Continental systems

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. Thus it was necessary for the legislators to speculate quite comprehensively about human behavior rather than simply looking at previous cases.

The Continental civil law is derived from a code; that is, from an enacted body of rules either embodying the whole or some considerable part of the law, or embracing some special aspect of it.

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 judgements, 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 — perhaps 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law has never been codified, and French courts have produced a great deal of case law in interpreting codes that become out of date because of social change.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.

Despite this, it is also important not to exaggerate similarities among systems within the Continental tradition. For example, while adopting some French ideas, such as separation of the legislature and judiciary, the late nineteenth century codifiers of German law aimed at conserving customs and traditions peculiar to German history. Canon law had a stronger influence in countries with a less secular ideology than France, such as Spain.

Give Russian equivalents for the following English word combinations from the text:

1. to adopt a law, 2. court ruling, 3. to administer law, 4. to apply the law, 5. ascendancy (over), 6. to exercise discretion, 7. enacted law, 8. sovereignty, 9. itinerant justice, 10. to delegate powers, 11. to pay damages, 12. to seek specific performance.

Match the words in the left hand column with their synonyms in the right hand column.

1. to preponderate	a) deviating, different
2. equitable	b) to interpret, explain
3. to derive (from)	c) decisive, final
4. rigid	d) to dominate, prevail, outweigh
5. to evolve	e) law, decree, statute
6. biased	f) to develop, originate
7. divergent 8. to exaggerate	g) compulsory, obligatory, coercive, restrictive, limiting
9. authority	h) power, weight, ability
10. to construe	i) just, fair, unbiased, impartial
11. ultimate	j) to defy, dispute, confront
12. binding	k) to contemplate, consider, reflect
13. enactment	l) to develop, advance
14. to challenge	m) inflexible, severe, strict
15. to speculate	n) prejudiced, partial, predisposed, unfair
	o) to overstate, magnify, embellish

Answer the questions on the text using your active vocabulary:

1. What are two predominant legal systems?

2. Speak about the history and sources of common law system.

3. Speak about the history and sources of Continental law system.

4. Explain the essence and application of the doctrine of precedent.

5. Why did Bacon call precedents the ‘anchors of the laws’?

6. Explain the meaning of Parliamentary sovereignty.

7. Why are English courts recognized interpreters of the law?

8. What is Equity Court and its main principle?

9. How do Continental systems usually differ from common law systems?

10. Is there a complete similarity among systems within the Continental tradition?

Here is some more information about the legal sources of English law. Read the text and explain the meaning of the word combinations in bold type.

TEXT 2

• Custom is the original source of English law. In recent years, however, there has been a tendency to standardize law by statute. This has led to the decline of custom as the source of law so that it is now almost extinct.

• Judicial precedent. The doctrine of binding precedent did not become firmly established until the second half of the 19^th century. Judges merely tried to do justice in each individual case. This system lacked certainty and criticism was strong. From about 1700 the court began to pay increasingly greater respect to its previous decisions. Nowadays the volume of statute law is increasing rapidly, but the importance of case law is not decreasing. When a judge is faced with a case where there is no existing precedent and no provision in an Act of Parliament, the judge must of necessity create new law. Precedent is therefore a very important source of law.

• Legislation is the most important source of law. Statutes are passed by Parliament. In practice they often amend, sometimes abolish established rules of common law and equity, overrule the effects of decisions of the courts, or make entirely new law on matters which previously have not been the subject of legislation. The rationale for the supremacy of legislation is that the will of elected representatives should prevail over that of appointed judges.

Define whether the following statements are true or false. Justify your choice.

1. Custom still remains the main source of English law.

2. Nowadays the volume of statute law is decreasing rapidly.

3. In case of necessity the judge must create new law.

4. Precedent is now almost extinct.

5. Statutes often amend, sometimes abolish established rules of common law.

6. Legislation is the most important source of law.

Read the text and think of the title to it.

TEXT 3

In all countries, at 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 upon to determine 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 to decision involving similar facts, so that they are firmly grounded upon the actualities of litigation and the reality of human conduct. And new cases lead onwards to reach forward to new rules. Its principles are to employ a popular phrase ‘open ended’; they are not firm and inflexible decrees. This characteristic of the common law contrasts with the European civil law.

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, as noted above, in course of time it may become so, and thus may require judicial adaptation to meet changed conditions. But in practice many codes are really restatements of rules previously embodied in the opinions of jurists or from case law or from custom or from some other tried and tested source.

Although the approach to legal decision is on the one hand inductive at common law and on the other hand deductive in the Continental civil law, in reality the two systems are not quite so divergent as might appear. One thing, however, which is distinctive of the English system is that because the English judge has, through precedent, power to make new law his position in the legal system is central. 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 (‘bound by’) a court of superior authority if called upon to decide upon facts similar to facts already tried by the superior court.

Explain the following notions from the text. Translate them into Russian:

inductive rules, deductive rules, “open ended”, binding case, divorced from reality

Fill in the table using pieces of information below it:

	English law	Continental law
A Type of legal system
B Basic characteristic of system
C Style of legal reasoning
D Legal principles
E Other characteristics

A 1. civil law

2. common law

В 1. central importance of enacted law

2. central importance of precedent

С 1. inductive (decisions reached by reasoning from general rules to particular cases)

2. deductive (reasoning in individual cases leads to general rules)

D 1. principles are flexible

2. principles are based on real facts

3. in time fixed principles may not correspond to changing circumstances

4. principles develop in individual cases

5. general enacted principles are applied to individual cases

E 1. original source of principles may be case-law, custom, etc.

2. inferior courts must follow decisions of superior courts

3. central position of judges

Read the text and make a plan of its main points.

TEXT 4