С) Judicial character of the law

The early Norman judges were important figures appointed by the Crown whose justice they administered. The common law was largely 'judge-made' from the existing customary laws. It is from the records and reports of cases tried by the judges that we derive our knowledge of early case law. Judges formed or moulded the common law, and its growth and character can often be traced to outstanding men like Bracton, Coke, and Littleton. Although judges today may develop the common law within fairly narrow limits, they are mainly concerned with interpreting and applying statute law which is now the main source of legal development.

(d) Independence of judiciary

Justice requires that a judge be impartial and independent of either party to a particular legal dispute. The Act of Settlement, 1701, provided that judges of superior courts 'hold office during good behaviour, that their salaries be ascertained and established, and that they be removed only on the address of both Houses of Parliament.

(e) Independence of lawyers

The two branches of the legal profession comprise barristers and solicitors. Each branch is controlled by an independent body which maintains high professional standards of education, training, and conduct. Lawyers are not appointed by the State and are not civil servants. They are not subject to direct political control, and, like the judges, are traditionally independent. Their relations with clients are based on confidence and protected by privilege; they cannot be compelled to disclose what passes between them during their professional dealings.

(f) Influence of procedure

Procedure has influenced substantive law. We shall see later that at one time the existence of a legal right depended on whether there was a suitable writ with which to begin the action, The writ system governed early law. Such procedural rules affected the law itself and they have left their imprint.

(g) No reception of Roman law

English common law was of native growth and little influenced by Roman Law, unlike the law of Continental countries and Scotland which was shaped by it.

(h) The doctrine of precedent

To achieve some consistency in decisions, the courts developed the practice that the lower courts are bound to follow decisions in higher courts.

(i)Practical nature of the law

It was emphasized by the House of Lords in Ainsbury v. Millington (1987) that it has always been a fundamental feature of the English judicial system that the courts decide disputes between the parties before them. They will not pronounce on abstract questions of law where there is no dispute to be resolved.

SOURCES OF LAW

Warming-up:

What is the main difference between customs and law?

Can we refer to the Bible as the main source of law?

Vocabulary notes:

to determine	визначати
judicial decisions	юридичні рішення
to reduce	зменшувати
to set out	викласти (у збірці)
to derive	походити
a solemnity	важливість, законність
misleading	помилковий
to enact	постановляти, вводити закон
wholesale	повний, масовий
subsidiary	допоміжний
ultimate	основний, кінцевий
a set of laws	збірка законів
a volume	обсяг
a legislation	законодавство
an enactment	постанова
a hallmark	критерій
to signify	визначати
to preponderate, to prevail, to be predominant	переважати

SOURCES OF LAW

The courts are the interpreters and declarers of the law, the ‘sources’ of law are therefore the sources to which the courts turn in order to determine what it is.

Laws are traditionally divided into two main categories according to the solemnity of the form in which they are made. They may either be written or unwritten. These traditional terms are misleading, because the expression ‘written’ law signifies any law that is formally enacted, whether reduced to writing or not, and the expression ‘unwritten’ signifies all unenacted law.

On the Continent the volume of written law tends to preponderate over the volume of unwritten. But in England unwritten law is predominant, for more of the law derives from judicial precedents than from legislative enactments.

Parliament has not adopted the system of wholesale codification which prevails in many continental countries.

Two principal and two subsidiary sources of English law must be mentioned. These principal sources are Legislation, and Judicial Precedent; the subsidiary sources are customs and Books of Authority.

Legislation is enacted law. In England the ultimate legislator is Parliament.

Parliament has no rival within the legislative sphere – and it means that there is no legal limit to the power of Parliament.

In the legislative sphere Parliament is legally ‘sovereign’ and master, but this does not mean that the courts have no influence upon the development of enacted law; in order to be applied, every enactment has to be interpreted and the courts are the recognized interpreters of the law.

In all countries, at all times, the decisions of courts are treated with respect, and they tend to be regarded as ‘precedents’ which subsequent courts will follow when they are called upon to determine issues of a similar kind.

This reliance upon precedent has been both the hallmark and the strength of the common law. Its rules have been evolved inductively from decisions involving similar facts, so that they are firmly grounded upon the actualities of litigation and the reality of human conduct. And new cases lead onwards to reach forward to new rules.

Customs are social habits, patterns of behaviour. Customs should be considered as one of the principal sources of law for much law was originally based upon it.

Some customary rules are observed in their own right and they command almost as much obedience as rules of law proper; they only differ from rules of law in that their observance is not enforced by the organs of the state.

In England there are certain ‘books of authority’, written by authors of outstanding eminence, which may not only be cited as independent sources in themselves for the law of their times but which also carry a weight of authority almost equal to that of precedents.

Many textbooks are now in practice constantly cited in the courts, though only the best of them are likely to command attention.

The reason is that in comparatively recent years a large increase in the popularity of the study of English law has done much to improve the quality of legal writing and to increase the volume of legal literature.

 

Task 1. Give the Ukrainian equivalents of the following words and expressions:

rules, to improve, to increase the popularity, human conduct, to treat with respect, principal, misleading terms, independent sources, to adopt the law, to involve, social habits, to preponderate, precedent, subsequent courts, legal, obedience, the ultimate legislator, hallmark.

 

Task 2. Give the English equivalents of the following words and expressions:

ставитися з повагою, головний, правила, людська поведінка, незалежні джерела, помилкові терміни, збільшити популярність, вдосконалювати, прийняти закон, включати в себе.

 

Task 3. Match the following word-expressions and their definitions:

1. written law	a. all unenacted law
2. unwritten law	b. the process of making or defending a claim in a court of law
3. judicial precedent	c. any law that is formally enacted
4. “Books of Authority”	d. social habits, patterns of behavior
5. customs	e. the decisions of courts
6. litigation	f. legal literature written by authors of outstanding eminence

Task 4. Translate the words into English and complete the following sentences with the appropriate term:

джерела, категорії, звичаї, авторитетні видання, обсяг, законодавство

 

1. … is enacted law.

2. … are social habits, patterns of behavior.

3. On the Continent the … of written law tends to preponderate over the … of unwritten.

4. Two principal and two subsidiary … of English law must be mentioned.

5. Laws are traditionally divided into two main … according to the solemnity of the form in which they are made.

6. Many … are now in practice constantly cited in the courts.

Task 5. Answer the following questions:

1. What bodies are the interpreters and declares of the law?

2. What categories are laws traditionally divided into?

3. What does the expression “written law” signify?

4. What are the two principal and subsidiary sources of English law?

5. What is the ultimate legislator in England?

6. What kind of law is predominant in England?

7. What does it mean that Parliament has no rival within the legislative sphere?

8. What are customs?

9. What is the difference between customary rules and laws?

10. What does the term “books of authority” mean?

11. Is there the system of wholesale codification in England?

12. How do the decisions of courts tend to be regarded?

 

Task 6. Translate the following sentences into Ukrainian:

1. Parliament has not adopted the system of wholesale codification which prevails in many continental countries.

2. Customs should be considered as one of the principal sources of law for much law was originally based upon it.

3. In England unwritten law is predominant, for more of the law derives from judicial precedents than from legislative enactments.

4. Customs are social habits, patterns of behaviour.

5. In England the ultimate legislator is Parliament.

6. The courts are the interpreters and declarers of the law.

 

Task 7. Match the following English words and expressions with their Ukrainian equivalents:

1. rules	a. людська поведінка
2. to improve	b. ставитися з повагою
3. principal	c. включати в себе
4. human conduct	d. правила
5. to increase the popularity	e. головний
6. to treat with respect	f. збільшити популярність
7. to involve	g. покращувати, вдосконалювати
8. to adopt the law	h. помилкові терміни
9. independent sources	i. прийняти закон
10. misleading terms	j. незалежні джерела

 

Task 8. Make up the sentences using the following words:

1. the courts, in, many, constantly, in practice, cited, textbooks, now, are.

2. legally, Parliament, legislative, is, sphere, the, “sovereign”, in.

3. the ultimate, England, is, Parliament, in, legislator.

4. the power, is, legal, no, of, limit, there, to, Parliament.

 

Task 9. Find in the basic text the synonyms to the words in italics:

1. On the Continent the volume of enacted law tends to preponderate over the volume of unenacted law.

2. Two main and two secondary sources of English law must be mentioned.

3. Traditions are social habits, patterns of behaviour.

4. In England there are certain “Books of Authority”, written by famous authors.

5. Many manuals are now in practice constantly cited in the courts.

6. Traditional terms written or unwritten laws are mistaken.

7. In England the principal legislator is Parliament.

 

Task 10. Agree or disagree with the following statements:

1. The Parliament is the interpreter and declarer of the law.

2. In England written law tends to preponderate.

3. Legislation is enacted law.

4. The decisions of courts aren’t always treated with respect.

5. In many continental countries the system of wholesale codification prevails.

6. There is no legal limit to the power of Parliament.

7. Not all enactments have to be interpreted.

8. The lawyers are the recognized interpreters of the law.

9. Judicial Precedents are firmly grounded upon the actualities of litigation and the reality of human conduct.

10. Courts have no influence upon the development of enacted law.

 

Task 11. Put these sentences into Past Simple tense:

1. The volume of legal literature increases.

2. “The books of authority” carry a weight of authority almost equal to that of precedents.

3. Parliament has no rival within the legislative sphere.

4. Some customary rules are observed in their own right.

5. Laws are traditionally divided into two main categories.

6. New cases lead onwards to reach forward to new rules.

 

Task 12. Explain the meaning of the following word-expressions. Make up sentences with each of them:

1. written and unwritten laws

2. judicial precedent

3. “books of authority”

4. custom

5. principal and subsidiary sources of law.

Task 13. Debate on the following issues:

1. The difference between custom and law.

2. Principal and subsidiary sources of law.

3. The difference between written and unwritten laws.

 

Task 14. Skim the text and find the passages dealing with such themes:

1. Principal and subsidiary sources of English law.

2. The role of Parliament as the source of English law.

3. The role of courts.

4. Customs.

5. “Books of authorities”.

6. The system of wholesale codification.

Task 15. Translate the text into English:

Суди інтерпретують та проголошують закони. Закони традиційно поділяються на дві головні категорії: вони можуть бути «писаними» або «неписаними». У Великій Британії домінують «неписані» закони, що походять здебільшого від судових прецедентів.

Два основних джерела англійського права – це законодавчі акти та судові прецеденти. Допоміжними джерелами є звичаї та авторитетні видання. Законодавчі акти – це закони, прийняті Парламентом. Парламент є основним законодавчим органом Великої Британії.

Рішення судів мають тенденцію вважатись «судовими прецедентами», якими керуються суди, щоб вирішити схожі справи. Звичаї – це соціальні звички та зразки поведінки. У Великій Британії є певні авторитетні видання написані визначними авторами, які можуть цитуватись не тільки як незалежні джерела, а й як закони, що є рівнозначними прецедентам.