Московский Педагогический Государственный Университет

Московский Педагогический Государственный Университет

Факультет Дошкольной Педагогики и Психологии

Реферат на тему: “ Judicial system in England”

Студент: Иванова Е.А.

Преподаватель: Маламуд А.Я.

Москва 2012

The List of Contents:

1.Introduction 3

2.What is Law? 3

3.Common Law and Equity 4

4.Parliament and Legislation 5

5.Classification of the Courts 5

6.The Legal Profession 6

7.Glossary 8

8.Appendix 10

1.Introduction

The Judicial system in England is known for its singularity. To get an overview of it we should examine such notions as law, Common law and equity. Also we should get an idea of Parliament, legislation, the classification of the courts. And then we should pass in review the legal profession.

2.What is Law?

Law is a system of rules and guidelines, which are enforced through social institutions to govern behavior.

The law of England and Wales primarily comes from two sources: Parliament and the courts.

In relation to law made by Parliament, as long as a bill is passed by the House of Commons and the House of Lords and receives the royal assent, the resulting Act of Parliament is recognised as law. Equally, cases decided by the courts, which interpret Acts of Parliament or develop the common law are recognised as a source of law. Originally, the law made by judges through case law was the most important source of law, as Parliament met infrequently. However, with the ascendancy of Parliament as the law-maker, legislation increasingly became the main source of law.

Morality and the law may coincide, but not necessarily. Using morality as a guide to what should be subject to legal intervention is problematic. The difficulty, of course, lies in defining what is immoral. Religion may give guidance, but not all members of a society will necessarily agree on what is, or what is not, immoral. Attempts have been made to identify criteria against which to judge whether conduct should attract legal intervention. For example, John Stuart Mill in On Liberty said, ‘the only purpose for which power can be rightfully exercised over any member of a civilised community against his will is to prevent harm to others. His own good, either physical or moral, is not a sufficient warrant.’ But this principle in itself calls for judgements as to what constitutes harm and who falls within the category of ‘others’.

The great branches of English law are the civil law and the criminal law. According to William Geldart, Introduction to English Law 146 (D.C.M. Yardley ed., 9th ed. 1984),

"The difference between civil law and criminal law turns on the difference between two different objects which law seeks to pursue - redress or punishment. The object of civil law is the redress of wrongs by compelling compensation or restitution: the wrongdoer is not punished; he only suffers so much harm as is necessary to make good the wrong he has done. The person who has suffered gets a definite benefit from the law, or at least he avoids a loss. On the other hand, in the case of crimes, the main object of the law is to punish the wrongdoer; to give him and others a strong inducement not to commit same or similar crimes, to reform him if possible and perhaps to satisfy the public sense that wrongdoing ought to meet with retribution.”

3.Common Law and Equity

The term common law gives rise to difficulty as it has several meanings, so any meaning depends upon the context in which the term is used: Common law may mean the law created by the common law courts in contrast to the law created by the Court of Chancery, which was called equity.

Common law may mean all the law created by the courts, including the law of equity, as opposed to the law created by Parliament, that is legislation. In this sense, common law may be also termed ‘judge-made’ law.

Common law may refer to forms of law-making, particularly judge-made law, which is governed by the doctrine of judicial precedent.

The first point to note about equity is that it is a body of law developed by the judges, subject to the doctrine of precedent and in this sense is the same as other judge-made law. However, the origins, development, and the substance of equity are very different to those of the common law. Equity developed because of the rigidity of the common law; the price of certainty is sometimes injustice. To remedy injustices, it was possible to petition the Chancellor as ‘keeper of the King’s conscience’, acting on behalf of the king as the fountain of justice. At first, equity was merely the Chancellor acting according to conscience. There was no system and therefore no certainty. Eventually from this process developed the Court of Chancery to administer equity. The old common law courts and the Court of Chancery were replaced by the High Court.

4.Parliament and Legislation

Legally, Parliament is the supreme law-making body and may make laws on any subject it chooses. To become an Act of Parliament a bill must pass through the House of Commons and the House of Lords and then receive the royal assent. An Act of Parliament may create new law or may affect existing law.

The role of judges is to interpret law made by Parliament and they must be careful not to encroach on this law-making function.

5.Classification of the Courts

Courts are divided into superior courts and inferior courts. A superior court is one with unlimited jurisdiction, both in a geographical and monetary sense. An inferior court has limited jurisdiction. The superior courts are the Supreme Court (previously the House of Lords), Court of Appeal, High Court, Crown Court, Privy Council and Employment Appeal Tribunal; the inferior courts include the magistrates’ courts and the county courts. The major differences between the courts relates to their powers in relation to contempt of court and to the supervision of the inferior courts by a superior court.

6.The Legal Profession

Unlike other European countries, England has two different types of lawyers – barristers and solicitors. The role of the practising barrister is much wider than merely acting as an advocate. Barristers spend a considerable amount of time giving written opinions, in which they state what they consider the law to be. They also draft statements of case, the formal documents which the parties must exchange before a case is heard in court. Barristers tend to specialise either in criminal law or in a particular branch of civil law. They have rights of audience in all civil and criminal courts. Until 1990 barristers had an exclusive right to be heard in senior courts, but now solicitors may also have rights in such courts. Barristers are not allowed to form partnerships. Instead, they operate from chambers, which are offices where a barrister’s clerk, who also negotiates the barrister’s fees, allocates several barristers work. A barrister can only be hired by a solicitor and can only meet the client he represents if the client’s solicitor is also present. This prevents impropriety and should also mean that the barrister keeps an objective view of the case.

Solicitors are the first point of contact for a client with a legal problem. Unlike barristers, solicitors can form partnerships. A solicitor should have a good idea of most areas of law and should know where more information could be found if needed. In the larger firms solicitors would tend to specialise in one particular area of law. Solicitors routinely give their clients legal advice, enter into correspondence on their behalf, draft wills and draw up documents, which transfer ownership of land.

7.Glossary

Judicial [ʤuː'dɪʃ(ə)l] судебный, законный

Singularity [ˌsɪŋgjə'lærətɪ] оригинальность, своеобразие

Equity ['ekwɪtɪ] право справедливости; правосудие на основе права справедливости

Legislation [ˌleʤɪ'sleɪʃ(ə)n] законодательство

Legal ['liːg(ə)l] юридический, правовой, судебный

Enforce [ɪn'fɔːs] проводить в жизнь; придавать законную силу (правовому акту)

Assent [ə'sent] одобрение, утверждение, санкция

Interpret [ɪn'tɜːprɪt] толковать

Source [sɔːs] источник, документ

Ascendancy [ə'sendən(t)sɪ] власть, влияние, господство

Intervention [ˌɪntə'venʃ(ə)n] вмешательство

Guidance ['gaɪd(ə)n(t)s] руководство

Criteria [kraɪ'tɪərɪə] критерии

Warrant ['wɔr(ə)nt] ордер, предписание, приказ

Civil law гражданское право

Criminal law уголовное право

Redress [rɪ'dres] возмещать

Restitution [ˌrestɪ'tjuːʃ(ə)n] возмещение убытков, востановление в правах

Wrongdoer ['rɔŋˌduːə] преступник, правонарушитель

Inducement [ɪn'djuːsmənt] побуждение

Retribution [ˌretrɪ'bjuːʃ(ə)n] возмездие

The Court of Chancery канцлерский суд

Judicial precedent судебный прецедент

Rigidity [rɪ'ʤɪdətɪ] суровость

Remedy ['remədɪ] средство судебной защиты

Encroach [ɪn'krəuʧ] покушаться, посягать

Monetary ['mʌnɪt(ə)rɪ] валютный

Jurisdiction [ˌʤuərɪs'dɪkʃ(ə)n] отправление правосудия

Contempt [kən'tempt] нарушение норм права

Barrister ['bærɪstə] адвокат, имеющий право выступать в высших судах

Solicitor [sə'lɪsɪtə] стряпчий, адвокат, консультирующий клиента, подготавливающий дела для барристера и выступающий только в судах низшей инстанции

Draw up составлять

8.Appendix

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