Учебное пособие для студентов юридических специальностей chapter I law
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Vocabulary tasks A Match the following English words and phrases with their Russian equivalents.
 B Match each word or phrase on the left to the correct definition on the right.
C Use an appropriate word or phrase from the box to complete each sentence.
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
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 a litigant 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’:
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:
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
Reading tasks A Answer these questions.
B Comprehension check Mark these statements T (true) or F (false).
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. H  eld1 – суд решил; решеноVocabulary tasks A Match the English words and expressions with their Russian equivalents.
B Match the legal terms with their definitions.
C Complete the text with the words from the box.
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) ______. D Write 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. The definition 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 controversy n 1 спор; 2 правовой спор; судебный спор latitude n свобода действий lay down (rules) v установить (правила) output n выпуск relief n 1 средство судебной защиты; 2 помощь; injunctive relief судебный запрет, средство правовой защиты в виде судебного запрещения resent v пересматривать scope n охват social welfare n социальное обеспечение substantial adj 1 существенный; 2 реальный Reading tasks Answer these questions.
Language focus Put the words in brackets into the appropriate form, using the passive where necessary.
Vocabulary tasks A Match each word or phrase on the left to the correct definition on the right.
B Use an appropriate word from the box to complete each sentence.
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 to find cases that might be relevant, but it is still hard work. Over to you 1 How 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. 2 Name 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. For You to Remember Civil Law, or code law, is one of two major legal systems currently in use in the Western world. It is based primarily on the written codes of Justinian and Napoleon. The predominant feature of civil law is the attempt to establish a body of legal rules in one systematized code, a single comprehensive legislative enactment. In this system, judicial decisions, case law, are not a source of law, although judicial precedents may be useful in the decision of cases. Civil Law remains the basis of the legal system in Italy, France, Spain, Germany, and other parts of the Western world that were once included in the Roman Empire. 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:
Vocabulary biased adj предвзятый; пристрастный; предубеждённый canon law n каноническое право citizenry n гражданство; граждане consenting adj согласный corrupt adj коррумпированный; продажный egalitarian adj эгалитарный; уравнительный impact n влияние, воздействие inconsistent adj 1 непоследовательный; 2 противоречивый judgement n 1 судебное решение; 2 мнение; суждение judiciary n судебная власть landmark adj знаковый (документ в истории); поворотный (в истории) latitude n свобода действий lawgiver n законодатель; законодательная власть lawmaker n законодатель legislature n 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 speculate v размышлять; делать предположения Reading tasks A Answer these questions
B Study 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. 1 Codified 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; 2 spelled in small letters – “civil law” – noncriminal law; law which regulates the relationships between individuals or bodies. Vocabulary tasks A Match these legal terms with their definitions.
B Complete the following text with the words and phrases from the box.
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:
a) of Civil Law system b) of common law system
a) of Civil Law b) of common law
a) Civil Law spread? b) common law spread? |
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