III. Judicial system in Great Britain

Методические указания

по домашнему чтению для студентов 1-2 курсов

юридического факультета

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Утверждено учебно-методической комиссией гуманитарного факультета

от протокол №

 

составители: Тулина Л.Б.

Евтухович С.В.

Канушкина С.Н.

От составителей

Настоящие методические указания представляют собой сборник текстов для домашнего чтения и предназначены для студентов 1 и 2 курсов юридического факультета.

Все тексты являются отрывками из работ английских и американских авторов. Знакомясь с оригинальными текстами, студенты получат сведения, которые позволят им глубоко анализировать юридические нормы и институты Англии и США.

Работа состоит из трех разделов, каждый из которых содержит текст, комментарии для снятия трудностей при его чтении, активный словарь и ряд заданий, направленных на развитие у студентов умения извлекать информацию и использовать ее в устной речи.

Данные тексты расположены в определенной системе. Вначале помещен материал, в котором освещен материал о происхождении и развитии права, его сущности и функциях.

Далее приводятся тексты, в которых идет речь о юридических системах Англии и США. В заключительном разделе в качестве приложения приводятся тексты, затрагивающие философские аспекты права, а также рассказ Грэма Грина «The case for the defence». Задания при работе над этими текстами могут быть различными и определяться преподавателем (например, письменный перевод, грамматический анализ и т.д.)

Данные методические указания могут служить пособием для самостоятельной работы студентов и контроля полученных ими навыков в аудитории.

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XVI.

LAW

Branches of the law

Law is the set of enforced rules under which a society is governed. Law is one of the most basic social institutions – and one of the most necessary. No society could exist if all people did just as they pleased, without regard for the rights of others. Nor could a society exist if its members did not recognize that they also have certain obligations toward one another. The law thus establishes the rules that define a person’s rights and obligations. The law also sets penalties for people who violate these rules, and it states how government shall enforce the rules and penalties. However, the laws enforced by the government can be changed. In fact, laws frequently are changed to reflect changes in a society’s needs and attitudes.

In most societies, various government bodies, especially police agencies and courts, see that the law is obeyed. Because a person can be penalized for disobeying the law, most people agree that laws should be just. Justice is a moral standard that applies to all human conduct. The laws enforced by government have usually had a strong moral element, and so justice has generally been one of the law’s guiding principles. But governments can, and sometimes do, enforce laws that many people believe to be unjust. If this belief becomes widespread, people may lose respect for the law and even disobey it. In democratic countries, however, the law itself provides ways to amend or abolish unjust laws.

Branches of the law

Law can be divided into two main branches: private law and public law. Private law deals with the rights and obligations people have in their relations with one another. Public law concerns the rights and obligations people have as members of society and as citizens. Both private and public law can be subdivided into several branches. However, the various branches of public and private law are closely related, and in many cases overlap.

Private law is also called civil law. It determines a person’s rights and obligations in many kinds of activities that involve other people. Such activities include everything from borrowing or lending money to buying a home or signing a job contract.

The great majority of lawyers and judges spend most of their time dealing with private-law matters. Lawyers handle most of these matters out of court. But numerous situations arise in which a judge or jury must decide if a person’s private-law rights have been violated.

Private law can be divided into six major branches according to the kinds of legal rights and obligations involved. These branches are: 1) contract and commercial law, 2) tort law, 3) property law, 4) inheritance law, 5) family law, 6) corporation law. The dividing line between the various branches is not always clear. For example, many cases of property law also involve contract law.

Contract and commercial law deals with the rights and obligations of people who make contracts. A contract is an agreement between two or more persons that can be enforced by the law. A wide variety of business activities depend on the use of contracts. A business firm makes contracts both with other firms, such as suppliers and transporters, and private persons, such as customers and employees.

Tort law. A tort is a wrong or injury that a person suffers because of someone else’s action. The action may cause bodily harm; damage a person’s property, business or reputation; or make unauthorized use of a person’s property. The victim may sue the person or persons responsible. Tort law deals with the rights and obligations of the persons involved in such cases. Many torts are unintentional, such as damages in traffic accidents. But if a tort is deliberate and involves serious harm, it may be treated as a crime.

Property law governs the ownership and use of property. Property may be real, such as land and buildings, and personal, such as an automobile and clothing. The law ensures the person’s right to own the property. However, the owner must use the property lawfully. People also have the right to sell or lease their property and to buy or rent the property of others. Property law governs the rights and obligations involved in such dealings.

Inheritance law, or succession law, concerns the transfer of property upon the death of the owner. Nearly every country has basic inheritance laws, which list the relatives or other persons who have first rights of inheritance. But in most Western nations people may will their property to persons other than those specified by the law. In such cases, inheritance law also sets the rules for the making of wills.

Family law determines the legal rights and obligations of husbands and wives, and of parents and children. It covers such matters as marriage, divorce, adoption and child support.

Corporation law governs the formation and operation of business corporations. It deals mainly with the powers and obligations of management and the rights of stockholders. Corporation law is often classed together with contract and commercial law as business law.

Public law involves government directly. It defines a person’s rights and obligations in relation to government. Public law also describes the various divisions of government and their powers.

Public law can be divided into four branches: 1) criminal law, 2) constitutional law, 3) administrative law, and 4) international law. In many cases, the branches of public law, like those of private law, may overlap. For example, a violation of administrative law may also be a violation of criminal law.

Criminal law deals with crimes – that is actions considered harmful to society. Crimes range in seriousness. Criminal law defines these offences and sets the rules for the arrest, the possible trial, and the punishment of offenders. Some crimes are also classed as torts because the victim may sue for damages under private law.

In the majority of countries, the central government makes most of the criminal laws. In the United States each state, as well as the federal government, has its own set of criminal laws. However, the criminal laws of each state must protect the rights and freedoms guaranteed by the federal constitutional law.

Constitutional law. A constitution is a set of rules and principles that define the powers of a government and the rights of people. The principles outlined in a constitution form the basis of constitutional law. The law also includes official rulings on how a constitution’s principles are to be interpreted and carried out.

Most nations have written constitutions. A major exception is Great Britain. The British constitution is unwritten. It consists of all the documents and traditions that have contributed to Britain’s form of government. In most democracies, the national constitution takes first place over all other laws. In the United States, the federal constitution has force over all state constitutions, as well as over all other national and state laws.

Conflicts between a constitution and other laws are settled by constitutional law. In the United States, the courts have the power of judicial review, under which they may overturn any laws judged to be unconstitutional. A law is declared unconstitutional if the court determines that it violates the U.S. Constitution or a state constitution. The U.S. Supreme Court is the nation’s highest court of judicial review.

Administrative law centers on the operation of government agencies. It is one of the fastest-growing and most complicated branches of the law.

National, state or provincial, and local governments set up many administrative agencies to do the work of government. Some of these agencies regulate such activities as banking, communications, trade, and transportation. Others deal with such matters as education, public health, and taxation. Still other agencies administer social welfare programs, such as old age and unemployment insurance. In most cases, the agencies are established in the executive branch of government under powers granted by the legislature. Administrative law consists chiefly of 1) the legal powers granted to administrative agencies by the legislature and 2) the rules that agencies make to carry out their powers. Administrative law also includes court rulings in cases between the agencies and private citizens.

International law deals with the relationships among nations both in war and in peace. It concerns trade, communications, boundary disputes, methods of warfare, the uses of the ocean, and many other matters. Laws to regulate international relations have been developed over the centuries by customs and treaties. But international law, unlike other branches of the law, is difficult to enforce.

 

Active vocabulary

To have rights and obligations

To set penalties for smb.

To violate rules

To enforce rules and penalties

To obey the laws

To disobey the laws

To amend or abolish laws

Branches of the law

Private law

Public law

Contract and commercial law

Family law

Tort law

Criminal law

Property law

Real property

Dealings

Constitutional law

Inheritance law

Administrative law

Court rulings

Corporation law

International law

To handle matters out of court

Jury

To make wills

A victim

To sue a person

To protect rights

 

Assignment I. Answer the questions.

1. How would you define the term “law”?

2. What are the branches of the law?

3. What does private law determine?

4. How many branches can private law be divided into?

5. What branches can public law be divided into?

 

Assignment II. Topics for discussion.

1. Law as a social institution.

2. Private law.

3. Public law.

 

I. LAW

Systems of law

Every independent country has its own legal system. The systems vary according to each country’s social traditions and form of government. But most systems can be classed as either 1) a common-law system or 2) a civil-law system. The United States, Canada, Great Britain, and other English-speaking countries have a common-law system. Most other countries have a civil-law system. Many countries combine features of both systems.

Common-law systems are basedlargely on case law – that is, on court decisions. The common-law system began in England many hundreds of years ago. The English called their system the common law because it applied throughout the land.

English common law developed from the rules and principles that judges traditionally followed in deciding court cases. Judges based their decisions on legal precedents – that is, on earlier court rulings in similar cases. But judges could expand precedents to make them suit particular cases. They could also overrule (reject) any precedent that they considered to be in error or outdated. In this way, judges changed many laws over the years. The common law thus came to be the law made by judges.

However, some common-law principles proved too precious to change. For example, a long line of hard won precedents defended the rights and liberties of citizens against the unjust use of government power. England and other common-law countries have kept these principles almost unchanged.

The United States, Canada, and other countries that were colonized by England based their national legal systems on the common law. In addition, every state in the United States except Louisiana and every Canadian province except Quebec adopted a common-law system. Louisiana and Quebec were colonized by France, and their legal systems are patterned after the French civil-law system.

Case law is still very important in common-law countries. However, the law-making role of legislatures in these countries has increased during 1900-s. For example, the US Congress has made major changes in American contract and property law. The changes have dealt with such matters as labor-management relations, workers’ wages and hours, and environmental protection. Nevertheless, common-law countries have kept the basic feature of the English legal system, which is the power of judges to make laws. In addition, constitutional law in these countries continues the common-law tradition of defending the people’s rights and liberties.

Civil-law systems are based mainly on statutes (legislative acts). The majority of civil-law countries have assembled their statutes into one or more carefully organized collections called codes. Most modern law codes can be traced back to the famous code commissioned by the Roman emperor Justinian I in A.D. 500-s. Justinian’s code updated and summarized the whole of Roman law. It was called the Corpus Juris Civilis, meaning Body of Civil Law. For this reason, legal systems that are based on the Roman system of statute and code law are known as civil-law systems. This use of the term civil law should not be confused with its use as an alternate term for private law. Civil-law systems include both private and public law.

In civil-law countries, such as France and Germany, the statutes, not the courts provide the final answer to any question of law. Judges may refer to precedents in making their decisions. But they must base every decision on a particular statute and not on precedent alone.

Other systems. Many countries have patterned their legal systems after both civil law and common law. For example, Japan and most Latin-American nations have assembled all their private law into a code. But public law in these countries has been greatly influenced by common-law principles, especially those that guarantee the rights and liberties of the people.

Russia, for example, has a private-law code patterned after earlier Western European models. But unlike the earlier codes, the Russian code allows for direct government interference in private-law matters.

Active vocabulary

Case law

To base decisions on something

Legal precedents

Court rulings

To overrule (reject) a precedent

To be in error or outdated

To defend rights

To decide court cases

To adopt a common-law system

To pattern the system after

Lawmaking role

Statute (legislative act)

To assemble statutes into codes

To commission a code

A civil-law system

 

Assignment I. Answer the questions.

1. What is the difference between a civil-law and a common-law systems?

2. Where did the common-law system begin?

3. Who commissioned the famous code in A.D. 500?

4. Did many countries pattern their legal systems after both civil and common law?

 

Assignment II. Topics for discussion.

1. Common-law system

2. Civil-law system

3. Other systems

 

 

II. HISTORY OF ENGLISH LAW

 

1. The development of English law.

Our present legal system began, for all practical purposes¹, in the reign of Henry II (1158-1189). When he came to the throne, justice was for the most part administered in local courts, i.e. by local lords to their tenants in the feudal courts, and be the County Sheriffs, often sitting with the Earl and the Bishop, in the courts of the Shires and Hundreds². They administered the law in their respective areas and decided the cases which came before them on the basis of local custom. Many of these customary rules of law were the same or similar in all parts of the country.

The Curia Regis existed as a central royal court but was the feudal court for those high-ranking persons who were tenants-in-chief of the king, and not a general court open to all. Henry II took steps to ensure that justice would be open to all. In the Assizes of Clarendon and Northampton he provided that that there should be 12 men in every county to be responsible for presenting to the sheriff those suspected of serious crimes. The accused were brought before certain royal officials who traveled the country from time to time looking after the king’s affairs, the system known as the General Eyre³. Thus royal and more uniform justice began to come to the country as a whole.

The common law

The General Eyre disappeared in the reign of Richard II (1377-99), but a system of circuit judges from the King’s Bench⁴ took its place, the first circuit commission⁵ being granted in the reign of Edward III (1312-1377). By selecting the best customary rulings and applying these outside their county of origin⁶, the circuit judges gradually molded the numerous local customary laws into one uniform law ”common” to the whole kingdom. Thus, customs originally local ultimately applied throughout the whole of the realm. However, many new rules were created and applied by the royal judges as they went on circuit and these were added to local customary law to make one uniform body of law called “common law”.

The circuit judges from the King’s Bench derived their authority in criminal matters from Royal Commissions, the granting of which marked the real beginning of the assize system.

Commission of Oyer and Terminer . This commission, which dates from 1329, directed the judges’ power to “hear and determine” all complaints of grave crime within the jurisdiction of the circuit.

General Gaol Delivery⁸ . This commission, which dates from 1299, gave the judges power to clear the local gaols and try all prisoners within the jurisdiction of the circuit.

Other criminal cases were heard by Justices of the Peace either summarily or sitting in quarter sessions and the circuit judges were also made Justices of the Peace so as to increase their jurisdiction.

Civil actions were usually heard at Westminster but under the Statute of Westminster II the circuit judges heard civil cases under provisions known as nisi prius ⁹ which required the local sheriff to send a jury to London unless before the appointed time the royal justices came hear the case locally, which in practice they always did. Thus civil cases were opened in London, tried by circuit judges and jury in the locality and the verdict recorded in London.

The system, whish lasted for many years, was brought to an end by the Courts Act, 1971, Sec.I (2) of which provides that all courts of assize are abolished and commissions to hold any court of assize shall not be issued.

Many of the itinerant justices were clerics, initially perhaps because they could read and write. In general they had no priestly duties. From the middle of the thirteenth century the number of lay judges gradually increased.

The system was held together by the doctrine of stare decisis¹¹, or standing by previous decision. Thus when a judge decided a new problem in a case brought before him, this became a new rule of law and was followed by subsequent judges. In later times, this practice crystallized into the form which is know as the binding force of judicial precedent, and the judges felt bound to follow previous decisions instead of merely looking to them for guidance. By these means the common law earned the status of a system.

To sum up, the common law is a judge-made system of law originating in ancient customs, which were clarified, extended and universalized by the judges, although that part of the common law which concerned the ownership of land was derived mainly from the system of feudal tenures¹² introduced from Europe after the Norman Conquest. It is perhaps also worth noting that the term “common law” is used in four distinct senses, i.e. as opposed to 1) local law, 2) equity¹³, 3) statute law, and 4) any foreign system of law.

 

Commentary

1. for all practical purposes – практически

2. shire and hundred – графство и округ

3. the Curia Regis – королевская курия

4. the King’s Bench – суд королевской скамьи

5. circuit commission – приказ о назначении на должность окружного судьи

6. county of origin – графство, где впервые было принято какое-то судебное решение

7. Сommission of Oyer and Terminer – полномочия слушать и решать

8. General Gaol Delivery – комиссия по очистке тюрем

9. nisi prius – (лат.) суд присяжных

10. itinerant justice – судья, выезжающий для слушания дел

11. stare decisis – судебный прецедент

12. feudal tenure – феодальное землевладение

13. equity – право справедливости

 

 

Active vocabulary

Legal system

To administer justice

Local court

Tenant

A central royal court

High-ranking person

The Assize

A county

The accused

Royal officials

A system of circuit judges

The circuit commission

Realm

To derive authority

The assize system

Quarter session

Justice of the Peace

The itinerant justice

A cleric

Equity

Assignment I. Answer the questions.

1. When did the English legal system begin?

2. How was justice administered in local courts at that time?

3. How was a uniform law made by judges?

4. Where were criminal cases heard?

5. Where were civil cases tried?

6. How can you characterize the common law?

 

Assignment II. Topics for discussion.

1. The development of English law in the 12^th-14^th centuries.

2. The common law

 

II. HISTORY OF ENGLISH LAW

Equity.

To understand the beginning of equity it is necessary first to look in outline at the system of common law writs. Writs were issued by the clerks in Chancellor’s office, the Chancellor being in those days a clergyman of high rank who was also the King’s Chaplain and the Head of Parliament. In order to bring an action in one of the King’s courts, the aggrieved party had to obtain from the Chancery a writ for which he had to pay. A writ was a sealed letter issued in the name of the King, and it ordered some person, Lord of the Manor¹ or sheriff of the county or the defendant to do whatever the writ specified.

The old common law writs began with the statement of the plaintiff’s claim, which was largely in common form, and was prepared in the Royal Chancery and not by the plaintiff’s advisors as is the statement of claim today. Any writ, which was novel, because the plaintiff or his advisors had tried to draft it to suit the plaintiff’s case, might be abated, i.e. thrown out by the court. Thus, writs were issued in a limited number of cases, and if the complaint could not be fitted within the four corners² of one of the existing writs, no action could be brought. Moreover, writs were expensive, and their very cost might deprive a party of justice.

Many people, therefore, unable to gain access to the King’s courts, either because the writ was defective when they got it, or because they were caught in some procedural difficulty, or could not obtain an appropriate remedy, began to address their complaints to the King-in-Council³. For a time a Council itself considered such petitions, and where a petition was addressed to the King in person⁴, he referred it to the Council for trial. Later the Council delegated this function to the Chancellor, and eventually petitions were addressed to the Chancellor alone.

The Chancellor began to judge such cases in the light of conscience and fair dealing⁵. He was not bound by the remedies of the common law and began to devise remedies of his own. In order to bring persons before him the Chancellor issued a form of summons called subpoena. Equity thus was not cramped by anything analogous to the writ system. Eventually as new Chancellors took over, and Vice Chancellors were appointed to cope with the increasing volume of work, uncertainty crept into the system, conflicting decisions abounded, and it was said “Equity varies with of the Chancellor’s foot”.

At this stage in its development equity began to follow the practice of stare decisis which had proved so powerful a force in unifying the diverse systems of local custom under the common law. Equity developed in scope and certainty.

Although Law and Equity eventually operated alongside each other with mutual tolerance, there was a period of conflict between them. This arose out of the practice of the Court of Chancery which issued common injunctions⁶ forbidding a person on pain of ⁷ imprisonment from bringing an action in the common law courts, or forbidding the enforcement of a common law judgment if such a judgment had been obtained. In 1615 James I, on the advice of Lord Bacon, then his Attorney-General⁸ and later Lord Chancellor, gave a firm decision that where common law and equity were in conflict equity should prevail. Thereafter the two systems settled down and carved out separate and complementary jurisdictions. Equity filled in the gaps left by the common law, and became a system of case law governed by the binding force of precedent.

Legislation

In early times there were few statutes and the bulk of law was case law, though legislation in one form or other dates from A.D.⁹ 600. The earliest Norman legislation was by means of Royal Charter, but the first great outburst of legislation came in the reign of Henry II. This legislation was called by various names: there were Assizes, Constitutions, and Provisions, as well as Charters. Legislation at this time was generally made by the King-in-Council, but sometimes by a kind of Parliament which consisted in the main of a meeting of nobles and clergy summoned from the shires.

In the fourteenth century parliamentary legislation became more general. Parliament at first requested or preyed the King to legislate, but later presented the bill in its own wording. The Tudor period saw the development of modern procedure, in particular the practice of giving three readings to a bill; and it was also the age of the Preamble, which was a kind of preface to the enactment, describing often at great length the reasons for passing it and generally justifying the measure.

From the Tudor period onwards Parliament became more and more independent and the practice of lawmaking by statute increased. Nevertheless, statute did not become an important source of law until the last two centuries, and even now, although the bulk of legislation is large, statutes form comparatively small part of the law as a whole. The basis of our law remains the common law, and if all statutes were repealed we should still have a legal system, even if it were inadequate; whereas our statutes alone would not provide a system of law but merely a set of disjoined rules.

Parliament’s increasing incursions into economic and social affairs increased the need for statutes. Some aspects of law are so complicated or so novel that they can only be laid down in this form, they would not be likely to come into existence through the submission of cases in court. A statute is the ultimate source of law, and even if a statute is in conflict with the common law or equity, the statute must prevail. It is such an important source that it has been said – “A statute can do anything except change man to woman”, although in a purely legal sense even this could be achieved. No court or other body can question the validity of an Act of Parliament.

Statute law can be used to abolish common law rules which have outlived their usefulness, or to amend the common law to cope with the changing circumstances and values of society. Once enacted, statutes even obsolete do not cease to have the force of law, but common sense¹⁰ usually prevents most obsolete laws from being invoked. In addition, statutes which are no longer of practical utility are repealed from time to time by Statute Law Repeal Acts. Nevertheless, a statute stands as law until it is specifically repealed by Parliament.

An Act of Parliament is absolutely binding on everyone within the sphere of its jurisdiction, but all Acts of Parliament can be repealed by the same or subsequent Parliaments; and this is the only exception to the rule of the absolute Sovereignty of Parliament – it cannot bind itself or its successors.

Commentary

1. Lord of the Manor – владелец поместья

2. within the four corners – в рамках

3. The King-in-Council – «король в совете», исполнительная власть

4. The King in person – король лично

5. fair dealing – честность, зд. cправедливость

6. common injunctions – общие судебные запреты

7. on pain of – под страхом

8. Attorney-General – генеральный прокурор

9. A.D. – (лат.) нашей эры

10. common sense – здравый смысл

 

Active vocabulary

the system of common law writs

to bring an action

Chancellor

Lord of the Manor

plaintiff

within the four corners

statement of claim

an appropriate remedy

source of law

common injunctions

Attorney-General

Royal Charter

Provisions

a wording

the submission of cases in court

validity

to abolish common law rules

to repeal an Act

to outlive the usefulness

successors

 

Assignment I. Answer the questions.

1. What was a writ?

2. How were common law writs issued?

3. Who was the creator of Equity?

4. How were the laws made at different times (early times, Middle Ages)?

 

Assignment II. Topics for discussion.

1. The system of common law writs.

2. The role of the Chancellor in the development of Equity.

3. Early legislation.

4. Statute law and the importance of a statute.

 

OF THE UNITED STATES

1. The Congress of the USA

The Congress of the United States is the legislative branch of the National Government, in effect, the national legislature, and consists of two branches – the Senate and the House of Representatives; its existence, authority and limitations are provided by the Constitution, adopted in September, 17, 1787.

The function of the legislative branch of the government is to make the laws and to finance the operation of the government through levying taxes and appropriating money requested by the executive branch of the government.

“Upper” and “lower” a commonly applied to the two branches of a bicameral legislature, the upper being the less numerous and higher in rank of the two¹.

A Congressman is a member of either the Senate or the House of Representatives. However, the member of the Senate is usually referred to as² a Senator and a member of the House of Representatives as a Congressman. The official title of a member of the House is “Representative in Congress”.

The 100 senators and the Vice-President are provided with offices in a building about 150 yards northeast of the Senate wing of the Capitol.

The 435 members of the House, except the Speaker and the party leaders (who have offices in the Capitol building) have offices in two buildings about 150 yards south of the Capitol.

There are no specifically defined duties for a member of Congress. He is required to be present³ when Congress is in session unless he is excused to perform official business elsewhere, or because of illness.

From the outset⁴ there arose in the United States a system of two major political parties, and this two-party system has dominated the political life of the country. The two major parties are the Democratic Party and the Republican Party. Although the political rivalry between the two parties is very keen, there is greater difference between the groups of conservatives and liberals within the same party than there is between the two parties.

“Bill” is the technical designation of a measure introduced in either House, and until it has been passed by that House. At that point it is reprinted as an Act, i.e. an act of one branch of Congress. The term “act” is, however, popularly used in referring to a measure which has been finally passed by both Houses and becomes law, whether by approval of the President or by passing over his veto. The president has power to approve or veto bills passed by Congress, vetoed bills becoming law if re-passed by a vote of two thirds of each House of Congress.

 

The Administration

The Presidency of the US is the highest governmental office. The executive branch, which includes the President, Vice-President, and the President’s Cabinet, is responsible for administering and executing the laws. The President must be a natural-born citizen, at least 35 years old, and for at least 14 years a resident of the United States. The US President is assisted in administration by a Cabinet of 10-12 members. Cabinet officials are appointees of the President and serve during his term. When the President’s service ends, it is customary for the Cabinet to resign, so that the new president can appoint new chiefs of executive departments. There are 12 executive departments. The State Department ranks ahead of the other departments in prestige and seniority. The political power of the Secretary of State is second only to that of the President. The Secretary of State has the duty of trying to maintain peace and to negotiate economic and political treaties.

 

The State Judicial Systems in the USA

Each of the fifty states is to a great extent a law in itself, because each of the original thirteen colonies insisted that it had the right to run its own internal affairs. Legal authorities differ in their opinions about whether the legislature or the courts should determine the detailed rules governing the conduct of legal actions and proceedings. In certain states the powers to make rules are vested in the legislature; in others the courts, by convention of judges, adopt specific rules for legal procedure.

State judicial systems consist of the following courts:

Courts of original jurisdiction, as indicated above, are those in which a legal action or a proceeding may be started. Courts exercising original jurisdiction may be divided into two groups; those of general or superior jurisdiction and those of limited, inferior or special jurisdiction.

Courts of general or superior jurisdiction have different names in the various states. In some states they are called circuit courts, in other states they are called district courts, superior courts, or courts of common pleas. In some states all courts of record are consolidated into one court.

Courts of special, limited, or inferior jurisdiction are not set up uniformly in the state judicial system. Some states have special courts to handle the estates of deceased persons; these are often called probate courts, orphans’ courts, or surrogates’ courts. A few states have courts of claims that have jurisdiction over claims against the state, although in the majority of cases states cannot be sued. Almost all states have special courts, such as juvenile courts, courts of crimes, police courts, domestic relations courts, courts of tax appeals, justice courts, and city courts.

Commentary

1. the upper being less numerous and higher in rank of the two – причем верхняя менее многочисленна и выше по положению

2. is usually referred to as – обычно называется

3. he is required to be present – его присутствие обязательно

4. from the outset – с самого начала

 

Active vocabulary

to finance the operation of the government

to levy taxes

bicameral legislature

to perform official business

to dominate

technical designation

to approve or veto bills

to assist

to resign

political treaties

internal affairs

by convention of judges

superior, inferior, limited jurisdiction

courts of common pleas

to handle the estates of deceased persons

probate courts

orphans’ courts

surrogates’ courts

courts of claims

Assignment I. Answer the questions.

1. What are branches in Congress of the USA?

2. What is the function of the legislative branch of the government?

3. How many members are there in the House of Representatives?

4. What power has the President of the USA?

5. What does the executive branch include?

6. When does the President and his Cabinet resign?

7. What courts does the state judicial system consist of?

 

Assignment II.

1. Congress of the USA.

2. The Administration.

3. The state judicial systems in the USA.

 

Active vocabulary

A judicial system

A legal duty

To commit a crime

Statutes

A lawsuit

To punish

An accident

Damage

Felony

Misdemeanor

To send to prison

To prosecute

A victim

An indictment

An arraignment

A court proceeding

A plaintiff

To file a complaint

To file an answer

Pleadings

A defendant

To dismiss the case

Adversary process

A summary judgment

 

Assignment I. Answer the questions

1. What is a court?

2. What is a federal court? What functions does it perform?

3. How is the federal court system set up?

4. What kinds of cases are tried in State and in Federal Courts?

5. How does a case come to a Federal court?

6. What is the difference between a grand jury and a petit jury?

7. What is the purpose of the trial?

 

Assignment II. Topics for discussion.

1. Federal courts and their jurisdiction.

2. Federal civil and criminal cases.

3. Adversary process and standards of proof.

 

Federal courts

A Trial in Progress

The federal courts have always encouraged citizens to observe trials and other public proceedings. But be sure to remember when you’re in the courtroom that the trial is very important to the parties involved, who may lose their freedom or who may lose or gain a great deal of money as a result of the court’s decision. Behave in a manner befitting the formality of the courtroom. Don’t talk or laugh during the proceedings, and stand when the judge enters or leaves the courtroom. Exit quietly if the court is still in session when you leave, and comply with the federal court rules that forbid the spectators to take pictures or use tape-recorders while the court is in session.

The judge presides over the trial from the desk behind an elevated platform called a bench. He or she has four basic tasks. The first is simply to preside over the proceeding and to see that order is maintained. The second is to determine whether any of the evidence that the parties want to use is illegal or improper. Third, before the jury begins its deliberations about the facts of the case, the judge must give instructions to the jury about the law that applies to the case. Fourth, in bench trials, the judge must also determine the facts.

Federal district judges are appointed to office by the President of the United States, with the approval of the US Senate. Before their appointments, most judges were private attorneys, but some were judges in state courts or US attorneys, and a few were law professors. Once they become judges, they are strictly prohibited from working as lawyers. They must be careful not to do anything that might cause people to think they would favor one side in a case over another. For this reason, they can’t give speeches urging voters to pick one candidate over another for public office, or ask people to contribute money for civic organizations.

Presidents almost always appoint judges who are members of their political party, but that doesn’t mean that judges get their appointments solely for political reasons. The professional qualifications of prospective federal judges are closely evaluated by the Department of Justice, and by a committee of the American Bar Association, a national lawyers’ organization.

Most federal judges retire from full-time service at around 65 or 70 years of age, but are still federal judges, eligible to earn their full salary and to continue hearing cases if they wish. Most of them continue to serve part-time after retirement.

Under Article III of the Constitution, federal judges serve “during good behavior”. Therefore, they may be removed from their jobs against their will only if Congress determines, through a lengthy process called impeachment¹ and conviction, that they are guilty of “treason, bribery, or other high crimes and misdemeanors”. Congress has found it necessary to use this process only a few times in the history of our country. Generally, federal judges hold office for as long as they wish and are sometimes said to have life tenure. Article III also prohibits lowering the salaries of federal judges “during their continuance in office”.

The Constitution includes both of these protections –life tenure and unreduced salary- so that federal judges will not fear losing their jobs or getting a pay cut if they make a decision that is unpopular with the President or Congress. Sometimes the court decides that a law that has been passed by Congress and signed by the President, or that has been passed by a state violates the Constitution and should not be enforced. For example, the Supreme Court’s decision in Brown v. Board of Education² in 1954 declared racial segregation in public schools to be unconstitutional. This decision was not popular with large segments of society when it was handed down. Some members of Congress even wanted to replace the judges who made the decision. The Constitution wouldn’t let them do so, and today, almost everybody realizes that the decision was the right one to make.

The constitutional protection of federal judges that gives them the freedom and independence to make decisions that are politically and socially unpopular is one of the basic elements of our democracy. According to the Declaration of Independence, one reason why the American colonies wanted to separate from England was because King George III “made judges dependent on his will alone, for the tenure of their offices, and the amount and payment of their salaries”.

Bankruptcy judges and magistrates conduct some of the proceedings held in a federal court. Both of these types of judicial officers assist the district judges. Bankruptcy judges hear all of the bankruptcy cases. Magistrates get the district judges’ cases ready for trial. They also may preside over misdemeanor trials and, when both parties agree to have the case heard by a magistrate instead of a judge, over civil trials. Magistrates and bankruptcy judges don’t have the same protections as judges appointed under Article III of the Constitution.

The group of people seated in the boxed-in area on one side of the courtroom is the petit jury or trial jury. You won’t be able to observe the grand jury during your visit, because its proceedings are always secret. The idea of the jury is an ancient one that goes back in English history hundreds of years. The jury was another factor in the vents that led up to the Revolutionary War. The Declaration of Independence charged that King George III deprived the colonists “in many cases, of the benefits of the trial by jury”. Thus, our Constitution now guarantees the option of a jury trial to every criminal defendant and to the parties in most civil cases.

For federal criminal cases, there are usually 12 jurors, but for federal civil cases there can be between 6 and 12. The one or two additional people in the jury box are alternate jurors, who will become part of the jury if any of the regular jurors get sick or for other reasons cannot continue to participate.

The lawyers for each party will either be sitting at the counsel tables facing the bench or be speaking to the judge, a witness, or the jury. The lawyers’ task is to bring out those facts that put their clients’ case in the most favorable light, but to do so using approved legal procedures. In criminal cases, one of the lawyers works for the executive branch of the government, which is the branch that prosecutes claims on behalf of society. In federal criminal cases, the lawyer is the US attorney or an assistant US attorney. A US attorney is chosen by the President, with the approval of the Senate, for each of the 94 judicial districts. The US attorney also represents the United States in civil cases in which the US government is a party. Under the Constitution, as the Supreme Court has interpreted it, criminal defendants who cannot afford to hire a lawyer must have lawyers appointed by the judge to represent them. These lawyers are usually paid with public funds. However, although the judge may appoint these lawyers they do not work for the judge – they work for their client, the defendant.

On rare occasions, criminal defendants, or parties in civil cases, may attempt to present their cases themselves, without using a lawyer. Parties who act on their own behalf are said to act pro se, a Latin phrase meaning “for himself”.

The parties may or may not be present at the counsel table with their lawyers. Defendants in criminal cases have a constitutional right to be present. Specifically, the Sixth Amendment to the Constitution provides that “the accused shall enjoy the right …to be confronted with the witnesses against him”. Parties in civil cases may be present if they wish, but are often absent.

Witnesses give testimony about the facts that are in dispute. During their testimony, they sit at the witness stand, facing the courtroom. Because the witnesses are asked to testify by one party or the other, they are often referred to as plaintiff’s witnesses, government witnesses, or defense witnesses.

The courtroom deputy or courtroom clerk, who is usually seated near the judge, administers oaths to the witnesses, marks the exhibits, and generally helps keep the trial running smoothly. Sometimes the deputy or clerk is away from the courtroom performing other tasks during parts of the trial. The courtroom deputy is employed by the office of the clerk of the court. The clerk of the court is appointed by all of the judges on the court and works closely with the chief district judge, who is responsible for the court’s overall administration.

The court reporter sits near the witness stand and usually types on a stenographic machine. (In some courts, the official record is taken on a tape or recorder.) Federal law requires that a word-for-word record be made of every trial. The court reporter also produces a written transcript of the proceedings if either party appeals the case or if either party requires a transcript to review.

Pretrial activity in civil cases. In most cases, the lawyers and judge agree before trial, often at pretrial conferences, what issues are in dispute and must be decided by the jury and what issues are not in dispute. Both sides reveal whom they intend to call as witnesses, and generally, what evidence they will introduce at trial. However, just because they agree on these matters before the trial doesn’t mean that they agree on how the case should be decided. Rather, they hold conference to avoid wasting time during the trial on irrelevant issues.

Through the pretrial discovery process, the lawyers try to learn as much as possible about their opponent’s case by asking to inspect documents and talking to people who know something about what happened. If the lawyers have done a thorough job of preparing the case, they shouldn’t be surprised at any of the answers the opposing witnesses give to their questions. One of the basic rules trial lawyers follow is “Don’t ask a question if you don’t know what the answer will be”. The lawyers and witnesses for each side also prepare for the trial by rehearsing their own question and answers. Frequently, all of this pretrial activity results in a decision by both parties to settle the case without going through a trial.

Pretrial activity in criminal cases. A good defense lawyer will also conduct a thorough investigation before trial in a criminal case, interviewing witnesses, visiting the scene of the crime, and examining any physical evidence. An important part of this investigation is determining whether the evidence the government plans to use to prove its case was obtained legally. The Fourth Amendment to the Constitution forbids unreasonable searches and seizures. To enforce this protection, the Supreme Court has decided that illegally seized evidence cannot be used at trial. For example if the police seize evidence from a defendant’s home without a warrant, the lawyer for the defendant can petition the court to rule on whether the evidence can be used at trial. The court then holds a hearing to determine whether the search was unreasonable under the circumstances. If the court rules that key evidence was illegally seized and so cannot be used, the government may drop the charges. However, if the government already has a strong case and the court rules that the evidence was obtained legally, the defendant may decide to plead guilty rather than go to trial.

Jury selection. If the parties have chosen a jury trial, it begins with the selection of jurors. Citizens are chosen for jury service through a process that is set out in laws passed by Congress and in rules adopted by the federal courts. First, citizens are chosen to come to court to be available to serve on juries. These citizens are selected at random from all the registered voters in the district or from lists of licensed drivers. The judge and the lawyers in each case then choose the actual persons who will serve on their jury. To choose the jurors, the judge, and sometimes the lawyers ask prospective jurors questions, to determine if they will be able to decide the case fairly. This process is called voir dire³. The judge excuses any jurors he or she thinks may not be able to be impartial, such as those who know either party in the case or who have had an experience that might make them favor one side over the other. The lawyers can reject a certain number of jurors without giving any justification.

Opening statements. Once the jury has been selected, the lawyers for both sides give their opening statements. The purpose of the opening statement is to allow each side to present its version of the issues in the case to the jury. Each lawyer also describes the evidence that will be introduced to try to persuade the jury to decide the case in favor of his or her client.

Direct and cross-examination. The first actual introduction of the evidence begins after the opening statements. First, the government’s attorney, or the plaintiff’s lawyer, questions his or her own witnesses. When lawyers question witnesses whom they have asked to testify, it is called direct examination. After the direct examination of a government or plaintiff’s witness the defendant’s lawyer has a chance to question the witness; this is called cross-examination. If, after the cross-examination, the plaintiff’s lawyer wants to ask additional questions, that lawyer may do so on re-direct examination, after which the defendant’s lawyer has an opportunity for a re-cross examination. After all of the plaintiff’s witnesses have been examined, the defense calls its witnesses, and the same procedures are repeated. The lawyers often introduce such documents as bank records, or objects, such as firearms, as additional evidence.

Closing statements and instructions. After the evidence has been presented, the lawyers make their closing statements to the jury, concluding the presentation of their cases. Like the opening statements, the closing statements don’t present evidence but, rather, summarize the most important features of each side’s case. Following the closing statements, the judge gives instructions to the jury, explaining the relevant law, how the law applies to the case being tried, and what questions the jury must decide. The jury then retires to the jury room to discuss the evidence and to reach a verdict. In criminal cases the jury’s verdict must be unanimous. The verdict must also be unanimous in civil cases, unless the parties have agreed before the trial that they will accept a verdict that is not unanimous.

By serving on a jury, citizens take advantage of a unique opportunity to participate directly in the operation of our government. They also make an important and vital contribution to the smooth functioning of our judicial system. To encourage citizens to participate, the courts spend great deal of time and money trying to make jury service as comfortable and rewarding as possible.

Post trial matters and sentencing. In federal criminal cases, if the jury (or judge, if there is no jury) decides that the defendant is guilty, the judge sets a date for imposing the sentence. In federal courts, the jury doesn’t decide the punishment. When determining a sentence, the judge usually consults a written “pre-sentence report”, which is prepared by one of the court’s probation officers⁴. The report describes the past criminal record of the defendant (if any), provides information about the defendant’s family and employment status, and includes the defendant’s and the government’s version of the events. The judge considers all of these factors in determining the proper sentence.

In civil cases, if the jury (or judge) decides in favor of the plaintiff, the judge usually orders the defendant to pay the plaintiff money (damages) or to take some specific action that will restore the plaintiff’s rights. If the defendant wins the case, however, there is nothing more the trial court needs to do.

Commentary

1. Impeachment – процедура привлечения к уголовной ответственности высших должностных лиц

2. Brown v. Board of Education – Браун против Министерства образования

3. voir dire [vwahr deer] – процедура отбора присяжных; юридический термин, означающий «говорить правду»

4. probation officer – инспектор, наблюдающий за поведением условно осужденных

 

Active vocabulary

A trial

To preside over trials

A conviction

Life tenure

Physical evidence

A testimony of witnesses

An oath of a witness

To rule

To drop charges

To seize evidence

To obtain (il)legally

Parties

Pleadings

The relevant law

Opening and closing statements

A direct and cross examination

Selection of jurors

A unanimous verdict

To impose a sentence

To decide in favor of

Assignment I. Topics for discussion.

1. A judge, his functions, appointment and retirement, and constitutional protections.

2. The role of witnesses, the courtroom deputy, and the court reporter.

3. The purpose of pretrial activity in civil and criminal cases.

4. Selection of jurors and their job

5. The task of a lawyer in the trial (opening and closing statements, direct and cross examination)

Federal courts

What happens after the trial?

A defendant who is found guilty in a federal criminal case, and the losing party in a federal civil case, both have a right to appeal their case to the US court of appeals. The grounds for appeal usually allege that the district judge made an error either in procedure (such as by admitting improper evidence) or in interpreting the law.

The government cannot appeal if a criminal defendant is found not guilty, because the Fifth Amendment to the Constitution provides that no person shall “be twice put in jeopardy of life or limb” for the same offence. This reflects our society’s belief that it is better to let a guilty person go free than to allow the government to harass a defendant through repeated re-trials. The government can appeal in civil cases, as any other party can. Also, the losing party cannot appeal if there was no trial, if the defendant decided to plead guilty or if the parties settled their civil cases out of court.

An appeal in a federal criminal case goes something like this: Suppose that a law is passed by Congress that prohibits demonstration within 500 feet of an embassy. Following the enactment of the law, a group of six people stands on a street corner near the embassy of Malandia and asks passersby to sign the petition protesting Malandia’s human rights policies. The six people are arrested and charged with committing a federal misdemeanor. At trial they say that they were careful to stay more than 500 feet from the embassy. However, the US attorney calls a policeman as a witness, and he testifies that the corner they were standing on is within 500 feet of the embassy.

Before the trial jury begins its deliberations, the lawyer for the defendant asks the district judge to instruct the jury that collecting signatures on a petition is not a “demonstration” and, therefore, if that was all they did, they weren’t violating the law. The lawyer also argues that even if collecting signatures on a petition is a demonstration, the First Amendment to the Constitution prohibits Congress from making it illegal to participate in a demonstration, and thus the judge should dismiss the case. The judge disagrees on both points. She instructs the jury that collecting signatures on a petition is a demonstration and refuses to dismiss the case, saying that Congress may prohibit demonstrations that pose a threat to foreign embassies without violating the First Amendment. To reach her decision, the district judge consults precedents – similar cases that have already been decided by other courts. She pays special attention to prior decisions of the court of appeals of her circuit.