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Англійська моваДата публикации: 26.10.2016 10:10
Legal Education in Great Britain
Warming-up:
Task 1. Read the text quickly and decide which paragraph:
LawA)The Law course at Cambridge is intended to give a thorough grounding in the principles of law viewed from an academic rather than a vocational perspective. There are opportunities to study the history of law and to consider the subject in its wider social context. The emphasis is on principle and technique. Skills of interpretation and logical reasoning are developed, and students are encouraged to consider broader questions such as ethical judgement, political liberty and social control. B) Although many undergraduates who read law do so with the intention of practising, many do not, preferring instead to go into administration, industrial management or accountancy. Candidates intending to read law need not have studied any particular subject at school. It is as common for undergraduates to have a scientific or mathematical background at A-level as it is for them to have studied history or languages. C) Undergraduates reading law for three years take PartIA of the Tripos at the end of the first year. This comprises four papers: Criminal Law, Constitutional Law, the Law of Tort and Roman Law. In the second year five subjects are studied for Part IB of the Law Tripos which is taken at the end of the year. The range of subjects on offer is wide – from Family Law to International Law – though in practice most undergraduates take Contract and Land Law as two of their papers. In the third year, five subjects are studied for Part II of the Tripos. The range of options is even wider then in Part IB. According to preference an undergraduate may develop his or her interest in property law (including trusts and conveyancing law), commercial law, public law (including Administrative Law and EEC Law), or in more academic and sociological aspects of law, such as Jurisprudence, Legal History, Labour Law and Criminology. Candidates may also participate in the seminar course, submitting a dissertation in place of one paper.D) Candidates for the postgraduate LL.M. take any four papers selected from a wide range of options in English Law, Legal History, Civil Law, Public Law, International Law, and Comparative Law and Legal Philosophy.
Task 2.Give the English equivalents of the following word-expressions: Кримінальне право, бути спрямованим, професійна перспектива, спонукати, екзаменаційний курс, приймати участь в семінарах, філософія права, випускник університету, адміністративне право, соціальний контекст, тлумачення закону, вивчати право, практикувати право, наукова база, предмет за вибором, представити дисертацію.
Task 3. Match the English and the Ukrainian equivalents:
Task 4. Read and decide if the following statements are true or false:
Task 5.Complete the sentences using the following words:
Task 6.Read the text and choose the correct word in brackets: The Law course at Cambridge (is intended/intended) to give a thorough grounding in the principles of law viewed from an academic rather than a vocational perspective. There are (opportunities/possibilities) to study the history of law and to consider the subject in its wider social context. The (emphasis/emphasies) is on principle and technique. Skills of interpretation and logical reasoning are (develop/developed), and students are encouraged to consider broader questions such as ethical judgement, political liberty and social control. Although many (undergraduates/ undergraduates) who read law do so with the intention of practicing, many do not, preferring instead to go into administration, industrial management or accountancy. Candidates intending to read law need not have (studied/study) any particular subject at school. It is as (common/usual) for undergraduates to have a scientific or mathematical background at A-level as it is for them to have studied history or languages. Undergraduates (read/reading) law for three years take PartIA of the Tripos at the end of the first year. This comprises four (papers/paper): Criminal Law, Constitutional Law, the Law of Tort and Roman Law. In the (first/second) year five subjects are studied for Part IB of the Law Tripos which is taken at the end of the year. In the (third/ three) year, five subjects are studied for Part II of the Tripos. Candidates for the (graduate/postgraduate) LL.M. take any four papers selected from a wide range of options in English Law, Legal History, Civil Law, Public Law, International Law, and Comparative Law and Legal Philosophy.
Task 7.Match the words and their definitions:
Task 8.Find words or phrases in the text which mean the following:
- abilities; - the process of logical thinking; - relating to moral principles.
- follow a course (such as Law or Medicine) at university; - working in a profession; - to work in.
- examinations; - things you can choose; - a long piece of academic written work.
- If LL.B. means Bachelor of Laws, what do you suppose LL.M. means?
Task 9.Answer the following questions:
Task 10.Choose the right form of noun in the brackets:
Task 11.Questions to debating:
Task 12.Read and comprehend the text: LawSchool is the term used in the United States to indicate an institution where future lawyers obtain legal degrees. In the U.S. law is a graduate degree, which students embark upon only after completing an undergraduate degree in some other field; the undergraduate degree can be in any field. In most cases the degree granted by American law schools in the Juris Doctor, or J.D., degree. Other degrees that are awarded include the Master of Laws degree (LL.M.) and the Doctor of Juridical Science degree (J.S.D.). A law school is usually an autonomous entity within a larger university and is considered to be a graduate or professional school program. In the United States, most schools require a bachelor’s degree (LL.B.), a satisfactory undergraduate grade point average, and a satisfactory score on the Law School Admissions Test (LSAT) in order to be considered for admission. Some States that have non-ABA (American Bar Association) approved schools or State-Accredited schools have equivalency requirements that usually equal 90 credits toward a bachelor’s degree. Additional personal factors are evaluated through essays, short-answer questions, letters of recommendation, and other application materials. The standards for grades and LSAT scores vary from school to school. Highly-regarded law schools accept only those applicants with very high LSAT scores, or financial and political leverage. Individual factors are also very important, although applicants are virtually never asked to interview as part of the application process. Such factors are evaluated through other application materials. Most law schools now factor in extracurricular activities, work experience, and unique courses of study in their evaluation of applicants. Students considering law school should note that although law school tuition is notoriously high, it is not uncommon for law students to receive grants and scholarships, or more rarely complete tuition waivers, from their schools. A student who could get into a “better” school – has a good chance of being offered some kind of scholarship by the lower-ranked school. Law students are referred to as 1Ls, 2Ls, and 3Ls, based on their year of study. In the United States, the American Bar Association mandates a curriculum for 1Ls that includes: - Civil procedure - Constitutional law - Contracts - Criminal law - Decision making - Legal research - Legal writing - Property - Torts These basic courses are intended to provide an overview of the broad study of law. Not all ABA-approved law schools offer all of these courses in the 1L year; a significant number of schools make constitutional law and/or criminal law required upper-level courses. Some schools roll legal research and legal writing into a single year-long “lawyering skills” course, which may also include a small oral argument component. The law school curriculum, ironically, results in lawyers who are ill-prepared for the realities of lawyering. Although students may know how to do legal research, they are not trained in dealing with clients, opposing counsel or how to navigate the court system. Some schools offer courses in negotiation, discovery procedures, trial advocacy and argument. However, actual lawyering is learned on the job. After the first year, law students are generally free to pursue different fields of legal study, such as administrative law, corporate law, international law, admiralty law, intellectual property law, and tax law. They may also take clinics, which offer hands-on experience providing free legal services to the surrounding community. Many law students participate in internship programs during their course of study. Some become assistants (“clerks”) for local, state, and federal judges; others work in law firms, corporations, or legal aid clinics. Examinations usually entail interpreting the facts of a hypothetical case, determining how legal theories apply to the case, and then writing an essay. The process is intended to train students in the reasoning methods necessary to interpret theories, statutes, and precedents correctly, and argue their validity, both orally and in writing. In contrast, most civil law countries base their legal education on professorial lectures and oral examinations, which are more suited for the mastery of complicated civil codes.
Task 13.Check if you can guess the meaning of these words: embark upon; award; equivalency;requirements;evaluate;leverage;factor in;extracurricular activities;tuition;notoriously;scholarship;waiver;mandate;navigate the court system;negotiation.
Task 14.Match Ukrainian and English equivalents:
Task 15.Fill in the gaps with a, an and some where necessary:
Task 16.Give the plural form of the given nouns. Pay attention to the countable and uncountable nouns: Dictionary, university, student, information, subject, degree, course, advice, law, opportunity, education, emphasis, technique, knowledge, liberty, accountancy, postgraduate;
Task 17.Make up your own sentences using the words which are given. Pay attention to the verb: Education, information, advice, knowledge, justice, help, behaviour, news, liberty, research;
SUPPLEMENTARYREADING
CAMBRIDGE— A UNIVERSITY TOWN Unlike Oxford, which is both a university town and an industrial city, Cambridge, as the saying goes, "is" the University. Cambridge without the University is like Hamlet without the hero, or bacon without eggs. Although sometimes Town and Gown have their quarrels, the two are for the most part inseparable. In spite of this, we shall in fact now separate them for a moment, just to see how each of them has grown up. All right then, first let's look at the town. Cambridge is so called because most of the town is built on the east side of the River Cam, a tributary of the Ouse. Slight hills rise gently on the south and west. Roman remains suggest the existence of a small town first situated around two hills, Castle Hill and Market Hill. Even today these two hills may be said to dominate the town. This is certainly true for those poor students who have to cycle up the steep slope1 of Castle Hill on the way to lectures. Or even more true for those who risk cycling down it at top speed when their brakes are not working very well. Many shoes are worn out in this way. Market Hill still retains its importance too. Every day, and especially on Saturdays, its cobbled square is the scene of a busy market, selling all kinds of fruit, vegetables, groceries, trinkets, antiques, etc. Housewives come here to haggle (bargain) for their food, and students come in search of cheap books, which you can still buy for 6 p. or a shilling. The beauty of the city is enhanced by a large number of commons and other open spaces, including Jesus Green and Midsummer Common, Parker's Piece and the Backs. The Backs are the landscaped lawns and flower-beds, very beautiful especially in spring, through which the Cam winds behind the main line of University colleges, including Queen's, St. Catharine's, King's, Trinity and St. John's. The river also passes under a series of magnificent bridges, of which the Bridge of Sighs (in St. John's College), the old stone bridge of Clare College with thick stone balls on the parapets, and the Mathematical Bridge of Queen's are among the best known. So you see, the River Cam has led us already from Cambridge to the University, from Town to Gown. For modern Cambridge has been described as "perhaps the only true UniversityTown in England", and, indeed, the colleges provide the main architectural interest. The best known building in Cambridge is King's College Chapel (designed by Henry VI). Yet lofty spires and turrets" and fine stained-glass windows are notable features of the Chapel, which is one of the major monuments of English mediaeval architecture. Apart from this, there are now 22 colleges. The first one, Peterhouse, was founded in 1284, and in 1963 ChurchillCollege (named after Sir Winston). Until 1964, undergraduates (students studying for a first degree) had to wear black cloaks, called gowns, after dark, but now they are obliged to wear them for dinner and some lectures. This tradition is fast disappearing, but one which is still upheld is that of punting on the Cam. It is a favourite summer pastime for students to take food, drink, guitars (or, alas, transistor radios) and girl friends on to a punt (a long, slim boat, rather like a gondola) and sail down the river, trying very hard to forget about exams! Many students feel that they have not been christened into the University until they have fallen from a punt into the River Cam. This has almost become a tourist attraction. Students also have an official excuse to "let themselves loose" once a year (usually in November) on Rag Day. On this day, hundreds of different schemes are thought up to collect money for charity, and it is not unusual to see students in the streets playing guitars, pianos, violins, singing, dancing, fishing in drains for money, or even just lying in beds suspended over the street swinging a bucket for money to be thrown into. Such tradition, in such beautiful surroundings, often helps to make Cambridge almost as idyllic today as it was in the 13th century. The parking meters in the main street of King's Parade assert the presence of modern life, in contrast to the ancient chimes of the church bells in the evening. (By Terry Doyle)
CAMBRIDGE UNIVERSITY Cambridge is situated at a distance of 70 miles from London; the greater part of the town lies on the left bank of the river Cam crossed by several bridges. Cambridge is one of the loveliest towns of England; it is not a modern industrial city and looks much more like a country town. It is very green presenting to a visitor a series of beautiful groupings of architecture, trees, gardens, lawns' and bridges. The main building material is stone having a pinkish colour which adds life and warmth to the picture at all seasons of the year. The dominating factor in Cambridge is its well-known University, a centre of education and learning, closely connected with the life and thought of Great Britain. Newton, Byron, Darwin, Rutherford and many other scientists and writers were educated at Cambridge. In Cambridge everything centers on the University and its colleges. The oldest college is Peterhouse, which was founded in 1284. The most recent is RobinsonCollege, which was opened in 1977. The most famous is probably King's, because of its magnificent chapel. Its choir of boys and undergraduates is also very well known. The University was exclusively for men until 1871 when the first women's college was opened. Another was opened two years later and a third in 1954. In the 1970s, most colleges opened their, doors to both men and women. Almost all colleges now are mixed, but it will be many years before there are equal numbers of both sexes. Until today there are more than twenty colleges in Cambridge. There is a close connection between the University and colleges, though they are quite separate in theory and practice. Each college has its own building, its own internal organization, its own staff and students. In order to enter the university, one must first apply to a college and become a member of the university through the college. The colleges are not connected with any particular study. Students studying literature, for example, and those trained for physics may belong to one and the same college. However the fact is that one is to be a member of a college in order to be a member of the University. The colleges are governed by twenty or thirty "fellows". Fellows of a college are "tutors" (teachers, often called "dons"). Each tutor has 10-12 students reading under his guidance. Tutors teach their own subject to those students in the college who are studying it, and they are responsible for their progress. Every college is governed by a dean. Discipline is looked after by proctors and numerous minor officials called "bulldogs". The University is like a federation of colleges. It arranges the courses, the lectures and the examinations, and grants the degrees. A college is a group of buildings forming a square with a green lawn in the centre. An old tradition does not allow the students to walk on the grass: this is the privilege of professors and headstudents only. Most of the colleges, however, allow visitors to enter the grounds and courtyards. The most popular place from which to view them is from the Backs, where the college grounds go down to the river Cam. Students study at the University for four years, three terms a year. Long vacation lasts about three months. There are many libraries at Cambridge; some of them have rare collections of books. In one of them among the earliest books by Shakespeare and other great writers one may see an early description of Russia by an Englishman on diplomatic service there (in 1591) and a Russian reading book of the seventeenth century.
THE NATURE OF LAW
Warming up: 1. Give the examples of customs, principles of morality and legal rules. What legal rules are formed out of the customs of the people? 2. Who creates laws? Who is responsible for fairly and just administration of law?
Vocabulary notes:
THE NATURE OF LAWThe term 'law' is used in many senses: we may speak of the laws of physics, mathematics, science, or the laws of football. When we speak of the law of a state we use the term 'law' in a special and strict sense, and in that sense law may be defined as a rule of human conduct, imposed upon and enforced among, the members of a given state. People are by nature social animals desiring the companionship of others, and in primitive times they tended to form tribes, groups, or societies, either for self-preservation or by reason of social instinct. If a group or society is to continue, some form of social order is necessary. Rules or laws are, therefore, drawn up to ensure that members of the society may live and work together m an orderly and peaceable manner. The larger the community (or group or state), the more complex and numerous will be the rules. If the rules or laws are broken, compulsion is used to enforce obedience. We may say, then, that two ideas underline the concept of law: (a) order, in the sense of method or system; and (b) compulsion - i.e. the enforcement of obedience to the rules or laws laid down. When referring to 'the law' we usually imply the whole of the law, however it may have been formed. As we shall see later, much of English law was formed out of the customs of the people. But a great part of the law has been created by legislation, i.e. the passing of laws. Common law and statutory law together comprise what is referred to as the 'Law of England'. People resort to various kinds of rules to guide their lives. Thus moral rules and ethics remind us that it is immoral or wrong to covet, to tell lies, or to engage in drunkenness in private. Society may well disapprove of the transgression of these moral or ethical precepts. The law, however, is not concerned with such matters and leaves them to the individual's conscience or moral choice and the pressure of public opinion: no legal action results (unless a person tells lies under oath in a court, when he or she may be prosecuted for perjury). Thus there is a degree of overlap between moral and legal rules. Law serves a variety of functions. Laws against crimes, for example, help to maintain a peaceful, orderly, relatively stable society. Courts contribute to social stability by resolving disputes in a civilized fashion. Property and contract laws facilitate business activities and private planning. Laws limiting the powers of government help to provide some degree of freedom that would not be otherwise possible. Law has also been as a mechanism for social change, for instance, at various times laws have been passed to inhibit social discrimination and to improve the quality of individual life in matters of health, education, and welfare. We sometimes think of laws as being laid down by some authority such as a monarch, dictator, or group of people in whom special power is vested. In Britain we can point to legislation for examples of law laid down by a sovereign body, namely Parliament. The legal author John Austin (1790-1859) asserted that law was a command of a sovereign and that citizens were under a duty to obey that command. Other writers say that men and women in primitive societies formed rules themselves, i.e. that the rules or laws sprang from within the group itself. Only later were such rules laid down by a sovereign authority and imposed on the group or people subject to them. Clearly, unless a law is enforced it loses its effectiveness as a law and those persons subject to it will regard it as dead. The to secure obedience of law is that it is enforced, such enforcement being today carried out by the State. Thus if A steals a wallet from В, it may be prosecuted before the court and may be punished. The court may then order the restitution of the wallet to its rightful owner, B. The 'force' used is known as a sanction and it is this sanction which the State administers to secure obedience to its rules. The law is a living thing and it changes through the course of history. Changes are brought about by various factors such as invasion, contact with other races, material prosperity, education, the advent of new machines or new ideas or new religions. Law responds to public opinion and changes accordingly. Formerly the judges themselves moulded and developed the law. Today an Act of Parliament may be passed to change it. People desire justice in their personal, social and economic dealings. There is no universal agreement on the meaning of justice, and ideal or perfect justice is difficult to attain in this life. People strive for relative justice, not perfect justice; and good laws assist to that end. It is the business of citizens in a democracy to ensure that wise laws are passed and that they are fairly administered in the courts of law.
Task 1. Read the text carefully and decide if the following statements are true or false. Add some other information: 1. When we speak of the law of a state we may speak of the laws of physics, mathematics, science, or the laws of football. 2. As the law of the state law may be defined as a rule of human conduct, imposed upon and enforced among, the members of a given state. 3. Rules or laws are drawn up to ensure that members of the society may live and work together m an orderly and peaceable manner. 4. If the rules or laws are broken no compulsion is used to enforce obedience. 5. A great part of the law has been created by the customs of the people 6. Laws were being laid down by some authority such as a monarch, dictator, or group of people in whom special power is vested. 7. Unless a law is enforced it doesn’t lose its effectiveness 8. Formerly the judges themselves moulded and developed the law. 9. It is the business of authorities in a democracy to ensure that wise laws are passed.
Task 2. Give Ukrainian equivalents for the following words and expressions: conduct, to impose, obedience, transgression, ethical precepts, to be under a duty, to develop the law, facilitate business activities, to mould the law, the individual's conscience, compulsion, statutory law, to attain justice, to draw up the law, economic dealings, to provide freedom, pressure of public opinion, a degree of overlap, social change, to secure obedience, to administer the law, to carry out enforcement, to impose rules, to lay down laws Task 3. Give English equivalents for the following words and expressions: правила людської поведінки, не схвалювати правопорушення, розглядати судові справи, утворений зі звичаїв, товариство інших, підтримувати порядок, частковий збіг між нормами моралі та юридичними законами, , забезпечувати слухняність, етичні принципи, суспільний правопорядок, забезпечувати дотримання закону, забороняти соціальну дискримінацію, укладати закони, член суспільства, гарантувати слухняність.
Task 4.Find in the text words that go with the following nouns:
Task 5. Match the following words and expressions with their Ukrainian equivalents: I.
Task 6. Choose the synonyms from the box:
Task 7. Write down the word families of the following words and translate them:
Task 8. Translate into English:
а) підтримка порядку у суспільстві б) розв’язує суперечки цивілізованим шляхом в) підтримує економічну діяльність г) обмежує владу уряду, запроваджує свободу членів суспільства д) забороняє соціальну дискримінацію.
Task 9. Use the information given in the text to answer the following questions. Discuss your answer with other members of the class: 1.Why did people tend to form tribes in primitive times? 2. What formed English Law? 3. Are legal rules and actions distinguished from other means of social control? 4. Do people suffer any penalty when they break moral rules and ethics? 5.Who formed rules and laid down laws in ancient times? 6. What factors brought changes into the law? 7. What are the main functions of the law? 8. Who develops the law in Great Britain nowadays? 9. Who is to ensure passing of wise laws in a democracy?
Task 10. Discuss your ideas in pairs and then exchange opinions with the whole class: 1. Can any society do without laws? 2. It is the business of citizens in a democracy to ensure that wise laws are passed.
Task 11. Read and translate the text:
THE NOTION OF LAWThe English word «law» refers to limits upon various forms of behaviour. Some laws are descriptive: they simply describe how people usually behave. Other laws are prescriptive - they prescribe how people ought to behave.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. If people break these rules they do not suffer any penalty, but they may be criticized by other members of the society. Moreover, the people who do not observe these unofficial rules of behaviour can remain in isolation as the people around them may refuse to deal with them. Laws are rules that are supported by the power of government. The whole system of punishment exists for those who do not wish to obey these official rules. The person who breaks the law is called an offender or a law-breaker. There are offences against international law and order, offences against property, against public order, against the person, against the state, etc. Laws may be written and unwritten. These traditional terms are misleading, because the expression «written» law signifies any law that is formally enacted or passed by Parliament, and the expression «unwritten» law signifies all unenacted laws, that is the laws not passed by Parliament. On the Continent the volume of written law is more than the volume of unwritten. It can be explained by the fact that under the influence of the Napoleon Code many continental countries have codified their law. In England in accordance with the tradition many laws have never been enacted, they have derived from judicial precedent. That is why in Great Britain unwritten law is predominant. This does not mean that none of English law is codified. It only signifies that though Parliament «produces» a lot of acts, there is no whole system of codification, which prevails in many continental countries.
Task 12.Find in the text the words of the same root: to describe; prescription; behaviour; to relate; observation; official; to isolate; refusal; to punish; existence; abeyance; to offend.
Task 13. Answer the questions: 1) What is the difference between prescriptive and descriptive laws? 2) Are customs formal rules of behaviour? 3) Do people suffer any penalty when they break customs? 4) When can people remain in isolation? 5) What may happen to a person who does not obey laws? 6) Is there any difference between the terms 'an offender' and «a law-breaker»?
Task 14. Complete the sentences: 1) The person who breaks the laws is called .... 2) The people who do not observe customs may .... 3) Laws are rules that ... 4) The whole system of punishments exists for those .... 5) Descriptive laws simply .... 6) Prescriptive laws show ....
Task 15. Make up sentences using the key words and expressions: 1) to break // to suffer penalty // unofficial rules 2) isolation // to remain // not to observe 3) the system of punishment // not to obey // to exist 4) offender // to call // to break the law 5) to regulate // relations // prescriptive laws
Task 16. Translate the text into Ukrainian:
THE LAW The Law and the Church are powerfully interlocked with the History of Britain. Both judges and bishops sit in the house of Lords, and are honoured with ancient titles. Both reached a climax of fame in Victorian times. Both have been intensely conservative and resistant to change—as their votes in the House of Lords showed. The Victorian prestige of the law is expressed in the Royal Courts of Justice, built in 1880 when the profession was at its height. A broad doorway leads into a fake-medieval hall, like a stripped-down cathedral, another with big black-letter notices announcing “Lord Justice’s Court”, or “Wash and Brush Up”. Ordinary dark-suited men carrying blue or red bags walk into a room by entrance, and emerge a few minutes late solemnly wearing horse-hair or nylon wigs and flowing gowns. The conservatism of English lawyers is reinforced by their strict division into solicitors and barristers – found only in New Zealand, South Africa, New South Wales and Great Britain. Only solicitors are allowed to deal directly with the public. They perform all routine business: but when they have to take care to the central courts, they must employ a barrister to plead. A barrister is required to have reached an accepted educational standard, to have passed the legal examinations conducted by the Council of Legal Education and to have become a member of the Inns of Court.
SUPPLEMENTARY READING
Task 1. Read and translate the following text: LEGAL LANGUAGELegal writing in English has developed over hundreds of years and is characterized by specific features, some of which can make it difficult for the non-lawyer to understand. Characteristics of legal writing include: using Latin terms, using technical terms ("subsidiarity"), using old-fashioned words not much in general use, using pairs оf words with a reciprocal relationship ("lessor/lessee"), using legal jargon ("without prejudice to") including the use of pairs of words ("terms and conditions") or triplets ("build, erect or construct"), having special meaning for words in ordinary use ("The judge determined the facts of the case." where "determined" means "decided"), using vague words ("provide a sufficient service"), using long sentences with little punctuation, inverting word order ("title absolute"), using capital letters to signal important or defined terms ("the terms of the Lease..."), avoiding personal pronouns, the specific use of the modal verb "shall" to impose an obligation or duty on someone ("The tenant shall not sublet the whole or part of the premises."), the use of "shall" in a directory use ("Notice of an appeal shall be filed within 28 days."). There is a movement to draft legal texts in standard, modern, "plain" English but any change will be slow. There are many Latin terms in written English legal texts, although recent reforms in the English justice system have encouraged the use of English rather than Latin. Some Latin terms arc used so frequently that they are in general English use (e.g., bona fide, pro rata, etc.). It is useful to be able to recognize their meaning and a dictionary or on-line glossary will help. Forms of pronunciation vary.
A number of linking words are used in older written legal texts (case reports, legislation, court documentation, etc.) to refer to other parts of the same text, to different legal documents, or to related contexts.
Task 2. Underline the characteristic features of above-mentioned legal writing ( for example, using old words) in the following consumer contract terms (1-3). Then complete the revised versions in plain terms (a-c) with appropriate words from the original terms (1-3).
Task 3. Match the sentences containing the Latin terms (1-7) with the sentences which have similar meaning (a-g).
Task 4. What are advantages and disadvantages of drafting legal text in “plain” language?
Task 5. Review the text:
WHAT IS LAW? In everyday life people use the word law in many different ways. Actually the word law is very difficult to define. There is a field of law that is known as "jurisprudence", which analyzes the concept of law and is concerned with the philosophy of law. Throughout the centuries people have attempted to define law and to set forth its role in society. In considering the numerous definitions of law and philosophy of law it must be recognized that one of the roles of law is to maintain order and that this is the function of the criminal laws. Another role of law is to resolve disputes that arise between individuals and to impose responsibility if one person has a legal claim against another. Between these two extremes of what might be called law and order on the one hand and settlement of disputes on the other, there are many situations that cannot be so clearly defined. For example, the income tax laws require that a person pay an income tax. If he fails to do so, or if he fails to declare all his income or takes improper deductions, he may be subjected to penalties, but he has also failed to live up to his obligations to society. In any event it is important that one bear in mind that the law is not simply a statement of rules of conduct but is also the means whereby remedies are afforded when one person has wronged another. In one sense all issues and disputes in our society - political, social, religious, economic, or otherwise-ultimately become legal issues to be resolved by the courts. Thus it can be said that law is simply what the courts determine it to be as an expression of the public will in resolving these issues and disputes. Another view of law is that it is a method of social control — an instrument of social, political, and economic change. Really law is both an instrument of change and a result of changes that take place in our society. It is difficult to determine whether the law brings about changes in our society or whether changes in society bring about a change in the law. In our legal system both are true. The law-responding to the goals, desires, needs, and aspirations of society is in a constant state of change. Sometimes the law changes more rapidly that does the attitude of the majority of society. In this event the law and our legal system provide leadership in bringing about changes. At other times our society is ahead of the law in moving in new directions, and changes are brought about by the people who act according to their new attitude and convictions. When these changes are accepted by the rest of society, it often happens that the law then gives approval and recognition of the changes, and the law has thus been brought into line with the changing needs of society. For example, in the field of ecology various groups have put pressure on legislators to clean up the air and water. As a result of this laws have been enacted that require that devices be installed to control pollution. Here the public pressure resulted in the enactment of laws and the law was a follower rather than a leader. It is important to note that the law is not static — that it is constantly changing and that the impetus for the changes may come from many different sources. In still another sense law has been defined as the rules and principles that are applied by the courts to decide lawsuits. These rules and principles fall into three categories: (1) laws that have been passed by legislative bodies, such as the Congress and state legislatures, together with the federal Constitution and the state constitutions and treaties that have been duly entered into; (2) common law or case law — the law that is derived from cases decided by the courts; and (3) procedural rules that determine how lawsuits are handled in the courts with regard to rules of evidence, enforcement of judgments, appeals, and related matters. It will be noted that the first two elements provide the rules that are applied by the courts to decide controversies and that the third provides the machinery whereby these rules of what is called substantive law are given effect and applied to resolve controversies.
Task 6. Review the text:
CHARACTERISTICS OF ENGLISH LAWThe United Kingdom is a unitary State, not a federation of States. Nevertheless, it does not have a single system of law within that State. There are separate systems operating in (i) England and Wales, (ii) Northern Ireland, and (iii) Scotland. Due to the closeness of the association since the twelfth century between England and Wales on the one hand and Northern Ireland on the other, these countries have similar legal systems. There are, however, differences between the law of Scotland, influenced by Roman law, and that of the remainder of the United Kingdom, although since the Union with Scotland Act, 1707, these differences are now less marked on broad issues. Two important links uniting the system are: (a) Parliament at Westminster is the supreme authority throughout the United Kingdom; (b) The House of Lords is the final court of appeal. English law is one of the great legal systems of the world, and a substantial proportion of it is ruled today by laws that came originally from this small island. What, then, are the characteristics of English law which give it this pre-eminence? The most important are these: (a) Continuous growth English law is traceable to Anglo-Saxon times. The common law, i.e. judge made law, which forms the basis of English law, has endured for 900 years and has continuously adapted itself to changing social and economic needs. Old rules of law remain law despite their age, unless expressly repealed. Thus in the case of Ashford v. Thornton (1818), an appeal against alleged murder, the appellor claimed and was granted the ancient Norman right of trial by battle. In point of fact the appellor's opponent refused to fight, and the right was abolished by statute in 1819. The Treason Act, 1351, is still good law and may be invoked today despite its age. Whereas Continental countries have been subject to continual invasions, revolutions, declarations of independence and the like, the geographical separation of England from the Continent, coupled with the Englishman's traditional respect for law, have tended to preserve the independent and uninterrupted growth of English law. (b) Absence of codification A legal code is a systematic collection of laws so arranged as to avoid inconsistency and overlapping. Codification was a feature of Roman law and was adopted by nearly all Continental countries, notably France, Germany, Austria, and Switzerland. The English common law was formed from the customs of the people. Under the Norman kings these unwritten laws achieved a fairly uniform legal system. Certain parts only of English law have today been codified, e.g. the Bills of Exchange Act, 1882, and the Sale of Goods Act, 1979, though the Law Commission is working towards a codification of criminal law and contract (Law Commissions Act, 1965) с) Judicial character of the law The early Norman judges were important figures appointed by the Crown whose justice they administered. The common law was largely 'judge-made' from the existing customary laws. It is from the records and reports of cases tried by the judges that we derive our knowledge of early case law. Judges formed or moulded the common law, and its growth and character can often be traced to outstanding men like Bracton, Coke, and Littleton. Although judges today may develop the common law within fairly narrow limits, they are mainly concerned with interpreting and applying statute law which is now the main source of legal development. (d) Independence of judiciary Justice requires that a judge be impartial and independent of either party to a particular legal dispute. The Act of Settlement, 1701, provided that judges of superior courts 'hold office during good behaviour, that their salaries be ascertained and established, and that they be removed only on the address of both Houses of Parliament. (e) Independence of lawyers The two branches of the legal profession comprise barristers and solicitors. Each branch is controlled by an independent body which maintains high professional standards of education, training, and conduct. Lawyers are not appointed by the State and are not civil servants. They are not subject to direct political control, and, like the judges, are traditionally independent. Their relations with clients are based on confidence and protected by privilege; they cannot be compelled to disclose what passes between them during their professional dealings. (f) Influence of procedure Procedure has influenced substantive law. We shall see later that at one time the existence of a legal right depended on whether there was a suitable writ with which to begin the action, The writ system governed early law. Such procedural rules affected the law itself and they have left their imprint. (g) No reception of Roman law English common law was of native growth and little influenced by Roman Law, unlike the law of Continental countries and Scotland which was shaped by it. (h) The doctrine of precedent To achieve some consistency in decisions, the courts developed the practice that the lower courts are bound to follow decisions in higher courts. (i)Practical nature of the law It was emphasized by the House of Lords in Ainsbury v. Millington (1987) that it has always been a fundamental feature of the English judicial system that the courts decide disputes between the parties before them. They will not pronounce on abstract questions of law where there is no dispute to be resolved. SOURCES OF LAWWarming-up:
Vocabulary notes:
SOURCES OF LAWThe 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. 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 all unenacted law. On the Continent the volume of written law tends to preponderate over the volume of unwritten. But in England unwritten law is predominant, for more of the law derives from judicial precedents than from legislative enactments. Parliament has not adopted the system of wholesale codification which prevails in many continental countries. Two principal and two subsidiary sources of English law must be mentioned. These principal sources are Legislation, and Judicial Precedent; the subsidiary sources are customs and Books of Authority. Legislation is enacted law. In England the ultimate legislator is Parliament. Parliament has no rival within the legislative sphere – and it means that there is no legal limit to the power of Parliament. In the legislative sphere Parliament is legally ‘sovereign’ and master, but this does not mean that the courts have no influence upon the development of enacted law; in order to be applied, every enactment has to be interpreted and the courts are the recognized interpreters of the law. 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 decisions 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. Customs are social habits, patterns of behaviour. Customs should be considered as one of the principal sources of law for much law was originally based upon it. 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 the state. In England there are certain ‘books of authority’, written by authors of outstanding eminence, which may not only be cited as independent sources in themselves for the law of their times but which also carry a weight of authority almost equal to that of precedents. Many textbooks are now in practice constantly cited in the courts, though only the best of them are likely to command attention. The reason is that in comparatively recent years a large increase in the popularity of the study of English law has done much to improve the quality of legal writing and to increase the volume of legal literature.
Task 1. Give the Ukrainian equivalents of the following words and expressions: rules, to improve, to increase the popularity, human conduct, to treat with respect, principal, misleading terms, independent sources, to adopt the law, to involve, social habits, to preponderate, precedent, subsequent courts, legal, obedience, the ultimate legislator, hallmark.
Task 2. Give the English equivalents of the following words and expressions: ставитися з повагою, головний, правила, людська поведінка, незалежні джерела, помилкові терміни, збільшити популярність, вдосконалювати, прийняти закон, включати в себе.
Task 3. Match the following word-expressions and their definitions:
Task 4. Translate the words into English and complete the following sentences with the appropriate term: джерела, категорії, звичаї, авторитетні видання, обсяг, законодавство
Task 5. Answer the following questions:
Task 6.Translate the following sentences into Ukrainian:
Task 7. Match the following English words and expressions with their Ukrainian equivalents:
Task 8. Make up the sentences using the following words:
Task 9. Find in the basic text the synonyms to the words in italics:
Task 10. Agree or disagree with the following statements:
Task 11. Put these sentences into Past Simple tense:
Task 12. Explain the meaning of the following word-expressions. Make up sentences with each of them:
Task 13. Debate on the following issues:
Task 14. Skim the text and find the passages dealing with such themes:
Task 15. Translate the text into English: Суди інтерпретують та проголошують закони. Закони традиційно поділяються на дві головні категорії: вони можуть бути «писаними» або «неписаними». У Великій Британії домінують «неписані» закони, що походять здебільшого від судових прецедентів. Два основних джерела англійського права – це законодавчі акти та судові прецеденти. Допоміжними джерелами є звичаї та авторитетні видання. Законодавчі акти – це закони, прийняті Парламентом. Парламент є основним законодавчим органом Великої Британії. Рішення судів мають тенденцію вважатись «судовими прецедентами», якими керуються суди, щоб вирішити схожі справи. Звичаї – це соціальні звички та зразки поведінки. У Великій Британії є певні авторитетні видання написані визначними авторами, які можуть цитуватись не тільки як незалежні джерела, а й як закони, що є рівнозначними прецедентам.
THE HISTORICAL SOURCES OF LAW
Vocabulary notes:
Task 1. Read the text consulting a dictionary where necessary and pick out the main points about the sources of law in Great Britain.
ROMAN LAW In modern-day Italy, France, Spain, and the countries of Latin America, law codes based on Roman legal principle are still in use. Law in the modern English-speaking countries was also greatly influenced by Roman Law. The earliest Roman code of laws, the Law of the Twelve Tables, was written between 451 BC1 and 449 BC. Tradition has it that its authors were a council of ten men who had been selected to rule the Roman state. The Law of the Twelve Tables covered all citizens. It was inscribed on twelve bronze tables set up in the Forum for everyone to see. The Law of the Twelve Tables remained in use for over 1000 years, though the bronze tables were destroyed when Rome was sacked in 410 AD2 The second great set of Roman laws, the Justinian Code, was complied under the direction of Justinian, Emperor of Rome from 483 to 565 AD. Justinian was concerned with elimination of corruption and making justice available to everyone. He established a commission to consolidate the mass of early Roman law. The resulting Code consisted of four works: all the imperial edicts3; the Digest4, the decision of the great Roman jurists; the Institutes5, which served as a hand-book for law students; the Novels6, or “new laws”, passed by Justinian himself. By 100 AD, the Roman empire had spread over much of Europe. It remained intact until the fifth century AD. As a result, the laws of all European countries, including France and England, were much influenced by the two Roman codes. However, each experienced other influences as well. The law of France underwent further changes in the late eighteenth century, when Napoleon Bonaparte compiled the Code of Napoleon. England was ruled by Rome from 55 BC until the early fifth century AD. Therefore, the English system also has Roman law as part of its hereditary roots.
Text notes: 1Before Christ - до нашої ери / до нової ери 2Anno Domini - нашої ери 3edicts - едикти, укази 4the Digest - Дигести 5the Institutes - Інституції 6 the Novels – Новели
THE CODE OF HAMMURABI One of the earliest known collections of codified laws is the Code of Hammurabi1. Hammurabi was King of Babylon from about 1728 BC to 1686 BC. He had about three hundred systematically arranged laws that existed in his time. The Code of Hammurabi reveals that the ancient kingdom was a thriving commercial center. Among other business practices, the laws regulated price-fixing2, interest changes3, the practice of medicine, and the ownership of slaves. The Code reflected the customs of the period. For example, the sun-god who was also the god of justice, was named as the source if the laws, to give them more authority.
Text notes: 1the Code of Hammurabi - Кодекс законів Хамурапі 2price-fixing - встановлення цін 3interest changes - норми відсотку
MOSAIC LAW
Another code of early law is the Code of Hebraic, or Mosaic Law1 of about 1400 BC. This Code is set out in great detail in the first five books of the Old Testament2, which are called the Torah3, meaning “law” or “guidance”. These books recount the forty-year-long wandering of Moses and the tribes of Israel from Egypt across the Sinai desert4 to the Promised Land of Canaan5. While in the desert, Moses was summoned to the top of Mount Sinai by God, and was given the tablets of the Ten Commandments6. Like the Babylonians, the Hebrew compilers believed that their laws were based on the will of God. Unlike the commercially-oriented Code of Hammurabi, the Mosaic Law reflects the agrarian community over which Moses presided. As a chief law-giver and magistrate, Moses was both a legislator and a judge in the modern sense. The Ten Commandments still hold a central position today in the teachings of both the Hebrew and the Christian faiths7. As well, the Mosaic Law firms an important part of the laws of many countries today.
Text notes: 1The Code of Hebraic Law - Закони Моісея 2The Old Testament - Старий завіт 3The Tora - Тора 4The Sinai desert - Синайська пустеля 5The Promised Land of Canaan - Обітована Земля Ханаана 6The Ten Commandments - Десять заповідей 7The Hebrew faith - іудейська віра
Task 2. Find English equivalents of the following word combinations: вкритий письменами, здійснювати, знищення корупції, залишатися в дії, зазнавати змін / впливу, інструкція, систематизувати, розвинутий / процвітаючий, очолювати, посідати центральне місце.
Task 3. Match the synonyms:
Task 4. Insert prepositions if necessary:
Task 5. Using the information in the unit above, discuss the following:
Task 6. Read and translate the text into Ukrainian:
ROMAN LAW Traditionally, the study of Roman law is divided into five parts: the laws of persons, of property, of succession, of obligations, and of actions. The Law of Persons In early Roman law it was especially important to establish one’s status – free or slave, citizen or alien, male or female, parent or child, and so on – because only then could legal rights and duties be determined. At first it was status in respect to the family that was most important. But as Roman jurists came into contact with other cultures or fell under the influence of Greek philosophy status based on birth gave way in importance to contractual relations. The Romans also created the juristic person or corporation, a fictitious person endowed by the state with the rights of natural persons. The Law of Property Property law defined what items could and could not be owned by individuals, described the methods of acquisition and transfer that the legal system would recognize and defend, and noted the extent to which one person's rights in property might be modified or limited by the claims of another individual. The Law of Succession The law of succession treated, in cases of intestacy, the passage of property to heirs whose rights depended on their relationship to the deceased. It also regulated the making of wills. As the Roman sense of equity and humanity developed, the right of a testator completely to disregard natural heirs was severely limited. The Law of Obligations The law of obligations concerned the rights and duties that rose from commercial pursuits or contracts and also from a number of illegal acts – torts or delicts – which obliged the offender to recompense the injured person. The Law of Actions The law of actions contained the procedures to be followed in disputes. It evolved from a considerable dependence on self-help by the plaintiff in the earliest days to an almost complete dependence, from summons to execution, on the state. Influence of Roman LawBy the time of Justinian most of Western Europe was in the hands of barbarian kings who administered a mixture of their own Germanic Law and earlier Roman law. But in the 11th century Italian scholars rediscovered and began to study and teach the Corpus Juris Civilis. This happened at the very time that expanding trade and commercial activity made the law of a universal state more appropriate than any other. Thus Roman law became the basis of the law of all Western Europe, with the exception of England. It spread to the New World and is basic in South and Central America, Louisiana, and Quebec; it was adopted in South Africa and Sri Lanka and plays a role in the codes of emerging states. Through Byzantium it reached Russia, where it still furnishes part of the law. The Roman jus gentium (law of the peoples), developed in the republic to govern relations with non-Romans, became the basis of much of modern commercial law.
Vocabulary notes:
Task 7. Match the phrases in column A with their Ukrainian equivalents in column B.
Task 8. Law has its origins in the early developments of civilized society, and through time there have been major influences on the laws that we follow today. Match these sources of law with the descriptions below:
Common law, Roman law, Napoleonic Code, The Ten Commandments
_________ , which evolved in the 8th century BC, was still largely a blend of custom and interpretation by magistrates of the will of the gods. _________, evolved from the tribal and local laws in England. It began with common customs, but over time it involved the courts in law-making that was responsive to changes in society. In this way the Anglo-Norman rulers created a system of centralized courts that operated under a single set of laws that replaced the rules laid down by earlier societies. _________ formed the basis of all Israelite legislation. They can also be found in the law of other ancient people. _________ refers to the entire body of French law, contained in five codes dealing with civil, commercial, and criminal law.
Task 9. Agree or disagree with the following statements.
Task 10.Make up the sentences with the following words: influence, development, resolve, origin, reference, be in force, previous, will, tribal.
Task 11. Read and translate the text into Ukrainian:
Sources of English Law English law has developed from a number of sources: custom, the rules worked out by the common law courts and the courts of equity, canon law, the law merchant, legislation, etc. Moreover, the growth of substantive civil law has at common law been bound up with procedure, since a right existed only if it could be enforced. The following is an outline of the sources of English law and of the courts and other institutions involved. In Anglo-Saxon times there existed three fairly distinct legal systems: The Dane Law, which had been adopted after the invasions and settlement of Danish and Scandinavian warriors in the coastal areas of northern and northeastern England; Mercian Law, which bore traces of Germanic origin, following the Saxon invasions, and extended around the Midlands; Wessex Law, which applied in south and west England. In each of the three systems the law was based on customs, and the customs varied from place to place and shire to shire. There was little distinction between criminal wrongs and civil wrongs at this time; the laws were generally primitive but nevertheless served to produce such good order as could be expected. But there were courts of law where cases were heard. The Anglo-Saxon courts before 1066 were:
Of these three courts the shire court was the most important, but all enforced the local laws and all had jurisdiction to deal with obvious criminal offences, such as murder, theft, violence to person and property, and also the civil claims concerning ownership or possession of land or cattle - both very important sources of wealth. The Anglo-Saxon system of keeping the peace was based on frank-pledge, a police organization which required every male over the age of 12 to belong to a “tithing”, a group of ten or more persons under a headman. All in the tithing were mutually responsible for the offences of the others and were bound to produce the offender in court if called upon. Those who did not submit to justice in the courts were declared outlaws and could be killed with impunity. In most parts of England the succession to land on the death of an owner was determined by the rule of primogeniture, i.e. the first-born son inherited his father's land. But in some places it was different, e.g. in Kent the system of landholding was known as gavelkind and under it all sons inherited equally. In Bristol and Nottingham a system of borough-English applied, which provided that the youngest son inherited. The procedure and the proof of guilt in Anglo-Saxon courts were primitive. Trial might be by ordeal, which was in effect an appeal to God or the supernatural. It might consist of ducking someone in a pool, and he was guilty if the water “rejected” him and innocent if he sank; or in an ordeal by fire a red-hot iron would be carried a distance of nine feet, whereby if the hands had not festered within a certain period after carrying the iron the offender had established his innocence. Another form of proof in civil cases was compurgation. This consisted in the litigant repeating an oath word-perfect without stumbling. Sometimes the claimant was assisted by kinsmen who were oath helpers (or compurgators) and similarly swore. If they too repeated the oath successfully the claimant had “waged his law” and won his claim. Juries later superseded ordeal and compurgation. Before the Norman Conquest there was no strong central government. The king with his council (or witan) had little control over his kingdom. Royal justice was difficult to obtain. English legal development stems from 1066 when William of Normandy gained the Crown of England by right of battle. William and his Norman successors distinguished themselves in many ways. They possessed orderly minds and were efficient administrators. They crushed the rebellious English into submission and established a strong central government. William owned all England: all other persons possessed land either as tenants (not owners) or sub-tenants of the King himself. Feudalism, based on land tenure, was introduced into England. No immediate change was attempted in regard to the customary laws of the English, for this would have been an insuperable task. Primitive people do not take kindly to radical alterations in their way of living. The changes made by William I include the following:
Task 12. Review the text using the vocabulary notes:
Vocabulary notes:
EQUITY LAW In a general sense equity means fairness. In English law, equity means that body of rules originally enforced only by the Court of Chancery. Equity has been described as “a gloss (meaning a supplement) on the common law”, filling in the gaps and making the English legal system more complete. Petitions from persons unable to obtain justice in the common law courts were sent to the King as “fountain of justice”. These petitions were sometimes examined by the King and Council and the relief was granted or refused. Later, due to pressure of business in the Council, the petitions were sent to the Lord Chancellor who, as Chief Secretary of State and “Keeper of the King’s Conscience”, dealt with them alone. The petitions were usually in the form of allegations that:
By the end of the fifteenth century the Chancellor had set up a separate court which dealt with petitions for relief. The Chancellor was not bound by the writ system or the technical and formal rules of the common law, and considered petitions on the basis of conscience and right. At first the Chancellor used to consult the Council and sometimes the common law judges, but eventually it became customary to summon the parties to the dispute to appear before the Chancellor alone to answer “interrogatories” (specific questions relevant to the issue) and to unburden their consciences so that the truth could be ascertained and justice done. The Court of Chancery proved popular with litigants and this caused friction with the common law courts. Jurisdiction was lost to the Chancery Court. Sometimes the courts of common law and the Chancery Court issued contradictory verdicts, and relations between the courts became difficult. The dispute came to a head under James I (1603-25) in the Earl of Oxford’s case (1616). The common law courts, headed by Chief Justice Coke, gave a judgment which was alleged to have been obtained by fraud. The Chancellor, Lord Ellesmere, issued an injunction preventing the successful party from proceeding to enforce the judgment, whereupon the dispute was referred to the King for decision. The King sought the views of Sir Francis Bacon (Attorney-General) who advised that where common law and equity conflicted, equity should prevail. Although competition between the courts of common law and equity continued, the right of the Chancellor to grant injunctions thereafter was not seriously challenged. Matters were finally resolved by the passing of the Judicature Acts, 1873-5. Despite its early popularity, equity as administered in the Chancery was subject to criticism. Its initial flexibility led to uncertainty in the seventeenth century, and the jurist John Selden observed that “Equity varies with the length of the Chancellor’s foot”. Whatever the demerits of the common law, it was possible to estimate a probable verdict by considering similar cases already decided and the statutes enforced. Equity, which was dispensed as a matter of conscience, was unpredictable and the relief granted by one Chancellor might be refused by his successor. Between flexibility and certainty there is much tension. Flexibility was advantageous because it gave relief from the rigidity of law, but could be disadvantageous if it led to uncertainty and hardship. With the adoption of the system of precedent, equity became predictable and intelligible. Lord Eldon (Lord Chancellor in 1801-6 and 1807-27) further developed equity, establishing a system of case law, so that by the beginning of the nineteenth century equity became nearly as rigid as the common law. The latter half of the nineteenth century was also a period of judicial reform, which culminated in the Judicature Acts, 1873-5. These Acts set up a new structure of courts known as the Supreme Court of Judicature. In addition the Acts laid down four important principles:
The final result of the Acts was the fusion of administration of both common law and equity. Certain matters, e.g. trusts, originally dealt with by the Court of Chancery were assigned with other matters to the Chancery Division of the High Court. All courts could henceforward award common-law remedies, e.g. damages, and grant the special equitable remedies of which the following are the most important:
These remedies are at the discretion of the court unlike the common law remedy of damages which is “of right”. The discretion is exercised on equitable principles, e.g. “He who comes to equity must come with clean hands”.
Task 13. Match the following words and expressions with their Ukrainian equivalents:
I.
II.
Task 14. Find in the text the words that correspond to the following definitions and translate them into Ukrainian:
Task 15. Read the text carefully and decide if the following statements are true or false. Add some other information:
Task 16. Use the information given in the text to answer the following questions. Discuss your answers with other members of the class:
Task 17. Find English equivalents of the following sentences:
Task 18. Read the text and pick out the main points about common law and equity. Swap the information using the following words and expressions: To be decentralized to create a permanent royal court, the King’s Bench ;to hear civil and criminal cases; legal issue; to be applied to; regional courts; judge-made system of law; common law; rules and principles; to decide court cases; to base decisions on; legal precedents; court rulings; to overrule precedents; to be in error or outdated; law made by judges; judicial decisions; common law courts; courts of equity; remedies; disappointed litigants; to provide redress for; to administer common law and equity; maxims of equity. * * * Before the Norman Conquest the law in England was decentralized. Fear of the power of local barons led Henry II to create a permanent royal court in London called the King’s Bench. Judges from this court would travel the country hearing civil and criminal cases. The central court in London decided the legal issue in a case and this would be applied to the facts in the regional courts. In this way a judge-made system of law was developed which was common to most parts of the country. So the English called their system the common law. Thus, English common law developed from the rules and principles that judges traditionally followed in deciding court cases. Judges based their decisions on legal precedents – that is, on earlier court rulings in similar cases. But judges could expand precedents that they considered to be in error or outdated. In this way, judges changed many laws over the years. So, the common law came to be law made by judges.Thus, common law: 1) It is law, which is common to the whole country – national law in contrast to local law. 2) It is law, which is based on judicial decisions (case law) in contrast to the law, which is made by Parliament (statute law). 3) It distinguishes the common law legal systems based on precedents from civil law jurisdictions based on civil codes. 4) It comprises the rules developed by the common law courts in contrast to the rules developed by the courts of equity. Equity was developed by the Court of Chancery. It introduced new remedies to provide redress for disappointed litigants. The common law courts were separate from the Court of Chancery until a single court was established by the Judicature Act 1873. Each branch of the Supreme Court of Judicature can administer common law and equity. However, the difference between the two is still important because of the maxims of equity. These illustrate that equity is based on justice and fairness.
Task 19. Discuss your ideas in pairs and then exchange opinions with the whole class:
Task 20. Read and translate the text into Ukrainian:
EQUITY Equity is a branch of English common law that was developed to cover limitations in the traditional civil law. In medieval England the courts had restricted powers and could not handle every case that arose. When a person could not go to the regular courts for relief, he or she would petition the king for relief, and the king would refer the matter to his chancellor, the next most important government official. In the late 15th century the chancellor began to decide these extraordinary cases directly or through assistants called masters, and the Court of Chancery developed. The purpose of that court was to supply a remedy when the regular common-law courts could not or would not do so. The law it developed became known as equity, to distinguish it from the law applied in the regular common-law courts. This is the function of equity today. Some states apply both legal and equitable principles in the same courts; other assign judges to sit either as equity judges or as law judges. Equity offers a wide variety of remedies; law has only one basic remedy. In cases at law the basic remedy is money damages. Sometimes, however, money is not a satisfactory remedy. Equitable remedies permit the court to order the defendant to do or not to do a given act. Orders to perform a contract (specific performance), to tear down a spite fence (mandatory injunction) and to stop excessive smoke or noise (injunction) are examples of equitable, non-monetary remedies. The penalty for refusing to obey an equitable order is a possible citation for contempt of court. Equitable principles are also applied when a contract must be reformed to reflect the true understanding of the parties and when a contract must be rescinded because it was the result of fraud. Another application of equitable principles is enforcing imposed by relationship of trust and confidence, such as the duties of a trustee to the beneficiaries of a trust, the duties of the executor of an estate of a deceased person, and enforcement of the duties of a partner to a partnership or a director to a corporation. There is no right to a jury trial when a case is based on equitable principles. The judge finds both the law and the facts. The reason for this is purely historical. There was no jury in the English Court of Chancery, and U.S. federal and state constitutions only guarantee jury trial in the kinds of cases that were entitled to a jury trial when the nation was founded. Therefore, even where the distinction between equity and law has been abolished, it is still necessary to determine which principles to apply in order to know whether the parties are entitled to trial by jury or not. In suits at equity one does not have to bring suit within a specific period of time. Rather than having a specific statute of limitations, such as four years, in which to bring suit at law for damages on a breach of contract for the sale of goods, an equity suit must be brought without undue delay – a period of time that is decided by the judge or chancellor.
Task 21.Review the text: Canon lawAfter the Norman Conquest, William I separated the courts of law into lay courts administering the common law, and ecclesiastical (or church) courts. In the early days the church courts were very important locally and nationally and assumed a wide jurisdiction. The law enforced in the church courts was Canon law which was influenced by Roman law. The matters dealt with:
For church purposes England was divided into the Province of Canterbury and the Province of York, each in the charge of an archbishop. The two provinces were each divided into dioceses, each in the charge of a bishop. Each bishop had his Consistory Court for the diocese which he administered and which was in his spiritual charge. The presiding officer of this diocesan court was called a Chancellor and was appointed by the bishop as his representative in the court. Appeal from the bishops’ diocesan courts went to the respective provincial courts of Canterbury (called the Court of Arches) and York (known as the York Chancery). From the provincial courts appeal lay to the Pope, until this right was abolished after the Reformation by the Statute of Appeals Act, 1532. The Statute of Appeals Act brought the church courts in England more and more under the control of the State, but their separate jurisdiction continued on into the nineteenth century. However, in 1857, the jurisdiction in divorce, judicial separation, nullity and legitimacy was transferred to the Divorce Court which was set up in that year by the Matrimonial Causes Act. Testamentary matters relating to wills were also transferred in 1857 from the church courts to a new Court of Probate. The new civil courts of Probate and Divorce were staffed by civil lawyers who replaced the ecclesiastical lawyers, and the legal principles which had hitherto been enforced in the church courts and which had been based on canon law were incorporated in the law of England. In 1875 the Probate Court and the Divorce Court were incorporated into the Supreme Court of Judicature set up by the Judicature Act, 1873. Probate is now dealt with in the Family Division and Chancery Division of the High Court. Divorce falls within the Family Division.
Task 22. Read and translate the text into Ukrainian:
The merchant law Mercantile law, or “law merchant”, has been described as “Neither more nor less than the usages of merchants and traders … ratified by the decisions of the Courts of law which, upon such usages being proved before them, have adopted them as settled law” (Goodwin v. Robarts, 1875). The law merchant in medieval times was applied in (a) maritime courts found in coastal towns, and (b) local courts found in certain market towns. (a) The Maritime Courts applied the customary maritime law which operated generally in western Europe and which was derived from the Laws of Oleron, the Consolato del Mare, the Laws of Wisby, and other Mediterranean maritime laws. Jurisdiction included such matters as the hiring of ships, charter-parties, carriage of goods by sea, marine insurance, piracy and crimes on the high seas. As England became a trading and seafaring nation the jurisdiction of the maritime courts increased. In 1482 the Lord High Admiral of England appointed on behalf of the Crown a special judge to take over the jurisdiction of the local maritime courts and extended their jurisdiction to include prize matters. Prize jurisdiction determines whether a ship, with its cargo, captured during time by war by a belligerent is “prize”, and, if so, how it is to be disposed of. (b) Local Courts administering mercantile or commercial law were of two kinds. In towns holding fairs at fixed times and places, courts were constituted on the spot and usually included the mayor assisted by one local trader and one foreign merchant. Justice was speedy and the unwritten law applied was based on the customs of merchants in buying, selling and delivering goods, bills of exchange, negotiable instruments and the like. The courts were sometimes called “Piepowder” courts, because the merchants attending them often came into court with dusty feet (pieds poudres).The second group were known as the Courts of the Staple and were set up in certain “staple” towns which had a monopoly in trading in such staple goods as wool and leather. These courts also applied the law merchant. In both the local courts and the staple courts the law contained an international flavour. This was because the Crown, wishing to encourage Continental trade, gave the foreign merchants and traders the protection of the law which applied to men of their kind generally throughout Europe. Accordingly justice was administered on the spot by the special courts constituted by the mayor with one local and one foreign merchant, Merchants and traders moving from one fair to the next could not wait for the justice of either the ordinary English local courts or the royal courts. In any case the common law of England was inadequate to deal with the contractual disputes of the traders. Gradually, however, the courts merchant declined in importance as the common law courts became more efficient and reliable and became centralized in London. Moreover, limitations were imposed by statute in 1477 on the jurisdiction of the local courts merchant. By the middle of the eighteenth century the common law courts had absorbed nearly all the jurisdiction of the courts merchant, except for the maritime law and prize law applied in the maritime courts. Lord Mansfield, Chief Justice in 1756, was notable for his work in regard to the law merchant. He established the principle that once a judgment had been given on a mercantile custom, that custom became judicially recognized and no further proof of it needed to be given in a similar case in the future. Specially selected juries of merchants ensured continuity in the administration of mercantile law. Mansfield's work was carried on by other judges and resulted in the absorption of this branch of the law into the common law of England.
Local customA local custom is a usage or rule which has gathered the force of law and is binding within a defined area upon the persons affected thereby. Common examples are local rights of way or rights of common. A useful case which exemplifies the operation of law is the following:Mercer v. Denne (1905)Defendant owned part of a beach and proposed to erect houses thereon. Local fishermen sought to stop him by claiming that they had a local customary right to dry their nets on the land. Witnesses proved that the custom dated back for some seventy years and reputedly earlier. This raised the presumption of antiquity. Held: that the defendant must not build the houses on the land: the local customary right was upheld.The onus of proof of a local custom rests on the person claiming that such a custom exists. Judicial recognition will be given and the custom will be enforced if it is:
Local customs must be distinguished from conventional usages, which are found and observed in particular occupations, trades or business or among professional groups. Following the analogy of the local custom, the courts have laid down certain principles. Every usage must be certain and reasonable and must have acquired notoriety (in the sense that the usage is well known and observed) in the trade or business to which it relates. In contracts, for example, there will usually be express terms, but in addition to these the court may, in construing the contract, imply a term or terms where the parties are deemed to have contracted on that basis. Thus, if a usage is shown to exist in a class of workers entitling members to, say, three months' notice terminating their engagements, this usage or trade custom will apply unless expressly negatived by the contract itself. Dashwood v. Magniac (1897) A had devised an estate to В with “a power to cut timber for the repair of the estate”. Evidence was admitted to show what trees were included in the term “timber” in the locality. Held: that “timber” included beech in addition to the usual meaning of oak, ash, and elm. Grant v. Maddox(1846) Evidence was admitted in this case of a theatrical usage to show that the word “year” in a theatrical contract means those parts of the year during which the theatre is open. Smith v. Wilson (1832) A usage was proved and admitted that in a lease of a rabbit warren the words 'thousand rabbits' meant in that particular locality twelve hundred, A more recent example is Egerton v. Harding (1974), where the duty to fence was held to be based on custom.
SYSTEMS OF LAW
Warming-up:
Vocabulary notes:
SYSTEMS OF LAW Every independent country has its own legal system. The systems vary according to each country’s social traditions and form of government. But most systems can be classed as either (1) a common-law system or (2) a civil law system. The United States, Canada, Great Britain, and other English-speaking countries have a common-law system. Most other countries have a civil law system. Many countries combine features of both systems. Common-law system is based largely on case law – that is, on court decisions. The common-law system began in England many hundreds of years ago. The English called their system the common-law because it applied throughout the land. English common-law developed from the rules and principles that judges traditionally followed in deciding court cases. Judges based their decisions on legal precedents – that is, on earlier court rulings in similar cases. But judges could expand precedents to make them suit particular cases. They could also overrule (reject) any precedents that they considered to be in error or outdated. In this way, judges changed many laws over the years. The common-law thus came to be law made by judges. However, some common-law principles proved too precious to change. For example, a long line of hard-won precedents the rights and liberties of citizens against the unjust use of government power. England – and other common-law countries – have kept these principles almost unchanged. The United States, Canada, and other countries that were colonized by England based their national legal systems on the common-law. In addition, every state in the United States except Louisiana and every Canadian province except Quebec adopted a common-law system. Louisiana and Quebec were colonized by France, rather then England, and their legal systems are patterned after the French civil law system. Case law is still important in common-law countries. However, the lawmaking role of legislatures in these countries has increased greatly during the 1900’s. For example, the United States Congress has made major changes in American contract and property law. The changes have dealt, for example, with such matters as labor-management relations, workers’ wages and hours, health, safety, and environmental protection. Nevertheless, common-law countries have kept the basic feature of the English legal system, which is the power of judges to make laws. In addition, constitutional law in these countries continues the common-law tradition of defending the people’s rights and liberties. Civil law system is based mainly on statutes (legislative acts). The majority of civil law countries have assembled their statutes into one or more carefully organized collections called codes. Civil law originated in ancient Rome. The principles and rules of Roman law were based partly on legislation and partly on utterances of great legal scholars who were routinely asked for their opinions by judicial officers confronting difficult legal issues in the determination of lawsuits. In the 6th century, a commission appointed by the Emperor Justinian collected and consolidated all the sources of law. The result was the Corpus Juris Civilis (Body of Civil Law), also called the Justinian Code, a comprehensive code embodying the accumulated wisdom and experience of many generations of Roman jurists. Civil law is used in those countries in which the legal system is based on ancient Roman law as modified by medieval and modern influences. It is used in most nations of Europe and Latin America, as well as in some countries in Asia and Africa. The law of Great Britain, the United States, Canada, and a number of other nations is based on English common law, which differs from civil law in origin and other important aspects. Much more systematically than common law, civil law separates public and private law. In most civil law nations public-law disputes are determined by administrative courts, which are separated from the ordinary courts that have jurisdiction over private-law disputes and criminal cases. In common-law countries private- and public - law disputes are usually determined by the same courts. Trial by jury, a major feature of the common-law system, is not often used in civil law. In some civil law countries laypersons participate in the adjudication of criminal cases. However, they do not sit as jurors but act as judges who, together with professional judges, decide on the innocence or the guilt of accused and on the sentence to be imposed. The approaches of the two types of legal systems differ, for example, in matters of contractual law and freedom of testation. In civil law systems the principle of freedom of contract is implemented by upholding almost all promises and by enforcing penalty clauses. Freedom of testation, on the other hand, is more restricted in civil law nations, where the testator’s children – and not only a surviving spouse – receive a certain portion of a parent’s estate regardless of the provisions of the will. The differences between civil law and common law, however, should not be overstated. Despite divergences in methods and technology, a basic similarity is found in the ultimate results reached by both systems. Most modern law codes can be traced back to the famous code that was commissioned by the Roman Emperor Justinian I in the AD 500’s. Justinian’s code updated and summarized the whole of Roman law. It was called the Corpus Juris Civils, meaning Body of Civil Law. For this reason, legal systems that are based on the Roman system of statute and code law are known as civil law systems. This use of the term civil law should not be confused with its use as an alternate term for private law. Civil law systems include both private law and public law. In civil law countries, which include France and Mexico, the statutes, rather than the courts, provide the final answer to any question of law. Judges may refer to precedents in making their decisions. But they must base every decision on a particular statute and not on precedent alone. Other systems. Many countries have patterned their legal system after both civil law and common law. For example, Japan and most Latin-American nations have assembled all their private law into a code. But public law in these countries has been greatly influenced by common-law principles, especially those that guarantee the rights and liberties of the people.
Task 1. Give English equivalents of the following words and expressions: законодавчий орган; захищати права людей; система загального права; система цивільного права; право власності; захист довкілля; дотримуватися принципів і правил (нормативних актів); правова система; право, засноване на судовій практиці; розв’язувати судові справи; римське цивільне право; створювати/видавати закони; подолати/переглядати прецеденти; судові рішення; форма державного правління; повноваження суддів; трудові відносини між адміністрацією і профспілками (на підприємстві); збирати законодавчі акти в кодекси; французька система цивільного права; запроваджувати систему загального права.
Task 2. Translate the following words and expressions: commercial paper; приватна власність; to provide punishment for violation of law; загальні правила поведінки; personal property; створювати закони; to decide lawsuits; вести судовий процес; to take an appeal; виконати судове рішення; to breach an agreement; запроваджувати систему загального права; legal principals; мати право на відшкодування збитків; to overrule precedents; правопорушення; rules of law; private law; публічне право.
Task 3. Translate the following expressions into Ukrainian: to understand the many different aspects of law; there are many legal principles; in order to decide lawsuits; how the trial is conducted; how appeals are taken; rights are enforced and protected; A claims that B has breached the agreement; they constitute procedural law; the agreement was enforceable; substantive law of contracts; areas of public and private law; bodies of law; the multitude of administrative agencies; general maxims; to provide punishment for violation of these laws; to be subdivided into the subjects; a part of the total body of law; civilized society people; property is the basic ingredient in our economic system.
Task 4. Match the following words and expressions with their Ukrainian equivalents:
Task 5. Give Ukrainian equivalents for the following words and translate the definitions into Ukrainian:
Ex. 6. Give definitions in English to the following terms:
Task 7. Translate the following sentences into Ukrainian:
Task 8. Identify “adverbs” structures and translate the sentences into Ukrainian:
Task 9. Explain the meanings of the following expressions from the text. Make sentences with each of them:
Task 10. Read the text carefully and decide if the following statements are true or false. Add some other information:
Task 11. Use the information given in the text to answer the following questions. Discuss your answers with other members of the group:
Task 12. Read the text again and pick out the main points about the common-law and civil law systems.
Task 13. On the basis of the information above discuss the most important differences between the two systems of law.
Task 14. Translate the text into English:
Кожна незалежна країна має свою правову систему. Правові системи залежать від традицій та форм правління. Більшість систем можна поділити на систему загального права та систему римського права. Система загального права почала розвиток в Англії сотні років тому. Вона базується, в основному, на прецедентному праві, правилах та принципах, яких традиційно дотримувались судді у вирішенні судових справ, тобто на рішеннях суду. Судді могли розширювати або відміняти прецедент, якщо вважали його помилковим чи застарілим. Таким чином загальне право – це право створене суддями. Система римського права базується на статутах (законодавчих актах). Система римського права походить з древнього Риму. Більшість країн римського права уклали законодавчі акти у кодекси. У країнах римського права статути, а не суди, надають кінцеву відповідь на будь-яке правове питання. Судді можуть звертатися до прецедента у прийнятті рішення, але вони повинні базуватись у своїх рішеннях на певному статуті, а не на прецеденті. Інші правові системи зазнали впливу як системи загального права, так і римського права. Task 15. Role play.
Detention of a Suspect in the Robbery
Situation: By the operations report the police detained a person in the evening. He was found on the bank’s roof near a vent-pipe. He was supposed to be waiting for his accessory/accomplice (співучасник) who had to break into a safe in the bank’s storehouse and then to get out onto the roof through the vent-pipe. The accomplice of the robbery, who had got into the bank, managed to disappear through another exit. The police group pursues him/gives after him. Play participants: John Winstain, police sergeant Caroline Drag, policewoman Mr Steven Crone, detainee
Taking part in the play as participants, express your point of view and discuss possible actions, in particular: a) Policeman John Winstain declares to the man that: - he is detained and is considered/not considered under arrest yet ... - he (John Winstain) demands the documents identifying the detainee to be produced ... - he thinks/does not think immediate questioning is necessary ... - he thinks the detainee is to be under a severe system of discipline after the search and he can see the reason for it ... b) Policewoman Caroline Drag reminds the detainee of his rights, she wants to find out immediately the reason for his staying on the bank’s roof at such a late hour and wants him of the senselessness of denial (заперечення) and intricating (заплутування) the police. The detainee names himself Steven Crone, but he cannot produce any documents to identify him, however. He proposes his own version: he found himself on the roof by chance because he wanted to take some photos of the city at night, but he had left the camera behind ... He does not want to answer any further questions of the policemen and declares he will explain everything to the police-officer at the police station. Besides, he objects to putting handcuffs (наручники) on him ... .
Task 15. Write an essay describing the fundamentals of the legal system in any country of your choice.
SUPPLEMENTARY READING
Task 1. Read and translate the text into Ukrainian:
TWO GREAT SYSTEMS OF LAW
Two great systems of law have spread over the Western world. Civil law, descended from the laws of the Roman Empire, is used by most European countries. Common law, descended from the common law of England, is used in the United States and most of the Commonwealth countries. Both systems of law resist simple definition. Unlike civil law, common law was not embodied in a text or code. Rather, it evolved case after case in court decisions; the common-law judge did not consult an official text before rendering his judgment, but drew instead upon precedents established by other court decisions. Jurists eventually wrote treatises and commentaries on the common law, and although these commanded the respect of the legal profession, they did not constitute law and judges were not compelled to follow them when deciding cases. Civil law, or code law, is the system of rules, courts, and procedures used in the legal systems of certain Western European countries and their offshoots in Latin America, Asia, and Africa. These systems are distinct from the common law systems of English-speaking countries, but it is not easy to characterize the difference briefly. Civil law is customarily based on Roman law. The difference between civil law and common law systems, however, is not simply the result of Roman influence. Civil law systems also show varying degrees of influence from Germanic law and ecclesiastical, feudal, commercial, and customary law. Moreover, noncivil law systems, such as the English legal system, were also heavily influenced by Roman law in the systematization of the law of contract. It is specifically the authority given to the Corpus Juris Civils of the 6th century Byzantine (East Roman) emperor Justinian, and not merely Roman influence, that distinguishes civil law systems. (The term civil law is also used to mean private law – for example business law, as opposed to public, or criminal law.) OTHER CIVIL LAW CODES
Codification is an event of the greatest significance in the life of a civil law system, but part of its significance is that codes in the modern sense emerge at a late stage of civil law development and that they necessarily involve a step toward a breakup of the international concept of civil law systems. Even so, civil systems are markedly more international in character than are common law systems; for example, books on the French civil code have frequently been translated for practical use in other countries, and the movement in this century for harmonization of law is stronger among civil lawyers. Moreover, civil codes have proved to be easy to borrow, and now most civil law countries have codes that to a marked degree derive from other, particularly from those of France, Germany, Switzerland, and Chile.
Task 2. Scan the texts to find the information about common law as quickly as you can. Do not try to read or understand the whole text for this activity.
Sometimes when we read we are only interested in a specific piece of information, or a single section of a book, article, etc. Learning to find the information or section of the text we want quickly is an important reading skill because it helps us to save time and concentrate only on the parts of a text that interest us. This style of reading is called scanning.
Task 3. Use the information given in the texts from the previous exercise to answer the following questions: a) Which extract gives the greatest number of different definitions of common law? b) Which extract is from an American law dictionary? c) Which extract does not come from a law dictionary? d) How many distinct meanings of common law does The Layman’s Dictionary of English Law give? e) What is the name of the court which administered Equity? f) What was the original source of common-law principles? g) What other countries apart from England have a common-law legal system? h) Find the name for the study and comparison of legal systems, used in text D. i) Does “common law” have the same meaning in both French and German law? j) What force does “the common law of England” have in the American state of California? k) Find the name of two cases in US law. Task 4. Skim through the texts to understand their general meaning, answering the questions below. Do not worry about words or sections of the text that you don’t understand if you can complete this activity.
a) What three basic definitions of common law are given in all the British dictionary extracts? b) Find the extra meaning that “common law” has in the US. c) Which definition of common law do you think gave it its name? d) Which definitions in the American law dictionary correspond to Text D, definitions 6 and 7?
Task 5. Review the text:
WRIT
In civil cases, however, procedure was more technical. The proceedings in the common-law courts started with the issue of an “original” writ (so named because it originated the proceedings), which was purchased from the main royal office, the Chancery. The writ was a formal document addressed to the sheriff of the county where the defendant resided, commanding him to secure the presence of the defendant at the trial and setting out the cause of action or ground of claim of the plaintiff. For every civil wrong or cause of action there was a separate writ. Important examples were the writ of trespass, the writ of debt, and the writ of detinue (detinue alleged that the defendant detained an article or chattel from the plaintiff and would not return it). The plaintiff had to select the particular writ which he considered fitted the facts of his case. The plaintiff attended the Writ Office of the Chancery, where a register of the various writs was kept, and applied for the writ most suitable to his claim. If there was no writ suitable to the civil claim made or the relief required of the law, the plaintiff was at a severe disadvantage. We may say, therefore, that the writ system dominated the civil law: for only where there was a remedy was there a right (which is expressed in the Latin phrase am remedium ibi jus). Moreover, if the wrong kind of writ were selected by the plaintiff, the common law judges would throw out the case and refrain from inquiring into its merits. Under the rigid procedure of the writ system the remedy available to litigants became more important than the justice of the claim. Some attempt to alleviate this system was made by the clerks in the Chancery. Where a writ was thrown out by the court, or where none existed to found the claim, the clerks endeavored to accommodate litigants by issuing new writs, thus effectively expanding the rights available. At first the common law judges tolerated this procedure and accepted some new writs; but later their attitude stiffened and they refused to accept the new writs, since these amounted to new law. The Provisions of Oxford, 1258, forbade the practice of creating new writs. As a result certain wrongs went unremedied merely because they did not fall within the limits of an existing writ. However, some alleviation was attempted by the Statute of Westminster II, 1285, which empowered the clerks in the Chancery to issue writs in consimili casu (“in like case to”), i.e. existing writs could be adapted to fit new circumstances. However, full use was not made of this provision, and litigants’ claims still went unsatisfied by the ineffectual writ system: the common law did not expand to meet the urgent and growing needs of the community. Complaints to the King and his Council regarding the inelasticity of the common law led to the emergence of the Court of Chancery and its special field known as equity.
Task 6. Write down the annotation to the following:
CASE LAW
Law, which is based on judicial decisions, is case law. When we use the word “case” in this context we mean the legal action or dispute which has been brought to the courts for resolution. The judge’s decision is the law – hence “case law”. However, judges are not free to reach any decision they wish to; they are bound to follow certain rules and these rules form the system of judicial precedent. When deciding a case before them, judges are bound by the legal rules in previous cases. This is called the principle of stare decisis which means “stand by what has been decided”1. Its purpose is to achieve certainty and constituency in the law to develop and adapt to changing social and economic conditions. The strongly coercive2 nature of the English doctrine of precedent is due to rules of practice, called “rules of precedent”, which are designed to give effect to the far more fundamental rule that English law is to a large extent based on case-law. “Case-law” consists of rules and principles stated and acted upon by judges in giving decisions3. In a system based on case-law, a judge in subsequent4 case must have regard to these matters: they are not, as in some other legal systems, merely material which he may tare into consideration in coming to his decision. The fact that English law is largely a system of case law means that the judge’s decision in particular case constitutes a “precedent”. If we place ourselves in the position of a judge in a later case, there may be said to be many different kinds of precedent. The judge may simply be obliged to consider the former decision as part of the material on which his present decision could be based, or he may be obliged to decide the case before him in the same way as that in which the previous case was decided unless he can give a good reason for not doing so. Finally, the judge in the instant case may be obliged to decide it in the same way as that in which the previous case was decided, even if he can give a good reason for not doing so. In the last-mentioned situation the precedent is said to be “binding” or of “coercive effect” as contrasted with its merely “persuasive” effect in the other situation in which the degree of persuasiveness may vary considerably. (Cross, Precedent in English Law ( Clarendon Press 1977),pp.4-5)
Text notes: 1стояти на вирішеному 2 to coerce = to force 3when they give decisions 4 coming later
Task 7. Find English equivalents for the following sentences:
Task 8. Read and translate the text into Ukrainian:
THE BINDING ELEMENT IN PRECEDENTS
(Ingham, The English Legal Process (Blackstone Press 1990), pp. 173-174,193)
Task 9. Make up the plans and form questions to thefollowing text:
Common Law rules
Where a statute is not clarified by reference to the above statutory guides, a judge may look to the following common law rules: (i) “The Literal Rule” lays down that words must be given their literal, grammatical meaning. Words in old statutes are given the meaning they had when the statute was passed, e.g. The Statute of Treason, 1351. Words appearing more than once must usually be given the same meaning throughout the Act. The duty of the court is to interpret the words that the legislature has used. If a statute so interpreted is clear and produces hardship, the remedy is to create a new statute; it is not the duty of a judge to fill in the gaps. (ii) “The Mischief Rule” is also known as the Rule in Heydon’s case (1584), lays down that the court must look at the Act to see what mischief or defect in the common law the Act was passed to prevent. Four questions should be considered: 1. What was the common law before the Act was passed? 2. What was the mischief and defect for which the common law did not provide? 3. What remedy had Parliament resolved to provide? 4. What was the true reason for the remedy? Judges were enjoined to make such construction “as shall suppress the mischief and advance the remedy”. (iii) “The Golden Rule” lays down that a judge should construe the statute in its grammatical and ordinary sense: “It is a very useful rule in the construction of a statute to adhere to the ordinary meaning of the words used, and to the grammatical construction, unless that is at variance with the intention of the legislature to be collected from the statute itself, or leads to any manifest absurdity or repugnance, in which case the language may be varied or modified so as to avoid such inconvenience, but no further” (Parke, В., in Becke v. Smith, 1836). For example, section 57 of the Offences Against the Person Act, 1861, defines the offence of bigamy and provides: “Whosoever being married shall marry any other person during the life of the former husband or wife ... shall be guilty of bigamy.” Under English law a married person cannot “marry”, and to avoid absurdity or repugnance the word “marry” in this section means “to go through the form of marriage” (R. v. Allen, 1872). (iv) The “Ejusdem Generis” Rule. Where general words follow specific words, the general words must be construed as applying to the persons or things of the same class (ejusdem generis) as those already mentioned. Thus “other person”, “other cattle”, “other animals” are vague and a reference in an Act to “dogs, cats, and other animals” was held not to include lions and tigers, for “other animals” meant those ejusdem generis with dogs and cats, i.e. domestic animals (Evans v. Cross, 1938). (v) Expressio unius est exdusio alterius (the express mention of one thing implies the exclusion of another). This means that where specific words are used in a statute and are not followed by general words, the statute applies only to those things mentioned. (vi) Noscitur a sociis (the meaning of a word can be comprehended from its context). Ambiguous or doubtful words may be determined by reference to those words appearing in association with them. (vii) The Exclusionary Rule excludes reference to parliamentary materials in interpreting an Act. However, if the Act is ambiguous or obscure, or its literal meaning leads to an absurdity, the court may have regard to the Official Report of Debates (usually referred to as Hansard) for assistance in interpreting the Act (Pepper v. Hart, 1993).
Task 10. Review the text:
Presumptions
Certain presumptions or rules of evidence must also be born in mind. These presumptions apply to the construction of a statute, unless there are express words to the contrary. The following examples are some of the more important presumptions in law: (a) The presumption against criminal liability, unless mens rea (guilty mind) is shown to exist. Proof of criminal intent is generally necessary to secure a conviction. Thus a motorist involved in a road accident of which he or she was unaware, could not rightly be convicted of “failing to report the accident to the police within 24 hours”, since the motorist was unaware of involvement, and the law does not compel the impossible (Harding v. Price, 1948). (b) The presumption against the ouster of jurisdiction of the courts. Thus, where a particular statute provides that tribunals be set up to determine questions arising in administration (as under the National Service Act, 1948, to consider appeals for postponement of military service) and excludes the jurisdiction of the courts of law expressly, then the terms of the statute will be applied. Where no such express terms exist the jurisdiction of the courts is not ousted. (c) The presumption that the Crown is not bound by statute, unless expressly stated therein. (d) The presumption that a statute does not alter the general principles of the common law, unless expressly so stated. (e) The presumption against the infringement of international law. (f) The presumption against the deprivation of property. Statutes empowering the acquisition of private property will be strictly construed. Where private property is taken away from an owner, the law infers that compensation will be paid unless there are clear words in the statute to the contrary. (g) The presumption against arbitrary conduct and abuse of a power given by statute. (h) The presumption that the legal meaning of an Act is that which corresponds to its literal meaning.
Task 11. Write down the resume:
Reference to statutes
There are three forms of referring to an Act of Parliament: by its short title, by its official reference, or by its full title. (a) Short Title. When we refer to an Act such as the Theft Act, 1968, or the Data Protection Act, 1984, we are using its short title. (b) Official Reference. This shows the calendar year in which the Act was passed and the number of the Chapter (or Act) passed in that year. For example, 1968 CHAPTER 60 is the official reference to the Theft Act, 1968, and 1984 CHAPTER 35 is the official reference to the Data Protection Act, 1984. (c) Full Title. This gives the official reference and a short description of the object of the statute. For example, the full title of the Theft Act, 1968, is ELIZABETH II 1968 CHAPTER 60 An Act to revise the law of England and Wales as to theft and similar associated offences, and in connection therewith to make provision as to criminal proceedings by one party to a marriage against the other, and to make certain amendments extending beyond England and Wales in the Post Office Act, 1953 and other enactments; and for other purposes connected therewith. The full title of the Data Protection Act, 1984, is ELIZABETH II 1984 CHAPTER 35 An Act to regulate the use of automatically processed information relating to individuals and the provision of services in respect to such information.
Reference to statutory instruments
The most common form of delegated legislation is the statutory instrument. Each statutory instrument is allocated a number, and reference to the instrument is to the year of issue followed by the number so allocated. For example, S.I. 1968 No. 1911 relates to the Town and Country Planning (Planning Inquiry Commissions) Regulations, 1968. The printing of Bills, Acts of Parliament and statutory instruments is done by Her Majesty’s Stationery Office. The Statutory Instruments (Production 1730, Sir Edward Coke’s Institutes (1628-41), Sir William Blackstone’s Commentaries (1765), and Sir Michael Foster’s Crown Law (eighteenth century). The above works and a few other early works, written when law reporting had barely begun, are accepted as books of authority and therefore as an original source of common law. The modern textbook is not a source of law, and not a book of authority. However, such works may have persuasive authority; counsel may adopt the view of a distinguished academic writer and the court may accept that view of the law. In this way the writer is influencing the law. Works by Cheshire, Dicey, Winfield, Salmond, Williams and Smith and Hogan have often been referred to in this way, particularly on points which are not covered by authority or where there is some doubt about the authority. As Mr. R.J. Walker has commented, “On the whole the persuasive authority of a standard textbook is of considerable weight.” Similarly, articles in legal journals such as the Criminal Law Review, the Law Quarterly Review and the Cambridge Law Journal have been referred to in the courts.
THE LEGAL PROFESSION IN THE UK
Warming-up:
Vocabulary notes:
THE LEGAL PROFESSION
There are two branches of the legal profession in Britain: barristers and solicitors of the Supreme Court. In most other countries, including some parts of the Commonwealth, there is no such division. Solicitors The modern solicitor is the successor of three former ancient professions known as attorney (or representative), solicitor, and proctor. These assisted judges in the King’s Bench in the early stages of litigation or carried out the less skilled work in the ecclesiastical and Admiralty courts. By a succession of Solicitors Acts, 1939 to 1974, the profession has been unified and regulated (the 1974 Act consolidates the law). The regulations of the Law Society provide for: (i) the scales of remuneration and fees of solicitors; (ii) the terms and conditions of articles of clerkship for new entrants; (iii) courses for the education and training of students; (iv) the conduct of examinations; (v) the discipline of all solicitors. A person who has served articles (from 2-4 years) to a solicitor, and who passes the examinations of the Law Society, may be admitted a solicitor by having his or her name enrolled. Enrolled solicitors thereby become officers of the Supreme Court, and each receives a Certificate to Practise which is renewable annually. As from 1 October 1984 solicitors are permitted to advertise on certain terms and also advertise properties for sale. In accordance with the Courts and Legal Services Act 1990 they are also permitted to form partnerships with foreign firms. Duties of a Solicitor. Most solicitors are employed in private practice, either alone/or in a partnership firm, with the right to incorporate with limited or unlimited liability. Others are employed in the public service, industry, and commerce. Practising solicitors are consulted by, and receive instructions from lay clients on a wide variety of matters both civil and criminal, e.g. the making of wills, administration of estates, family matters, the formation of companies, drawing up of documents, conveyancing, and criminal offences of all kinds. In cases of unusual difficulty or where a trial is to take place in the superior courts, the solicitor takes instructions from the client, prepares a brief and approaches a barrister (counsel) to give an “opinion” or represent the client at the trial. Solicitors’ rights of audience in the magistrates’ courts, county courts and limited rights of audience in the Crown Court and the Supreme Court have now been extended by the Courts and Legal Services Act 1990, The relationship between solicitor and client is based on professional confidence, and a solicitor cannot be compelled to disclose in court communications made in a professional relationship. Nor is a solicitor liable for defamation in respect of statements made in court during the course of a trial. Solicitors are, however, liable to be sued for damages for negligence in the conduct of their profession: e.g. where they have carelessly lost documents entrusted to them. In certain situations it has also been held that a solicitor might owe a duty of care in tort to a third party (Ross v. Caunters, 1980 and Al-Kandari v. J.R. Brown & Co., 1987). Barristers Anyone wishing to become a barrister must join one of the four Inns of Court: Gray’s Inn, Lincoln’s Inn, InnerTemple, or MiddleTemple. These four Inns of Court are unincorporated bodies of medieval origin, owned and controlled by their senior members called the Masters of the Bench. The Senate of the Inns of Court and the Bar, formed in 1974, can be regarded as the governing body of the Bar today, since the Inns follow the general policy laid down by the Senate and the judges have agreed that disciplinary powers shall be exercised in accordance with the Senate’s regulations. Intending barristers must make a certain number of attendances (known as “keeping term”) at their Inn, and to qualify for Call to the Bar they must pass the examinations conducted by the Council of Legal Education. After passing the examinations a barrister intending to practise must undertake one year’s pupilage in chambers. After six months barristers have the right of audience in any court of law in England and Wales. As noted above, they may take instructions only from a solicitor, not from a lay client direct. Unlike the solicitor, they may not sue for their fees and are not liable in negligence in the conduct of a case. Duties of a Barrister. A barrister intending to practise must choose in which part of the law he or she intends to specialize. A barrister is essentially an advocate whose task is to present his or her client’s case effectively in court. Counsel’s duty to put their client’s case does not extend to advancing the client’s unsubstantiated belief that the judge is biased and corrupt. In this case the barrister must either refuse to comply with the client’s instructions or withdraw from the case - Thatcher v. Douglas (1996). Their work includes the drafting of opinions on difficult points of law, the settling of pleadings and advice on evidence and procedural matters. The difference between the two branches of the profession may be summarized as follows: Barristers are advocates; solicitors are not necessarily so. Barristers have the right of audience in all courts; solicitors have only a limited right. Barristers specialize in certain branches of the law; solicitors tend to be general practitioners. Barristers deal with legal matters; solicitors may be consulted about many non-legal matters, e.g. family, business or financial matters. Barristers are instructed by solicitors, who are instructed by the lay client. Barristers cannot sue for their fees; solicitors can. Barristers may not be liable for negligence in the conduct of a case; solicitors may. Solicitors are controlled under the Solicitors Acts, 1839-1974; barristers are controlled by their Inns of Court and the recently established Senate, non-statutory bodies. Queen’s Counsel When a barrister has acquired a substantial practice, application may be Counsel made to the Lord Chancellor to “take silk”, i.e. become a Queen’s Counsel. If the applicant’s request is granted, letters patent are issued and he or she will then be called “within the bar” thus relinquishing their former status of “outer” or “utter” barrister. Henceforth they wear a silk gown. By this new status the successful applicant will expect to attract more important cases and to command higher fees. He or she will no longer draft pleadings, conveyances, or similar documents. Thenceforward they will have the assistance of junior counsel who will be briefed with them. A Queen’s Counsel is distinguished by the letters Q.C. after their name, and is referred to as a “Leader”.
Task 1. Give the English equivalents of the following words and expressions:
Судові Іни, складати заповіт, доручати молодому юрисконсульту ведення справи в суді, передбачувати, мати дозвіл співробітничати з іноземними фірмами, звертатися до баристера, представляти клієнта в суді, складати документи, бути відповідальним за недбале ведення справи, мати право виступати в суді, наклеп, передача власності, відмовитися від справи, виконувати інструкції клієнта, впливати на суддю, відмовлятися від колишнього статусу, складати змагальні папери, бути примушеним. Task 2. Find the corresponding Ukrainian equivalents of the following expressions:
not be liable for negligence in the conduct of a case, draft pleadings, the right of audience in all courts, successor, join one of the four Inns of Court, acquire a substantial practice, officers of the Supreme Court, follow the general policy laid down by the Senate, conveyance, limited or unlimited liability, make a certain number of attendances at their Inn, in the early stages of litigation, sue for the fees, relinquish the former status, prepare a brief, unsubstantiated belief, new entrants, comply with the client’s instructions.
Task 3. Write down the word-families of the following words:
liability, conveyance, brief, advocate, pleading.
Task 4. Match the verbs and the nouns:
Task 5. Read the text again to find out if the following statements are true or false:
Task 6. Fill in the gaps in the text below with the appropriate words and word-combinations from the box:
Task 7. Complete the following sentences:
1. When a barrister has acquired a substantial practice, he may become … . a) a judge; b) a Queen’s Counsel; c) the Crown Prosecutor. 2. In England the decision of a law student is between becoming … a) a barrister or a solicitor; b) a barrister or a judge; c) a solicitor or a prosecutor. 3. The solicitor usually deals with … a) petty crimes and matrimonial matters; b) arguing cases; c) presenting cases in any court. 4. Barristers specialize in … a) arguing cases in front of a judge and representation in Magistrates’ Courts; b) advocacy; c) employing solicitors.
a) a solicitor; b) a magistrate; c) a barrister.
Task 8. Find the words and expressions with the following meanings:
Task 9. Replace the parts in a bold type with the synonyms:
Task 10. What do usually lawyers do? Can you answer at once? If you can’t do that then read the text below and say whether the list of lawyers’ functions is complete.
Vocabulary notes:
Task 11. Readand translate the text about other types of legal profession in the UK:
Officers of the Court The Judge is the officer who is either elected or appointed to preside over the court. If the case is to be tried before a jury, the judge rules upon points of law dealing with trial procedure, presentation of the evidence and the law of the case. If the case is tried before the judge alone, he will determine the facts in addition to performing the aforementioned duties. The court clerk is an officer of the court, also either elected or appointed, who at the beginning of the trial, upon the judge’s instruction, gives the entire panel of prospective jurors (veniremen) an oath. By this oath, the venireman promises that, if called, he will truly answer any question concerning his qualifications to sit as a juror in the case. Any venireman who is disqualified by law, or has a valid reason to be excused under the law, ordinarily is excused by the judge at this time. A person may be disqualified from the jury duty because he is not a resident voter or householder, because of age, hearing defects, or because he has served recently on a jury. Then the court clerk will draw names of the remaining veniremen from a box, and they will take seats in the jury box. After twelve veniremen have been approved as jurors by the judge and the attorneys, the court clerk will administer an oath to the persons so chosen “to well and truly try the case”. The bailiff is an officer of the court whose duties are to keep order in the courtroom, to call witnesses, and to take charge of the jury as instructed by the court at such times as the jury may not be in the courtroom, and particularly when, having received the case, the jury is deliberating upon its decision. It is the duty of the bailiff to see that no one talks with or attempts to influence the jurors in any manner. The court reporter has the duty of recording all proceedings in the courtroom, including testimony of the witnesses, objections made to evidence by the attorneys and the ruling of the court thereon, and listing and marking for identification any exhibits offered or introduced into evidence. In some states, the clerk of the court has charge of exhibits. The attorneys are officers of the court whose duties are to represent their respective clients and present the evidence on their behalf, so that the jury or the judge may reach a just verdict or decision. The role of the attorney is sometimes misunderstood, particularly in criminal proceedings. English system of criminal jurisprudence presumes every defendant to be innocent until proved guilty beyond a reasonable doubt. Every defendant is entitled to be represented by legal counsel, regardless of the unpopularity of his cause. This is a constitutional safeguard. It is entirely ethical for an attorney to represent a defendant whom the community may assume to be guilty. The accused is entitled to counsel in order that he is protected from conviction on insufficient evidence, and he is entitled to every protection which the law affords him.
Vocabulary notes:
Task 12. Translate the words and word combinations.
The bailiff, секретар суду, a resident, common law, присяга, a householder, судовий процес, venirman, цивільні та кримінальні справи, склад присяжних, to gather testimony, обговорювати рішення, to challenge the jurisdiction, обвинувальний акт, attorney, заперечення, testimony of the witnesses, речові докази, a just verdict, укладач збірника судових рішень, exhibit.
Task 13. You have learnt a lot about different types of legal professions. Now test yourself matching the following extracts with the law professional titles in the box:
Task 14. Translate the telephone conversation:
Секретар суду: Це номер 441521? Чи можу я поговорити з місіс Вайт? Місіс Вайт: Говорить Місіс Вайт. Слухаю вас. Секретар суду: Ми щойно надіслали вам повістку про явку до суду як свідка (subpoena for attendance of witness). Адвокати обох сторін воліють задати вам декілька питань. Не могли б ви з’явитися у суді завтра зранку або післязавтра? Місіс Вайт: Повістку я ще не отримала і завтра прийти не зможу. Якщо вас влаштовує, я зможу післязавтра об одинадцятій ранку. Секретар суду: Домовились. Чекаємо на вас післязавтра об 11-ій. Дякую, до побачення! Місіс Вайт: До побачення!
Task 15. Translate the sentencesintoEnglish:
Task 16. Answer the questions:
Task 17. Describe and compare the duties performed by each of the following:
- a barrister; - a solicitor; - a Queen’s Counsel; - a judge; - a juror; - a bailiff; - an attorney.
Task 18. The information about the process of jurors’ choice is given below. Your task is to translate it.
Якщо судовий розгляд відбуватиметься за участю присяжних, першим кроком буде їх вибір. Перш ніж розпочати судовий процес по даній справі, секретар суду викличе до суду потенційних присяжних на співбесіду. Вони обираються навмання із списку законослухняних громадян, і 12 з них будуть викликані на лаву присяжних для перевірки на неупередженість. Сучасне законодавство в окремих країнах допускає участь присяжних при розгляді деяких справ. Таке законодавство визнане Верховним судом. Слід відмітити, що деякі нові закони не вимагають одностайного голосування присяжних за вердиктом. Перевірка на неупередженість є методом, за допомогою якого суд та адвокати з кожної сторони перевіряють кваліфікаційну придатність потенційних присяжних на справедливість та неупередженість. Кожна сторона конфлікту може відхилити певну кандидатуру присяжного через його упередженість або через підозру у зв’язку із іншою стороною. Крім цього, кожна сторона має право заявити певну кількість відхилів без повідомлення причини (“peremptory challenges”). Кожна сторона має можливість задати питання потенційному присяжному та приймати або відхиляти їх кандидатури поки кількість відхилів не буде вичерпано. Потенційні присяжні зобов’язуються давати правдиві відповіді під час перевірки на неупередженість. Процес продовжується аж поки не буде обрано суд присяжних у повному складі. Після вибору присяжних адвокати виголошують вступну промову, щоб ознайомити їх із основними фактами по даній справі, які кожна із сторін намагається довести, щоб суд присяжних міг зрозуміти загальну картину даної справи. Після вступних промов позивач подає свої докази. Докази та свідчення подаються у відкритому суді у вигляді опитування свідків і ознайомлення присутніх із речовими доказами.
Task 19. Retell the text:
ENTERING THE PROFESSION How does someone become a lawyer? In some countries in order to practise as a lawyer it is necessary to get a university degree in law. However, in others, a degree may be insufficient; professional examinations must be passed. In Britain, it is not in fact necessary to have a degree, although nowadays most people entering the profession do. The main requirement is to pass the Bar Final examination (for barristers) or the Law Society Final examination (for solicitor). Someone with university degree in a subject other than law needs first to take a preparatory course. Someone without a degree at all may also prepare for the final examination, but this will take several years. In most countries, lawyers will tell you that the time they spend studying for their law finals was one of the worst periods of their life! This is because an enormous number of procedural rules covering a wide area of law must be memorized. In Japan, where there are relatively few lawyers, the examinations are supposed to be particularly hard: less than 5 % of candidates pass. Even after passing the examination, though, a lawyer is not necessarily qualified. A solicitor in England, for example, must then spend two years as an articled clerk, during this time his work is closely supervised by an experienced lawyer, and he must take further courses. A barrister must spend a similar year as a pupil. The rate at which the legal profession grows is terrific. In 21st century the number of lawyers will probably outpace the rate of population growth.
Vocabulary notes
Task 20. Circle a), b) or c) to complete the sentence:
a) to pass professional exams; b) to work as a clerk for 5 years after graduating from a university; c) wear black suits
a) identical; b) partially identical; c) different
a) difficult to pass; b) not practiced; c) easy to pass
b) an articled clerk; c) a pupil; d) an attorney
a) very low; b) ridiculous; c) much higher than those of other professionals
Task 21. Match the words with their definitions:
Task 22. Translate the text into English:
Якщо ви вирішили стати юристом, то вам необхідно бути терплячим та працьовитим. Одного університетського ступеню не достатньо. Ви повинні скласти багато професійних іспитів та отримати досвід. Важливо вирішити в якій галузі права ви хотіли б працювати. Когось цікавить адвокатська практика. Це дає право представляти інтереси клієнта в суді. Солісітер за звичай має справу з менш серйозними злочинами, справами про розлучення, дає поради щодо складання заповіту та повернення боргів. Але жодні іспити не допоможуть вам стати прокурором округу США. Ці юристи мають достатню свободу дій та вирішують питання про переслідування судовим порядком. Вимоги до майбутніх юристів досить високі. Проте, в майбутньому столітті збільшення кількості юристів, можливо, перевищить темпи росту населення.
Task 23. Role play.
Hearing the case in a Civil Court
Situation : The case of establishing affiliation (встановлення батьківства) and paying maintenance (сплачення аліментів) is heard in the county court of Lancashire. Two women accidentally found out that they were simultaneously in the common-law marriage (у цивільному шлюбі) with one and the same man, Mr. Peter Bradly, a well-to-do banker. As they state, both of them have a child from him. The court considers claims/suits (позови) of both women. The first woman’s claim is to make their marriage legal (узаконити шлюб) in court order, to admit Mr. Bradly’s paternity (визнати батьківство) of his child. The other woman’s claim is to admit Mr. Bradly’s paternity of her child and to prescribe paying proper maintenance of £ 1500 per month... Play participants: Peter Darby, country judge Dr Frank Stevens, the plaintiffs’ barrister Ted Carter, the defendant’s barrister Mary Graham and Dora West, plaintiffs Mr. Peter Bradly, defendant Mr. Brick, Court magistrate (from the community)
Taking part in the play as acting characters of a civil case, give proof of your point of view, in particular: a) Barrister Ted Carter insists on complete satisfying his clients’ demands and also insists on Mr. Bradly’s moral public blame (осуд)/possibly some other kind of responsibility. Ted Carter gives his arguments... b) Plaintiff Mary Graham is not so aggressive and she thinks her claim may be satisfied with admitting the paternity by the defendant. She is ready to forgive him and even register officially their matrimony in future... c) Plaintiff Dora West is in an aggressive mood and, in addition to legal claims, she insists on punishing the defendant ... mainly, prescribing paying maintenance of £ 1500 per month... d) Defendant Mr. Peter Bradly agrees/does not agree to satisfy the material claims of the plaintiffs (or of one of them). He admits/denies the paternity of Mary Graham’s daughter. He denies Dora West’s claim/suit and demands a medical examination (експертиза) concerning establishing his paternity of Dora West’s daughter... e) Ted Carter, the defendant’s barrister, insists on his client’s behalf on a medical examination in order to identify the paternity according to Dora West’s suit. His arguments are the following: some new facts have been found out that Dora West was intimate with several men, including an employee of the National Bank, where Mr. Bradly works ... Taking into account a number of facts, Ted Carter agrees to satisfy Mary Graham’s claim, but as to Dora West’s suit, the barrister asks the court to hold an extra inquiry (додаткове розслідування) … f) Country judge Peter Darby asks the plaintiffs, the defendant, the barristers a number of questions and makes a decision:
g) Mr. Brick held a press conference after the court sitting and stated his general approval of the decision of the country court and also marked Mr. Bradly’s behaviour was morally wrong ...
Task 24. Write down the annotation to the following:
The personnel of the law Judges
Judges are normally appointed from practising barristers, (advocates in Scotland) or solicitors. High Court judges, circuit judges and recorders are appointed by the Queen on the recommendation of the Lord Chancellor. District judges are appointed by the Lord Chancellor. Circuit judges and district judges are appointed through a competitive procedure including an interview before a panel which makes recommendations to the Lord Chancellor. Over the next few years, this procedure for making appointments is to be extended to all judicial posts below the level of the High Court. Circuit judges, who preside in county courts and the Crown Court, are appointed from barristers or solicitors who have held a right of audience in the Crown Court or county courts for at least ten years or from recorders with at least two years’ experience. Recorders are part-time judges in the Crown Court and county courts and are appointed from among those barristers or solicitors who have held a right of audience in the Crown Court or county courts for at least ten years; they are expected to sit for at least 20 days a year but no more than 50. High Court judges are appointed from practitioners who have held a right of audience in the High Court for at least ten years, or for among circuit judges who have served for at least two years. Court of Appeal judges are appointed by the Queen on the recommendation of the Prime Minister, usually from among High Court judges. The Law Lords (in the House of Lords) are usually appointed from among Court of Appeal judges or the Scottish equivalent. In Scotland, Supreme Court judges, sheriffs principal and sheriffs are appointed by the Queen on the recommendation of the Secretary of State for Scotland. They are chosen from advocates or solicitors who have had many years experience as practitioners in the Supreme or sheriff courts. Lay magistrates in England and Wales need no legal qualifications but are trained to have sufficient knowledge of the law, including the rules of evidence, and of the nature and purpose of sentencing. The Scottish district court justices of the peace need no legal qualifications, but they too must take part in training. Stipendiary magistrates are legally qualified. In Northern Ireland all full-time judges and resident magistrates are appointed by the Queen and are drawn from the legal profession. Members of a lay panel who serve in juvenile courts undertake training courses.
The legal profession
The legal profession is divided into two branches: barristers (advocates in Scotland) and solicitors. Barristers and advocates advise on legal problems submitted through solicitors or other recognized professional bodies and present cases in all courts. Solicitors undertake legal business for individual and corporate clients; they can also, after appropriate training, present cases in all courts. Although people are free to conduct their own cases, most people prefer to be legally represented, especially in more serious cases. Barristers belong to one of the four Inns of Court in England and Wales – Lincoln’s Inn, Gray’s Inn, the InnerTemple and the MiddleTemple – or the Inn of Court of Northern Ireland. Students study in the Inns of Court School of Law and must complete satisfactorily the skills-based course before being called to the Bar. They must then serve an apprenticeship with a qualified barrister for one year. Barristers must be members of the General Council of the Bar, which upholds professional standards and has certain disciplinary powers. The corresponding body in Scotland is the Faculty of Advocates. Professional examinations must also be passed before anyone can become a solicitor. After that, a two-year period of work experience, called a training contract, is served in a solicitor’s office. Once qualified in this way, a newly admitted solicitor is supervised for a period of three years. The Law Society in England and Wales is the governing body of the profession and has disciplinary powers over practicing solicitors. It also regulates admission, education and training. A solicitor is bound contractually to his or her client and can be sued for negligence. In Scotland the Law Society of Scotland represents solicitors. The governing body in Northern Ireland.
Task 25. Make up the plans and form questions to the texts from the previous exercise.
Task 26. Write down the resume about two philosophers of law:
Philosophers of law Sir Thomas More, 1478-1535
Sir Thomas More was an English statesman and writer, known for his religious stance against King Henry VIII that cost him his life. More was born in London and was educated at one of London’s best schools. He later spent two years in the University of Oxford, mastering Latin and undergoing a thorough drilling in formal logic. Among his important thoughts was that the reasons for crime were to be found in economic and social conditions. He believed that if people lived in a more just and humane society they would behave better. He also thought that punishment should be sensible and that people found guilty should be made to work for the good of the community. His views were far ahead of the time, so that it was only in later centuries that his book Utopia was really understood. More’s Utopia describes a pagan and communist city-state in which the institutions and policies are entirely governed by reason. The order and dignity of such a state provided a notable contrast with the unreasonable policy of Christian Europe, divided by self-interest and greed for power and riches, which More described in Book 1, written in England in 1516. Among the topics discussed by More in Utopia were penology, state-controlled education, religious pluralism, divorce, euthanasia, and women’s rights. The resulting demonstration of his learning, invention, and wit established his reputation as one of the foremost Humanists. Soon translated into most European languages, Utopia became the ancestor of a new literary genre, the Utopian romance. More’s History of King Richard III, written in Latin and in English between about 1513 and 1518, is the first masterpiece of English historiography. Though never finished, it influenced succeeding historians. William Shakespeare is indebted to More for his portrait of the tyrant. More attracted the attention of King Henry VIII. The King made More one of his favourites and often sought his company for philosophical conversations. More became Lord Chancellor in 1529; he was the first layman to hold the post. His fortunes changed, however, he refused to support Henry’s request for a divorce from Catherine of Aragon. As a strict Roman Catholic he disapproved of Henry VIII’s attempt to break away from the church in Rome and set up his own Church of England. For failing to accept Henry as the head of the English church he was tried for treason in 1535 and beheaded at the Tower of London. He was made a saint by the Roman Catholic Church.
John Locke, 1632-1704
The ideas and writing of the seventeenth-century English philosopher John Locke deeply influenced the political outlook of the American colonists. Locke spelled out his political ideas in Two Treatises on Civil Government, first published in 1690. His writings were widely read and discussed in both Europe and America. Locke’s ideas seemed to fit the American colonial experience. Colonial leaders such as Benjamin Franklin, Thomas Jefferson, and James Madison regarded these ideas as political truth. Locke’s ideas became so influential that they have been called the “textbook of the American Revolution”. Locke reasoned that all people were born free, equal, and independent. They possessed natural rights to life, liberty, and property at the time they lived in a state of nature, before governments were formed. People contracted among themselves to form governments to protect their natural rights. Locke argued that if a government failed to protect these natural rights, the people could change that government. The people had not agreed to be governed by tyrants who threatened their rights but by rulers who defended their rights. Locke’s ideas were revolutionary in an age when monarchs still claimed they had God-given absolute powers. Locke denied that people were born with an obligation to obey their rulers. Rather, in his Second Treatise on Civil Government, Locke insisted that freedom of people under government is to have a standing rule to live by, common to every one of that society, and made by the legislative power vested in it. Government, then, was legitimate only as long as people continued to consent to it. Both the Declaration of Independence and the Constitution, written nearly a century after Locke, reflected Locke’s revolutionary ideas.
LEGAL PROFESSION IN THE USA
Warming-up:
Vocabulary notes:
JUDGES IN THE USA
The multitudinous judicial systems in the United States are operated by a variety of persons. Judges are at the core of any court system. They are the decision makers, the key officials around whom all else is arranged. However, there is a vast supporting cast. Most intimately connected with the judges are those who assist them in the process of deciding issues and cases: law clerks, staff attorneys, and trial court adjuncts. Beyond these are the clerical and administrative personnel: secretaries, clerks of court and their staffs, judicial educators, and court administrators. Outside the court systems are numerous organizations whose functions are to assist the courts in various ways. Finally, there are the lawyers who present cases, thus supplying the grist for the judicial mill. Because American judges sit on courts of widely varying types and come from a variety of backgrounds and experiences, it is difficult to generalize about them. Two generalizations, however, are possible. First, judges in the United States initially come to the bench from other lines of legal work and after a substantial number of years of professional experience. Second, once on the bench they do not, in the main, follow a promotional pattern through the ranks of the judiciary. Compared to the English and civil-law systems of judicial recruitment and promotion, the methods used in the United States are quite varied. These procedures generally lack means of assuring professional quality. Moreover, the American judges’ backgrounds are much more diverse than those of the English and civil-law judges. With the relatively minor exception of some lay judges on state courts of limited jurisdiction, all American judges have studied law and been licensed to practice law. Although most judges have actually practiced law, the nature of that practice can be quite varied. Many judges have been litigators, but some have been office lawyers or counsel to organizations such as corporations or private associations. The types of law practice that judges have experienced range from small-town general practice to specialized fields in large metropolitan firms. Numerous judges have been lawyers in government service as prosecuting attorneys or counsel to government agencies, either state or federal. Some judges are former law professors, but their number is small. Many judges have earlier been active in political affairs, often as legislators, political campaign managers, or party committee members or chairmen. Indeed, many American judges can be described as former lawyer-politicians. Another feature of the American judiciary that sharply distinguishes it from that of civil-law countries and other common-law countries is that persons can enter the judicial system at any level. A lawyer can initially become a judge on the highest court, the lowest court, or any in between. There is no system or pattern about this. In other words, a lawyer who has never been a judge can become a judge on a court of last resort or an intermediate appellate court or trial court, in either a state or the federal system. Lawyers who come on the bench at the trial or intermediate appellate levels have no real promise of moving to a higher court, although some may have hopes in that regard. Some judges do move up, but most spend their entire judicial careers on the same court. There is no system of promotion and no substantial sentiment among American lawyers, judges, or politicians that such a system would be desirable.
LAWYERS It is a longstanding tradition in the Anglo-American legal world that anyone can represent himself in court. But contemporary law and judicial procedure are so complicated that it is unrealistic for a litigant to represent himself in any but the simplest matters. Lawyers are essential to ensure the full and fair presentation of cases. American courts, being passive agencies in the common-law tradition, depend on lawyers to present the litigants’ positions and to develop the evidence and the legal arguments. Under the adversary system it is each lawyer’s obligation to present his client’s case to the court vigorously and completely. Lawyers are thus an integral part of the machinery of justice. In the United States admission to the practice of law and the governance of the legal profession are matters of state concern. One can speak accurately, for example, of “the Virginia bar” or “the Texas bar” or “the Illinois bar”, meaning the lawyers in each of those states who have licensed by those states. There is no national or federal authority to admit persons to the legal profession. The entity known as the American Bar Association is a private, voluntary, nationwide organization of some 370,000 lawyers from all states; it is the largest organization of lawyers in the country, although there are many other private bar associations, often based on areas of legal specialization. In each state the requirements for admission to the bar are set by the Supreme Court or the legislature or the two acting together. Typically graduation from an accredited law school is required; there are more than 170 such schools in the United States, almost all affiliated with universities. Law school requires a three-year course of study after a student has attended college for four years and received a bachelor’s degree. Law school graduates are awarded the degree of Juris Doctor (J.D.). They are then eligible to take a state bar examination, a written examination lasting two or three days. These examinations are usually administered by a body of lawyers, known as bar examiners, acting under the authority of the state’s Supreme Court. Applicants who pass the bar examination and who also meet the requisite standards of character are admitted into the bar by that court. Within the legal profession there is no formal division; there are no barristers or solicitors. Anyone admitted to the bar in a state is legally authorized to engage in any kind of legal practice in that state. As a practical matter, there is an increasing degree of specialization among lawyers. Typical areas of specialization are litigation, taxation, labor law, patent law, family law, trusts and estates, and various branches of administrative law. A lawyer admitted to one state’s bar can practice in another state only if he gets admitted in that state or that state recognizes the original state’s admission. This kind of reciprocity is accorded in some states but not in all.
Task 1. Find the corresponding Ukrainian equivalents of the following English ones:
the multitudinous judicial systems, trial court adjuncts, to assist in the process of deciding issues and cases, to supply the grist for the judicial mill, to come to the bench from other lines of legal work, to follow a promotional pattern through the ranks of the judiciary, litigators, to enter the judicial system at any level, a court of last resort, to ensure the full and fair presentation of cases, to present the litigants’ positions, to develop the evidence and the legal arguments, an integral part of the machinery of justice, the American Bar Association, to meet the requisite standards of character, to be admitted into the bar, to engage in any kind of legal practice.
Task 2.Give the English equivalents of:
колегія адвокатів, протилежна сторона судового процесу, судовий виконавець, мати право, адвокат або група адвокатів, які беруть участь у судовій справі, спеціаліст, який проводить судовий процес, аторней, найвищий суд, бути прийнятим до колегії, займатися будь-якою юридичною практикою, представляти інтереси однієї із сторін судового процесу, розкривати докази та судові аргументи.
Task 3. Write down the word-families of the following words:
litigator, judiciary, counsel, promotion, judge.
Task 4. Match the following adjectives with the nouns and translate the word-combinations:
Task 5. Find the correct answers:
Task 6. Find a word or a phrase which best completes the sentence:
1. In the USA judges ... a) are drawn from the experienced practitioners – barristers. b) have practiced law, the nature of that practice can be quite varied. c) begin their professional careers as judges.
a) on the highest court. b) on the lowest court. c) on the highest court, on the lowest court, or any court in between.
a) performs both civil and criminal legal functions for clients. b) does not represent the clients in court. c) is the specialist with particular skills in advocacy.
a) must spend a similar year as pupils. b) are awarded the degree of Juris Doctor. c) are not necessarily qualified.
a) is allowed to present cases in the higher courts. b) spends much of his time preparing briefs for counsel. c) is legally authorized to engage in any kind of legal practice in that state.
Task 7. Match the different branches of the law with the sphere of their application:
Task 8. Complete the following sentences using the words in brackets:
Task 9. Answer the questions:
Task 10. Study the article below and decide the following:
Joan Collins has starring role in lawsuit Reuter and Associated Press NEW YORK
British actress Joan Collins made her debut Tuesday in a New York courtroom, battling publishing giant Random House over a multimillion-dollar book contract. Random House is suing Collins, demanding the return of a $1.2 million advance paid to her for manuscripts it claims were unfinishable and unpublishable. Collins, best known for playing the scheming Alexis Carrington in the television series Dynasty, has countersued for $3.6 million she claims the publishing house still owes her. Collins said she “felt completely shattered and let down” by the lawsuit. “It has seriously upset my writing career and my reputation,” she said. The dispute centered on a simple question: what is a completed manuscript? Delivering the opening argument for Random House, attorney Robert Callagy said Collins had not met the terms of her contract and had to return the advance money. “Miss Collins should be treated like any other person,” Callagy said. “If you sign the contract, you must perform.” Former Random House editor Joni Evans testified that in 1991, when she first read Collins’ manuscript, she felt ‘alarmed’. “It just wasn’t working in any shape or form,” said Evans, now a literary agent. “It was no good. It wasn’t grounded in reality. It was dull, primitive and rough. It was clichéd in plot.” Collins’ attorney, Kenneth David Burrows, argued that the actress had submitted two complete manuscripts, A Ruling Passion, written in 1991 at her home in France, and a second manuscript with the working title Hell Hath No Fury. Thus she had turned in the required number of words and therefore had complied with the contract. He also said Random House should have provided her with editing and advice but instead it was trying to avoid meeting its obligations. He argued earlier that under the 1990 book deal she was guaranteed the money even if the publisher rejected the book. Verdict. The jury decided that Collins had completed one manuscript in compliance with her contract. But Random House did not have to pay her for the second manuscript because it was merely a rehashing of the first one and not a separate piece of work. The verdict meant Collins could keep the advance and collect more from Random House, though how much more remained in dispute.
Task 11.Work in pairs.
Role play Situation Thieves broke into Camera shop in Pushkin Street last night and stole photographic equipment. Police say the thieves appeared to know exactly what they were looking for. They took only the two most expensive cameras and some accessories and left the rest of the shop virtually undisturbed. Procedure Groups of four to eight are needed for this activity. In each group there should be two suspects and two or more police inspectors.
Role B – suspects – the instructions which will help you to prepare for the role play: One of you has been contacted by the police about the break-in because you used to work part-time at the camera shop until recently. You left after a row with your boss about your wages. You have nothing to do with the break-in of course, but the problem is you can’t tell the police where you really were that evening without getting someone else into trouble. In fact you and your friend spent the evening playing the guitar and singing at a local pub until midnight. You know and like the landlord of the pub and you know he could lose his license if the police discovered he had kept his pub open after the legal licensing hours (closing time is 11.00 p.m. in your town). You are determined not to mention the pub in case enquiries in order not to cause problem for the landlord. Thus the problem is to find alibi, mislead the police. Wouldn’t you try to do it?
Role A – Police inspectors. The owner of the shop suspects a former employee of his who left because of disagreement over pay. You have contacted the employee who says he spent the whole evening with a friend who lives in the same house. You have also spoken to the two suspects neighbors. A woman who lives on the ground floor says she was woken at about 12.30 a.m. when her dog started barking. When she looked out, she saw the two coming in and she thinks one of them was carrying a large bag. The Police inspectors decided to interview each of the suspects in turn about their activities between 8.00 p.m. and 12 p.m. that night. Plan the set of questions you should ask in order to test the truth of their stories. Save the question about the large “bag” until last. Finally, you will have to decide whether to charge the suspects with the theft. Your task is to expose those who tried to deceive you. While discussing the topic try to use lists of some phrases that are utilized to express different shades of meaning.
Task 12. Being a lawyer is regarded as one of the best professions in many countries. Think about what the different areas of specialization are, and which you would choose, or have chosen, and why. Make notes under the headings: choice of specialization; number of years of training; income expectations; responsibilities; kind of clients; need for foreign languages; likely challenges and opportunities. Add any other points that occur to you.
SUPPLEMENTARY READING
Legal Profession
There are two distinct kinds of lawyers in Britain. One of these is a solicitor. Everybody who needs a lawyer has to go to one of these. They handle most legal matters for their clients, including the drawing up of documents (such as wills, divorce papers and contracts), communicating with other parties, and presenting their clients’ cases in magistrates’ courts. However, only since 1994 have solicitors been allowed to present cases in higher courts. If the trial is to be heard in one of these, the solicitor normally hires the services of the other kind of lawyer – a barrister. The only function of barristers is to present cases in court. The training of the two kinds of lawyer is very different. All solicitors have to pass the Law Society exam. They study for this exam while “articled” to established firms of solicitors, where they do much of the everyday junior work until they are qualified. Barristers have to attend one of the four Inns of Court in London. These ancient institutions are modeled somewhat on Oxbridge colleges. For example, although there are some lectures, the only attendance requirement is to eat dinner there on a certain number of evenings each term. After four years, the trainee barristers then sit exams. If they pass, they are “called to the bar” and are recognized as barristers. However, they are still not allowed to present a case in a crown court. They can only do this after several more years of association with a senior barrister, after which the most able of them apply to “take silk”. Those whose applications are accepted can put the letters QC (Queen’s Counsel) after their names. Neither kind of lawyer needs a university qualification. The vast majority of barristers and most solicitors do in fact go to university, but they do not necessarily study law there. This arrangement is typically British. The different styles of training reflect the different worlds that the two kinds of lawyer live in, and also the different skills that they develop. Solicitors have to deal with the realities of the everyday world and its problems. Most of their work is done away from the courts. They often become experts in the details of particular areas of the law. Barristers, on the other hand, live a more rarefied existence. For one thing, they tend to come from the upper strata of society. Furthermore, their protection from everyday realities is increased by certain legal rules. For example, they are not supposed to talk to any of their clients, or to their client’s witnesses, except in the presence of the solicitor who has hired them. They are experts on general principles of the law rather than on details, and they acquire the special skill of eloquence in public speaking. When they present a case in court, they, like judges, put on the archaic gown and wig which, it is supposed, emphasize the impersonal majesty of the law. It is exclusively from the ranks of barristers that judges are appointed. Once they have been appointed, it is almost impossible for them to be dismissed. The only way that this can be done is by a resolution of both Houses of Parliament, and this is something that has never happened. Moreover, their retiring age is later than in most other occupations. They also get very high salaries. These things are considered necessary in order to ensure their independence from interference, by the state or any other party. However, the result of their background and their absolute security in their jobs is that, although they are often people of great learning and intelligence, some judges appear to have difficulty understanding the problems and circumstances of ordinary people, and to be out of step with general public opinion.
Legalese
Although lawyers come from a variety of backgrounds and do a variety of work, as a profession they often appear rather remote and difficult to understand. Perhaps one reason for this is legalese – the strange and incomprehensible language so many lawyers seem to write and speak. This is not just a feature of English-speaking lawyers. People all over the world complain that they cannot understand court proceedings or legal documents. Of course all professions have their own jargon. The use of some special words can be justified because they refer to matters which are important to a particular profession but not important to most people in everyday life. But sometimes it seems that jargon is a way of creating a mystery about a profession of distinguishing people on the inside (economist, doctors, teachers) from those on the outside. In recent times lawyers have made efforts to make their profession less mysterious. After all, their job is supposed to be to clarify matters for the public, not to make them more complicated! This is particularly so in the United States where lawyers openly advertise their services to the public and where special clothes and wigs, still a feature of the English system, have mostly disappeared. But it seems likely that legalese will survive for a long time to come. One reason for this is that old documents and reports of old cases have great importance in law, particularly in common law systems. Another reason is that rewriting laws is a slow and painstaking process. The words must try to cover every eventuality, because people are always looking for a legal loophole, a way of avoiding a legal duty by making use of an ambiguity or an omission in law. Consequently if there is an existing law which has worked for a long time, even a law which contains old language in long and complex sentences, it is easier to retain the old law than write a new one. Even when a government draws up a new law it is often guided by the working of an older law.
The Lord Chancellor
The Lord High Chancellor of Great Britain, more usually known as the Lord Chancellor, ranks eighth in order of precedence in England after the Queen: a status which reflects the importance of this position as a Minister of the Crown chiefly responsible for the administration as a Minister. The Lord Chancellor is appointed by the Queen on the advice of the Prime Minister. The position combines duties which are legislative, executive and judicial: it is therefore an exception to the constitutional doctrine of the “Separation of Powers”. In this legislative capacity the Lord Chancellor presides over the House of Lords. He or she may take part in its debates and can vote in all of its divisions. In this executive capacity he or she is a member of the Cabinet, its chief legal and constitutional adviser and one of its representatives in the House of Lords. The Lord Chancellor is responsible for the custody and the use of the Great Seal, which authenticates important legal documents such as Letters Patent. In a judicial capacity the Lord Chancellor is head of the judiciary and presides over the House of Lords sitting as a court of appeal. He or she is a member of the Judicial Committee of the Privy Council, is head of the Chancery Division of the High Court and a member of the Court of Appeal. However, the Lord Chancellor never sits as a judge other than in the House of Lords and the Judicial Committee of the Privy Council. The Queen is advised on the appointment of puisne judges of the High Court, circuit judges and recorders. Magistrates and the chairmen of certain administrative tribunals are also appointed by the Lord Chancellor.
Vocabulary notes:
Judges
a) The Lord Chief Justice (L.C.J.) is appointed by the Queen on the advice of the Prime Minister and is head of the Court of Appeal (Criminal Division) and of the Queen’s Bench Division as well as being a member of the House of Lords. b) The Master of the Rolls (M.R.) is appointed by the Queen on the advice of the Prime Minister and is a head of the Court of Appeal (Civil Division) and also supervises the admission of solicitors to the Rolls of the Supreme Court. c) The President of the Family Division is appointed by the Queen on the advice of the Prime Minister, and is responsible for the work of this Division of the High Court. d) The Lords of Appeal in Ordinary are known as Law Lords and are appointed by the Queen on the advice of the Prime Minister from among existing judges or barristers of at least fifteen years’ standing. They are life peers and adjudicate in appeal cases heard in the House of Lords. They are also members of the Judicial Committee of the Privy Council. There are nine Law Lords. e) Lords Justice of Appeal are appointed by the Queen on the advice of the Prime Minister from among existing judges or barristers of at least fifteen years’ standing. They are judges of the Court of Appeal. They are twenty-three in number. f) Judges of the High Court are known as puisne judges and are appointed by the Queen on the recommendation of the Lord Chancellor from among barristers or solicitors of at least ten years’ standing or circuit judges of at least two years’ standing. Twelve judges are assigned to the Chancery Division, forty-five to the Queen’s Bench Division and sixteen to the Family Division of the High Court. All the judges referred to in (a) to (f) above hold office during good behaviour and may be removed by the Crown on an address presented by both Houses of Parliament. Their salaries are fixed by statute and form a charge on the Consolidated Fund. The effect of these two important provisions is to ensure judicial independence: a vital feature in the administration of law and justice within the State. Judges of the High Court retire at the age of 75, and are eligible for pensions granted by statute. 1. Circuit Judges. These are judges appointed by the Queen on the advice of the Lord Chancellor to serve in (1) the Crown Court and (2) county courts. A circuit judge must be a barrister or solicitor of ten years’ standing or a person who holds the office of a recorder. The retiring age is 72, with the possibility of extension to 75. All county court judges who existed in 1971 became circuit judges, as did the recorders of Liverpool and Manchester, a number of whole-time chairmen and deputy chairmen of Quarter Sessions and certain other holders of judicial offices under the provisions of the Courts Act, 1971. 2. Recorders. Under the Courts Act, 1971 these are designated part-time judges of the Crown Court. Appointments are made by the Queen on the recommendation of the Lord Chancellor to men or women of standing who are prepared to commit themselves to not less than one month’s work on the bench each year. Barristers and solicitors of ten years’ standing are eligible for appointment to this office. If a solicitor holds the appointment for five years he or she may then be appointed a circuit judge.
Vocabulary notes:
Attorney-General and Solicitor-General
Together these are known as Law Officers. Both are appointed by the Prime Minister. They are political appointments, and the holders are precluded from private practice while holding office. a) The Attorney-General is a member of the House of Commons (not cabinet rank). His or her duties comprise the following: (i) Represents the Crown in the courts in civil matters where the public interest is concerned, and may prosecute in important and difficult cases in the criminal courts. (ii) Advises the Cabinet and Government departments on important (iii) Certain criminal offences must be reported to the Attorney-General, and his or her consent is necessary before criminal proceedings may be taken in certain cases, e.g. bribery, incest, corrupt practices, and offences against the Official Secrets Act, 1911 to 1989, the Misuse of Drugs Act, 1971, the Public Order Act, 1936, and various other Acts. He or she is head of the English Bar. b) The Solicitor-General is a deputy to the Attorney-General and his or her duties are similar. He or she is a barrister and is a member of the House of Commons. By the Law Officers Act, 1944, any functions authorized or required to be discharged by the Attorney-General may, unless expressly excluded, be discharged by the Solicitor-General if the Office of Attorney-General is vacant, if the Attorney-General is absent or ill, or if the Attorney-General authorizes his or her deputy to act in any particular case.
Vocabulary notes:
Masters
Masters of the Supreme Court are salaried officials, lawyers of at least ten years’ standing, attached either to the Queen’s Bench Division or to the Chancery Division of the High Court. Masters of the Queen’s Bench Division adjudicate on all matters preliminary to a trial. These preliminaries are known as 'interlocutory matters’. Thus one party may wish to inspect documents in the possession of their opponent, or one party may wish to put questions to their opponent to clarify certain points in issue. In these circumstances application may be made to a master for an order for discovery or an order for interrogatories commanding the opponent to produce the required documents or to answer on oath written questions. Disputes may arise as to the most convenient time or place of trial, or whether the trial should be with or without a jury. Such disputes may be decided by a master, from whose decision appeal lies to a judge in chambers. They are appointed from barristers. Chancery Division Masters perform similar work in their Division of the High Court. They are appointed from among solicitors, Taxing Mastersare officers of the Supreme Court whose function is the checking, determining, and levying of costs to be paid by parties to the trial when the court so directs.
Vocabulary notes:
Directors of Public Prosecutions
The office of the Director of Public Prosecutions is governed by the Prosecution of Offences Act, 1985. The Director must be a barrister or solicitor of at least ten years’ standing. This is an official appointment by the Attorney General with responsibility for the Crown Prosecution Service. This service, set up under the 1985 Act, is staffed by barristers and solicitors, certain of whom are designated Crown Prosecutors and Chief Crown Prosecutors (who are responsible for the service in each area in England and Wales). The Director, in his or her capacity as head of the Service, is responsible for all criminal proceedings on behalf of the police (other than minor criminal offences). He or she must also conduct all binding-over proceedings instigated on behalf of the police force and any other proceedings where, because of the importance, difficulty or otherwise of the case, may be considered necessary.
Vocabulary notes:
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