1.2.1
Lesson 1 Law and Classifications of Law 第一课 法的概念及其...
Lesson 1 Law and Classifications of Law 第一课 法的概念及其分类
Ⅰ. Text & Its Translation
1．General Introduction
Lawis a system of rules and guidelines, usually enforced through a set of institutions. It shapes politics, economics and society in numerous ways and serves as a social mediator of relations between people. Contract lawregulates everything of life from buying a bus ticket to trading on financial derivatives markets(1). Property lawdefines rights and obligations related to the transfer and title of personal and real property.(2)Trust lawapplies to assets held for investment and financial security(3), while tort lawallows claims for compensation if a person's rights or property are harmed. If the harm is criminalized in legislation, criminal lawoffers means by which the state can prosecute the perpetrator. Constitutional lawprovides a framework for the creation of law, the protection of human rights and the election of political representatives. Administrative lawis used to review the decisions of government agencies, while international lawgoverns affairs between sovereign states in activities ranging from trade to environmental regulation or military action. Writing in 350 BC, the Greek philosopher Aristotle(4) declared, “The rule of law is better than the rule of any individual.”
Law and Classifications of LawLaw raises important and complex issues concerning equality, fairness and justice. “In its majestic equality”, said the author Anatole France(5) in 1894, “the law forbids the rich and the poor alike to sleep under bridges, beg in the streets and steal loaves of bread.” In a typical democracy, the central institutions for interpreting and creating law are the three main branches of government, namely an impartial judiciary, a democratic legislature, and an accountable executive. To implement and enforce the law and provide services to the public, a government's bureaucracy, the military and police are vital. While all these organs of the state are creatures created and bound by law, an independent legal profession and a vibrant civil society will support their progress.
2. Classifications of Law
There are several different ways in which laws can be classified, depending on the criteria or characteristics.
a. Substantive Law vs. Procedural Law
Substantive law explains what you can and cannot do. For example, the law states that you cannot murder another human being unless it was in self defenseself(6), you were under duress(7), or if you were drugged(8) by another person. Unlike substantive law, procedural laws are just the steps that must take place when filing a lawsuit against another party.
b. Public Law vs. Private Law
Law can be divided into two main branches: (1) public law and(2) private law(9). Public law is the body of law dealing with the relations between private individuals and the government, and with the structure and operation of the government itself, including constitutional law, criminal law, and administrative law. Private law is the body of law dealing with private persons and their property and relationships.
c. Criminal Law vs. Civil Law
Criminal law or penal law defines breaches of duty to society at large. It is society, through government employees called prosecutors(10)(such as district attorneys), that brings court action against violators. If you are found guilty of a crime such as theft, you will be punished by imprisonment or a fine(11). Civil law, as opposed to criminal law, is the branch of law dealing with disputes between individuals or organizations, in which compensation may be awarded to the victim. For instance, if a car crash victim claims damages against the driver for loss or injury sustained in an accident, this will be a civil law case.
d. Common Law vs. Civil law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action. Common law countries prosecute with the concept of “stare decisis”(12), which means that these countries such as the United States of America make decisions based on precedents. Because each judicial opinion serves as a precedent(13) for later decisions, as a result, common law is sometimes called judgemade law. Anglo-American law is rooted in the tradition of the common law. In 1881, Justice Oliver Wendell Holmes, Jr.(14) wrote, “The life of the law has not been logic: It has been experience.” Common law developed as a response to the need to find solutions to the pressing issues of the time. Unlike common law, the principle of civil law is to provide all citizens with an accessible and written collection of the laws which apply to them and which judges must follow.
The history of law is closely connected to the development of civilization. Ancient Egyptian law, dating as far back as 3000 BC, contained a civil code that was probably broken into twelve books. By the 22nd century BC, the ancient Sumerian（苏美尔人）ruler Ur-Nammu(15) had formulated the first law code. Around 1760 BC, King Hammurabi(16) further developed Babylonian law, by codifying and inscribing it in stone. Hammurabi placed several copies of his law code throughout the kingdom of Babylon as stelae（石柱）, for the entire public to see; this became known as the Codex Hammurabi. The most intact copy of these stelae was discovered in the 19th century, and has since been fully transliterated and translated into various languages, including English, German, and French.
The Old Testament(17) dates back to 1280 BC and takes the form of moral imperatives as recommendations for a good society. The small Greek city-state(18), ancient Athens, from about the 8th century BC was the first society to be based on broad inclusion of its citizenry（市民）, excluding women and the slave class. However, Athens had no legal science or single word for “law”, relying instead on the threeway distinction between divine law(19), human decree(20) and custom. Yet Ancient Greek law contained major constitutional innovations in the development of democracy.
Roman law was heavily influenced by Greek philosophy, but its detailed rules were developed by professional jurists and were highly sophisticated. Over the centuries between the rise and decline of the Roman Empire, law was adapted to cope with the changing social situations and underwent major codification under Justinian Ⅰ(21) Although codes were replaced by custom and case law during the Dark Ages(22), Roman law was rediscovered around the 11th century when mediaeval legal scholars began to research Roman codes and adapt their concepts.
In medieval England, royal courts developed a body of precedent which later became the common law. A Europe-wide Law Merchant(23) was formed so that merchants could trade with common standards of practice rather than with the many splintered facets of local laws. The Law Merchant, a precursor to modern commercial law, emphasized the freedom to contract and alienability(24) of property. As nationalism grew in the 18th and 19th centuries, the Law Merchant was incorporated into countries local law under new civil codes. The Napoleonic and German Codes became the most influential. In contrast to English common law, which consists of enormous tomes of case law, codes in small books are easy to export and easy for judges to apply. However, today there are signs that civil and common law are converging. EU law is codified in treaties, but develops through the precedent laid down by the European Court of Justice(25).
Ⅳ. EXERCISES Ⅳ．练习
1. Answer the following questions.
（1）What is your understanding of the definition of law?
（2）What is distinction between public law and private law?
（3）What is the primary distinction between common law and civil law?
（4）What is the difference between civil law and criminal law?
2. Translate the following terms into English.
（1）遵循先例
（2）刑法
（3）金融衍生品市场
（4）宪法
（5）行政法
（6）人定法
（7）商人法
3. Translate the following terms into Chinese.
（1）administrative agency
（2）judicial decision
（3）reasonable care
（4）common law
（5）contract law
（6）commercial law
（7）corporation law
4. Choose the proper terms to complete the following definitions.
Criminal law Civil law Public law Constitution Reasonable care
（1）_____is law relating to acts committed against the law which are punished by the state.
（2）_____is concerned with the constitution or government of the state, or the relationship between state and citizens.
（3）_____is the degree of care that a person of ordinary intelligence and prudence would exercise under the given circumstances.
（4）_____is concerned with the rights and duties of individuals, organizations, and associations(such as companies, trade unions, and charities), as opposed to criminal law.
（5）A_____is a set of fundamental principles or established precedents according to which a state or other organization is governed.
5. Complete the table with words in proper forms and complete the sentences below with words from the table. The first one has been done for you.
Verb
Noun
Adjective
constitute
constitution
constitutional
legislate
proceed
convene
regulation
accede
/
elect
authorize
（1）The_____is the body which has the function of making law; normally it is the Parliament or Congress.
（2）It is quite a lengthy process to_____to the European Community.
（3）European_____on Human Rights is one of the most notable International human rights instruments.
（4）In 1787, the Constitutional Convention_____to amend the Articles of Confederation to give the national government the power to address the country's commercial problems.
（5）Federal form of government is one in which the states form a union and the sovereign power is divided between a central governing_____and the member states.
6. Translate the following sentences into Chinese.
（1）Law consists of enforceable rules governing relationships among individuals and between individuals and their society.
（2）The term “common law” is also used to distinguish one segment of Anglo-American law from another part called “equity.” Today the terms refer to different sets of legal doctrines.
（3）When one person, organization, corporation, or branch of government sues another to obtain a remedy for a supposed injury, the case is a civil case, leading to a possible remedy in money damages or an order to do or not to do a certain act.
（4）Public law defines a person's rights and obligations in relation to government. Public law also describes the various divisions of government and their powers.
（5）Most nations have a written constitution. A major exception is Great Britain. The British constitution is unwritten.
（6）The most obvious distinction between civil law and common law systems is a that civil law system is a codified system, whereas the common law is not created by means of legislation but is based mainly on case law.
（7）Tort law defines a host of duties people owe to each other. One of the most common is a duty to exercise reasonable care(26) with regard to others. Failure to do so is the tort of negligence.
————————————————————
(1) financial derivatives market：金融衍生品市场。The financial derivatives market is the financial market for derivatives, financial instruments like futures contracts or options（期货契约或期权）, which are derived from other forms of assets.
(2) personal property：动产。也被称为“personalty”、 “personal estate”、 “movable estate”等。Any movable or intangible thing that is subject to ownership and not classified as real property. Real property：不动产；也称为“realty”、 “real estate”等。Land and anything growing on, attached to, or erected on it, excluding anything that may be severed without injury to the land. Real property can be either corporeal(soil and buildings) or incorporeal(easements).
(3) security：担保。Collateral given or pledged to guarantee the fulfillment of an obligation; esp., the assurance that a creditor will be repaid(usu. with interest) any money or credit extended to a debtor.
(4) Aristotle：亚里士多德（公元前384—前332年），是古希腊伟大的思想家。著有《政治学》（The Politics）、《雅典政制》（The Constitution of Athens）等。
(6) self defense：自卫；自我防卫。法律允许遭到非法侵害的人对侵害者本人采用适度的反击行为，以求自身免受伤害，但自我防卫要求防卫者要求防卫者有正当理由：（1）他处在非法侵害的紧迫危险之中；（2）为避免这种危险而自卫反击是必要的。In the law of selfdefense, the rule that a defendant's use of force is justified if the defendant reasonably believed it to be justified.
(7) duress：强迫、胁迫。Compulsion by physical force or threat of physical force.
(8) drugged：被麻醉的。Drug: administer a drug to(someone) in order to induce a stupor or insensibility.
(10) prosecutor：检察官。prosecutor, a legal officer who represents the government in criminal proceedings。
(11) fine：罚金。fine, a sum of money required to be paid as a criminal penalty。
(12) stare decisis：遵循先例；因循先例。意为遵照执行已决指事项（to stand by things decided）。较高级的法院在处理某一类事实确立一项法律原则后，在以后该法院或其同级、下级法院在处理案件中同类事实时应遵循该已确立的法律原则。该原则被看做是英美普通法制度的核心。Doctrine of precedent. (1) The rule that precedents not only have persuasive authority but also must be followed when similar circumstances arise. This rule developed in the 19th century and prevails today. (2) A rule that precedents are reported may be cited and will probably be followed by courts. This is the rule that prevailed in England until the 19th century.
(13) precedent：先例。precedent, a decided case that furnishes a basis for determining later cases involving similar facts or issues。
(14) Oliver Wendell Holmes, Jr.：奥利弗·温德尔·霍姆斯（1841—1935），美国著名法学家。1902年经西奥多·罗斯福总统任命为联邦最高法院法官。其传世之作首推《普通法》（The Common Law, 1881）和著名论文《法律的道路》（The Path of the Law, 1897）后者发表在1897年的《哈佛法学评论》（Harvard Law Review）上。霍姆斯的“实用主义法学”（legal pragmatism）体现在他的“法律预测说”之上。
(15) Ur-Nammu：乌尔纳姆（约公元前2113年—公元前2096年在位），在约前2113年建立乌尔第三王朝，在位期间统一美索不达米亚南部诸城邦，建立起了强大的集权王朝。他在位期间制定的《乌尔纳姆法典》（The Code of Ur-Nammu）是历史上最早的一部成文法典，适应奴隶制的发展，主要用来保护奴隶占有和私有制经济，镇压奴隶和贫民的反抗。
(16) Hammurabi：汉谟拉比，是巴比伦第一王朝的第六代国王（约前1792年—约前1750年在位），自称“月神的后裔”，在位期间统一了两河流域，颁布了《汉谟拉比法典》（Code of Hammurabi，Codex Hammurabi）。这部法典全文用楔形文字铭刻，除序言和结语外，共有条文282条。包括诉讼手续、损害赔偿、租佃关系、债权债务、财产继承、对奴隶的处罚等，更接近于一部民法和刑法。
(17) Old Testament：旧约全书。据犹太教的说法，旧约全书是基督宗教的启示性经典文献，内容和希伯来圣经一致。主要包括摩西五经、历史书、诗歌智慧书、大先知书、小先知书，分四类：律法书，历史书，智慧书，先知书。著名的“摩西十诫”（The Ten Commandments）就在其中。
(18) city-state：城邦。A sovereign state consisting of an independent city and its surrounding territory.
(19) divine law：神法。上帝制定的法律，不同于人制定的法律，有时也分为自然法或者神启法（revealed law）和实在法两类。Divine law is any law(or rule) that in the opinion of believers, comes directly from the will of God(or a god).
(23) Law Merchant：《商人法》，商法。欧洲中世纪发展而成的一套商业惯例法，对全球商业国家的商船和商人间的交易予以调整。该词是从lex mercatoria直译而来的英文表达。
(24) alienability：可转让性，可流通性。Transferable to the ownership of another。
(25) European Court of Justice：欧洲法院，总部设在卢森堡，是处理涉及欧盟法律事项的最高法庭。The European Court of Justice(officially the Court of Justice), is the highest court in the European Union in matters of European Union law.
(26) reasonable care：合理注意。reasonable care也可以称作是“due care”或“ordinary care”。Reasonable care is the degree of care that a person of ordinary intelligence and prudence would exercise under the given circumstances. This is the standard of care expected of virtually everyone at all times; a failure to exercise reasonable care is negligence.