koc12

09.01.2023 02:44

Английский язык

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(1) Every country has its own system of law as each country has developed differently. However, there are two main tradi- tions of law in the world — English Common law, or Case law, and Civil law, or Roman law, or Continental law. English Common law is adopted by many Commonwealth countries and most of the USA. Continental law is adopted in continental Europe, many countries in Asia and Africa and in former socialist states.

(2) English Common law has developed gradually through­ out the history and is based on customs, court rulings (prec­ edents) and statutes. The most important concept of English Common law is the doctrine of precedent. Precedent is a deci­ sion made by a higher court on some case that serves example for lower courts to follow if the essential elements of the case are the same. Thus, judges have to apply existing precedents to each new case. If the elements of the case are the same as

those of previous recorded cases they have to make the same decision.

(3) Sometimes governments make new laws (statutes) to modify or clarify common law, or to make rules which have not existed before. Judges interpret those statutes and their interpretations become new precedents. Therefore, judges do not only apply law. They make law as their interpretations are precedents for other courts to follow.

(4) Another important concept of the common law is the principle of equity. By the 14th century people of England had become dissatisfied with the inflexibility of common law. A new system developed which recognised the rights that were not enforced as common law but were equitable or just (the right to force someone to carry out a contract, called specific perfor­ mance, or the right of the beneficiary of the trust).

(5) The courts of common law and of equity existed along­ side for centuries. An equitable ruling on the same case pre­ vailed. The problem was that a person had to start an action in two different courts in order to get a satisfactory solution. For example, a person had to seek specific performance in a court of equity and damages (monetary compensation) in a common law court. That is why in 1873 the two systems were unified.

(6) Continental systems are often called codified law sys­ tems as they have resulted from government attempts to pro­ duce a set of codes to govern every legal aspect of life.

The legislators wanted to show that the legal rights of the citizens originated in the state, not in local customs, and to separate legislature and judiciary. It was the state that was to make new laws, not the courts. The courts could only apply the law that the governments had made. Making new codes the law­ makers were influenced by the codes produced in the 7th cen- tury under the direction of Roman Emperor Justinian. Thus appeared the name — “Roman law”.

The main concept of Civil law is a government code. A code is a law passed by a legislative body and written in a formal document.

1. Why are systems of law different in different countries?

2. What are the two main traditions of law in the world?

3. What is common law based on?

4. What is the most important concept of common law?

5. What is a precedent?

6. What are the judges guided by when they make a decision?

7. Do governments make new laws? Why?

8. What do judges do with new laws?

9. Do judges make laws? In what cases?

10. Why did the tradition of equity appear?

11. What types of courts existed in England until 1873?

12. Why were the two systems of courts unified?

13. What are continental systems often called?

14. What have continental systems resulted from?

15. What did the lawmakers want to show?

16. Could judges make law in continental systems?

17. Why is continental law often called Roman law?

18. What is a code?

19. What is the difference between common law and continental law?