Task 2. Scan the texts to find the information about common law as quickly as you can. Do not try to read or understand the whole text for this activity.

Sometimes when we read we are only interested in a specific piece of information, or a single section of a book, article, etc. Learning to find the information or section of the text we want quickly is an important reading skill because it helps us to save time and concentrate only on the parts of a text that interest us. This style of reading is called scanning.

 

TEXT A: Gavin McFarlane, The Layman’s Dictionary of English Law. common law Strictly, the general law contained in decided cases, as opposed to Acts of Parliament. But also used to include law in Acts of Parliament and decided cases as a contrast with equity (q.v.). A third use is to distinguish the English (common-law) legal system from a foreign (codified) system of law.	TEXT B: Roger Bird, Osborne’s Concise Law Dictionary, Seventh Edition. common law That part of the law of England formulated, developed and administered by the old common law courts, based originally on the common customs of the country, and unwritten. It is opposed to equity (the body of rules administered by the Court of Chancery); to statute law (the law laid down in Acts of Parliament); to special law (the law administered in special courts such as ecclesiastical law, and the law merchant); and to the civil law (the law of Rome). It is 'the commonsense of the community, crystallized and formulated by our forefathers'. It is not local law, nor the result of legislation.
TEXT C: The Encyclopedia of Britannica.   Common law, also called anglo-american law, the body of customary law, based upon judicial decisions and embodied in reports of decided cases, which has been administered by the common-law courts of England since the Middle Ages. From this has evolved the type of legal system now found also in the United States and in most of the member states of the Common-wealth of Nations. Common law stands in contrast to the rules developed by the separate courts of equity (q.v.), to statute law (i.e., the acts of legislative bodies), and to the legal system derived from civil law (q.v.) now widespread in western Europe and elsewhere.	TEXT D:David M. Walker, The Oxford Companion. Common law.A term used in various distinct senses. (1)It was originally used by the canonists (q.v.) jus commune, as denoting the general law of the Church, as distinct from divergent local customs which in particular areas modified the common law of Christendom; (2)As the powerful centralized system of justice of the English kings developed in the twelfth and later centuries, the royal justices increasingly developed and administered general rules common to the whole of England, the common law of England, as distinct from local customs, peculiarities, and variations, such as gavelkind (q.v,); (3)The common law accordingly came to mean the whole law of England, including ecclesiastical law and maritime and mercantile law, as administered in England, as distinct from that of other countries, particularly those based on the Roman law; (4)Hence, in the context of comparative law, a common law system is one based fundamentally on English common law, as distinct from a civil law system based on the civil law of Rome; (5)With the development of equity (q.v.) and equitable rights and remedies, common law and equitable courts, procedure, rights, remedies, etc., are frequently contrasted, and in this sense common law is distinguished from equity; thus at common law a person aggrieved by a breach of contract could claim damages only, but in equity he could claim specific performance (q.v.); (6)Common law was similarly distinguished from ecclesiastical law; (7)Common law rights, powers, remedies, crimes, etc., are frequently distinguished from statutory rights, powers, remedies, crimes, etc., according to the formal source of the particular right, etc., in principles of common law or in the prescriptions of statute. In French and German law common law (droit commun, Gemeinrecht) mean law common to the whole area of the State as distinct from local or regional customs or peculiarities
TEXT E: Black’s Law Dictionary, Fifth Edition. Common law.As distinguished from law created by the enactment of legislatures, the common law comprises the body of those principles and rules of action, relating to the government and security of persons and property, which derive their authority solely from usages and customs of immemorial antiquity, or from the judgments and decrees of the courts recognizing, affirming, and enforcing suchusages and customs; and in this sense, particularly the ancient unwritten law of England. The “common law” is all the statutory and case law background of England and the American colonies before the American revolution. People v. Rehman, 253 C.A. 2d 119,61 Cal.Rptr. 65,85. “Common law” consists of those principles, usage and rules of action applicable to government and security of persons and property which do not rest for their authority upon any express and positive declaration of the will of the legislature. Bishop v. U.S., D.C.Tex., 334 F. Supp.: 415,418. As distinguished from ecclesiastical law, it is the system of jurisprudence administered by the purely secular tribunals. Calif. Civil Code, Section 22.2, provides that the “common law of England, so far as it is not repugnant to or inconsistent with the Constitution of the United States, or the Constitution or laws of this State, is the rule of decision in all the courts of this State.” In a broad sense “common law” may designate all that part of the positive law, juristic theory, and ancient custom of any state or nation which is of general and universal application, thus marking off special or local rules or customs. For “Federal common law”, see that title. As a compound adjective “common-law” is understood as contrasted with or opposed to “statutory” and sometimes also to “equitable” or to “criminal”.

 

Task 3.Use the information given in the texts from the previous exercise to answer the following questions:

a) Which extract gives the greatest number of different definitions of common law?

b) Which extract is from an American law dictionary?

c) Which extract does not come from a law dictionary?

d) How many distinct meanings of common law does The Layman’s Dictionary of English Law give?

e) What is the name of the court which administered Equity?

f) What was the original source of common-law principles?

g) What other countries apart from England have a common-law legal system?

h) Find the name for the study and comparison of legal systems, used in text D.

i) Does “common law” have the same meaning in both French and German law?

j) What force does “the common law of England” have in the American state of California?

k) Find the name of two cases in US law.

Task 4. Skim through the texts to understand their general meaning, answering the questions below. Do not worry about words or sections of the text that you don’t understand if you can complete this activity.

 

a) What three basic definitions of common law are given in all the British dictionary extracts?

b) Find the extra meaning that “common law” has in the US.

c) Which definition of common law do you think gave it its name?

d) Which definitions in the American law dictionary correspond to Text D, definitions 6 and 7?

 

Task 5. Review the text:

WRIT

In civil cases, however, procedure was more technical. The proceedings in the common-law courts started with the issue of an “original” writ (so named because it originated the proceedings), which was purchased from the main royal office, the Chancery.

The writ was a formal document addressed to the sheriff of the county where the defendant resided, commanding him to secure the presence of the defendant at the trial and setting out the cause of action or ground of claim of the plaintiff. For every civil wrong or cause of action there was a separate writ. Important examples were the writ of trespass, the writ of debt, and the writ of detinue (detinue alleged that the defendant detained an article or chattel from the plaintiff and would not return it). The plaintiff had to select the particular writ which he considered fitted the facts of his case.

The plaintiff attended the Writ Office of the Chancery, where a register of the various writs was kept, and applied for the writ most suitable to his claim. If there was no writ suitable to the civil claim made or the relief required of the law, the plaintiff was at a severe disadvantage. We may say, therefore, that the writ system dominated the civil law: for only where there was a remedy was there a right (which is expressed in the Latin phrase am remedium ibi jus). Moreover, if the wrong kind of writ were selected by the plaintiff, the common law judges would throw out the case and refrain from inquiring into its merits. Under the rigid procedure of the writ system the remedy available to litigants became more important than the justice of the claim.

Some attempt to alleviate this system was made by the clerks in the Chancery. Where a writ was thrown out by the court, or where none existed to found the claim, the clerks endeavored to accommodate litigants by issuing new writs, thus effectively expanding the rights available. At first the common law judges tolerated this procedure and accepted some new writs; but later their attitude stiffened and they refused to accept the new writs, since these amounted to new law.

The Provisions of Oxford, 1258, forbade the practice of creating new writs. As a result certain wrongs went unremedied merely because they did not fall within the limits of an existing writ. However, some alleviation was attempted by the Statute of Westminster II, 1285, which empowered the clerks in the Chancery to issue writs in consimili casu (“in like case to”), i.e. existing writs could be adapted to fit new circumstances. However, full use was not made of this provision, and litigants’ claims still went unsatisfied by the ineffectual writ system: the common law did not expand to meet the urgent and growing needs of the community. Complaints to the King and his Council regarding the inelasticity of the common law led to the emergence of the Court of Chancery and its special field known as equity.

Task 6. Write down the annotation to the following:

CASE LAW

Law, which is based on judicial decisions, is case law. When we use the word “case” in this context we mean the legal action or dispute which has been brought to the courts for resolution. The judge’s decision is the law – hence “case law”. However, judges are not free to reach any decision they wish to; they are bound to follow certain rules and these rules form the system of judicial precedent.

When deciding a case before them, judges are bound by the legal rules in previous cases. This is called the principle of stare decisis which means “stand by what has been decided”¹. Its purpose is to achieve certainty and constituency in the law to develop and adapt to changing social and economic conditions.

The strongly coercive² nature of the English doctrine of precedent is due to rules of practice, called “rules of precedent”, which are designed to give effect to the far more fundamental rule that English law is to a large extent based on case-law. “Case-law” consists of rules and principles stated and acted upon by judges in giving decisions³. In a system based on case-law, a judge in subsequent⁴ case must have regard to these matters: they are not, as in some other legal systems, merely material which he may tare into consideration in coming to his decision.

The fact that English law is largely a system of case law means that the judge’s decision in particular case constitutes a “precedent”. If we place ourselves in the position of a judge in a later case, there may be said to be many different kinds of precedent. The judge may simply be obliged to consider the former decision as part of the material on which his present decision could be based, or he may be obliged to decide the case before him in the same way as that in which the previous case was decided unless he can give a good reason for not doing so. Finally, the judge in the instant case may be obliged to decide it in the same way as that in which the previous case was decided, even if he can give a good reason for not doing so. In the last-mentioned situation the precedent is said to be “binding” or of “coercive effect” as contrasted with its merely “persuasive” effect in the other situation in which the degree of persuasiveness may vary considerably.

(Cross, Precedent in English Law (Clarendon Press 1977),pp.4-5)

 

Text notes: ¹стояти на вирішеному

² to coerce = to force

³when they give decisions

⁴ coming later

Task 7. Find English equivalents for the following sentences:

1. Право, яке базується на судових рішеннях, називається прецедентним правом.

2. Проте, судді не вільні приймати те рішення, яке вони хочуть; вони зобов’язані дотримуватися певних правил, і ці правила утворюють систему судового прецеденту.

3. Примусовий характер доктрини прецеденту пояснюється правилами судової практики, які називаються “правилами прецеденту”, що утворюються для запровадження в дію найголовнішого правила про те, що англійське право, в значній мірі, базується на прецедентному праві.

4. “Прецедентне право” складається з норм та принципів, визначених суддями і відповідно до яких вони діють при прийнятті рішень.

5. Суддя може бути зобов’язаний враховувати (застосовувати) рішення по попередній справі (раніше винесені судові рішення), як частину матеріалу, на якому базується його рішення по справі, яку він розглядає; або вирішувати судову справу так, як вирішувалась попередня, якщо він не може надати обґрунтованої підстави цього не робити.

6. Зрештою, суддя при розгляді справи може бути зобов’язаний вирішувати її так, як вирішувалась попередня, навіть, якщо він може надати обґрунтовану підставу не робити цього.

 

Task 8. Read and translate the text into Ukrainian: