unit 2 sources of law text isources of english law -to learn about the major sources of english law...

Unit 2 Sources of Law

Text I Sources of English Law-To learn about the major Sources of English law

Text II Types of Law-To learn about the major distinctions in law

Text III Case Reading-To read 2 cases related to legislation

Text I Sources of English Law

Terms:common law, equity, case law, treaty, (EU law) regulation, directive, decision; (public & private) act, bill, Royal Assent, delegated legislation (secondary legislation), ratio decidendi

Proper names: UK Parliament, EU (EC), ECJ, HL

Text I Sources of English Law

Outline

I. (para. 1) Introduction: two different interpretations of “sources of law”

II. (para. 2-10) 6 specific sources of English law

Questions based on part I

1. What are the 2 senses of “sources of law”?

2. What is the underlying principle of such distinctions?

Questions based on part II

For “community law (EU law)”1. Why is the UK subject to the EU

law?2. What are the three forms of

European law? How are they distinguished from each other?

3. If the UK law is in conflict with the EU law, then which law shall prevail?


For “legislation”1. How does the text distinguish the

types of Acts of Parliament?2. What is a Bill? How is a Bill

different from an Act?


For “delegated legislation”1. What does delegated

legislation refer to?


For “case law”1. What is the role of judicial decisions in

English law?2. How does the doctrine of judicial

precedent operate?3. How is judicial creativity or judicial

discretion represented?4. What is the check on judicial power?


For “legal textbook”1. What kind of legal textbooks can

be treated as authoritative source of law?

2. In what ways are legal textbooks used as an source of law?


For “custom”1. How do you understand the line (para.

9) “The romantic view of…travel around the world”?

2. What are the 2 types of customary source of law according to the text?

3. What are the requirements for a custom to be used as a source of law?

Terms and proper namescommon law: 普通法，习惯法1. cf. civil law: 大陆法common law: 指广义的习惯法，包括衡平法

（ equity ）和判例法（ case law ）2. cf. equity 衡平法（ fair system of laws or system of

British law which developed in parallel with the common law to make the common law fairer ）

common law: 在习惯法系统下，案件要进入诉讼程序必须符合“严格的诉讼形式”，衡平法则无需遵守

3. cf. statutory law: 成文法common law: 指由法院判决内容累积而成的法律规

范，而成文法指以抽象条文方式规范具体案件的法律内容

Terms and Proper NamesStage 1: European Economic Community the European Coal and Steel Community (ESEC) (1952) 欧洲煤钢联营欧洲 the European Economic Community (EEC) (1958) 欧洲经济共同体 the European Atomic Energy Community (Euratom)(1958) 欧洲原子能共同体

Stage 2: European Community (EC) - the Brussels Treaty (1965) provided for the merger of the organizations into

what came to be known as the EC

Stage 3: European Union (1993)

- An economic and political union established by the Treaty of European Union, or Maastricht Treaty

Terms and proper names

UK Parliament the House of Lords (dual function:

legislature and judiciary) the House of Commons US Congress the Senate the House of Representatives

Terms and proper namesDoctrine of stare decisis

Where precedent merely requires that courts look to previous decisions for guidance, stare decisis requires that a court follow their own decisions and the decisions of higher courts within the same jurisdiction.

For example, in the U.S., a state trial court must allow its own decisions and the decisions of appellate courts in that state; an intermediate appellate court must follow its own decisions and the decisions of the state’s highest appellate court. Federal courts of appeal must generally follow their own prior decisions and those of the U.S. States Supreme Court, but they are not bound by decisions of federal district courts or other appellate courts.

Terms and proper namesTwo types of judicial precedents

Binding precedent: Where the doctrine of stare decisis applies, precedent is binding and a court’s options are limited. A court must harmonize the result in the present case with past decisions. Only after explaining why previous cases are inapplicable may a court fashion new rules or modify existing ones. A court may never ignore or contradict binding precedent.Persuasive precedent: Where the doctrine of stare decisis is not applicable, as with decisions from other jurisdictions or lower courts in the same jurisdiction, courts are free to follow previous decisions or ignore them. Although courts are not bound by such decisions, they remain persuasive because their reasoning can illuminate possible solutions to a problem.


ratio decidendi 判决理由

Judicial discretion 司法自由裁量权

Terms and Proper Names

Michael Zander-Honorary QC in 1997 -Senior Fellow of the British Academy in 2005 -conceived and conducted ‘The Crown Cour

t Study ‘- the biggest study ever carried out in the English courts

- Widely recognized legal writer on English law and legal system

Terms and proper namestime immemorial 1. General English

- time out of mind; long ago; beyond memory or recallThese ruins have stood here since time immemorial.

2. Legal English-beyond legal memory, specifically before the reign of Richard I (1189-1199), fixed as the legal limit for bringing certain kinds of lawsuit

Important words

subject: v. to cause to undergo the application (of)

They subjected him to torture. to expose or render vulnerable or liable (to

some experience)He was subjected to great danger.

to bring under the control or authority (of)The military authority promised they would subject the soldier to discipline.

Important wordssubject: adj1. possible or likely to be affected by (usu. some

thing bad)All flights are subject to delay.

2. conditional upon something (such as approval)The funding is subject to approval by the Board of education.

3. being under the control, power or sovereignty ofViolators are subject to a $100 fine.

Difficult points

(para. 3: 6) Directives, on the other hand, require

specific legislation to implement their proposals but the United Kingdom Parliament is under an obligation to enact such legislation as will give effect to the implementation of the directives.

Difficult points

as: conjas is / was / does etc(fml) used to add that what you have sai

d is also true of someone or something else

Eve’s very tall, as was her mother.I voted Labour, as did my wife.

Difficult points

(para 9: 11-15) Where statute law does not cover a par

ticular area or where the law is silent generally it will be necessary for a court deciding cases relating to such an area to determine what the law is and, in so doing, that court will inescapably and unarguably be creating law.

Difficult points

where: in a case, situation or respect in which

法律英语中引导条件从句 , 表示“凡是属于这种情况的”

silent: failing or refusing to express an opinion

Difficult points

(Para 9: 18-22)As the highest court in the land, the House of Lords has particular scope for creating or extending the common law, and a relatively contemporary example of its adopting such an active stance can be seen in the way in which it overruled the longstanding presumption that a man could not be guilty of the crime of rape against his wife.

Difficult points

stance: nthe publicly stated opinion of a person, group, newspaper etc towards something, especially a political matterHis tough stance on crime appeals to voters.The council has taken a pro-growth, pro-business stance on development issues.The official stance is that lottery money should be used for the arts and education.

Difficult points

(para 10: 4-6)Even in this respect, however, reliance on customary law as opposed to common law, although not impossible, is made unlikely by the stringent test that any appeal to it has to satisfy.

Difficult points

as opposed to: in contrast or opposition toStudents discuss ideas, as opposed to just copying from books.Where did the term soccer as opposed to football originate?

Difficult points

test: n.1. a difficult situation in which the qualities

of someone or something are clearly shownThe problems she faces were a real test of character.\

2. Standard of judgment or criterion; a basis for evaluation or judgmentA test of democratic government is how the congress and president work together.

Difficult pointsappeal: n.

a resort to a higher authority or greater power, as for sanction, corroboration, or a decision: an appeal to reason; an appeal to her listener's sympathyan urgent request for something important, such as relief, aid, help, etc.The girls family have made a public appeal for help to try and catch her killer.All the organizations involved have sent urgent appeals to the government, asking for extra funding.

Exercises B. Partial translation 1. When the national law and the

international law are inconsistent, two important principles can help to resolve the conflict.

2. The various state constitutions represent the highest law of the states.

3. As a result, it is more and more important to understand national and international laws.

Exercises

1. 公法影响全体公众，而私法只影响有限的一部分人，他们或者是特定的人群，或者是在特定地点里的人。

2. 有约束力的司法判例是普通法体系的一个特征，这是基于一个总的原则：一旦法院在特定的情形中确定了法律上的立场，那么在将来重大事实情节相同的任何案例中，法院也将达成同样的判决。

3. 在英国的法庭上，由法学作者所编写的书并不常被引用，这与许多大陆国家的做法相反。以前在英国引用法学作者的书很少得到许可，而且也仅限于几个有名的权威人士。近来这个规则放宽了些，可被接受的作者也增加了。

Exercises 4. At present, there are over 3000

laws and regulations in China, covering the areas of politics, economy, military affairs, culture, science and technology, education, marriage and family.

5. Under the guidance of building socialism with Chinese characteristics developed by Deng Xiaoping, China has embarked on the road of rule of law and entered a new course of democracy and legal system.

Text II Types of Law

Words: proprietary, wrong, offender (offend, offense) , term, penal, levy, incur, pronouncement, code, statute

Phrases: be categorized as, be concerned with, seek redress, compensate for, as opposed to, take action against, differ from

Terms: substantive / procedural law, public / private law, civil / criminal law, tort, civil / common law, judge-made law, constitutional law, case law, statutory law, executive order, administrative law

Question base on Text II

How does the text categorize law?

Terms tort 侵权 - A negligent or intentional civil wrong not arising out

of a contract or statute. These include "intentional torts" such as battery or defamation, and torts for negligence.

A tort is an act that injures someone in some way, and for which the injured person may sue the wrongdoer for damages. Legally, torts are called civil wrongs, as opposed to criminal ones. (Some acts like battery, however, may be both torts and crimes; the wrongdoer may face both civil and criminal penalties.)

Text III Case Reading

Case AUseful expressions: inter alia, enter (a judgme

nt), (the act, law, etc.) provides that…, take account of, feel sympathy for, decide a case in favor of / against sb., take effect, on the wrong side of sth., beyond dispute, court of law, be bound by (cf. be binding on), give effect to, come into operation

Terms: damages, hearing, liability, hard caseProper names: QB, Court of Appeal, M.R., LJJ


Case ALegal Issue: Was the judge right in giving effect

to the Act which by its terms was not yet in operation when judgment was given? If the judge was wrong, can the appeal court do what the judge could not properly have done at the hearing?


Case BUseful expressions: ex parte, by way of, under

(regulations, articles), deprive sb. of sth., interpret / construe law, member state, national register, in question, dispense with, in respect of, be subject to

Terms: judicial review, preliminary ruling, charterer (charter party), residence cf. domicile

Proper names: R., All ER, EEC Treaty, Divisional Court


ex parte- a special proceeding for the benefit of one party only案件名称含有 ex parte 时 , 则表示此类案件涉及为单方当事人利益而设置的特殊法律程序

Terms and proper namesdamages 损害赔偿金 - The financial compensation awarded to someone w

ho suffered an injury or was harmed by someone else's wrongful act.

The indemnity given by law, to be recovered from a wrong doer by the person who has sustained an injury, either in his person, property, or relative rights, in consequence of the acts of another.

Damages are given either for breaches of contracts or for tortious acts.

Terms and proper nameshearing 听证会 - A legal proceeding - other than a trial - held before a

judge, magistrate or court commissioner.

At a trial, disputed questions of fact and law are resolved and the case is concluded - although the parties may appeal. At a hearing, on the other hand, preliminary issues, various motions, procedural issues (e.g. discovery disputes, granting a default or uncontested divorce) and post-trial modifications and enforcements are heard, often based on written submissions of evidence or points of law rather than live testimony.


liability 法律责任、义务 - any legal responsibility, duty or obligation The state of one who is bound in law and justice t

o do something which may be enforced by action.

This liability may arise from contracts either express or implied or in consequence of torts committed.

liabilities (pl.) 债务、赔偿责任 - financial debts or obligations


hard case （用于司法判决中的一个术语）棘手案件，疑难案件

-a case difficult to adjudicate

Hard cases make bad law. 难以处理的案件使法律徒有虚名。


The 3 divisions of the High Court （高等法院） in the UK: see the court hierarchy on P156)

-Chancery Division 大法官庭-QB: Queen’s Bench (Division) 王座庭-Family Division 家事庭


M.R. (Master of the Rolls) （英）案卷保管主事官 / 上诉法院民事庭庭长

J. (Justice) 法官CJ (Chief Justice) 主审法官LJ (Lord Justice of Appeal) （英）上诉

法院常任法官LJJ (Lord Justices of Appeal): LJ 的复数

Terms and proper namesjudicial review 司法审查preliminary ruling （欧洲法院对欧共体和有关条约的解

释等所作的）先决裁定，先行裁决charter party 租约 - A contract of affreightment （货运合同） in writin

g by which the owner of a ship or other vessel lets the whole, or a part of her, to a merchant or other person for the conveyance of goods on a particular voyage in consideration of the payment of freight.

charterer 承租人

Terms and proper namesresidence 居所 - The place of general abode; principal, actual dwelli

ng place in fact, without regard to intent.

The place of one's domicile. There is a difference between a man's residence and his domicile. He may have his domicile in Philadelphia, and still he may have a residence in New York; for although a man can have but one domicile, he may have several residences. A residence is generally transient in its nature.


domicile 住所 - The principal place of residence of an indivi

dual. This is determined primarily by intent. A good indication of domicile is where a person registers to vote.

The place where a person has fixed his ordinary dwelling, without a present intention of removal.


R. (Rex or Regina) 国王或女王ALL ER （ All England Law Reports)

《全英法律判例汇编》EEC Treaty （ also the Treaty of Rome)

（建立欧洲经济共同体的）罗马条约Divisional Court (of the High Court)

（英）高等法院的法庭分庭

unit 2 sources of law text isources of english law -to learn about the major sources of english law...

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