法律英语入门教学内容
法律英语入门（中英双语）教学内容选课人数37人任课教师韩忠全
Unit 1 Introduction to Law
TextⅠWhat Is Law?
Dictionary work
Evict marijuana jurisprudence admonition justify enforce pretentious temporal legitimacy coercion conformity avenge implement contend induce administrative litigation adjudication penal compensatory therapeutic conciliatory restitution debtor creditor accusatory deviant sanction Pre-reading questions
1.How do you understand law?
2.What do you think law deals with?
3.Why is law important in our social life?
Definition of law
Julius Stone: law is necessarily an abstract term.
Cardozo: a principle of conduct so established as to justify a prediction with reasonably certainty that it will be enforced by the courts if its authority is challenged. Holmes: judges make the law on the basis of past experience.
Max Weber: an order will be called law if it is externally guaranteed by the probability that coercion (physical or psychological), to bring about conformity or avenge violation, will be applied by a staff of people holding themselves especially ready for that purpose.
Donald black: law is essentially governmental social control.
Four styles of social control are represented in law
Penal
Compensatory
Therapeutic
Conciliatory
Hart: law can be analyzed sociologically as a method of doing something.
Exercises
Translation
1. As a kind of rule or norm for conduct, either customs or laws are both social ideology and can not be separated from practical experience. The law is not only a set of behavioral rules, but also a means to clarify responsibility and promote social integrity (justice).
2. The laws are some rules made by the State, ensured to be implemented by the state force. They regulate the rights and obligations and are of universal effect to the society as a whole.
TextⅡfunctions of law
Resolving disputes
Providing order and predictability in society
Protecting individuals and property
Providing for the general welfare
Unit 2 Sources of Law
TextⅠSources of English Law
Dictionary work
Equity operative institution accession directive implementation binding populace initiative subordinate computation refinement discount hierarchy implicit discretionary presumption doctrine analogous venerable antiquity commentary crystallization immemorial
Pre-reading questions
1.What do you think are the possible sources of English law?
2.Which, among them, are the main sources and which are subsidiary ones? Community law
Legislation
Public acts (government bills private members bills)
Private acts
Delegated legislation
Case law
Legal textbook
Custom
Match the words in column A with the corresponding definitions in column B. 1. A bill which has passed through the various legislative steps required for it and which has become law (a. act)
2. Fairness (k.justice)
3. A formal agreement between two or more states signed by official representatives of each state. (l.treaty)
4.a case which establishes legal principles to a certain set of facts ,coming to a certain conclusion, and which is to be followed from that point on when similar or identical facts are before a court.(n.precedent)
5. A collective term for all judges. (e.judiciary)
6. To give part of one’s powers or rights to another person or body of a lower grade.
(c.delegate)
7. To rule against upon review by virtue of a higher authority. (f.overrule)
8. A long-established practice that is generally recognized as having the force of law. (o.custom)
9. A civil or criminal suit or action. (m.case)
10. An assemblage of the nobility, clergy, and common called together by the British sovereign as the supreme legislative body in the United Kingdom. (g.parliament)
11. A proposed law. (j.bill)
12. Having broken a law or disobeyed a rule. (h.guilty)
13. Of or related to a court of law, judges, or their judgments. (b.judicial)
14. A law enacted by the legislative branch of a government. (d.statute)
15. Having supreme authority. (i.sovereign)
TextⅡTypes of Law
1. Substantive laws
Procedural laws
2. Public law
Private law
3. Civil law
Criminal law
4. Civil law
Common law (case law)
5. Law in the United States Constitutional law
Case law
Statutory law
Executive orders Administrative law
Unit 3 Legal Systems
TextⅠIntroduction to Legal Systems
Dictionary work
Romano-Germanic civil law common law Islamic private law customary law institutionalization Norman Conquest classical antisocial collective ownership Muslim Koran prophet Bolshevik
Pre-reading questions
1.How many legal systems are there in the world?
2.What kind of legal system do we have in China?
Romano-Germanic System
The Romano-Germanic, or civil, law refers to legal science that has developed on the basis of Roman civil law.
Common-Law System
Common Law is characteristic of the English system, which developed after the Norman Conquest 1066.
Socialist Legal System
Islamic Legal System
Text ⅡIntroduction to the Legal System of Canada
Sources and Hierarchy of Law
1.The Canadian constitution. It is the supreme source of law.
2.International treaties. They are not automatically part of the law of
the land, but are usually given effect through the adoption of legislation by the appropriate legislative body.
3.Federal /provincial laws. Canadians are governed by statutes and
regulations partly and partly by common law.
4.Judicial opinions
5.Custom customary rules
Role of the Legislature in the Law-Making Process
Federal. The federal parliament: the governor, the senate, the House of Commons
Provincial legislatures
Role of the Executive in the Law-Making Process
Federal. The cabinet is the government’s principal decision making body, directs the government and defines its provision, implements laws, adopts related regulations and manages the government administration. Provincial legislatures. The executive council plays the same role as the cabinet at the federal level.
Role of Courts and Tribunals
1.Supreme court of Canada. The general court of appeal for Canada is the
supreme court of Canada.
2.Federal court. The power of the federal court of Canada is limited to
certain matters arising under federal jurisdiction.
3.Provincial court the highest court in the provincial system is the
provincial court of appeal.
4.Superior court. It is a court of ordinary law which hears all cases.
5.“Lower courts” provincial court per se.
6.Administrative tribunals
Exercise
Questions
1. How many sources of law are there in Canada? What are they?
Unit 4 Morality and Equality in Law
TextⅠLaw and Morality
Dictionary work
Consensually subscribe differentiation monolithic ideological maintenance status quo apartheid segregation divergence diffuse shun liability appropriation discretion malice tort assault trespass defamation incorporate convict attribute capacity contingent
What is Morality?
A society’s code of morality may be defined as a set of beliefs, values, principles and standards of behavior and such codes are found in all social groups.
Law and Morality: Divergences and Similarities
1. Law and morality have important points of divergence.
Legal rules are backed by official state sanctions and procedures. Moral rules rest upon more diffuse and generalized informal sanctions.
2. Particular behavior may offend both legal and moral codes.
3. Behavior may be defined by some people as immoral, though that behavior is not unlawful (telling lies).
The Relationship between Law and Morality
Conditions of liability may conveniently be divided into general and specific conditions.
Exercise
Topics for discussion
1.When in conflict, which should be considered first, morality or law?
Why?
Text Ⅱ Equal Employment Opportunity
Discrimination is based on race, color, national origin, sex, or religion. These outlawed areas of discriminations are called protected classes. The employer may deliberately intend to discriminate against an employee or prospective employee. This kind of discrimination is called disparate – treatment discrimination.
The employer’s intention to discriminate may be hidden behind an ostensibly neutral reason. This kind of discrimination is call disparate –impact discrimination.
A victim of discrimination is entitled to receive back pay and attorney’s fees.
The civil rights act of 1964 also created the equal employment opportunity commission.
The civil rights act of 1866 and 1871, they concern racial discrimination only.
Other acts also protect people from unfair discrimination.
Questions and Discussions
1.What are the two types of illegal discrimination practiced by employers?
What are the differences between them?
Unit 5 law and society
TextⅠevolution of legal system
Dictionary work
Mechanism alteration differentiate magnitude agrarian permeated dogma subsequent rescind impetus elaborate mediate mitigate deviance proliferate enactment pervasiveness resonate status quo momentous attribute
Pre-reading questions
1.How did people maintain social order in primitive societies?
2.What is the proper role for government to play in ruling a country?
Primitive Legal Systems
Primitive legal systems are typically found in hunting and gathering and simple agrarian societies. The laws are not written or codified. They are permeated by customs, traditions, religious dogmas and values.
Transitional Legal Systems
Transitional legal systems are characteristic of advanced agrarian and early industrial societies where the economic, educational and political subsystems are increasingly differentiated from kinship relationships.
Modern Legal Systems
Formal norms and sanctions are necessary to central behavior so that society can continue to function in an orderly and predictable fashion.
Exercise
Topics for discussion
1. Do you believe that in the future society, law as an instrument of social control will finally disappear? Why or why not?
Text ⅡPrinciples of The Rule of Law
Definition of the rule of law
The importance of the rule of law
The legal or jurisprudence view of rule of law. The legal philosophy of the rule of law contains five major principles regarding the conduct of government.
Questions and Discussions
1. Law and government, which one is more important in maintaining social order? Why?
Unit 6 Legislation
TextⅠLegislation in the United Kingdom
Dictionary work
Predominant contemporary substantive imperative secure incur additional alternative recommendation undergo extensive critical democratically apparent jeopardy operational categorize distinguish rationalize
Pre-reading Questions
1.What are the common sources of legislative proposals in the UK?
2.What’s the legislative process in the UK?
Legislation is the predominant form of law making in contemporary times. The process through which an act is passed by parliament is itself a long one but before concentrating on that process some attention should be focused on the pre-parliamentary process through which the substantive content of the act is generated.
Sources of Legislation
There are various sources of legislative proposals.
The majority arise from government departments in pursuit of their policies in relation to their allocated area of responsibility.
The decision as to which Bills are to be placed before Parliament in any Session is under the effective control of a Cabinet committee known as the legislation committee.
The role of the individual Member of Parliament, acting through the process for the enactment of private members bills, should not be forgotten.
Alternative sources for proposed legislation are the recommendations of independent commissions and committees such as the law commission or the Law Reform Committee and the Criminal Law Reform Committee.
The Legislative Process
Before any legislative proposal, known at that stage as a bill, can become an act of Parliament it must proceed through and be approved by both Houses of Parliament and must receive the Royal Assent.
A bill must be given three readings in both the House of Commons and the House of Lords.
When a bill is introduced in the commons it undergoes five distinct procedures.
1.It receives its first reading.
2.General principles are subject to extensive debate. A vote may be taken on its
merits.
3.It is sent for consideration by a standing committee.
4.The standing committee reports the bill back to the House for the consideration of
any amendments made by it.
5.Further debate may take place; it is restricted strictly to matters relating to the
content.
No statute becomes law unless it has received the Royal Assent.
An act of Parliament comes into effect on the date of the Royal Assent. Unless there is
any provision to the contrary in the act itself.
Types of Legislation
There are two distinct types of legislation: the Public Act and the Private Act.
The former relates to questions which affect the general public whereas the latter relates to the powers and interests of particular individuals or institutions.
Public Bills can be further categorized into government Bills and private members Bills.
Acts of Parliament can also be distinguished on the basis of their function. Some are designed to initiate new legislation to cover new areas of activity previously not governed by legal rules; but other acts are aimed at rationalizing or amending existing legislative provisions.
Exercise
Topics for discussion
1. Can you summarize the legislative process in the UK?
Text Ⅱthe Enactment of Laws in the United States
The Enactment of Federal Laws
The Enactment of State Laws
The Supremacy Clause
Unit 7 Justice
TextⅠJudicial Independence
Dictionary work
Autonomous stricture implement detrimental inroad ethos closed-shop ombudsman sleaze sovereignty spurious scandal allegation
Pre-reading questions
1.What is judicial independence?
The Meaning
The mere absence of interference by the executive in the trial of individual cases. They asserted the right of the legal system to operate independently, as an autonomous system apart from the general control of the state, with the judiciary controlling its operation, or at least being free from the dictates and strictures of central control.
The Tension
The relationship between the executive and the judiciary is proper.
The second half of the 20th century had seen the executive make substantial inroads into the independence of the judiciary and warned against the dangers of an executive –centered court system in which the judges have no effective protection against executive interference and in which the disposal of cases took priority over the attainment of justice.
The tension inherent in the relationship between the courts and the executive government has taken on an even more fundamental constitutional aspect in relation to the development of the process of judicial review, by means of which the courts assert the right to subject the actions and operations of the executive to the control of the law in such a way as to prevent the executive from abusing its power. Parliament
The committee was set up to consider, amongst other things, ways in which either actual or perceived corruption within the legislative body could be controlled. Commissioner for public standards, and Ombudsman, should be appointed to enforce controls over the activities of MPs was resisted by some members of the Commons on the grounds that nobody outside of Parliament could be given the authority to regulate Parliament.
Topics for discussion
1.The function of the judiciary
2.The relationship between the judiciary and parliament.
Text ⅡThe English Court Structure
English courts are arranged in a structure according to three sets of criteria.
First. Criminal proceedings are brought by the state. Civil proceedings are brought by private individuals against other individuals.
A second distinguishing feature is often said to lie in the different aims of the two branches of the law. The traditional aims of the criminal law are the apprehension and disposition of wrongdoers, whilst the aims of
civil law are usually stated to be those of restitution, or compensation. Second criterion. The second criterion affecting the position of a given court in the overall structure is that concerning the extent of the court’s jurisdiction.
The third criterion affecting the position of a court in the hierarchy is the question whether the court is one of first instance (where the original trial takes place) or whether it is a court of appeal. Questions and Discussions
1.What are the three sets of criteria according to which English courts are arranged
in a structure?
Unit 8 the Judicial System in the United States
TextⅠ Separation of Powers
Dictionary work
Shield away from curb disperse decentralization appoint approve veto amend empower judicial review scenario impeach convict treason bribery misdemeanor commander-in-chief pardon override analogous monarch de facto dissolve
Pre-reading questions
1.Do you know anything about “separation of powers”? How are the governmental
powers divided? What are the powers supposed to be?
Introduction
the separation of powers(also known as “checks and balances”) devised by the framers of the American Constitution was designed to do one primary thing: to prevent the majority from ruling with an iron fist, that is, to ensure that political power is dispersed and decentralized.
The Three Branches
Three branches are created in the constitution. The legislative, composed of the House and Senate, is set up in Article1. The Executive, composed of the President, Vice-President, and the departments, is set up in Article 2. The Judicial, composed of the federal courts and the Supreme Court, is set up in Article 3.
How does it work?
The principle of” checks and balances” allows the three branches of government- the executive, the legislative and the judicial- to operate harmoniously yet independently of each other. Government responsibilities are spread among all three, so that no one branch can exercise excessive power. Each branch is empowered by the Constitution to check the others if there is a threat to upset that balance.
Powers and Checks of the Three Branches
The Powers of the Executive
Veto power over all bills; appointment of judges and other officials; making treaties; ensuring all laws are carried out; the commander-in-chief of the military; pardon power.
The checks: the legislative branch can override vetoes; can refuse to confirm appointments and reject treaties; can declare war; can impeach the president.
The judicial branch can declare executive acts as unconstitutional.
The Contrast
When discussing separation of powers, it is helpful to contrast the American System with the government of other nations.
The British parliamentary system works like this: there are two houses of the legislature. The upper house, the House of Lords, consists of the nobility of Britain, dukes, earls, viscounts- there are about 900 members. The House of Lords serves a judicial function, but is widely regarded as ineffectual.
The lower house, the House of Commons, consists of MPs elected from small divisions of the county. The majority party makes all the laws.
The Prime Minister, Britain’s closest approximation of the American President, is an
MP chosen by the majority.
The judiciary has no power of review as in the US.
The head of state is the monarch (King or Queen)
The French System
The president is elected by the people to a powerful position.
The president can dissolve parliament and call for new elections.
The president appoints the prime minister.
The Senate is more powerful than the House of Lords in Britain; but not by much. There is a written French Constitution
Exercise
Topics for discussion
1.Contrast the American system of “separation of powers” with that of Britain and
that of France.
Text Ⅱ The US Judicial System
Introduction
Organization of the federal system
Organization of the state court systems
Unit 9 the Legal Profession
TextⅠThe Legal Profession in England
Dictionary work
Solicitor adversary accompany prohibit intervention honorarium demarcation conveyance probate pupilage brief negligent arbitration advocacy maintenance exclusive
Pre-reading questions
1.How is the legal profession divided in England?
2.What are the main features of the two different legal professions in England? Medieval Lawyers
In medieval times, legal life in London outside the courts was centered on the four Inns of Court (Lincoln’s Inn, Gray’s Inn, the Inner Temple and the Middle Temple) The word attorney originally meant an agent, a person who acts on behalf of someone else.
Solicitors performed a variety of clerical tasks for employers such as land owners and attorneys.
Barristers concentrated more on advocacy and less on counseling.
The Legal Profession Today
The English pattern of work is complicated by the division of the legal profession into solicitors and barristers.
Solicitors
Education and Training
Most solicitors begin their careers with a degree, usually in law, from a recognized university or institution, followed by one year full-time study in a specialized law school run by the law society. After successful completion of the law degree, the student will have to undertake the legal practice course. The would-be solicitors have to enter a two-year training contract with a firm of solicitors or other approved organizations.
The Work of Solicitors
A solicitor’s job is to provide clients with skilled legal advice and represent them in court. The bulk of a solicitor’s work consists of conveyancing, such as transfers of land and houses, company work, divorce and family work, criminal work, personal injury and probate. Most solicitors work in private practice, usually in partnership, with a back-up service of clerks and legal executives. Other solicitors may be employed in central and local government, industry and commerce.
The body which governs the training and discipline of solicitors is the Law Society. This body has made and enforced a number of rules which solicitors are expected to follow.
Barristers
Education and Training
All intending barristers must have a second-class honors-degree from a recognized university or institution. This is followed by a one-year course at the Inns of Court, where the emphasis is on practical aspects of advocacy and the study of academic
subjects. All intending barristers must join an Inn of Court.
After the Bar final examinations ,a student must find a pupilage in chambers, where he is attached to an experienced barrister and attends court with him for 12 months, learning his profession by example.
Work of Barristers
Barristers appear in most major cases in the English Courts. The most important aspect of the barrister’s work is advocacy, or speaking in higher court, presenting the facts of cases and legal arguments.
The client can not deal directly with a barrister.
Solicitors are much more numerous than barristers and provide a broader range of service.
Questions about the text
1.What was a solicitor supposed to do in medieval times?
2.How did the legal profession in England fall into two groups?
3.What kind of training must a solicitor receive?
Text Ⅱthe Bar in the United States
Education and Training
Admission to the Bar
The work of American Lawyers
Unit 10 the Judge and the Jury
TextⅠ English Judges
Dictionary work
Impartial annual petition counterbalance knighthood borough defamation prestige immune inferior initiation incapacity misconduct superior peerage convention substantial approval invariably candidate
Pre-reading questions
1.What do you know about the English judges?
2.What are the qualifications for the judges in Britain?
There is no separate judicial profession in England and all judgeships are filled by the appointment of practicing barristers. Independence of judges
Although judicial appointments are political, in the sense that they are made by the Government of the day, every attempt is made to maintain the independence of judges after appointment.
Judges appointed after 1959 must now retire at 75.
Judges are immune from any proceedings arising out of acts done within their jurisdiction.
Circuit Judges and Recorders
Circuit judges are appointed by the crown on the advice of the Lord Chancellor from barristers of at least 10 years’ standing or recorders who have held office for at least five years.
Circuit judges are referred to as Judge, for example, Judge Wisdom. The courts act 1971 provides for additional judicial assistance in the crown court by the appointment of part time judges known as recorders who must be practicing barristers or solicitors of at least 10 years’standing.
Supreme Court Judges
High court judges are assigned to one of the three divisions of the court. They are referred to, for example, as Mr. Justice Wisdom, in writing as Wisdom, J.
Higher judicial appointments are made by the crown on the advice of the prime minister.
Judicial offices
The Lord Chancellor holds an office which is partly political and partly judicial.
The Lord Chief justice holds the senior judicial office in the country. He presides over the Queen’s Bench Division of the High court and the criminal division of the court of appeal.
The master of the Rolls presides over the civil division of the court of appeal and may sit in its criminal division.
The attorney - generally is a barrister with almost invariably a seat in
the House of Commons.
The Director of Public Prosecutions is a barrister or solicitor appointed by the Home Secretary, who acts under the supervision of the attorney general.
Exercise
Topics for discussion
1.Talk about the differences and similarities of judgeships between
British and China.
2.Talk about the independence of judges in China.
3.Talk about the classifications and qualifications of Chinese judges.
Text Ⅱ Jury
History and Development
Use of the Jury
Grand Jury
Questions and Discussions
1.What is the origin of a jury trial?
Unit 11 Criminal Law
Text Ⅰ Crime and Punishment
Dictionary work
Offence omission prosecute compensate concurrently plead felony incarceration mala in se mala prohibita inherently fornication sodomy heritage espouse notwithstanding perpetrator justifiable proclaim adhere to
Pre-reading Questions
1.What is a crime?
2.How many classifications of crime are there as far as you know?
3.What is the relationship between criminal law and punishment? Definition
A crime or offence is an illegal act ,omission or event ,whether or not it is also a tort , a breach of conduct or a breach of trust ,the principal consequence of which is that the offender , is prosecuted by or in the name of the state ,and if he is found guilty ,is liable to be punished whether or not he is also ordered to compensate his victim.
A wrong is a breach of a rule.
Criminal Law Classification
Criminal law classifies crimes according to various criteria, including (1) the nature and degree of penalty attached, (2) the nature and degree of “evil” involved, and (3) the kind of social harm.
Felony, Misdemeanor, and Violation
Felonies were crimes punishable by death. Present law divides felonies into capital felonies and ordinary felonies.
Misdemeanors include crimes punishable either by fines or up to one year in jail. Common misdemeanors include simple assaults and battery, prostitution, and disorderly conduct.
Most jurisdictions divide misdemeanors into gross misdemeanors.
A third category of crime is violation. Traffic offenders fall into this group.
Mala in se and mala prohibita
Another legal classification sorts crimes according to their perceived evil.
Some crimes as inherently bad (in Latin mala in se)
Crimes such as murder and rape fall into this category
Other behavior constitutes a crime only because the law says so (in Latin mala prohibita), parking in a “no park ing” zone. Is mala prohibita. Crime, Law and Punishment
“No crime without law and no punishment without law” proclaim two ancient maxims governing formal criminal justice.
To qualify as crimes ,conduct or harm must satisfy five requirements : (1) a specific law prohibits the conduct and /or harm ;(2) the law
prescribes a penalty for the prohibited conduct and /or harm;(3)the particular law conforms to the general purposes and principles of criminal law ;(4) the government must adhere to the rules of procedure in administering and enforcing the criminal law;(5) the punishment prescribed and actually administered accords with the constitution’s prohibition against cruel and unusual punishment.
Exercise
Topics for Discussion
1.Contrast the types of criminal law of the U.S.A. with those of China.
2.Differentiate a wrong from a crime.
https://www.wendangku.net/doc/d06181200.html,pare the requirements of a crime in the U.S.A. with those in China.
TextⅡ Criminal Proceedings
The criminal proceedings in a brief way in common law system. Procedure before trial
The trial
Compensation
Questions
1.What kind of criminal cases is summons served upon the accused?
2.In what cases may the offender be arrested without warrant?
3.What court deals with most of the criminal prosecution?
4.What are the trial proceedings?
5.In what cases should the offender not only get punishment but also make
compensation for the victim?
Unit 12 the Adversary System and the Inquisitorial System
Text ⅠThe Adversary System
Dictionary work
Adversary tribunal administrative ethical perjure compliance professionalism investigative impartial inquisitorial prosecutor conviction examination -in -chief cross-examination reexamination Pre-reading Questions
1.How do the courts of England and America run trials?
2.How do the courts of France and Germany run their trials?
3.What is the trial system of China?
The Meaning of the Adversary System
It is fundamental to the court system as it is known in England, in Australia and in the other British dominions and colonies. It is a procedure for trial of civil and criminal cases, and is the characteristics form of trial procedure in common law countries.
The advantages of the adversary system
The court or tribunal has the benefits of the long developed ethical requirements of the legal prosecution. Legal representation before a court or tribunal also gives court or tribunal the benefit of an argument presented by professional people who have been trained in the presentation of an argument.
The advantages of having legal representation are obvious, and in practice the litigant is well advised to have the benefit of the skilled professionalism which has been the hallmark of the legal profession for many centuries.
Another advantage which the litigant gains by having skilled legal assistance is that of having objective, expert advice.
The investigative system, called inquisitorial system or interrogative system is to be contrasted with the adversary system. It prevails in civil law countries –western continental Europe and other parts of the world, especially those areas colonial by continental Europe countries.
The adversary system involves less risk than the investigative system of a judge being affected by ideas formulated by him before the whole of the evidence has been obtained.
The disadvantages of the adversary system
Under the adversary system, the parties, rather than the court, decide what evidence is to be brought forward.
It is possible that the adversary system may result in lengthier litigation; but this is unlikely in practice.
Under the France system (the investigative system) judges are liable to enquire into a case several times over a period. This may well take longer