Sources of modern law

List of words.

Read and learn the words.

appeal	апеллировать, обжаловать
be bound	вынужденный, обязанный
beneficiary	бенефициарий, лицо, получающее доходы с доверительной собственности
canon law	каноническое право, предписанный закон
case	судебное дело
civil	гражданский
claim	требование, право, иск
codify	кодифицировать
common law	общее право
criminal	преступный, уголовный
doctrine of precedent	доктрина прецедента
egalitarian	уравнительный, эгалитарный
equity	справедливость, беспристрастность
guilt	вина, виновность
innocence	невинность, невиновность
lord chancellor	лорд-канцлер
precedent	(судебный) прецедент
specific performance	реальное (особое) исполнение
statute	статут, законодательный акт

Ex.1 Match the words with their definitions.

precedent	a permanent rule made by a body or institution
specific performance	an action or suit at law
statute	a system of jurisprudence founded on principles of natural justice
case	a judicial decision that serves as an authority for deciding a later case
equity	a remedy awarded by a court requiring a person to fulfill obligations under a contract

Ex. 2. Make up word combinations by matching the word from A with its best association from B and translate them.

A	B
to fulfill	specific performance
to seek	precedent
monetary	a contract
the doctrine of	chancellor
lord	compensation
a breach of	a contract

Ex.3. Think of your own sentences with the following word combinations.

To become precedents, to be based on, Commonwealth countries, to influence, to prevail, to define, to codify, to apply the law, disputes between individuals, uniform application of the law, gradual development, the doctrine of precedent, to be bound, guilt, innocence, equity, to be dissatisfied, lord chancellor, to be enforced, to fulfill a contract, beneficiary, a breach (breaking) of a contract, a claim, to seek specific performance, monetary compensation, damages, to pursue, equitable claims.

Ex.4 Read the text

Sources of modern law

Each country in the world has its own system of law. There are two main traditions of law in the world. One is based on English Common law and the other is Continental, or Roman law. The legal system in many countries, including Australia, Canada (except Quebec), Ghana, Hong Kong, India, Jamaica, Malaysia, New Zealand, Pakistan, Tanzania, the USA (except Louisiana), the Bahamas and Zambia, is based on common law. Continental, or Roman law has developed in most continental Europe, Latin America and in many countries in Asia and Africa. It has also influenced Japan.

Common law is a system of law that prevails in England and in countries colonized by England. The name is derived from the medieval theory that the law administered by the king's courts represented the common custom of the kingdom, as opposed to the custom of local jurisdiction that was applied in local courts.

The common law consists of the substantive law and procedural rules that are created by judicial decisions made in the courts. Although legislation may override such decisions, the legislation itself is subject to interpretation and refinement in the courts.

Essential to the common law is the hierarchy of the courts in all of the UK jurisdictions and principle of binding precedent. In practice, this means that decision of a higher court is binding on a lower court, that is, the decision must be followed, and in the course of a trial the judges must refer to existing precedents. They will also consider decisions made in a lower court, although they are not bound to follow them. However, a rule set by a court of greater or equal status must be applied if it is to the point – relevant or pertinent. 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 decisions would become a precedent for other courts to follow when a similar case arose. The doctrine of precedent is still a central feature of modern common law systems. Courts are bound by the decisions of previous courts unless it can be shown that the facts differ from previous cases. Sometimes governments make new laws—statutes to modify or clarify the common law, or to make rules where none existed before.

Continental systems are sometimes known as codified legal systems. They have resulted from attempts by government 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 behavior rather 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 judgments, and to apply new egalitarian social theories to the law.

Many countries can be said to have belonged to the Roman tradition long before codifying their laws, and large uncodified or uncodifiable areas of the law still remain. French public law has never been codified, and French courts have produced a great deal of case law in interpreting codes that become out of date because of social change. The clear distinction between legislature and judiciary has weakened in many countries, including Germany, France and Italy, where courts are able to challenge the constitutional legality of a law made by parliament.

The original difference is that, historically, common law was law developed by custom, beginning before there were any written laws and continuing to be applied by courts after there were written laws, too, whereas civil law (continental laws) developed out of the Roman law.

The difference between civil law and common law lies not just in the mere fact of codification, but in the methodological approach to codes and statutes. In civil law countries, legislation is seen as the primary source of law. By default, courts thus base their judgments on the provisions of codes and statutes, from which solutions in particular cases are to be derived. By contrast, in the common law system, cases are the primary source of law, while statutes are only seen as invasions into the common law and thus interpreted narrowly.

There are other notable differences between the legal methodologies of various civil law countries. For example, it is often said that common law opinions are much longer and contain elaborate reasoning, whereas legal opinions in civil law countries are usually very short and formal in nature. This is in principle true in France, where judges cite only legislation, but not prior case law.

There are, however, certain sociological differences. In some Civil law countries judges are trained and promoted separately from attorneys, whereas common law judges are usually selected from reputable attorneys. In the Scandiavian countries judges are attorneys who have applied for the position, whereas France has a specialized graduate school for judges.

Ex. 4 Answer the questions.

1. How many traditions of law do you know?

2. What are they?

3. Where does Common law prevail?

4. Where has common law taken its name from?

5. Do judges just apply the law?

6. What is the main idea of the doctrine of precedent?

7. What is the other name for continental systems?

8. What have they resulted from?

9. What is the main idea of the Continental systems?

10. What were the reasons for making new laws?

11. Are there similarities among systems within the Continental tradition?

12. What is the difference between Common law and Continental law?

Ex. 5 Decide if the following statements are True or False.

1. Each country in the world has its own system of law.

2. There are three main traditions of law in the world.

3. One is based on French Common law.

4. The other is Continental, or Romanian law.

5. Common law is a system of law that dominates in England and in countries colonized by England.

6. If no precedent could be found, then the judge made a decision based upon existing legal principles.

7. The decisions made by the judge became a precedent for other courts to follow when a similar case arose.

8. The doctrine of precedent is not any more a central feature of modern common law systems.

9. Every day governments make laws—statutes to modify or clarify the common law, or to make rules where none existed before.

10. Continental systems are sometimes known as codified legal systems.

11. The have resulted from attempts by government to produce precedents.

12. Legislators wanted to break with previous case law.

13. Few countries can be said to have belonged to the Roman tradition long before codifying their laws.

14. The clear distinction between legislature and judiciary has increased in many countries, including Germany, France and Italy.

15. Canon law had a weaker influence in countries with a less secular ideology than France, such as Spain.

Ex.6. Develop the following sentences.

1. Each country in the world has…

2. There are two main traditions …

3. One is based on…

4. The other is…

5. Common law is a system…

6. The name is derived from…

7. Common law developed through history, not as a result of…

8. The main idea of the doctrine of precedent is…

9. If the essential elements of a case were the same …

10. If no precedent could be found…

11. Sometimes governments make new laws…

12. Continental systems are sometimes known as…

13. They have resulted from…

14. It was necessary for the legislators to…

15. Many countries can be said to have belonged to the Roman…

16. The clear distinction between legislature and judiciary…

17. Canon law had a stronger influence in …

Ex.7. Make of distinct features of Common law and Continental law.

Ex.8. Compare the features of Common law and Continental law. Find similarities and differences in their duties, using the following connectors:

alike similar to dissimilar to

both neither…..nor different from

Ex. 9. Write down key words, phrases and sentences from each paragraph of the text.

Ex.10. Reduce the text to one fifth of its original length giving the most important information.

1. Make an outline of the text consisting of 5-8 sentences.

2. Retell the text according to its outline.