何家弘法律英语第一课

1、LEGAL SYSTEM IN THE UNITED STATESOne day in Contract Law class, the professor asked one of his better students, Now if you were to give someone an orange, how would you go about it?The student replied, Heres an orange.The professor was livid. No! No! Think like a lawyer!The student then recited, Oka

2、y, Id tell him, I hereby give and convey to you all and singular, my estate and interests, rights, claim, title, claim and advantages of and in, said orange, together with all its rind, juice, pulp, and seeds, and all rights and advantages with full power to bite, cut, freeze and otherwise eat, the

3、same, or give the same away with and without the pulp, juice, rind and seeds, anything herein before or hereinafter or in any deed, or deeds, instruments of whatever nature or kind whatsoever to the contrary in anywise notwithstanding. Part One Features and Characteristics Part Two Common Law and Eq

4、uity Law Every law has no atom of strength, as far as no public opinion supports it.Wendell Phillips, American leader against slavery 若是没有公众舆论的支持，法律是丝毫没有力量的。美国废奴运动领袖 菲力普斯 Two periods of legal history:1.On May 14, 1607, the Virginia Company explorers landed on Jamestown Island to establish the Virgin

5、ia English colonyThe Period of the English ColoniesThe Revolutionary War in America (1775-1783)2.The Period of the United States Common law legal system（普通法系）1.Decentralization2.Case law3.Stare decisis The United States is at once la very new nationla very old nation Compared with many other countri

6、es it is constantly being renewed by the addition of new elements of population and of new States It is the oldest of the new nations lthe first one to be made out of an Old World colony.lthe oldest written constitutionthe oldest continuous federal system the oldest practice of self-governmentThe wh

7、ole of its history belongs in the period since the invention of the printing press. for events such as those that are lost in the legendary past of Italy or France or England are part of the printed record of the United States And the American recordlComprehensivelImmense Record of the colonial era

8、Record of the Nation since 1776 Record of the present fifty States The intricate network of relationships between States and Nation The reports of the United States Supreme Court fill 350 volumes The reports of some States are almost equally voluminous The reader who wants to trace the history of la

9、w in America is confronted with over 5,000 stout volumes of legal cases. No one document, no handful of documents, can properly be said to reveal the character of a people or of their government. When hundreds and thousands of documents strike a consistent note，over more than a hundred years, we hav

10、e a right to say that is the keynote. The American legal system, like the English, is methodologically mainly a case law system. Case law 形成于英国，包括加拿大，澳大利亚，新西兰，爱尔兰，印度、巴基斯坦，马来西亚和新加坡，香港Common law legal system Statutory law 法国和德国为代表，还有瑞士、意大利、奥地利、比利时、卢森堡、荷兰、西班牙、葡萄牙、日本等Civil law legal system Most fields o

11、f private law still consist primarily of case law and the extensive and steadily growing statutory continues to be subject to binding interpretation through case law. Knowledge & Techniquecentral importancefor an understanding of American law and legal methodology The common law is historically

12、the common general law with supremacy over local law which was decreed by the itinerant judges of the English royal court. enforcement 强制执行； claim 请求； action 诉讼行为； writ 法院令状； classical Roman law 古罗马法 The enforcement of a claim presupposed the existence of a special form of action, a writ, with the r

13、esult that the original common law represented a system of action similar to that of classical Roman law. If a writ existed (in 1227) a claim could be enforced; there was no recourse for a claim without a writ, the claim did not exist. This system became inflexible when the Provisions of Oxford (125

14、8) prohibited the creation of new writs, except for the flexibility which the writ upon the case allowed and which later led to the development of contract and tort law. The narrow limits of the forms of action and the limited recourse they provided led to the development of equity law and equity ca

15、se law. 由英国衡平法法院的大法官在处理专门的申诉案件时，为避免过分重视令状和程序方面的技术性问题，而集中考虑案情的理据得失，最终发展出有别于普通法的法律规范，就是衡平法。 “Equity”doing equity deciding ex aequo et bono was first granted by the King, and laterby his Chancellor as keeper of the Kings conscience, to afford relief in hardship cases. In the fifteenth century, however,

16、 equity law and equity case law developed into an independent legal system and judiciary (Court of chancery)which competed with the ordinary common law courts. 普通法专指英国在11世纪后由法官通过判决形式逐渐形成的适用于全英格兰的一种判例法普通法 衡平法是指英国在14世纪后对普通法的修正和补充而出现的一种判例法衡平法 Its rules and maxims became fixed and, to a degree, inflexib

17、le as in any legal system. relief in the form of specific performance the injunction 禁令（临时或最终的采取或不采取某种行为的命令） the development of so called maxims of equity law 形成所谓的衡平法座右铭 However, equitable relief regularly will lie only when the common law relief is inadequate. For instance, specific performance fo

18、r the purchase of real property will be grantedbecause common law damages are deemed to be inadequate since they cannot compensate the buyer in view of the uniqueness attributed to real property. As the common law, equity law became part of American law either through judicial acceptance 司法接受 or thr

19、ough express statutory provision 明确的成文法条款 Today, both legal systems have been merged in many American jurisdictions there is only one form of civil suit in these jurisdictions as well as in federal practice. 美国纽约州立法机构于1848年通过了由戴维菲尔德起草的菲尔德民事程序法典，稍后更成立了一个“法典化委员会”来“将纽约州的全部法律简化为成文的、系统化的法典”。 Only few States continue to maintain a separate chancery court. 独立大法官法庭It explains the origin and significance of many contemporary legal conceptsthe division of title in the law