unit 1 part A and B.docx

1、unit 1 part A and B1. How was common law established?The common law tradition originated in England. A new legal order was established as early as 1066 by the Norman conquest, but the common law did not exist in 1066. William the Conqueror did not abolish the local customs and the local courts. Loca

2、l courts continued to apply local customs. There was no law common to the whole kingdom. The King did however establish some royal courts at Westminster. The royal courts jurisdiction was at first very limited but eventually expanded to the point where the local courts fell into disuse. The decision

3、s of the royal courts became the law common to the whole kingdom, the common law.2. What does the common law tradition include according to the text?Both law and equity are part of what is called the common law tradition.The main traditional source of the common law is not legislation but cases. Thi

4、s is so true that when the common law evolved into an unfair set of rigid and formal procedural rules the King, rather than legislate to amend the law, created a new court. When a subject thought that a common law decision lead to an unfair result he would petition the King. There were so many petit

5、ions that the King created the court of Chancery which could grant a discretionary relief “in equity” to correct the common law. The decisions of this court gave birth to a body of law called equity which is also based on previous judicial decisions. 3. How different is the legal system of Louisiana

6、 from the rest of the United States? The United Stated is a common law country. While in Louisiana, the civil law was in place before the United States gained jurisdiction. 4. What does “civil law” mean?The expression “civil law”, in Latin jus civilis, literally means the law of the citizens of Rome

7、.5. What is the main difference between the civil law system and the common law system? In common law countries, cases are usually considered to be the primary source of law. (Your legal method class starts with the study of cases.) While in civil law countries, cases are simply not a source of lawa

8、t least in theory. ( The reality might well be that legislation has become extremely relevant in common law countries and that cases are becoming more and more relevant in civil law countries, but the attitudes and common lawyers toward legislation and cases differ greatly.)（Common law varies from c

9、ase to case depending upon the customs of the society whereas civil law has a predefined written set of statutes and codes for reference. The judges have to strictly follow the codification written in the book.） In common law jurisdictions legislation tends to be considered as an exception to the ca

10、se law. The courts therefore have a tendency to interpret legislation more restrictively. Both the courts and the legislator tend to enunciate legal rules in very specific terms meant to resolve very specific problems. Civil law jurists will consider the civil code as an all encompassing document. T

11、hey will interpret it generously in order to allow it to reach its goal of regulating the whole private law. The code lends itself to this kind of interpretation since its articles are usually drafted in very general and abstract terms. Civil law students will read “law doctrine” more than cases. Co

12、mmon law students read cases more than law doctrine. (The “doctrine” is the cumulated writings of law professors on what the law is or should be. In civil law the “doctrine” is considered to be a source of law and a highly respected one. ) In civil law countries, law professors have an important rol

13、e in defining the law. Common law professors generally do not enjoy a similar prestige within their own jurisdiction. Here the judges get most of the prestige. The case method or Socratic method is peculiar to common law countries. In civil law countries, the teaching style is magisterial the profes

14、sor exposes the law to his or her students, who take notes and do not intervene in class.(Under a civil law system, cases are decided by judges who are specially trained for their role. In common law countries, a person who is interested in becoming a judge must first go through the process of getti

15、ng the education required to become a lawyer. The next step in the process is to practice for a number of years before being elected or appointed to the bench.In a country where common law is the method used, lawyers are in charge of presenting the case before the judge in an adversarial system. Eac

16、h side takes a position and presents evidence to support it. Under this system, the judge generally remains silent unless responding to an objection made by legal counsel. Civil law judges take on an inquisitional role, and ask the parties questions to understand and rule on the legal issues involve

17、d.There is not always a written constitution or codified laws in common law system. In a civil law country, there is generally a written constitution based on specific codes (e.g., civil code, codes covering corporate law, administrative law, tax law and constitutional law) enshrining basic rights a

18、nd dutiesCivil law has its origin in Roman law, as codified in the Corpus Juris Civilis of Justinian. Under this influence, in the ensuing period the civil law has been developed in Continental Europe and in many other parts of the world. The main feature of civil law is that it is contained in civi

19、l codes, which are described as a systematic, authoritative, and guiding statute of broad coverage, breathing the spirit of reform and marking a new start in the legal life of an entire nation. The most obvious distinction between civil law and common law systems is a that civil law system is a codi

20、fied system, whereas the common law is not created by means of legislation but is based mainly on case law. The principle is that earlier judicial decisions, usually of the higher courts, made in a similar case, should be followed in the subsequent cases, i.e. that precedents should be respected. Th

21、is principle is known as stare decisis and has never been legislated but is regarded as binding by the courts, which can even decide to modify it. )6. What different attitudes do the civil law system and the common law system hold toward case law?In common law countries, cases are usually considered

22、 to be the primary source of law. (Your legal method class starts with the study of cases.) While in civil law countries, cases are simply not a source of lawat least in theory.7. What is significant about the American legal education? How is law school teaching different from ours?The case method o

23、r Socratic method is peculiar to common law countries. In civil law countries, the teaching style is magisterial the professor exposes the law to his or her students, who take notes and do not intervene in class.8. Is law degree an undergraduate degree in the U.S.? How do people get a law degree in

24、the U.S.?There is no undergraduate law degree in the United States; thus, students cannot expect to study law without first completing an undergraduate degree. Basic admissions requirements for American law schools are a Bachelors degree in any field and the Law School Admissions Test (LSAT). The Am

25、erican law degree is called the Juris Doctor (JD) and usually requires three years of study. The JD program involves courses in American common and statute law as well as international and business law. Overseas students who are considering an American JD should note that this program focuses on pre

26、paration for US legal practice.9. Can you compare the legal method employed in American legal education and the legal method used in other countries?Most law school education in the United States is based on standards developed by Christ-opher Columbus Langdell and James Barr Ames at Harvard Law Sch

27、ool during the 1870s.Professors generally lead in-class debates over the issues in selected court cases, compiled into casebooks for each course. Traditionally, law professors chose not to lecture extensively, and instead used the Socratic method to force students to teach each other based on their

28、individual understanding of legal theory and the facts of the case at hand.Many law schools continue to use the Socratic method -consisting of calling on a student at random, asking him or her about an argument made in an assigned case, asking the student whether he or she agrees with the argument,

29、and then using a series of questions designed to expose logical flaws in the students argument. Examinations usually entail interpreting the facts of a hypothetical case, determining how legal theories apply to the case, and then writing an essay. This process is intended to train students in the re

30、asoning methods necessary to interpret theories, statutes, and precedents correctly, and argue their validity, both orally and in writing. In contrast, mostcivil lawcountries base their legal education on professorial lectures and oral examinations, which are more suited for the mastery of complicat

31、edcivil codes.10. Who play an important role in defining the law in civil law system, law professors or judges? What about the common law system?In civil law countries, law professors have an important role in defining the law. Common law professors generally do not enjoy a similar prestige within t

32、heir own jurisdiction. Here the judges get most of the prestige. Passage B1. How is case law created? 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. When a decision made by the judges or oth

33、er officials becomes authority for determining subsequent controversies, we can define it as a case law. Case law, in other words, applies general laws to specific cases, thereby refining the definition of the laws in the process. If no specific statute or Constitutional rule is on point, judges must also