It is generally true to say that 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 strongly been influenced by Europe.
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 the law, since their interpretations may become precedents for other courts to follow.
Before William of Normandy invaded England in 1066, law was administered by a series of local courts and no law was common to the whole kingdom. The Norman Kings sent travelling judges around the country and gradually a “common law” developed, under the authority of three common law courts in London. Judges dealt with both criminal cases and civil disputes between individuals. 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. 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. In common law systems, the law is, thus, found not only in government statutes, but also in the historical records of cases.
Continental systems are sometimes known as codified 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. 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 17th century under the direction of the Roman Emperor Justinian.
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 unmodified areas of law still remain. French public law has never been codified.
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Активная лексика: Law, case law, common law, Continental (Roman) law, legal, canon law, criminal law, civil law, precedent, court rulings, statute, legislation, to develop – development, to influence, to govern – government, to define – definition, to codify – codification, to promote – promotion, guilt, innocence, to decide – decision, equity, damage, to break – broke – broken, lawmaker.
Найдите в тексте эквиваленты следующих словосочетаний:
Источники современного права, основные традиции права, английское общее право, континентальное (Римское) право, находиться под европейским влиянием, система прецедентного права, развиваться постепенно, правительственное законодательство, применять закон, создавать закон, становиться прецедентом, уголовные дела, гражданские споры, развитие доктрины прецедента, применять существующие обычаи и законы, прийти к аналогичному решению, существующие юридические принципы, заставить кого-то выполнять условия контракта, оплатить убытки, кодифицированная юридическая система, юридические права граждан, проводить закон в жизнь.
Ответьте на вопросы по тексту:
1. What are two main traditions of law?
2. What countries adopted English Common Law?
3. In what counties has Continental (Roman) Law developed?
4. How was Common law developing?
5. Why can we say that “judges in some cases make law”?
6. What has happened after the invasion of William of Normandy?
7. How do you understand the term ”doctrine of precedent”?
8. What is meant by “equity”?
9. How did Continental systems develop?
10. What is the other name of Continental System?
11. What is the text about? Give a short summary.
Текст 4.. What is law?
The English word “law” refers to limits upon various forms of behaviour. Some laws are descriptive: they simply describe how people, or even natural phenomena, usually behave. An example is the rather consistent law of gravity; another is the less consistent law of economics. Other laws are prescriptive - they prescribe how people ought to behave. For example, the speed limits imposed upon drivers are laws that prescribe how fast we should drive. They rarely describe how fast we actually do drive, of course.
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In all societies relations between people are regulated by prescriptive laws. Some of them are customs - that is, informal rules of social and moral behaviour. Some are rules we accept if we belong to particular social institutions, such as religious, educational and cultural groups. And some are precise laws made by nations and enforced against all citizens within their power.
Suppose a member of a rugby club is so angry with the referee during a club game that he hits him and breaks his nose. At the most informal level of social custom, it is probable that people seeing or hearing about the incident would criticise the player and try to persuade him to apologise and perhaps compensate the referee in some way. At a more formal level, the player would find he had broken the rules of his club, and perhaps of a wider institution governing the conduct of all people playing rugby, and would face punishment, such as a fine or a suspension before he would be allowed to play another game. Finally, the player might also face prosecution for attacking the referee under laws created by the government of his country. In many countries there might be two kinds of prosecution. First, the referee could conduct a civil action against the player, demanding compensation for his injury and getting his claim enforced by a court of law if the player failed to agree privately. Second, the police might also start an action against the player for a crime of violence. If found guilty, the player might be sent to prison, or he might be made to pay a fine to the court, that is, punishment for an offence against the state, since governments often consider anti-social behaviour not simply as a matter between two individuals but as a danger to the well-being and order of society as a whole.
What motives do governments have in making and enforcing laws? Social control is one purpose. Public laws establish the authority of the government itself, and civil laws provide a framework for interaction among citizens. Without laws, it is argued, there would be anarchy in society.
Another purpose is the implementation of justice. Justice is a concept that most people feel is very important but few are able to define. Sometimes a just decision is simply a decision that most people feel is fair. But will we create a just society by simply observing public opinion? If we are always fair to majorities, we will often be unfair to minorities. If we do what seems to be fair at the moment, we may create unfairness in the future. What should the court decide, for example, when a man kills his wife because she has a painful illness and begs him to help her die? It seems unjust to find him guilty of a crime, yet if we do not, isn’t there a danger that such mercy-killing will become so widespread that abuses will occur?
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Sometimes laws are simply an attempt to implement common sense. It is obvious to most people that dangerous driving should be punished; that fathers should provide financial support for their children if they desert their families; that a person should be compensated for losses when someone else breaks an agreement with him or her. But in order to be enforced, common sense needs to be defined in law, and when definitions are being written, it becomes clear that common sense is not such a simple matter.
Активная лексика: law, behave – behavior, to describe – description – descriptive, phenomenon, to prescribe – prescription – prescriptive, to impose upon, to relate – relation, to regulate – regulation, custom, rule, to accept, nation, to enforce – enforcement, power, level, incident, to persuade, to find – found – found, to govern – government, punish – punishment, fine, suspension, prosecution, claim, crime, violence, guilty, offence, well-being, public law, civil law, justice, to define – definition, court, to implement – implementation, to agree – agreement.
Найдите в тексте эквиваленты следующих словосочетаний:
Различные формы поведения, регулировать отношения между людьми, принадлежать определенным социальным институтам, проводить в жизнь закон, на более формальном уровне, нарушить правила, руководить поведением людей, столкнуться (стоять перед лицом) наказания, преследование в судебном порядке за нападение на кого-то; законы, созданные правительством, вести гражданское дело против кого-то, требовать компенсацию за оскорбление, заставить выполнить иск через суд, начать судебное дело против кого-то; преступление, заключающееся в применении насилия, отправить в тюрьму, заплатить штраф, наказание за оскорбление государства, обеспечивать взаимодействие между гражданами, следить за общественным мнением.
Ответьте на вопросы по тексту:
1. What is law?
2. Give definition of descriptive and prescriptive law?
3. What laws regulate relations between people?
4. What are customs?
5. What motives do governments have in making and enforcing law?
6. What does public law establish?
7. What is the role of civil laws?
8. What does the term “justice” mean?
9. Explain the expression: laws are simply an attempt to implement common sense.
10. What do you think about “mercy-killing”?