Inna FROLOVA. ENGLISH LAW for Students of English

Transcription

1 Inna FROLOVA. ENGLISH LAW for Students of English 1 An Introduction to Law Text 1: The Two Traditions of Law Chapter 1. An Introduction to Law 1. Pre-reading tasks. 1. This text has three sections. Scan the first section and say in what forms laws are recorded. 2. Before you read the rest of the text, answer these questions: what is the name of the legal system of your country? What is the name of the other system? Now skim the rest of the text and say what each section is about. Customs, Rules and Laws In all societies, relations between people are regulated by prescriptive laws: customs, rules of social institutions, and laws. Customs are informal rules of social and moral behaviour that are passed on from one generation to the next over time. They are not written down. They prescribe the ways in which people talk and eat, work and relax together. Sometimes, we can break these rules, but continuous disregard for them or breaking a very important rule can lead to serious consequences: other members of society can ridicule or criticise the offender, even cast out or kill him. Rules of social institutions, such as religious, educational or cultural ones, govern the life of those institutions and apply to their members only. They can be unwritten, or can be formal and written. For example, rules about using the Internet in a company can be unwritten (although nowadays more and more companies prefer to have them in written form), but safety regulations in a factory will usually be written down and carry precise penalties for those who break them. They are not, however, enforceable by any political authority: if a student defies a college rule and refuses to accept the punishment, the college authorities cannot appeal to a court of law to force him to obey. Indeed, they may have no other power than to fine, suspend or expel him. Laws are written, formal rules decided upon by powerful and influential groups in society that are obligatory for all citizens of the country. In some countries the law is codified and anyone can find it in special books called codes; in others it exists in the form of court rulings published in law reports and also in the form of statutes, that is, government-written laws, which are contained in statute books. Warnings on official forms and notices in public buildings also serve to make the public aware of the laws. In order to ensure that everyone adheres to the laws, there are specific penalties, such as fines or imprisonment, for those who are found guilty of breaking them, and there are specific law-enforcement agencies like the police and the courts. Of course, there may be instances where the law is not enforced against someone - such as when children under age commit crimes or when there is so much crime that the police are 1

2 unable to deal with all offences - but the general nature of modern law is that it is enforced equally against all members of the nation and no one is above the law (this principle is known as the rule of law ). Each country in the world has its own system of law. However, it is generally possible to speak about two main Western traditions of law. One is based on English common law and has been adopted by many Commonwealth countries and most of the United States. The other, 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. Socialist law, practised in present and former Socialist states, was largely influenced by the continental tradition. Continental Law Continental systems are known as codified legal systems because the law is contained in law codes, that is, a more or less systematic and comprehensive written statement of laws. The law of continental Europe originated in Ancient Rome, from the time of the founding of the city of Rome in 753 BC. In the 5th century AD, when the Western Roman Empire fell under the onslaught of Germanic tribes, Roman law ceased to exist there, but it continued its existence in the Eastern (Byzantine) Empire. In the 6th century Byzantium gave legal history an outstanding legal document - the Justinian Code, created by the emperor Justinian, which remained in use in Byzantium as late as In Western Europe, the laws of the Franks, Burgundians, Goths, and Lombards largely replaced Roman law. However, in the late 11th century, as universities came into being, scholars rediscovered Roman law. The Holy Roman (or German) emperors, who regarded themselves as the successors of imperial Rome, accepted the Justinian Code as being still in effect. As a result, the old Germanic feudal and ecclesiastical laws were fused with the Roman laws. Besides, the lawmakers were influenced by the model of the canon law of the Roman Catholic Church. The system thus formed took the Latin name jus civile, or civil law. In the 17th century, the Reformation and the rise of nationalism led to a series of codifications of civil law along national lines. The most significant of these codifications were the French and the German; these codes each serve as the model for a major division of the civil-law system. The French group includes, in addition to France and its former possessions 'overseas, The Netherlands, Belgium, Luxembourg, Italy, Spain, and many Latin-American countries. The German group includes Germany, Austria, Switzerland, the Scandinavian countries, and certain countries outside Europe, such as Japan, that have westernised their legal systems. Court procedure in continental systems of law is inquisitorial. The judges hear criminal cases alone, without juries, and try to get at the truth by inquiring into the case, directing investigations and questioning witnesses. In this system the counsel for the prosecution and defence only ask additional questions of witnesses and summarise the evidence at the end of the trial. The leading role in the trial belongs to the judge - investigating the case, trying it and passing sentence. 2

3 Common Law Common law, also called case law, is the law which has been administered by the English courts since the 11th century, since the Norman Conquest. Originally, procedure in English local and feudal courts resembled quite closely that of other countries with a Germanic legal tradition. But unlike the countries of continental Europe, England resisted the introduction of Roman law. Instead, it developed its own system capable of substantial growth. Several features distinguish it prominently from civil law. Unlike continental Europe, where the judicial systems were not centralised and justice was administered in a multitude of local courts, Norman kings created a centralised court system. Royal judges travelled from London to regions and applied common legal principles to most parts of the land. Gradually, by the 14th century, law common to the whole kingdom was developed - hence the term common law. The most important principle of this legal system to this day remains the Doctrine of Precedent. Under this doctrine, courts are bound, or tied, by the decisions of previous higher courts. This means that when the essential elements of a case are the same as those of a previous recorded case, the judge has to reach the same decision regarding guilt or innocence. But if the decision was made by a lower court or a court of another jurisdiction, or if it can be shown that the essential elements of a case differ from previous cases, then there is no obligation on the judge to follow precedent. In situations where no precedent can be found, the judge will apply existing customs and laws, and his own common sense to the new case, and his decision will become a precedent for other courts to follow when a similar case arises. Besides case law, i.e. law contained in judicial decisions, there is a growing body of statutory law, i.e. law made by Parliament. Statutes modify and clarify the common law, or 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. Thus, in common-law systems the law is found in court rulings, which are published in Law Reports, and in government statutes, which are contained in Statute Books. The term common law therefore has two distinct uses: as a generic term, it denotes the whole of Anglo-American law; in a narrower sense, it denotes judge-made law as opposed to statutory law. Another peculiarity of common law is trial by jury. Although there have been attempts to introduce it outside the Anglo-American legal orbit, they have been limited and largely unsuccessful. The origin of the jury is disputed: it may have already existed in England or have been taken there by the Norman invaders in Originally, the jurors were local people, respected in the community, who passed judgment on the basis of what they themselves knew. A modern jury is a group of laypersons, selected at random, who are called upon to assist the judge in the administration of justice. Court procedure is adversarial. In this system, the prosecution and defence, as adversaries, fight the case out before a jury, and, unless a procedural problem arises, the judge simply listens to the presentation. Each side produces the best evidence it 3

4 can in support of its case, and does its best to destroy the case of the opposing party. The key role in deciding the guilt of the accused belongs to the jury. The jurors determine the facts of the case on the basis of the evidence presented in court and bring the verdict; on the strength of the jury s decision the judge passes sentence. The spread of common law in the world was due both to the once widespread influence of Britain in the world and the growth of its former colony, the United States. Yet, the term Anglo-American law is an abstraction from the variety of legal systems that exist in countries that were once part of England's heritage. Countless differences set one system apart from another. In the United States, for example, each state has its own statutes and its own common law, and federal law makes up only a small part of American law. In Canada, Quebec is an island of French law in the Canadian sea of case law. In many countries of the British Commonwealth, English common law exists alongside national law, each regulating different spheres of public and private life. In Britain itself the law is not uniform: Scotland and Northern Ireland are separate jurisdictions with their own courts and laws; so English law operates only in England and Wales. 2. Text 1 comprehension questions Read the second and third sections of the text again and answer these questions. 1 Why is continental law also called codified, Romano-Germanic, and civil law? 2 What are the two main codifications in the modern civil-law system? 3 In what forms does the law exist in continental and common-law countries? 4 What are the two meanings of the term common law? 5 What are the five distinctive features of common-law systems? 6 What is the Doctrine of Precedent? 7 What are the differences between the adversarial and the inquisitorial procedure? 8 What, do you think, is the disadvantage of each procedure? 3. True-false statements Confirm or refute these statements. Begin with a short answer, e.g. Yes, it is/has/does, etc. or No, it isn t/hasn t/doesn t, etc. and add one sentence to prove your point. 1 English law is contained in codes. 2 All English courts have equal authority. 3 Courts are bound by the decisions of previous lower courts. 4 Common law was developed by English Parliament. 5 Common law is the same as case law. 6 After the jurors reach the verdict, they pass sentence. 7 The term English law covers the law of England, Scotland, Wales and Northern Ireland. 4

5 4. History of common law Law Law 1) Below is a brief history of English common law. The paragraphs have been mixed up. Can you sort them out? Tip. A powerful device to link sentences and paragraphs is repeating words and phrases from the end of one paragraph at the beginning of another. Therefore, look for repetitions. And remember this device to make your own writing cohesive. a) The systematic application of the Doctrine of Precedent to new cases led to the creation of one system of law common throughout the country. The court structure that emerged was hierarchical, with the higher courts and judges having more authority than the lower ones. Church and state were separate and had their own law and court systems. b) The legal system that exists today in England and Wales is a product of evolution over many centuries. It has its origin in the Anglo-Saxon period, when local customs formed most laws. But its history really begins with the Norman Conquest in the 11th century. c) Quite often, the legal issue in a case could first be decided by the royal court in London, and then the travelling judge took the ruling to the region where it was applied to the facts found at the trial. At some point, the principle of stare decisis ( let the decision stand ) was introduced, which meant that the judges had to be guided by judgments made previously in similar cases. This practice received the name of the Doctrine of Precedent. d) When William of Normandy invaded England in 1066, he found a legal system that consisted of local courts, each applying its own local customary law. He could have adopted this system by allowing his barons to administer justice in their regions, but the fear of baronial power rivalling the power of the King led to a strategy of judicial centralisation. e) In this way a centralised system of courts was created and the law common to the whole country was formed. This judge-made law has continued to develop over the years and today it forms one of the major sources of English law, the other major source being legislation. f) Centralisation was achieved through a series of measures. Firstly, instead of allowing barons to take the office of sheriff, the King appointed sheriffs from London as his local representatives. Secondly, the King s Council took on the functions of the central court and, thirdly, William started sending members of his Council to travel round a circuit of the regions hearing cases. 2) Work in pairs. First, take turns in retelling the text in chronological order. Then, finish the sentences without looking back at the text. 5

6 1 William the Conqueror invaded... 2 He found a legal system... 3 Instead of allowing barons... 4 The King s Council took on the functions... 5 William started sending... 6 The principle of stare decisis meant... 7 Judge-made law forms Mapping Law On the map at the back of this chapter, shade in two different colours common-law and continental-law countries. You can find out which countries constitute the Commonwealth of Nations at one of the following Internet sites: -nations 6. Customs, rules and laws Note-taking Look through the first section of the text again and complete the table with brief notes. Notes should be short: you can leave out articles, verbs, etc. Single words or phrases are best. You can use signs, symbols, your personal abbreviations, and colour to give life to your notes. Created by Written or unwritten Customs Rules Laws society gvt (and judges) Enforced against Forms of Punishment all members of community 7. Comparing and contrasting Language use When we compare things, we highlight the similarities; when we contrast things, 6

7 we highlight the differences. Here is a useful structure that can help you to do it: A and B are similar in that but they are different in that A (while B ). For example: Customs and rules are similar in that both are forms of law but they are different in that customs apply to all members of the community while rules apply only to a specific group. Customs and laws are similar in that neither of them refers to a specific group of people but they are different in that customs are not written down. a) Write three sentences comparing and contrasting customs, rules and laws. Use Notes from exercise 6 and don't forget to put back the articles! b) Write three sentences comparing and contrasting the inquisitorial and the adversarial procedures. Text 2: Classifications of Law 8. Pre-reading tasks 1. Scan the text and find the passage explaining the meanings of the term 'civil law.' Make brief notes of them in your notebook. 2. Read the text and say: a) in what meaning/s the term 'civil law' is used in this text; b) is private international law a branch of public law or civil law? Public and Civil Law There are many ways in which the law can be classified. The most common are divisions into public and civil (or, private) law; substantive and procedural law; criminal and civil law. We shall consider the first two classifications now and the third in the next chapter. One important distinction made in most contemporary systems is between public and civil law - between law involving the state and law involving only individuals. Public law concerns disputes between citizens and the state, or between one state and another, and civil law (also called, private law ) concerns disputes between citizens within a country. Public law. The main branches of English public law are: constitutional law, administrative law, international law, tax law, and criminal law. Constitutional law is the law relating to the legal structure of government and the relations between private citizens and the government. It is the legal framework within which all other laws operate. Administrative law is the law dealing with the functions and powers of government organisations (not the supreme executive and legislature) and their relations with one another and with citizens. It is the legal framework within which public administration is carried out. Administrative law is to a large extent complemented by constitutional law, and the line between them is hard to draw. International law, also called public international law, is the body of legal rules 7

8 that regulate relations between sovereign states. It is a special system of legal rules which is not part of the national law of a state, the latter also called municipal law or domestic law. (Note that public international law is not related to private international law - the area of law of each legal system which deals with cases involving private citizens of one country and those of another, or private citizens and another state considered as an individual without special position or privilege). Tax law is the law relating to taxes, a compulsory contribution by individuals and business to the state's funds. Criminal law is the law relating to crime, i.e. illegal conduct for which a person may be prosecuted and punished by the state. A crime is conceived as an offence against the public, although the actual victim may be an individual. Civil law. The main, but certainly not all, branches of English civil law are: contract, tort, trust, probate, family, employment and land law. Contract law is the law relating to contracts, i.e. legally binding agreements between two or more parties. A binding agreement is one that places a person or persons under legal obligation. Tort law is the law relating to torts, i.e. wrongs committed by one individual against another individual's person, property or reputation. Trust law is the law relating to trusts, i.e. arrangements whereby a person administers property for the benefit of another person or group of persons, or for a specific purpose, such as helping the poor. Probate law is the law relating to arrangements for dealing with property after the owner's death. Family law is the law relating to the organisation of the family and the legal relations of its members. Employment law is the law relating to the employment of workers: their contracts and conditions of work, trade unions and the legal aspects of industrial relations. It is also called labour law or industrial law. Land law is the law which deals with rights and interests related to owning and using land. Land is the most important form of property, so the name land law is often used for the law of property in general. The term civil law has a number of meanings which we can sum up and clarify now. First of all, it was used in ancient Rome to distinguish the law found exclusively in the city of Rome from the law of all nations found throughout the empire. Later it came to distinguish continental law from common law, in other words Romano- Germanic law from Anglo-American law. The phrase is also used to denote private law, governing the relations between individuals, as opposed to public law and criminal law. Finally, the national law of a country is sometimes called civil law, in contrast to international law. Substantive and Procedural Law The word substantive in general use means essential, belonging to the substance of a thing. In legal English it means creating and defining rights and obligations. While substantive laws lay down people s rights and duties, procedural laws relate to procedure used by courts, they ensure the enforcement of these rights. For example, 8

9 substantive criminal law would determine such matters as the definitions and classification of crimes, the principles applied to their judgment, etc. Procedural criminal law would determine how the case is to be presented, in which court it shall be heard or when it is to be tried. 9. Which law? Law Read the examples and say in which area of the law the action will lie. Prove your point. 1. The divorced father has a court order allowing him to see his son once a month but the mother, who has remarried, denies him contact with the child. 2. An employee thinks that he has been unfairly dismissed from work. 3. An artist agreed with the publishers to contribute a book for one of their series. After he had begun work, they abandoned the series and are refusing to pay. 4. Someone can no longer endure the amount of music played by his neighbours. 5. Relatives contend over the property of a dead person. One party insists that the will is invalid. 6. A motorist has been stopped by the police for driving a car which does not display a tax disc. 7. The local council issues an order for the demolition of a group of houses and announces its intention to build a new housing estate on the site. The owners object and decide to take a legal action. 8. After a major defeat in the House of Commons the Prime Minister refuses to resign or ask the Queen to dissolve Parliament. A member of the opposition party applies to the High Court for an order forcing the PM to resign. 10. Law Lexis a) In legal English the word law is used as a countable [C] and uncountable [U] noun, and this dictates the use of articles. Study the explanations below and translate the examples into your native language. a a law/the law [C] - one specific law. E.g. We hope that this will become a national law. b law [U, no plural form] - a particular type of law, for example company law, criminal law. E.g. I don't understand all the intricacies of company law. c law or the law [U, no plural form] - a system of law. E.g. You can t hold your demonstration here it s against the law. On 31 July the Peerage Bill became law. Now fill the gaps with the word law in the singular or plural form, with or without an article. (Some gaps may remain unfilled.) Say in which meaning - a, b or c - the word is used. 1. There s against stopping on the motorway. 2. Some passed by Parliament is/are never enforced. 9

10 3. Respect for is the foundation of civilized living. 4. The soldiers faced charges under military. 5. We need new to deal with this problem. 6. Every company must by submit accounts annually. 7. She is the Senate's expert on constitutional. 8. It is important for pressure groups to remain within. 9. She seems to think she is above. 10. on compulsory seat belts has been a success. b) In the phrases below the word law is used in one meaning only - is it a, b or c? By law, according to law, force of law, the law of the land, to keep within the law, to break the law, to be equal before the law. c) Write six sentences to illustrate the use of articles with the word law. 11. Text 2 Notes Note-taking Look through Text 2 again and think how it can be presented in the form of Notes. What information can be omitted? Why do you think so? What information is essential and should be included in the Notes on the text? Now compress the information onto one page. When you have finished, go over the following checklist: 1. Did I reduce the original text to single words and short phrases? 2. Did I leave out articles, most verbs, etc.? 3. Did I structure the information? 4. Did I use signs, symbols, abbreviations? 5. Did I use colour to highlight the key information? 6. Did I fit everything onto one page? 12. Definitions Language use Giving definitions is an important skill. Definitions are usually built on the following pattern: Concept to be defined - verb defining word the rest of the sentence. Example: Land law is the law which deals with, rights and interests related to owning and using land. Do not use a dash instead of the verb. a) Use one of the defining words to complete these definitions. system arrangement body (2) practice principle (2) person 1. Common law is the of law, especially in England, which is based on 10

11 judges decisions and on custom rather than on written laws. 2. A defendant is the who has been accused of a crime in a court of law. 3. The rule of law is a legal whereby the law is enforced equally against all members of the nation and no one can escape the umbrella of the law. 4. The Doctrine of Precedent is the of making legal decisions by following the decisions made in a previous similar case. 5. A trust is a/n whereby a person administers property for the benefit of another. 6. A law-enforcement agency, such as the court or the police, is a/n responsible for maintaining law and order. 7. The presumption of innocence is a/n whereby the defendant is presumed innocent unless and until his guilt has been established by a court of law. 8. The jury is a/n of persons who decide the facts of a case and give a decision of guilty or not guilty called a verdict. b) Use the texts of this chapter and your general knowledge of law to complete these definitions. 1. is the law dealing with. 2. is a person who. 3. is a crime of ing. 4. is a system whereby. 5. is the body of legal rules that regulate. 6. is a legal principle whereby. Public Speaking. 13. Two - minute talk To the presenters. Give a two-minute talk on one of the following topics: A brief history of continental law. A brief history of common law. The main features of common law. The inquisitorial and adversarial procedures. Have a clear plan of your talk. Link ideas and sections with connecting words and phrases, for example: To begin with... First of all... Secondly... Finally... To sum up... Ideally, you should speak without any written support. If you need to use notes for reference, they should be very brief notes; you cannot use a verbatim transcript of your speech. To the listeners. Be ready to comment on the talks of other students. Focus on these 11

12 points: Was the topic clear? Was the talk well-structured? What specific aspects of the presentation can be improved? 14. Asking questions Language use When you ask questions in public, it is common to use more elaborate ways to introduce them than in an informal situation. Rather than just say What s the difference between... use more extended sentences like: 1. May I address a question to N? Could you explain the difference between...? 2. I wonder if you could explain the difference between 3. There is something I find rather difficult to understand 4. There is something I ve always been curious about There is one question I d like to ask. Could you explain...? If the answer is not clear, you could say: 1. I m afraid I didn t get the last point. Could you go over it again, please? 2. I m afraid I m not clear about... Could you expand on that? 3. Could I ask N what she means by? Practise saying these phrases aloud: casually, ironically, politely, quickly or slowly - to get your tongue around them. 15. Dealing with questions Language use When someone in the audience asks you a question, it s a good idea to comment on it before actually answering it. There are four basic sorts of question: good, difficult, unnecessary (you have already given this information) and irrelevant. Write next to each phrase below to what sort of question it could be used as a comment. 1. That s a good question. difficult.. 2. Can I get back to you on that?.. 3. Good point. 4. I m glad you asked that. 5. Well, as I said earlier I think I answered that earlier.. 7. Sorry, I don t follow you.. 8. I think that raises a different issue.. Practise saying these phrases with a different intonation and speed. Try to use them when answering questions. 16. Legal Hour Talk show You are going to take part in a mock TV show Legal Hour. Two students are legal 12

13 experts, a third student is the anchor person. The anchor will announce the topic of today s programme (based on the material of this chapter) and you will be invited to ask questions. Prepare 2-3 questions and wait for your turn to ask them. (You might wish to ask irrelevant or unnecessary questions as well!) Don t forget to thank the speaker for the answer. To the experts. If at a loss what to say, you can pass the question to your colleague with the words: This is a good question. Let me hand it over to my colleague, who is an expert in this area of law. If you feel that your colleague needs support to answer, you can say: May I come in here 13