Lesson One Bases of the Legal System I. Discuss the following questions: 1. In the United Kingdom, how can the judge decide whether an action is in conformity with the law? 2. What is the relationship between common law and case law? 3. What are the two main branches of the law? How do they overlap? 4. Why does an aggrieved person start criminal proceedings in the name of ??private prosecutions??? 5. What is civil law mainly concerned about? II. Read the text again and decide whether these statements are true or false: 1. The bases of the English legal system are common law, case law, past decisions, and statute law. 2. In common law, the word ??common?? is so called in contrast to what is particular or special custom, thus common law is a set of rules and principles based on general custom. 3. The essence of common law is that it grew through judicial decisions recorded by lawyers and is not based on express enactment. In common laws, decisions, especially those made by superior courts in previous cases of the same kind are called ??precedents??. 4. Felonies in English criminal law involve capital punishment and forfeiture of the offender??s property. 5. The burden of proof is on the prosecution to prove their case and the accused is not obliged to say anything or to explain away the charge made against him. 6. In civil law administration, the work is concerned with breaches of contract and other civil wrongs for which damages are recoverable. III. Complete the sentences below using the words given: perpetuate; judicial; precedents; summons; separation; preliminary; institute; presumption of innocence; undertakings; information 1. The decision of the case has set a(n) precedent for civil wrongs in English law. 2. When a prosecutor institute a(n) information against someone, he is doing this basically as a member of the public. 3. Do you know why they bring judicial proceedings against their business partner? 4. The Chinese people will perpetuate the memory of Dr. Norman Bethune because of his great contributions to the Chinese Anti-Japanese War. 5. Who is to serve the defendant with a(n) summons? 6. A separation is a legal arrangement by which a married couple live apart but do not end the marriage. 7. All this is just preliminary to the main election struggle.
8. Police have instituted inquiries into the matter. 9. Usually an air transport undertaking is not a small business, which may be a risky one 10. Presumption of innocence is a principle by which the accused is throughout presumed to be innocent unless he admits the offence or until he is proved beyond reasonable doubt to be guilty. IV. Match each of the following words or phrases with its definition: 1. 2. 3. 4. 5.
6. 7. 8. overrule verdict reversal tort civil proceeding offence summary justice by-law
a. a private or civil wrong or injury for which the court will provide a remedy in the form of an action for damages b. the formal decision or finding made by a jury c. to rule against; to reject; (of superior court) to overturn or set aside (a precedent) by expressly deciding it should no longer be controlling law d. the way that summary offences are tried e. an appellate court??s overturning of a lower court??s decision f. a felony or misdemeanor, or a breach of the criminal laws g. the ordinance, local laws or municipal statutes of a city or town h. that relating to the state or its citizenry or private rights as contrasted with criminal proceeding V. Put the underlined part of each sentence into Chinese: 1. Although American criminal law was derived from that of England at a time when criminal law was largely case law, its basis is now statutory. Each state has its own penal statutes defining both major crimes (felonies) and minor ones (misdemeanors) as well as innumerable petty offenses. 2. There exists in the law, a separate discipline designed to investigate the nature of law, its guiding ideas and social goals, and the general character of the methods and techniques employed for the effectuation of its ends. This discipline is known as ??Jurisprudence??. 3. The beginnings of common law are lost in the mists of the history of northern Europe and Scandinavia, which were scarcely touched by the influence of the Roman Empire and from which England was frequently invaded by peoples who remained, intermarried with the local citizens and greatly affected their customs and habits. 4. The explosion of scientific knowledge and its translation into technology have profoundly affected the content and procedures of the law, and they are also
affecting some of the basic assumptions of the law. 5. Criminal law and civil law, as the two main branches of the law also overlap, and many acts or omissions are not only ??wrongs?? for which the person injured is entitled to recover compensation for his own personal injury or damage. Supplementary Reading The decisions of judges, or of other officials empowered by the constitution or laws of a political entity to hear and decide controversies, create case law. As the name ??case law?? goes, a particular decision, or a collection of particular decisions, generate law?ªthat is, rules of general application. How is it that a court??s determination of the rights and obligations of the particular parties before it can apply to the disputes of persons who were not before the court? From the point of view of parties to a lawsuit or other contested controversy, what matters is the immediate outcome, the result the tribunal reaches in their case. For A and B, the decision has immediate and specific significance: B either will
or will not have to pay a determined amount of damages to A. In the view of judges, lawyers, and law students, however, the decision takes on broader perspective. The decision becomes a possible source of general applicable case law. In other words, the decision in A v. B becomes authority for determining subsequent controversies. Just as the court in A v. B will have sought guidance from prior, similar decisions, so later judges and advocates will look to A v. B for a rule by which to measure later parties?? conduct. The wider authority of prior decisions in individual cases may not seem self-evident at first, but consider the possible proposition. Suppose a society in which every disputed claim is heard and decided on its own individual merits and with no regard whatever for consistency of the results from case to case, this society offers the means of settling disputes, but the society has no ??case law??. Each decision presents a result unto itself. Each decision is therefore unpredictable. Unpredictability in adjudication may provoke both instability in social relations, and the fear that little more than personal whim controls the judge??s decisions. There is in fact, in most societies, a strong urge to make general law from particular decisions. How are we to account for this widespread inclination to make general law from particular decisions? Karl N. Llewellyn, the leading spokesman for the group of legal philosophers known as the American Legal Realists, offered the following explanations: ??Case law in some form and to some extent is found wherever there is law. A mere series of decisions of individual cases does not of itself constitute a system of law. But in any judicial system rules of law arise sooner or later out of such decisions of cases, as rules of action arise out of the solution of particular problems, whether or not such formulations are desired, intended or consciously recognized. These generalizations contained in, or built upon, past decision, when taken as normative for future disputes, create a legal system of precedent. Precedent, however, is operative before it is recognized. Toward its operation drive all those phases of human make-up which build habit in the individual and institutions in the group: laziness as to the reworking of a problem once solved; the time and energy saved by routine as a curb
on arbitrariness and as a prop of weakness, inexperience and instability; the social values of predictability; the power of whatever exists to produce expectations and the power of expectations to become normative. The force of precedent in the law is heightened by an additional factor: that curious, almost universal, sense of justice which urges that all men are properly to be treated alike in like circumstances. As the social system varies, we meet indefinite variations as to what men or treatments or circumstances are to be
classed as ??like??; but the pressure to accept the views the time and place remains.?? Students will become aware, as their study of law proceeds, that adherence to precedent has its other side. A court that follows precedents mechanically or too strictly will at times perpetuate legal rules and concepts that have outlived their usefulness. The continuing problem in a legal system that recognizes past decisions as authoritative sources of law for future cases is how to maintain an acceptable accommodation of the competing values of stability in a law, served by adherence to precedent, and responsiveness to social change, which may call for the abandonment of an outworn legal doctrine. This problem of stability versus change will be a recurring theme in this casebook. Comprehension Questions: I. Answer the following questions in accordance with this passage: 1. How is case law created? 2. What does a particular decision mean to the parties to a lawsuit, to the lawyers, judges, and law students? 3. According to Professor Llewellyn, what creates a legal system of precedent? Why and when? 4. What would happen if a court follows the precedents mechanically? 5. What is the problem remaining in the legal system recognizing past decisions as authoritative sources of law for future cases? II. Choose the best answers to each of the following questions: 1??According to the passage, case law is not created by . D A. judges deciding cases B. officials empowered by the constitution to hear and decide disputes C. a certain political entity empowered by the constitution to hear and decide controversies D. public prosecutors who bring the charges 2. As to the result of a certain case, which of the following is wrong? C A. It is usually the ultimate concern of the relevant parties B. A particular decision, or a collection of particular decisions might generate rules of general application for later cases C. The winning party is also concerned whether the decision will be applicable in the future D. The decision will become a possible source of general applicable case law 3. The importance of case law lies in . B
A. the wide authority of prior decisions in individual cases B. the consistency of the results of similar disputes C. a strong urge to make general law from particular decisions D. the fact that the decision of a future case is unpredictable 4. Unpredictability in adjudication may . A A. result in instability in social relations and the fear that judges might decide the case out of personal whim B. give the relevant parties more chances to win C. bring the judges more benefits in the course of the trial D. promote the development of case law 5. ??Case law in some form and to some extent is found wherever there is law??. Which of the following is the right understanding of the sentence? B A. A mere series of decisions of individual cases does not of itself constitute a system of law. B. The universal sense of justice urges
that all men are properly to be treated alike in like circumstances. C. People tend to be lazy as to the reworking of a problem once solved. D. Law is made to save time and energy concerning arbitrariness and the social values of predictability. 6. All of the following may be the negative impacts that mechanical adherence to precedent can bring EXCEPT . A A. responsiveness to social changes B. perpetuation of legal rules and concepts that have outlived their usefulness C. the acceptance of competing values in a law D. outworn legal doctrines