The Period of the English Colonies The Revolutionary War in America (1775-1783) 2. The Period of the United States
CHARACTERISTICS
• Common law legal system（普通法系）
1. 2. Decentralization Case law
3.
Stare decisis
TEXT——PART ONE
• The United States is at once
a very new nation a very old nation
IT IS A NEW NATION
• Compared with many other countries
• The American legal system, like the English, is methodologically mainly a case law system.
Common law legal system Civil law legal system
•Case law
•形成于英国，包括加拿大，澳大利亚，新西兰， 爱尔兰，印度、巴基斯坦，马来西亚和新加坡， 香港
• enforcement 强制执行；
• claim 请求； • action 诉讼行为；
• writ 法院令状；
• classical Roman law 古罗马法
• The enforcement of a claim presupposed the existence of a special form of action, a writ, with the result that the original common law represented a system of ‘action’ similar to that of classical Roman law.
LEGAL ENGLISH
LEGAL SYSTEM IN THE UNITED STATES
JOKE
One day in Contract Law class, the professor asked one of his better students, "Now if you were to give someone an orange, how would you go about it?"
• 若是没有公众舆论的支持，法律是丝毫没有力量的。 美国废奴运动领袖 菲力普斯
BACKGROUND
• Two periods of legal history:
1. On May 14, 1607, the Virginia Company explorers landed on Jamestown Island to establish the Virginia English colony
Knowledge & Technique
central importance
for an understanding of American law and legal methodology
• The common law is historically the common general law —— with supremacy over local law —— which was decreed by the itinerant judges of the English royal court.
• When hundreds and thousands of documents strike a consistent note， over more than a hundred years, we have a right to say that is the keynote.
PART TWO
• The reader who wants to trace the history of law in America is confronted with over 5,000 stout volumes of legal cases.
• No one document, no handful of documents, can properly be said to reveal the chara cter of a people or of their government.
• it is constantly being renewed by the addition of new elements of population and of new States
IT IS OLD
• It is the oldest of the "new" nations —
the first one to be made out of an Old World colony. the oldest written constitution
普通法 衡平法
• 普通法专指英国在11世纪后由 法官通过判决形式逐渐形成的 适用于全英格兰的一种判例法
• “Equity”——doing equity
• deciding ex aequo et bono • was first granted by the King, and later by his Chancellor as "keeper of the King's conscience", to afford relief in hardship cases.
LESSON ONE: LEGAL SYSTEM
• Part One Features and Characteristics
• Part Two Common Law and Equity Law
LESSON ONE: LEGAL SYSTEM
• Every law has no atom of strength, as far as no public opinion supports it. Wendell Phillips, American leader against slavery
• In the fifteenth century, however, equity law and equity case law developed into a n independent legal system and judiciary (Court of chancery)which competed wit h the ordinary common law courts.
•Statutory law
•法国和德国为代表，还有瑞士、意大利、奥 地利、比利时、卢森堡、荷兰、西班牙、葡 萄牙、日本等
• Most fields of private law still consist primarily of case law and the extensive and steadily growing statutory continues to be subject to binding interpretation throug h case law.
THE WHOLE OF ITS HISTORY IS RECORDED
• for events such as those that are lost in the leg endary past of Italy or France or England are p art of the printed record of the United States
• And the American record
Comprehensive Immense
• Record of the colonial era
• Record of the Nation since 1776 • Record of the present fifty States
• The narrow limits of the forms of action and the limited recourse they provided led t o the development of equity law and equity case law.
衡平法
• 由英国衡平法法院的大法官在处理专门的申诉案件时，为避免过分重视令状和程 序方面的技术性问题，而集中考虑案情的理据得失，最终发展出有别于普通法的 法律规范，就是衡平法。
• If a writ existed (rced;
• there was no recourse for a claim without a writ, the claim did not exist.
• This system became inflexible when the "Provisions of Oxford" (1258) prohibited th e creation of new writs, except for the flexibility which the "writ upon the case" allo wed and which later led to the development of contract and tort law.
The student replied, "Here's an orange." The professor was livid. "No! No! Think like a lawyer!" The student then recited, "Okay, I'd tell him, 'I hereby give and convey to you all and singular, my estate and interests, rights, claim, title, claim and advantages of and in, said orange, together with all its rind, juice, pulp, and seeds, and all rights and advantages with full power to bite, cut, freeze and otherwise eat, the same, or give the same away with and without the pulp, juice, rind and seeds, anything herein before or hereinafter or in any deed, or deeds, instruments of whatever nature or kind whatsoever to the contrary in anywise notwithstanding..."