What is the predominant feature of Civil Law?
6What is the role of judicial precedents in Civil Law?
7How can you define the term “lawgiver”?
8Name four landmark “codes”.
BStudy the following definitions of legal terms. Translate them into
Russian.
Continental law. A system in which legal decisions are usually made by applying detailed written laws to the case in question. Various forms of continental law are found in continental Europe and in parts of Asia, Africa and Latin America. It is known as Roman law (or Civil Law) because it was influenced by the laws developed in ancient Rome. It is also known as codified law because the system often requires laws to be written in the form of precise, detailed codes.
Civil Law. 1Codified law based on the Roman Code of Justinian; the basis of the legal system of most European countries and of nations that were once their colonies; 2spelled in small letters – “civil law” – noncriminal law; law which regulates the relationships between individuals or bodies.
Vocabulary tasks
AMatch these legal terms with their definitions.
| legislative enactment | a | in Civil Law: a collection of laws into a single, organic whole | |
| jury trial | b | one who makes laws within a given jurisdiction | |
| code | c | extraordinary significant | |
| lawmaker | d | when people have the same legal rights | |
| landmark | e | written in the form of statutes | |
| judicial decision | f | the process of making into law | |
| codified | g | a trial in which the fact issues are determined by a jury, not by the judge | |
| civil equality | h | one who promulgates an entire code of laws | |
| lawgiver | i | judgement of court |
BComplete the following text with the words and phrases from the box.
| changed binding common law Civil Law system main principles judicial interpretations written codes decisions of courts precedent private law interpret |
In Civil Law system the main branches of the law are embodied in 1) ______. There are codes of criminal law, of 2) ______, of commercial law, etc. The codes are meant to contain the 3) ______ of each branch of the law. They are not easily 4) ______. Scholarly writings, often by university professors, are of great importance in 5) ______. Scholars explain and 6) ______ the codes, statutes and 7) ______ .
In common law system the decisions of judges of the higher courts are 8) ______, and much of the law is left to the courts to develop.
In Civil Law 9) ______ are based primarily on a system of written law, rather than on the rule of 10) ______ emphasized in 11) ______.
Over to you
Compare Civil Law and common law:
1What is characteristic?
a) of Civil Law system
b) of common law system
2What are the sources?
a) of Civil Law
b) of common law
3Where is
a) Civil Law spread?
b) common law spread?
CHAPTER III CONSTITUTIONS