Appealing to History

Different countries develop their own form of dispute resolution, which is more fit for their culture and historical background. Prior to the Norman Conquest, there was no system of law which was common to England. Justice was administered locally. There was no English law as such. Rather, there was a variety of different regional systems. During the reign of Henry II, judges were sent to the provinces where they could become familiar with local customs and could use their knowledge to develop a single law that was common to the entire country. Thus the system of courts and common law developed at Westminster and around the country by means of itinerant judges. That was a single system of law for the whole country: common law. This approach established the importance of judicial decisions as a source of law, though it was not truly formalised until the establishment of a reliable system of case reporting in 1865.

The doctrine of precedent was based on the principles of stare decisis, obiter dicta and ratio decidendi according to which a later court is to be bound to apply the same reasoning as an earlier court where the two cases raise substantially the same questions of principle. The binding nature of the doctrine of precedent created a foundation of certainty. However, apart from certainty the law needs some flexibility.

By the 14^th century, the common law had ceased to be flexible and failed to meet the demands of the new cases. More and more litigants who could not obtain redress from the common law would petition the King. Eventually, it was the Lord-Chancellor rather than the King who heard petitions. As the number of such petitions grew, the Court of Chancery was established and equity developed as a system of justice distinct from the common law. Equity introduced a number of remedies unknown in the common law. This quite frequently allowed to seek such a remedy when all the common law remedies had been exhausted. At the same time equity was never a rival of the common law. It simply provided additional "alternative" ways of achieving justice.

For example, the common law relied on a single remedy: damages. However, this remedy was often found to be inadequate or inappropriate. Equity was able to develop a range of alternative, discretionary remedies.

For centuries, the systems of law and equity were administered separately. The creation of a single organised system of courts in England dates back to 1873-1875 when the Judicature Act brought the two systems together so that all courts could grant both legal and equitable remedies. It should be noted that this was a procedural fusion of common law and equity, i.e. from that point all courts had both common law and equitable jurisdiction. As far as substantive law is concerned, the two systems remain distinct. It was established that where there was a conflict between the two systems Equity should prevail.

Task 2. Check your understanding of the text by giving answers to the following questions.

1. Was there a law system in England before the Norman Conquest?

2. By what time had the system of common law been truly formalised?

3. What was the advantage of the common law system of justice?

4. What was its chief disadvantage?

5. How did the law of equity appear in England?

6. When was a single organised system of courts created in the country?

Task 3. Render the following text into English paying special attention to the expressions in bold type

Правовая система Англии и Уэльса относится к так называемой правовой семье общего права (англосаксонской системе). В отличие от стран романо-германской правовой семьи (континентальной системы) английское законодательство не кодифицировано и, как следствие этого, имеет менее систематизированный характер. В этих условиях в системе источников права Англии и Уэльса одно из ведущих мест наряду с законом (нормативно-правовым актом) традиционно занимает судебный прецедент - решение суда по конкретному делу, являющееся обязательным для нижестоящих судов при последующем рассмотрении аналогичных дел. В настоящее время вышеуказанное различие между англосаксонской и континентальной системами начинает постепенно стираться.

В правовой системе Англии и Уэльса на протяжении столетий сосуществуют общее право и право справедливости.

Общее право было создано разъездными королевскими судьями, которые ездили по стране и решали самые разные дела. Первоначально дела рассматривались ими по собственному усмотрению с учетом местных обычаев, но затем, накапливая опыт и обмениваясь им, судьи выработали общие принципы для единообразного рассмотрения дел на всей территории государства.

Однако сформировавшееся за счет деятельности разъездных судей общее право не обладало необходимой гибкостью и не всегда позволяло вынести истинно верное решение. В результате постепенно формируется другая система права и отправления правосудия. Если суды общего права при вынесении решений были связаны жесткими, формализованными рамками, то суд лорда-канцлера решал дела, руководствуясь принципами гуманности и справедливости. Поэтому новая альтернативная система права и отправления правосудия стала называться правом справедливости.

В результате судебной реформы 1873-1875 гг. обе системы – общего права и права справедливости – были объединены в единую систему, в рамках которой они продолжают сосуществовать и поныне, при этом в случае противоречия между двумя системами приоритет имеет право справедливости.

Task 4. Read the text and compare the functioning of the legal systems in Great Britain and Russia.

Justice and Law

Although Britain is a unitary state, it does not have a single system of law. England and Wales and Northern Ireland have similar systems, but the Scottish system is somewhat different. In general, however, the law has no complete code. Its sources include parliamentary legislation, European Community law and much «common» law from courts' decisions and elsewhere. Criminal law is concerned with wrongs against the community as a whole, civil law with the rights and duties of individuals among themselves.

Keeping the peace and bringing offenders to trial are primarily the concern of the police whose action depends on common consent since the number of officers is small in relation to the population (roughly one to every 400 people). The police are not normally armed and their powers are carefully limited. Strict procedures govern the way complaints against the police are handled. Special efforts are being made to improve relations between the police and community, especially in inner city areas.

The police service consists of independent local forces, usually linked with local government, and each responsible for its own area.

Most prosecutions are initiated by the police, but in Scotland the police make the preliminary investigations, and a public prosecutor decides whether or not to prosecute. As soon as anyone is arrested, he or she must be charged and brought to court with the minimum of delay. Unless the case is serious, the arrested person is usually granted bail if he or she cannot quickly be brought to court.

Compensation may be paid to victims of violent crime and people hurt while trying to prevent offences. Judges are independent and non-political and, except for law magistrates who try less serious criminal cases, are appointed from practicing barristers, advocates or solicitors.

Criminal trials take place in open court although there are some restrictions, such as those to protect children. The more serious cases take place before a jury of ordinary, independent citizens who decide on guilt or innocence. People accused of crimes are presumed innocent until proved guilty, and every possible step is taken to deny the prosecution any advantage over the defence.

Cases involving children are heard in special juvenile courts, or, in Scotland, at informal children's hearings.

Other than in cases of murder, for which the sentence is life imprisonment, courts can choose the penalty most appropriate for a particular offender.

The legal profession has two branches: solicitors and barristers (advocates in Scotland). Solicitors undertake legal business for lay clients, while barristers advise on problems submitted through solicitors and present cases in the higher courts.

People with little money are given help to meet the costs of legal advice and court proceedings.

Task 5. Give answers to the following questions on the text.

1. Does the UK have a single system of law?

2. What do the sources of the British law code include?

3. What is criminal law concerned with?

4. What is the jurisdiction of civil law?

5. What body is responsible for keeping order and bringing offenders to court?

6. How does the police service operate?

7. What measures are taken in case the arrested person cannot quickly be brought to court?

8. What legal professions are judges appointed from?

9. What court are criminal cases heard in?

10. When are cases tried by the jury?

11. How are the rights of the defendant protected by law?

12. Where are cases involving children heard?

13. With what exception are courts free to choose a penalty for the offender?

14. What is the usual word for barristers in Scotland?

15. Does the state help low income people to cover the legal expenses?

Task 6. Read the text given below and answer the following questions:

1. What are the peculiarities of the US legal system?

2. What is the US law comprised of?

3. In what case is a state law considered to be void?

4. What powers are federal and state constitutions allocated by?

5. What document are the basic rights of citizens included in?

6. Why is the system of checks and balances used in the allocation of governmental powers?

7. What bodies are new statutes enacted by?

8. What legislative authority is given to local governments by state legislatures?

9. What type of legislation is called an ordinance?

10. What requirement must be met by the statute or ordinance in order to be valid?

11. What is the legal status of the rules and regulations enacted by administrative agencies?

12. Under what condition may the courts invalidate a rule or regulation?

13. What bodies is case law created by?

14. How is new case law created?

15. What bodies are the final authority on the constitutionality of statutes, rules and ordinances?

16. Can legislative bodies nullify a court decision, abolish the statute or amend the constitution?

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