The sources of the English law
1. Прочитайте и переведите текст, используя выражения после текста:
The sources of the 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’ signifies any unenacted law.
Since the fashion was set by the Code Napoleon 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 our law derives from judicial precedents than from legislative enactment, which doesn’t, of course, mean that none of our law is codified, for many parts of it are.
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.
Legislation is enacted law. In England the ultimate legislator is Parliament, for in our traditional constitutional theory Parliament is sovereign. It means first, that all legislative power within the realm is vested in Parliament, or is derived from the authority of the Parliament and it means secondly that there is no legal limit to the power of Parliament. Parliament may therefore, and constantly does, by Act delegate legislative powers to other bodies or even individuals but it may also, by Act remove these powers as simply as it has conferred them.
In the legislative sphere Parliament is thus legally ‘sovereign’ and master, but this doesn’t mean that the courts have no influence upon the development of the enacted law; for, in order to be applied, every enactment has to be interpreted, and the courts are the recognized interpreters of the law. The meaning of words is seldom self-evident; they will often bear two, or even more, possible interpretations and hence the courts must always exercise a considerable degree of control over the practical application of statutes (enactment of Parliament). The difficulty of interpretation may be illustrated by a simple example. Suppose that Old King Cole, who is an absolute despot, commands that all ‘dogs’ in his kingdom are to be killed. Suppose that Jack Sprat, one of his subjects, who has an Alsatian wolfhound, applies to the courts for a decree that it shall be spared, alleging that it is a ‘hound’ and that the royal command is only concerned with ‘dogs’. The court will have to decide whether the word ‘dogs’ is to be taken to embrace ‘hounds’: whichever way it decides, it will influence the practical application of the King’s command.
In all countries, in 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 in to determine the 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 involving similar facts, so that they are firmly grounded upon the actualities of the litigation and the reality of human conduct. Its principles are not firm and inflexible decrees. This characteristic of the common law contrasts, again with the European civil law where law is characteristically derived from a code; that is, from an enacted body of rules. Thus the task of the courts is deductive: to subsume the present case under the mantle of the generalized and codified rule. In principle this method carries the danger that the encoded rule may, being the work of a theorist divorced from reality, be out of touch with actual needs; and certainly in course of time it may become so, and thus may require judicial adaptation to meet changed conditions.
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 a court of superior authority if called upon to decide upon facts similar to facts already tried by the superior court. 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 statutes are interpreted by the courts, and the decision which is concerned with the interpretation of the statute is just as binding as any other decisions. 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. The courts therefore have freedom of choice in deciding which of the divergent authority to follow.
The administration of justice is not therefore a slot-machine process of matching precedents. 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 judgments upon the general principles enshrined in case-law as a whole. These principles have been evolved by the courts through the centuries: and, building precedent upon precedent, they have framed them with two ends in view. First, they have sought so to formulate them that their application may be capable of effecting substantial justice in particular cases; second, they have sought to make them sufficiently general in scope to serve as guides to lawyers faced with the task of giving advice in future legal disputes.
Customs are social habits, patterns of behavior, which all societies seem to evolve without express formulation or conscious creation. In a sense custom should be accorded pride of place 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 State. Thus, it will be seen that many of the fundamental rules governing the Constitution are ‘conventional’, rather than legal, rules.
But in modern times most general customs 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 if 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 during the course of the seventeenth and eighteenth centuries and indeed, they are still assimilating international banking practice.
On the Continent the writings of legal authors form an important source of law. In England, in accordance with our tradition that the law is to be sought on judicial decisions, their writings have in the past been treated with comparatively little respect. They have been cited in court, if cited at all, rather by way of evidence of what the law is than 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 for the law of their times but which also carry a weight of authority almost equal to that of precedents.
It must nevertheless be admitted that 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 Salmond’s Law of Torts is commonly referred to in court and even works of living authors, such as Smith and Hogan’s Criminal Law, 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.
2. Письменно ответьте на вопросы:
Why are the terms “written” and “unwritten” misleading?
What are the two main types of sources of law?
Why is the Parliament a sovereign in English traditional constitutional theory?
Can the English courts influence the effect of legislation?
Why is precedent called a hallmark and strength of the Common law?
In what way did the judges seek to formulate the precedents?
Is custom important as a source of law (1) in the history of the law?
(2) in England today?
Are books of authority more important as a source of law in England or on the Continent?
3. Найдите в тексте и выпишите предложения с указанными грамматическими явлениями. Переведите предложения на русский язык:
а) модальные глаголы и выражения:
may
must
can +V
should
be to
be bound to
to be obliged to
б) времена активного и пассивного залога:
Present Simple Active |
V |
Present Progressive Active |
am |
Present Perfect Active |
have |
Past Simple Active |
Ved/2 didn’t V |
Future Simple Active |
will V |
Present Simple Passive |
am is +Ved/3 |
Past Simple Passive |
was + Ved/3 |
Present Perfect Passive |
have +Ved/3 |
Future simple Passive |
will be Ved/3 |
4. Определите правильный перевод выделенных в тексте слов:
principal
а) принципиальный б) главный с) важный
remove
а) лишить б) удалить с) убрать
application
а) заявление б) применение с) нанесение
4) subject
а) предмет б) поданный с) субъект
5) issue
а) выпуск б) публикация с) вопрос
6) divorced
а) разведенный б) отделенный с) оторванный
7) actual
а) актуальный б) реальный с) действующий
8) binding
а) связывающий б) сдерживающий с) принудительный
9) refer
а) передавать б) ссылаться с) иметь отношение
10) submissions
а) представление б) повиновение с) подача (документов)
5. Завершите отрывок словами и выражениями из списка:
The Importance of Legislation as a Source in English and Continental Law
In many (1) 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 judicial (8) is the main source of the law.
partnership e) English
enacted f) judicial precedent
Continental g) legislation
unwritten h) codified
6. Изучите Curriculum Vitae (CV) – (документ, содержащий Ваши личные, образовательные и профессиональные данные) и на его примере составьте свой вариант:
Daniel Lidell Henderson
1283 E. Virginia Avenue / Denver, Colorado 80209 / 341-952-5382 / Henderson@yahoo.com
Education: University of Dayton School of Law, Dayton, Ohio.
Juris Doctorate May 2006
Central College, Pella, Iowa.
Bachelor of Arts Degree in Business Management/Marketing
Received Diploma August 2000
Minor in Political Science
International University of London, London, England.
Studies: University of Havana, Havana, Cuba.
Honors: Brother Fritz Community Service Award – University of Dayton School of Law; Dean’s List - Central College; Central College Scholarship Recipient; Kuyper Award.
Legal Summer Associate, The Joffe Law Firm – Denver, Colorado.
Work Criminal law work consisting of writing and research for appellate and state Supreme Court. Daily Experience: case management and research skills used for brief and memorandum writing. Joined counsel
for client prison visits and self managed several research projects for a number of firm attorneys.
Intake Specialist, Greater Dayton Volunteer Lawyers Project – Dayton, Ohio.
Worked personally with a variety of clients in the areas of bankruptcy, divorce, and client intake. Helped clients apply for and work through paper work, filing, and applications. Also acted as a student liaison for the UDSL Volunteer Student Lawyers Project helping law students in their work
Summer Associate, Corporon, Elyer, & Katz L.L.C. – Denver, Colorado.
Research work for small corporation firm on a variety of subject matters and issues. Used a variety of research systems including Westlaw and LexisNexis.
Other Technical Recruiter, Apex Systems, Inc. – Denver, Colorado.
Relevant Engaged in client interviews, skills assessment, and recruitment of temporary and permanent
Work placement of IT, engineering and telecommunications professionals for several large corporations
Experience: and federal agencies. Managed own clients and employees throughout employment projects.
Sales Consultant, Pella Windows & Doors, Inc. – Denver, Colorado.
Extensive face-to-face work with commercial and residential clients to give them a functional understanding of the various product lines. Daily performed presentations corresponded with contractors, contract negotiations, and managed individual projects. Trained specifically in sales techniques, marketing promotions, presentation skills, and office, publishing, and entry programs.
Research Assistant, Central College, Political Science Department – Pella, Iowa.
Worked directly with Professor to provide research, writing, and analysis of overall project. Played an important role in the final writing and national published paper.
Account Manager, BFP Momentum-London (McCann Erickson Worldwide) – London, England.
Worked in a global event-marketing firm that specialized in experiential marketing. Focusing on sales promotion, sponsorship consultancy, presence marketing, and event production design. Worked on a team that allowed customers to experience brand values at retail locations, and through events and live promotions. Personal accounts included Ford Motor Company, Martini Rossi, Lucent Technologies, Nescafe, Bacardi Rum, Quorn, and Bird’s Eye Foods.
Activities University of Dayton School of Law, Dayton, Ohio, 2003 – Present:
& Interests: Executive President of the Student Bar Association (SBA) 2005-06; Vice President of UDSL SBA 2003-04; Re-Elected for 2004-05; Vice-President of Volunteer Student Lawyers Project (VSLP) 2005-06; Former Training Coordinator, Founding Member, & Board Member of (VSLP)- UDSL Chapter; Fundraising Board Member of Sports Law Society – UDSL; Academic Excellence Program (AEP) – UDSL; Attendee of ABA/NLADA Equal Justice Conference in Atlanta, Georgia; Worked for The Greater Dayton Volunteer Lawyers Project helping indigent individuals in 2005.
Central College, Pella, Iowa, & Pre-Graduate School Activities 1996 – 2003:
Treasurer of Central College Business Organization, Resident Advisor, Economics Club, Dormitory Hall and Town House Councils, Spanish Foreign Language member, and Career Development Society. Member of various on campus committees such as international study, new business organizations, alcohol policy reform, and study abroad. Collegiate football athlete, Central Club member (Varsity Athletic Organization), and a very active intramural athletic captain.
References: Available upon request.
Это довольно большая контрольная работа по английскому.
