Учебное пособие для студентов юридических специальностей chapter I law
|
Скачать 0.64 Mb.
|
Chapter II SOURCES OF LAWUnit 3 Sources of English LawBefore you read Discuss these questions.
Sources of English Law The courts are the interpreters and declarers of the law, the 'sources' of law are therefore the sources to which the courts turn in order to determine what it is. Considered from the aspect of their sources, laws are traditionally divided into two main categories according to the solemnity of the form in which they are made. They may either be written or unwritten. These traditional terms are misleading, because the expression 'written' law signifies any law that is formally enacted, whether reduced to writing or not, and the expression 'unwritten' law signifies all unenacted law. For example, as will appear, judicial decisions are often reduced to writing in the form of law reports, but because they are not formal enactments they are 'unwritten' law. Since the fashion was set by the Code Napoléon many continental countries have codified much of their law, public and private; on the Continent, therefore, the volume of written law tends to preponderate over the volume of unwritten. But in England unwritten law is predominant, for more of law derives from judicial precedents than from legislative enactment. This does not, of course, mean that none of law is codified, for many parts of it are such as the law relating to the sale of goods (Sale of Goods Act 1979) and the law relating to partnership (Partnership Act 1890). All that is meant is that, as yet at least, although Parliament casts increasing multitudes of statutes, England has not adopted the system of wholesale codification which prevails in many continental countries. Two principal and two subsidiary sources of English law must be mentioned. These principal sources are Legislation, and Judicial Precedent; the subsidiary sources are Custom and Books of Authority. The Principal Sources
Legislation is enacted law. In England the ultimate legislator is Parliament. Parliament is sovereign. It means first, that all legislative power within the realm is vested in Parliament, or is derived from the authority of Parliament – Parliament thus has no rival within the legislative sphere – and it means secondly that there is no legal limit to the power of Parliament. In the legislative sphere Parliament is thus legally ‘sovereign’ and master, but this does not mean that the courts have no influence upon the development of enacted law; for, in order to be applied, every enactment, however it be promulgated, has to be interpreted (or construed), and the courts are the recognized interpreters of the law.
In all countries, at all times, the decisions of courts are treated with respect, and they tend to be regarded as 'precedents' which subsequent courts will follow when they are called upon to determine issues of a similar kind. This reliance upon precedent has been both the hallmark and the strength of the common law. Its rules have been evolved inductively from decision to decision involving similar facts, so that they are firmly grounded upon the actualities of litigation and the reality of human conduct. And new cases lead onwards to reach forward to new rules. This characteristic of the common law contrasts with the European civil law which is derived from a code; that is, from an enacted body of rules either (as in the case of Justinian’s or of Napoleon’s legislation) embodying the whole of, or some considerable part of, the law, or embracing some special aspect of it. Thus the task of the courts is deductive: to subsume the present case under the mantle of the generalized and codified rule. Another salient feature of the English system is the doctrine of the binding case. By this doctrine the authority of the courts is hierarchical; a court which is inferior in authority to another court is obliged to follow ('bound by') a court of superior authority if called upon to decide upon facts similar to facts already tried by the superior court. The precedents formed by decided cases are, thus, the ‘anchors of the laws’. A practitioner who is asked to consider a legal matter will therefore look to the reported decisions of the courts; and he will do this even though the point in issue is regulated by a statute, for, as has been explained, statutes are interpreted by the courts, and a decision which is concerned with the interpretation of the statute is just as binding as any other decision. It must not, however, be imagined that the law is always discoverable by the simple process of looking up, and finding, the right precedent. For facts are infinitely various and by no means all cases are exactly covered by previous authority. Quite the reverse, the facts in issue often resemble two or more divergent authorities. In these circumstances the courts therefore have freedom of choice in deciding which of the divergent authorities to ‘follow’. Further, cases of ‘first impression’ sometimes arise; cases arising upon facts which bear no resemblance to the facts of any previous case. When the judge rules in such a case he legislates, because future courts must usually ‘follow’ him. The judges have a field of choice in making their decisions. But they do not exercise their discretion in an arbitrary way; they rest their judgements upon the general principles enshrined in case-law as a whole. These principles have been evolved by the courts through the centuries. Thus in a sense the history of the common law (as opposed to statute law – for statutes are sometimes arbitrary and they have often wrought injustice) is the story of the evolution of the judges conception of justice realized in the form of rules of law intended to be general in their application and as easily ascertainable as possible. The Subsidiary Sources
Customs are social habits, patterns of behaviour, which all societies evolve. In a sense custom should be accorded as one of the principal sources of law for much, if not most, law was originally based upon it. Moreover custom is not solely important as a source of law, for even today some customary rules are observed in their own right and they command almost as much obedience as rules of law proper; they only differ from rules of law in that their observance is not enforced by the organs of the State. Thus, it will be seen that many of the fundamental rules governing the Constitution are 'conventional' (i.e. customary), rather than legal, rules. But in modern times most general customs (i.e. customs universally observed throughout the realm) have either fallen into desuetude or become absorbed in rules of law. For example many of the early rules of the common law were general customs which the courts adopted, and by this very act of adoption made into law. So too, much of the modern mercantile law owes its origin to the general customs of merchants which the courts assimilated. So also many of the rules of the law relating to the sale of goods originated as customs, were adopted by the courts, and eventually moulded into a statutory code. General custom has therefore now ceased to operate as an important source of law. For law, whether enacted or judicially declared, has in most fields superseded custom.
On the Continent the writings of legal authors form an important source of law. In England, in accordance with the tradition that the law is to be sought in judicial decisions, their writings have in the past been treated with comparatively little respect. They have been cited in court, if citied at all, rather by way of evidence of what the law is that as independent sources from which it may be derived. This general rule has, however, always been subject to certain recognized exceptions; for there are certain ‘books of authority’, written by authors of outstanding eminence, which may not only be cited as independent sources in themselves for the law of their times but which also carry a weight of authority almost equal to that of precedents. In modern times the established tradition appears to have been breaking down, because many textbooks are now in practice constantly cited in the courts, though only the best of them are likely to command attention. The reason for this departure from the established tradition is probably that in comparatively recent years a large increase in the popularity of the study of English law in all our major universities has done much to improve the quality of legal writing and to increase the volume of legal literature. Thus, today books of authority are commonly referred to in court and even works of living authors are now often cited, though by a rule of etiquette, counsel who refers to works of the latter category should not cite them directly as authorities, but should request the leave of the court to ‘adopt’ the arguments which they contain as part of his own submissions. In practice, however, even this latter etiquette is now not always observed. Vocabulary
Reading tasks Answer these questions.
decisions in individual cases?
England today?
Language focus: connectors Connectors are words like and, so, but, because, which are used to join or connect different pieces of language together. They show relation between what the speaker or writer said before and what they will say next. Choose the best connector from thus, therefore, for, however, further to complete the following passage. Judicial precedent Judicial precedent is of fundamental importance in the English legal system, 1) ________ the principles of the common law, which have developed gradually through case-law over the centuries, are the main source of English law. The English courts are bound to follow decisions of higher courts in the judicial hierarchy; 2) ________ in many cases they must also follow their own decisions. Decisions of inferior courts, 3) ________, do not have binding force. Decisions concerning the interpretation of statutes are also binding, 4) ________ English lawyers must always refer to case-law even if the facts of the case they are preparing are covered by statute-law and not common-law rules. The law reports are 5) ________ basic works of reference for members of the English legal profession. Vocabulary tasks The word LEGAL has the following meanings in Russian: 1) юридический legal person – юридическое лицо 2) правовой legal text – правовой текст 3) судебный legal action – судебный иск 4) законный, дозволенный законом legal owner – законный владелец 5) легальный legal activities – правомерная, законная деятельность A Match the following English expressions with their Russian equivalents.
B Find in the text the following words and phrases and translate them into Russian.
C Match each word or phrase on the left to the correct definition on the right for groups given below. Example: issues are questions or matters Answer: Group I: a/2 Group I
Group II
Group III
Group IV
D Match these sources of law with the description below. Common law Roman Law Napoleonic code The Ten Commandments 1) ________, which evolved in the 8th century BC, was still largely a blend of custom and interpretation by magistrates of the will of the gods. 2) ________ evolved from the tribal and local laws in England. It began with common customs, but over time it involved the courts in law-making that was responsible to changes in society. In this way the Anglo-Norman rulers created a system of centralized courts that operated under a single set of laws that replaced the rules laid down by earlier societies. 3) ________ formed the basis of all Israelite legislation. They can also be found in the laws of other ancient peoples. 4) ________ refers to the entire body of French law, contained in five codes dealing with civil, commercial, and criminal law. E Are the following sentences about the sources of law true or false?
F Complete the following passage to check that you have understood the text so far and can use the new vocabulary. For each blank space choose the correct word from the list below. Use each word once only. The Importance of Legislation as a Source in English and Continental Law In many 1) continental countries much of the law is 2) ________. For this reason there is more written, or 3) ________ law than 4) ________ law. In contrast, there is no general code of 5) ________ law. Still, 6) ________ is common, and many areas of law, e.g. 7) ________ are codified, but 8) ________ is the main source of the law. Choose from: a partnership b enacted c Continental d unwritten e English f judicial precedent g legislation h codified G Decide where you think some of the following pieces of information belong in the table. Copy and complete the table. A civil law/common law B central importance of enacted law/central importance of precedent C inductive/decisions reached by reasoning from general rules to particular cases/reasoning in individual cases leads to general rules/deductive D principles are flexible/principles are based on real facts/in time fixed principles may not correspond to changing circumstances/principles develop in individual cases/general enacted principles are applied to individual cases. E original source of principles may be case-law, custom, etc./inferior courts must follow decisions of superior courts/central position of judges.
Over to you Use your own knowledge and information from the text to compare the following: • codification of law on the Continent and in England • codification of law in your country and in England • written sources of law on the Continent and in your country • written sources of law in your country and in England • unwritten sources of law in England and in your country Examples ‘Many continental countries have codified their law, whereas this has not happened in England. In fact, only some areas of English law, such as the sale of goods, are codified.’ ‘In England most of the law is unwritten and the same is true in my country. In fact the principal sources of law in the legal system in my country are…’ Write your comparisons down. |
Похожие:
 |
Учебное пособие к практическим занятиям для студентов специальности 050715 «Логопедия» Учебное пособие составлено в соответствии с требованиями действующего Государственного образовательного стандарта высшего профессионального... |
|
Учебное пособие для самостоятельной работы студентов заочного отделения... Учебное пособие предназначено для для самостоятельной работы студентов заочного отделения неязыков специальностей вузов, ранее изучавших... |
 |
Опыт и перспективы использования сети интернет в коммерческих целях учебное пособие Учебное пособие предназначено для студентов и аспирантов экономических специальностей, а также для преподавателей-экономистов |
|
Учебное пособие пенза 2015 пензенский государственный университет Учебное пособие предназначено для студентов 4-6 курсов медицинских вузов, могут быть использованы неврологами, нейрохирургами и врачами... |
|
Учебное пособие Рекомендовано учебно-методическим объединением для... Учебное пособие предназначено для студентов 1, 2 курсов всех специальностей среднего профессионального образования по направлению... |
|
Учебное пособие предназначено для студентов 3 6-го курсов специальностей «Лечебное дело» Учебное пособие предназначено для студентов 3 6-го курсов специальностей «Лечебное дело» 31. 05. 01, «Педиатрия» 31. 05. 03, «Стоматология»... |
|
Учебное пособие для студентов неисторических специальностей |
|
Учебное пособие для студентов старших курсов гуманитарных специальностей,... Учебное пособие для студентов старших курсов гуманитарных специальностей, изучающих английский язык |
|
Конспект лекций по философии для студентов-заочников Дата публикации на сайте: 29. 01. 2008 Иванов В. В. Социальная философия. Учебное пособие для курсантов и студентов технических специальностей |
|
Учебное пособие с методическими указаниями и тестами для текущего... Учебное пособие предназначено для студентов заочного отделения, обучающихся по направлению подготовки 43. 03. 03 Гостиничное дело.... |
|
Учебное пособие с методическими указаниями и тестами для текущего... Учебное пособие предназначено для студентов заочного отделения, обучающихся по направлению подготовки 43. 03. 03 Гостиничное дело.... |
|
Учебное пособие для студентов психологических специальностей Балашов С44 Психолого-педагогическая коррекция: теоретико-методологический аспект : учеб пособие для студ психол спец. / Е. М. Скотарева.... |
|
Учебное пособие для студентов специальности 090800 «Бурение нефтяных и газовых скважин» Учебное пособие предназначено для студентов технических вузов, обучающихся по направлению “Нефтегазовое дело” |
|
И экономических учений Учебное пособие предназначено для студентов экономических специальностей и преподавателей |
|
Учебное пособие для студентов Учебное пособие предназначено для студентов, обучающихся по специальности высшего профессионального образования Педиатрия |
|
Е. Ф. Чубенко метрология, стандартизация и сертификация Учебное пособие предназначено для студентов специальностей 190603. 65 Сервис и техническая эксплуатация транспортных средств, технологических... |