《法律英语阅读与翻译教程》课文英文版摘录

1、Legal English : A Coursebook on Reading and TranslationLesson 1 Law and Classification of Law1，General IntroductionLaw is a system of rules and guidelines,usually enforced through a set of institutions. It shapes politics,economics and society in numerous ways and serves as a social mediator of rela

2、tions between people. Contract law regulates everything from buying a bus ticket to trading on financial derivatives markets. Property law defines rights and obligations related to the transfer and title of personal and real property. Trust law applies to assets held for investment and financial sec

3、urity, while tort law allows to claims for compensation if a persons rights or property are harmed. If the harm is criminalized in legislation. Criminal law offers means by which state can prosecute the perpetrator. Constitutional law provides a framework for the creation of law, the protection of h

4、uman rights and the election of political representatives. Administrative law is used to review the decisions of government agencies, while international law governs affairs between sovereign states in activities ranging from trade to environment regulation or military action. Writing in 350 BC, the

5、 Greek philosopher Aristotle declared,” The rule of law is better than any rule of individual.”Law raises important and complex issues concerning equality,fairness and justness,”In its majestic equality”,said the author Anatole France in 1894,”the law forbids the rich and poor alike to sleep under t

6、he bridge, beg in the street and steal loaves of bread.” In a typical democracy, the central institution for interpreting and creating law are the three main branches of government, namely an impartial judiciary, a democratic legislature, and an accountable executive. To implement and enforce the la

7、w and provide services for the public, a governments bureaucracy, the military and police are vital. While all these organs of the state are creatures created and bound by law, an independent legal profession and a vibrant civil society will support their progress.2, Classification of LawThere are s

8、everal different ways in which laws can be classified,depending on the criteria or characteristicsa, Substantive Law vs. Procedural LawSubstantive law explains what you can and you cannot do. For example, you cannot murder another human being unless it was a self-defense, you were under duress, or i

9、f you were drugged by another person. Unlike substantive law, procedural law are just steps that must take place when filing a lawsuit against another party.b, Public Law vs. Private LawLaw can be divided into two main branches:public law and private law. Public law is the body of law dealing with t

10、he relations between private individuals and the government, and with the structure and operation of the government itself, including constitution law, criminal law, and administrative law. Private law is the body of law dealing with private persons and their property and relationships.c, Criminal L

11、aw vs. Civil LawCriminal law or penal law defines breaches of duty to society at large. It is society, through government employees called prosecutors(such as district attorneys),that brings court action against violators. If you are found guilty of a crime such as theft, you will be punished by imp

12、risonment or a fine. Civil law,as opposed to criminal law, is the branch of law dealing with disputes between individuals or organizations, in which compensation may be awarded to the victim. For instance, if a car crash victim claims damages against the driver for loss or injury sustained in an acc

13、ident, this will be a civil law case.d, Common Law vs. Civil LawCommon law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action. Common law countries prosecute with the concept of “ stare decisis”, which mean

14、s that these countries such as the United States of America make decisions based on precedents. Because each judicial opinion serves as a precedent for later decisions, as a result, common law is sometimes called judge-made law. Anglo-American law is rooted in the tradition of the common law. In 188

15、1,Justice Oliver Wendell Holmes,Jr. Wrote,”The life of the law has not been logic; It has been experience.” Common law developed as a response to the need to find solutions to the pressing issues of the time. Unlike common law, the principle of civil law is to provide all citizens with an accessible

16、 and written collection of the laws which apply to them and which judges must follow.Lesson 2 Legal Systems: Common Law and Civil LawEvery independent country has its own legal system. The system vary according to each countrys social traditions and form of government. But most systems can be classe

17、d as either a common-law system or a civil-law system. The United States, Canada, Great Britain,and other English-speaking countries have a common-law system. Most other countries have a civil-law system. Many countries combine features of both systems. A general distinction can be made between civi

18、l law jurisdictions,which codify their laws,and common law systems,where judge made law is not consolidated.1，Common-law SystemThe common-law system prevails in England, the United States, and other countries colonized by England. It is distinct from the civil-law system,which predominates in Europe

19、 and in areas colonized by France and Spain. The common-law system is used in all states of the United States except Louisiana, where French Civil Law combined with English Criminal Law to form a hybrid system. The common-law system is also used in Canada,except in the province of Quebec,where the F

20、rench civil-law system prevails.Anglo-American common law evolved chiefly from three English Crown courts of the twelfth and thirteenth centuries: the Exchequer, the Kings Bench, and the Common Pleas. These courts eventually assumed jurisdiction over disputes previously decided by local or manorial

21、courts,such as baronial admirals(maritime), guild, and forest courts,whose jurisdiction was limited to specific geographic or subject matter areas. Equality courts,which were instituted to provide relief to litigants in cases where common-law relief was unavailable, also merged with common-law court

22、s. This consolidation of jurisdiction over most legal disputes into several courts was the framework for the modern Anglo-American judicial system.Common-law courts base their decisions on prior judicial pronouncements rather than on legislative enactments. Common-law judges rely on their predecesso

23、rs decisions of actual controversies, rather than on abstract codes or texts, to guide them in applying the law. Common-law judges find the grounds for their decisions in law reports, which contain decisions of past controversies. Under the doctrine of stare decisis, common-law judges are obliged to

24、 adhere to previously decided cases, or precedents, where the facts are substantially the same. A courts decision is binding authority for similar cases decided by the same court or by lower courts within the same jurisdiction. The decision is not binding on courts of higher rank within that jurisdi

25、ction or courts in other jurisdictions, but it may be considered as persuasive authority.Under a common-law system, disputes are settled through an adversarial exchange fo arguments and evidence. Both parties present their cases before a neutral fact finder, either a judge or a jury. The judge or ju

26、ry evaluates the evidence, applies the appropriate law to the facts, and renders a judgment in favor of one of the parties. Following the decision, either party may appeal the decision to a higher court. Appellate courts in a common-law system may review only findings of law, not determinations of f

27、act.The lawmaking role of legislatures in common law countries has increased greatly during the 1900s. For example, the United States Congress has made major changes in American contract and property law. The changes have dealt, for example, with such matters as labor-management relations, workers w

28、ages and hours, health,safety, and environmental protection. Nevertheless ,common-law countries have kept the basic feature of the English legal system, which is the power of judges to make laws. In addition, constitutional law in these countries continues the common-law tradition of defending the p

29、eoples rights and liberties.2， Civil-law SystemCivil-law systems are based mainly on statutes. The majority of civil-law countries have assembled their statures into one or more carefully organized collections called codes.Most modern law codes can be traced back to the famous code that was commissi

30、oned by the Roman Emperor Justinian I in the A.D. 500s. Justinians code updated and summarized the whole of Roman law, which was called the Corpus Juris Civilis, meaning Body of Civil Law. For this reason, legal systems that are based on the Roman system of stature and code law are known as civil-la

31、w systems. This use of the term civil law should not be confused with its use as an alternate term for private law. Civil-law systems include both private law and public law.The monumental Corpus Juris Civilis commissioned by Justinian still influences the evolution of law in virtually every civil-l

32、aw country. The roots of civil law are so deeply imbedded in French jurisprudence that French universities did not even teach common law until 1689. It affects legal rules, legal thought, legal classifications, the treatment of legal precedents and techniques, and the organization of court systems.O

33、ne interesting aspect of civil law is that it transfer from place to place more easily than common law. It is sometimes said that there are two branches of civil law: French and German. The civil codes of both countries have proven particularly adaptable. For example, the French Civil Code(or Napole

34、onic Code), first promulgated by Napoleon I in 1804, is the basis of the laws of Belgium, the Netherlands, Luxembourg, and parts of Germany, Switzerland, and Italy, Spain,Romania, and parts of Africa and South America also borrowed the Code Civil as a guide for local civil codes. In North America, f

35、or example, the civil laws of both the state of Louisiana, and the Canadian province of Quebec are rooted in the Code Civil. Inherited from the Holy Roman Empire, the German Civil Code, which was enacted in 1900, also reveals the strong influence of Roman civil law. Although its reach has been much

36、narrower than that of the French Code Civil, it has been important in such far-reaching sites as Thailand, China,Japan,Eastern Europe, and Greece.Lesson 3 Judicial System of the United States1，General IntroductionCourt organization in the United States is complicated by the form of government, feder

37、alism. Instead of a single, unified court system such as exists in Great Britain or France, the United States actually has fifty-one court systems-the federal courts and the courts of the fifty individual states.The United States Congress and the state legislatures are free to organize their respect

38、ive court system to meet their own needs. Not only is the federal court structure different from those in the states, but there is also tremendous diversity among the individual states. A trial court might be called a district court in one state, a superior court in another, and a supreme court in y

39、et another. Most states have a single supreme court; two states, Oklahoma and Texas, have two courts of last resort-one for civil appeals and one for criminal appeals. Such diversity makes it difficult to generalize about the “typical” state court system.Each state is free to determine for itself wh

40、at behavior is forbidden, and each is free to establish reasonable punishment for defined crimes. Consequently, two states may have entirely different definitions of the same criminal act and two entirely different penalties for it.2，State Court SystemAlthough there is no “typical” state court syste

41、m because federalism allows each state to adopt a court system fitted to its individual needs, a state court system usually includes several levels, or tiers, of courts. State courts may include trial courts of limited jurisdiction, trial courts of general jurisdiction, appellate courts,and the stat

42、es highest court(often called the state supreme court). Generally , and person who is a party to a lawsuit has the opportunities to plead the case before a trial court and then, if he or she loses, before at least one level of appellate court. Finally, if a federal stature or federal constitutional

43、issue is involved in the decision of the state Supreme Court, that decision may be further appealed to the United States Supreme Court.Courts of limited jurisdictionAll state courts have had their jurisdiction limited in some way. The jurisdiction of any court comes from the state constitution or fr

44、om statutes passed by the state legislature, or both. Courts of limited jurisdiction, as their name implies, are created to handle cases of limited or special nature. Court of limited jurisdiction is the first set of state trial courts.One of the most common courts of limited jurisdiction is the mun

45、icipal court. Municipal courts are often limited to minor offenses or misdemeanors. Municipal courts are often referred as”traffic courts”because their main function is to hear cases involving traffic violations within the city limits. Municipal courts frequently have jurisdiction over cases involvi

46、ng violations of city ordinances.Another category of courts of limited jurisdiction includes county courts. Like municipal courts,which are limited to exercising their jurisdiction within city limits, county courts jurisdiction is limited to county lines. County courts typically have a greater expan

47、se of jurisdiction than municipal courts. In criminal cases, for example, county courts may have jurisdiction over offenses with penalties as great as one year in prison and relatively high fines. Courts of general jurisdictionA second level of courts in most state judicial system consists of courts

48、 of general jurisdiction. A court of general jurisdiction has the power to hear any case that falls within the general judicial power of the state. That is , a court of general jurisdiction has the authority to render a verdict in any case capable of judicial resolution under the constitution and la

49、ws of the state. Courts of general jurisdiction are the major trial courts of the state. They may be called superior courts, district courts, circuit courts, as in the case of New York, supreme courts. Court of general jurisdiction is another set of state trial courts.Appellate courtsAll states have

50、 some kind of appeals mechanism available for litigants who were unsuccessful at the trial-court level. Most states have created an intermediate appeals courts between the trial courts and the states highest court of appeal. The purpose of intermediate appeals is to guarantee the litigants the right

51、 to at least one appeal while preventing the states highest court from having to hear “routine”appeals. These intermediate appellate courts screen out the routine cases so that only the most important cases reach the statess highest court.State Supreme(Highest) CourtsEvery state has a highest appell

52、ate court, usually called the state supreme court. Many states have chosen to pattern their states highest court after the U.S. Supreme Court in the number of justices, procedures, and so forth. The highest appellate court in a state is usually called the Supreme Court but many be called by some oth

53、er names. For example,in both New York and Maryland, the highest state court is called the court of appeals. The decisions of each states highest court on all questions of state law are final. Only when issues of federal law are involved can a decision made by a states highest court be overruled by

54、the United States Supreme Court.3，The Federal Court SystemThe federal court system is characterized by two types of courts:constitutional and legislative. Constitutional courts are sometimes referred as Article courts because they are created under Article of Constitution, which authorizes Congress

55、to “ordain and establish” courts inferior to the Supreme Court. The Constitution also states that judges of both the supreme and inferior courts”shall hold their Offices during good Behavior”,which is tantamount to a lifetime appointment, subject to removal only through the impeachment process. Furt

56、hermore, Congress may not reduce the salaries of constitutional court judges “during their Continuance in Office”, U.S district courts, U.S. Courts of appeal, and the U.S. Supreme Court are examples of constitutional courts.Legislative court are created by Congress, pursuant to one of its legislativ

57、e powers. Article I empowers Congress to make all laws”.for organizing, arming, and disciplining the Militia.” Under that authority, Congress may establish military tribunals for the purpose of disciplining soldiers. Two major distinctions generally differentiate legislative courts from constitution

58、al courts. First , the judges who serve in the legislative courts do not have lifetime appointment, but instead serve fixed terms of office. The length of the term designated by Congress is often a long one in order to ensure judicial independence. The second distinction is that a legislative court

59、judges salary is not protected by Constitution, as in the case of constitutional court judges.In conclusion, the federal court system is composed of courts created by Congress under either Article I or Article powers. The federal courts are not “ superior” to state courts: rather, they exist alongsi

60、de state courts. The vast majority of cases are tried in state courts. Nevertheless, the federal courts remain an alternative forum that citizens can turn to for relief if state courts prove unresponsive. It is no surprise to discover that southern African Americans preferred to file their civil rig