法律英语/L01legalsystem
2018-10-06 09:57阅读：
【Background背景】
自从哥伦布(Christopher
Columbus)于1492年航行至美洲之后，大批欧洲人便开始拥向这片“新大陆”。不过，人们通常把第一批英国定居者(the first
English
settlers)于1607年到达弗吉尼亚(Virginia)的詹姆斯顿(Jamestown)视为美国法律制度历史的起点。美国法制史可以大体上分为两个时期，即英属殖民地时期(the
Period of the English Colonies)和美利坚众和国时期(the Period of the United
States)。虽然美国的法律制度是在英国法律传统的基础上形成和发展起来的，但是在近四百年的历史进程中，美国的法律制度也形成了一些不同于美国法律制度的特点，如公诉制度(public
prosecution )等。
英国属于普通法系(Common Law Legal
System)国家,其法律制度有两个基本特点:其一是以分散制(decentralization)为原则;其二是以判例法(case
law)为主体。美国除联邦政府外，还有州政府、县政府、市政府、镇政府等等，而且这些政府都是相互独立的，各自在其管辖范围内享有一定的立法权和执法权。因此，有人说美国是“一个有许多政府的国家'(a
country of many governments);而美国的法律体系则是一个“要散的无系统'(fragmental
no-system)。诚然，英国现在也有很多成文法(written law)或制定法(statutory
law),但是其法律制度仍是以判例法为主体的。换育之，“遵从前例'(stare
decisis)仍然是美国司法活动中最重要的原则之一。以上两点对于理解美国的法律制度具有重要意义。
Part One
The United States is at once a very
new nation and a very old nation. It is a new nation compared with
many other countries, and it is new, too, in the
sense that it is constantly being renewed by the addition of new
elements of population and of new States. But in other senses it is
old. It is the oldest of the‘ 'new' nations -the first one
to be made out of an Old World colony. It has the oldest written
constitution, the oldest continuous federal system, and the oldest
practice of self-government of any nation.
One of the most interesting features of America's youth is that the
whole of its history belongs in the period since the invention of
the printing press. The whole of its history is, therefore,
recorded: indeed. it is safe to say that no other major nation has
so comprehensive a record of its history as has the United States,
for events such as those that ere lost in the legendary past of
Italy or France or England are part of the printed record of the
United States. And the American record is not only comprehensive;
it is immense. It embraces not only the record of the colonial era
and of the Nation since 1776，but of the present fifty States as
well, and the intricate network of relationships between States and
Nation. Thus, to take a very elementary example, the reports of the
United States Supreme Court fill some 350 volumes, and the reports
of some States are almost equally voluminous: the reader who wants
to trace the history of law 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. But when
hundreds and thousands of documents strike a consistent note, over
more than a hundred years, we have a right to say that is the
keynote. When hundreds and thousands of documents address
themselves in the same ways ,to the same overarching problems, we
have a right to read from them certain conclusions which we can
call national characteristics.
part two
the American legal system ,like the
English ,is methodologically mainly a case law system. Most
fields of private law still consist primarily of case law and the
extensive and steadily growing statutory law continues to be
subject to binding interpretation through case law. Knowledge of
the case law method as well as of the technique of working with
case law therefore are of central importance for an understanding
of American law and legal methodology.
The Common Law is historically the
common general law - with supremacy over local law which Was
decreed by the itinerant judges of the English royal court The
enforcement of a claim presupposed the existence of a special form
of action, 8 writ, with the result that the original common law
represented a system of actions' 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' ( 1258)prohibited the creation of new writs, except for the
flexibility which the' wnit 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 case law.' Equity' ，in its
general meaning of doing equity' ，deciding CX aequo et bono, WAS
first granted by the King. and later by his Chancellor as 'keeper
of the King' S conscience' ，to a ford relief in hardship
cases. In the fifteenth century, however, 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. Its rules and maxims became fixed and, to a degree,
inflexible as in any legal system. Special characteristics of
equity law include: relief in the form of specific performance (in
contrast to the common law award of compensatory damages), the
injunction (a temporary or final order to door not to do a specific
act), the development of so-called maxims of equity law which
permeated the entire legal sys.cm and in many Cases explain the
origin of modern legal concepts. However, equitable relief
regularly will lie only when the common law relief is inadequate.
For instance, specific performance for the purchase of real
property will be granted because 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
or through express statutory provision. Today, both legal
systems have been merged in many. American jurisdictions (
beginning with New York in 1848)，with the results that there is
only one form of civil suit in these jurisdictions as well as in
federal practice. Only few States continue to maintain a separate
chancery court. Nevertheless, the reference to the
historical development is important because, on the one hand, it
explains the origin and significance of many contemporary legal
concepts (for instance the division of title in the law of
property) and, on the other hand, it is still relevant for the
decision of such questions whether, for instance, there is a right
to a trial by jury (only in the case of common law suits, in other
cases only before the judge). In addition, the differentiation will
determine whether the ''ordinary' common law relief of damages
applies or whether the' extraordinary equity remedy of specific
performance is available.
“Case law' describes the entire
body of judge -made law and today includes common law and equity
precedents. In imprecise and confusing usage the terms'
common law' and ''case law' are often used synonymously, with the
term' common law' in this usage connoting judge made law in
general as contrasted with statutory law . ''Case law' always
connotes judge-made law, while' common law' in contrast- -depending
on the meaning intended- describes either the judge-made law in
common law subject matters or, more extensively, all judge-made
law.
