1.1 Common Law vs. Civil Law INTRODUCTION: Warm-up: Exercise 1: reading exercise: the common law and the civil law system

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1 Unit 1 Introduction INTRODUCTION: This unit will provide you with a general introduction to Legal English. The unit briefly explores the differences between civil law and common law systems. This enables you to place legal concepts in the right context when dealing with a lawyer from another law system. Finally it will give you the vocabulary needed to identify the different types of legal professionals. This will help you identify the parties involved when dealing with an international case or negotiation. It also helps you to present yourself as a legal professional. 1.1 Common Law vs. Civil Law Warm-up: 1. What are the sources of law in your country? 2. Do you have a code in your legal system? Exercise 1: reading exercise: the common law and the civil law system A. Skimming Below is a text on the differences between common and civil law systems. Read the text by skimming the information. Skimming means quickly reading a text whereby you focus on the main point of the text. Always try to focus only on the meaning of key words that are important for your understanding of the text (e.g. key words as identified in questions related to the text). In this stage it is not important to understand each detail of a text. UNIT 1

2 Legal English, A Practical Approach After skimming the text, answer the questions below. 1. What are the two main types of sources of law? 2. Is most law written or unwritten in the common law system? And in the civil law system? 3. What are the four main sources of law in the UK? Text: The Common Law System and the Civil Law System In the common law system the courts declare and interpret the law. They determine the sources of law. With regard to the aspect of their sources, laws are traditionally divided into two main categories. They may either be written or unwritten. These terms are misleading, because the expression written refers to any law that is formally enacted, and the expression unwritten refers to an unenacted law. For example judicial decisions are often printed in law reports, but because they are not enacted they are considered to be unwritten law. Since the Napoleon Code many continental countries have codified much of their law, public and private. Therefore in civil law systems the volume of written law tends to outnumber the amount of unwritten law. In the UK however, unwritten law is the main source of law, since more of the law derives there from judicial precedent than from legislative enactment. UK law has two principal and two subsidiary sources of law. The principal sources of law are Legislation and Judicial Precedent. The subsidiary sources are Custom and Books of Authority. Legislation is enacted law. In the UK the ultimate legislator is Parliament, because in their constitutional theory Parliament is sovereign. In every legal system the decisions of the courts tend to be regarded as precedents which subsequent courts will follow. The principal of judicial precedence, the inductive approach, is a characteristic for the common law system, where statutes are interpreted by the courts, and the primary source of law. Since the rules have been developed from decision to decision, they are regarded as firmly grounded upon actual situations. This principle of law is open-ended; they are not firm and inflexible rules. This is regarded as a contrast with the civil law system in which the law typically is derived from a code, an enacted body of rules either covering the whole of (or a considerable part of) the law or covering some aspects of it. In civil law systems the task of the courts is deductive: to apply the generalised and codified rule to a particular case. Some say that codification incorporates the risk that the law is not in touch with the actual needs of reality. In practice many codes are a codification of rules formulated by legal authorities, custom or case law. In practice however the difference between the inductive and the deductive systems is not always as clear as it might seem. The main difference is that the position of the judge in the UK is central because of his law making power of precedent. The UK courts have developed many general principles which determine how to exercise their judiciary discretion to establish rules that are general in their application and as easily ascertainable as possible. 12

3 Unit 1: Introduction Customs are social habits, patterns of behaviour, which society seems to evolve without express formulation or conscious creation. Many of the rules of law originated from customs and are adopted by the courts or codified, thus custom has now ceased to be an important source of law; although, under certain conditions, custom can create a special law at variance with the general law. In the civil system the writings of legal authors form an important source of law, used as a legal authority. In the UK however, they function as a source from which law may be derived, not as an authority as such. These writings traditionally have been cited by way of evidence of what the law is. There are some books of authority however, which may not only be cited as evidence of what the law is, but which also have an authority in the common law system almost equal to that of precedents. A disadvantage of case law is that it is sometimes difficult to find the applicable rule of law and it may not have a coherent general pattern. An advantage of the civil law is that the rules of law are developed by a legislative body that is independent from the judicial body. It is also easy to find the law. The law has a coherent pattern. Common law can mean two different things, depending on the context. On the one hand, it means the legal system which is based fundamentally on English common law, versus the civil law system, which is based on the civil law of Rome. On the other hand, it means the general law contained in decided cases as opposed to Acts of Parliament or other sources of law within the UK system. In some definitions common law is also contrasted with Equity. This is the body of rules administered by the Court of Chancery. The purpose of Equity was to add to or to supplement common law rules in cases where these were too rigid to give justice. Equity does not suffer a wrong to be without a remedy. Equity is a complex part of English law, mainly concerned with the law of property. B. Scanning Scanning means to read a text in more detail trying to understand its details and analysing its various elements. To understand the aforementioned text in more detail, complete the exercises below. Look at a) through k) and decide whether they belong to the Common Law or Civil Law system. Put each of them in the correct column below. a) central importance of enacted law b) inductive c) central importance of precedent d) principles are flexible e) principles are based on real facts f) decisions reached by reasoning from general rules to particular cases UNIT 1

4 Legal English, A Practical Approach g) principles in law may not keep up to changing circumstances j) judicial decisions in individual cases lead to general rules h) principles developed in individual cases k) deductive i) general enacted principles are applied in individual cases Common Law Basic characteristic of system: Style of legal reasoning: Legal principles: Civil Law Basic characteristic of system: Style of legal reasoning: Legal principles: C. Questions: reading for more detail 1. What does common law signify? Can you remember the two meanings? 2. What does Equity mean? 3. What are the advantages and disadvantages of common law/civil law? D. Summary & Discussion Summarise the text and discuss any point of interest, such as: a. Are there written and unwritten sources of law in your country? b. Is most of the law written or unwritten? c. Discuss the differences between the civil and common law systems. 1.2 Legal Professionals Warm-up: 1. What is your official title as a lawyer in your country? 2. Do you have any experience with titles for legal professionals in English? Exercise 1: solicitors and barristers Identify if each person described below is either a solicitor, a barrister or both. 14

5 Unit 1: Introduction 1. The first person to consult in case of a legal question of dispute to render advice. 2. A qualified lawyer* under UK law. 3. He has a right of audience, thus he is allowed to speak and plead, in all courts, with an exclusive right of audience in the higher courts. 4. Informed by the brief of counsel of all the facts and legal points of the case, he is not directly informed by the client. 5. He works for a law firm and receives wages. 6. He may plead in certain lower courts. 7. He may become a judge, usually after 10 years of practice and after being a Queen s Counsellor. 8. They are self-employed, admitted to and governed by the independent Bar, and connected to a chamber, otherwise known as the barrister s office. Some are employed as in-house lawyers. 9. A specialist with particular skills in advocacy; speaking and pleading in court. 10. He is involved in the conveyance of houses; usually his firm has a specialist property department that deals with, amongst others, the sale and mortgaging of immovable properties. 11. He advises on litigation; the risks and chances of going to court and on the appropriate steps to follow in the procedure. 12. He is to be found on the Role of Solicitors. *The term lawyer is a general term that does not refer to a certain type of legal profession. Exercise 2: vocabulary for legal professionals Complete the following sentences on legal professionals with the missing words that you find in the box below. counsel advocate trainee-lawyer in-house lawyer attorney-at law attorney paralegals Bar Association lawyer attorney-in-fact 1. The term is a general term, in general used to refer to a legal professional who has been admitted to the Bar Association, the term does not refer to a specific type of legal profession. 2. The is a professional body of lawyers that generally aims to defend the interests of its members and may regulate the legal profession in their jurisdiction. Generally to be admitted to practice law one must pass a Bar examination. 3. An works as the company lawyer, and as such acts as the legal consultant and may act as its legal representative of the company. 4. In the most general sense the term refers to an agent or representative, in the USA however it is commonly understood to refer to a person licensed or admitted to practice law, also known as legal agent or lawyer. 5. An is a practitioner in a court of law who is legally qualified to prosecute and defend actions in court on the retainer of clients (thus is a lawyer). UNIT 1

6 Legal English, A Practical Approach 6. An is the holder of a power of attorney who is able to act on another s behalf, e.g. in business or financial matters (this may or may not be a lawyer). 7. In common law countries law firms have. These are legal assistants that have some education in law and assist a lawyer. 8. A is someone who graduated from a Faculty of Law and is training to become a lawyer accredited by the local Bar Association. 9. An is a lawyer with specialist skills in advocacy: the speaking and pleading in court. Also known as barrister in some countries. 10. The term (legal) is also generally used to refer to lawyers or legal advisers, note however that the term of counsel has a specific meaning and refers to lawyers that have a relationship with a law firm or an organization, but are not an associate or a partner. TO CONCLUDE: In practice most lawyers need Legal English to discuss and negotiate international law issues related to e.g. contracts or mergers & acquisitions. Most lawyers will not use Legal English to actually discuss UK law issues. Mostly it will concern EU law matters or national law matters from other jurisdictions. The common language for these to discuss and negotiate these issues will mostly be Legal English. This manual is developed to give you the common basic vocabulary on the matters covered by it to facilitate these discussions and negotiations. When dealing with a lawyer from a different legal system assert yourself by indicating your legal training and qualifications. For a UK lawyer it will for example be important to understand when dealing with a Dutch lawyer that the latter is able to practice as a barrister as well as a solicitor in its jurisdiction. When confronted with a different law system it is useful to study the matter at hand, but always team up with a local lawyer to assure accurate legal advice and avoid legal responsibility claims if problems arise. A local lawyer may also facilitate the contact with the opposing party taking cultural differences into account. It is not always necessary to instruct a counsel, but when the issues are difficult or not straightforward, counsel s advice on liability and feasibility is advisable. Mastering the correct Legal English vocabulary and constructions will enable you to focus on the content of the legal issue at hand, rather than on finding the right words to express yourself. 16

Notes. ACCA Paper F4 (GLO) Corporate and Business Law DEMO PAGES - FREE FULL SET AT theexpgroup.com

Notes. ACCA Paper F4 (GLO) Corporate and Business Law DEMO PAGES - FREE FULL SET AT theexpgroup.com Notes ACCA Paper F4 (GLO) Corporate and Business Law Contents About ExPress Notes 3 1. Different Legal Systems 7 2. International Organisations 11 3. International Commercial Arbitration 16 4. Contracts