LegalStructures
Unit 1 Legal Systems
Unit 1 Legal SystemsText AText translation由于美国实行联邦制，美国人通常会意识到不同管辖区的法律可能会有所不同。
从政治上而言，每一个独立的司法管辖区都有自己独立的法律制度的说法是很正确的。
但是，在法律传统和法律方法方面，世界上大多数的法律制度都可以归于为数不多的几个法律传统之一。
在西方以及在世界上那些被殖民化的或受到西方强烈影响的地区，存在着两个主要的法律传统或者法系——大陆法系和普通法系。
美国的法律制度属于普通法系（路易斯安那州除外）。
这篇文章为你介绍普通法系和大陆法系的起源和发展，以及这两大法系之间的主要区别，尤其是法律方法方面的区别。
1. 两大法系的起源以及它们在世界各地的分布情况1）普通法系普通法系起源于英国。
早在1066年，一种新的法律秩序就由威廉征服的英国所建立。
但在1066年，普通法并不存在。
征服者威廉（英王威廉一世）并没有废除地方的习惯法和法院。
地方法院继续适用当地的习惯法。
对于整个王国来说并没有统一适用的法律。
尽管如此，国王还是在威斯敏斯特建立了一些王室法院。
它们最初的管辖权是很有限的，但是最终扩大到使地方法院被废止。
王室法院的判决成为整个王国通行的法律，即普通法。
普通法的渊源是先前的判例，因而普通法最主要的传统意义上的渊源是判例而不是立法，这一点是很正确的。
当普通法发展成为一整套不公正的、非常严格的正式的程序时，国王创设了新的法院而不是以立法的形式修改法律。
当一个臣民认为普通法的判决导致了不公正的结果时，他（在这种时候通常不是她）会向国王请愿。
请愿是如此之多，以至于国王创设了衡平法院。
它会准许酌情的救济以修正普通法。
这个法院判决产生了一系列可被称为衡平法的法律。
这种衡平法也是建立于先前的司法判例的基础之上的。
普通法和衡平法都是普通法系传统的部分。
大不列颠帝国把普通法带到了世界各地。
普通法在许多国家得以“继受”。
但它的继受在欧洲殖民者成为主要居民并且将他们的法律强加于当地的土著居民的那些国家中最为成功。
正义捍卫权益的英语作文
Justice is a fundamental concept that underpins the very fabric of society.It is the cornerstone of fairness and equality,ensuring that every individual has the opportunity to defend their rights and interests.In this essay,we will explore the importance of justice in upholding rights and the various ways in which it can be achieved.Firstly,justice is essential for the protection of individual rights.Every person has the right to be treated fairly and equitably,regardless of their background or circumstances. This includes the right to freedom of speech,the right to privacy,and the right to be protected from harm.By upholding these rights,justice ensures that individuals are able to live their lives without fear of discrimination or persecution.Secondly,justice plays a crucial role in maintaining social order.When people feel that they are being treated unfairly,it can lead to feelings of resentment and dissatisfaction, which can in turn lead to social unrest and conflict.By ensuring that justice is served, society can maintain a sense of harmony and stability,preventing the escalation of tensions and promoting peaceful coexistence.One of the key ways in which justice can be achieved is through the legal system.The courts and legal institutions are responsible for interpreting and enforcing the laws that protect individual rights.By ensuring that these laws are applied fairly and consistently, the legal system can help to create a society in which justice is upheld.Another important aspect of justice is the principle of transparency.When decisions are made in a transparent and accountable manner,it helps to build trust and confidence in the system.This can be achieved through open and fair processes,such as public hearings and the publication of decisions and rulings.In addition to the legal system,there are also many other ways in which justice can be pursued.For example,advocacy groups and nongovernmental organizations NGOs can play a vital role in raising awareness of injustices and campaigning for change.By highlighting the issues and mobilizing public opinion,these groups can help to bring about positive change and promote justice.Furthermore,education is a powerful tool for promoting justice.By educating individuals about their rights and the importance of upholding justice,we can empower them to stand up for themselves and others.This can help to create a society in which people are more aware of the need for justice and are better equipped to defend their rights.In conclusion,justice is a vital component of any society,playing a crucial role in protecting individual rights and maintaining social order.Through the legal system,transparency,advocacy,and education,we can work towards creating a more just and equitable world.By upholding justice,we can ensure that everyone has the opportunity to defend their rights and live their lives with dignity and respect.。
Corporate legal structure
A company is any entity that engages in business and can be a proprietorship, partnership or corporation. One of the first and most important steps in starting a business is deciding how it will be structured. To make an informed choice, you will need to know how the different business structures work, as well as the advantages and drawbacks of each. It is advisable to seek the advice of an attorney when making your decision.Sole ProprietorshipsSole proprietorships and general partnerships are the most common forms of business structure and are the easiest to set up. A sole proprietorship is a business comprised of one individual and is not considered a formal organization. Legally, this type of business does not exist separately from its owner. The sole proprietor pays taxes on revenue from the business under his or her own name and is solely responsible for the financial operations of the company, including the payment of business debts. If the business is sued, the owner's personal resources will be at risk. If, as a sole proprietor, you plan to conduct business under your own name, you will not need to file an assumed business name. If you choose another name for your company, you will need to apply for a state-issued assumed name certificate, also known as a DBA (doing business as).General PartnershipsA general partnership is similar in structure to a sole proprietorship except that this structure involves two or more people. Each partner pays his or her own taxes separately, using his own social security or tax ID number, but the company does not exist as a separate entity. Therefore, the financial resources of the business partners could be at risk in the event of a lawsuit. Unless the individuals in the partnership plan to use their own surnames instead of an assumed business name, the partners will need to file for a DBA.CorporationsA corporation is a business entity that legally exists separately from its owner(s). The owners of a corporation are shareholders; their percentage of ownership in the business is represented by their corporate stocks or shares. Shareholders can choose a board of directors to manage business operations, or they can create a shareholders' agreement, which will allow them to manage the business directly. Corporations are more complex than unincorporated businesses. You will need to file the taxes for the corporation separately from your personal taxes. In most states, you will not be held personally responsible for corporate debts.Limited Liability CompanyA limited liability company is neither a partnership nor a corporation, but it has some characteristics of both. The owners are able to participate in business decisions, as in a partnership, but an LLC offers some protection of the individual assets of its owners. The flexibility of the LLC has made it a popular choice among business owners. To form a limited liability company, you will need to file a certificate of formation with the Secretary of Stateoffice in your state. The form will require you to choose whether your company will be managed by its members or by a manager. Most states will let you complete this form online through the website of the Secretary of State.Limited PartnershipsA limited partnership is made up of two or more persons, including at least one general partner and one limited partner. Details of this structure may vary from state to state. Business affairs of a limited partnership are conducted according to a partnership agreement created by the partners. The agreement does not need to be filed publicly, but the company does need to file a certificate of formation. If you want to limit the liability of the general partners, you have the option of registering as a limited liability partnership. The Secretary of State can provide these forms.。
法律的作用英语作文
The role of law in society is a multifaceted subject that touches on various aspects of human interaction and governance.Here,we will explore the essence of law and its functions within a society,using English in a manner that reflects the formal and structured style often found in legal discourse.1.Upholding Social Order:The primary function of law is to maintain social order.It establishes a framework within which individuals and groups can interact predictably and ws against theft, violence,and fraud,for example,protect the rights of individuals and ensure that society functions without chaos.2.Protecting Individual Rights:Laws are designed to safeguard the fundamental rights of citizens.These include the right to life,liberty,and the pursuit of happiness.By codifying these rights,the law provides a mechanism for individuals to seek redress when their rights are infringed upon.3.Promoting Justice:The legal system is a cornerstone of justice.It provides a structured process for resolving disputes and punishing wrongdoers.Through the courts,individuals can seek justice for wrongs committed against them,and society can ensure that those who break the law are held accountable.4.Facilitating Economic Transactions:Commercial laws are essential for the smooth functioning of the economy.They provide a legal framework for contracts,property rights,and business operations.This legal infrastructure allows for the predictability necessary for trade and investment,fostering economic growth and development.5.Regulating Behavior:Laws also serve to regulate behavior in various aspects of life.Traffic laws,for instance, ensure the safety of road users.Environmental laws protect natural resources and promote sustainable practices.These regulations are designed to balance individual freedom with the collective good.6.Reflecting Societal Values:The law is a reflection of the values and norms of a society.It evolves as societal attitudes change,adapting to new challenges and ws against discrimination, for example,demonstrate a societys commitment to equality and fairness.7.Providing a Basis for Governance:The rule of law is a fundamental principle of governance.It ensures that those in power are subject to the same laws as the rest of the population.This principle is crucial for preventing the abuse of power and maintaining the legitimacy of the government.8.Ensuring Legal Certainty:The predictability of the law is essential for individuals and businesses alike.Legal certainty allows people to plan their actions with confidence,knowing that the legal consequences of their actions are clear and consistent.9.Encouraging Compliance:Wellcrafted laws are designed to encourage voluntary compliance.When laws are clear, fair,and perceived as just,individuals are more likely to follow them without the need for constant enforcement.10.Serving as a Tool for Change:Finally,the law can be a powerful tool for social change.Through legislation,societies can address pressing issues,such as climate change,poverty,and inequality,and work towards a more just and equitable future.In conclusion,the role of law in society is profound and multifaceted.It is the bedrock upon which social order,justice,and the protection of individual rights are built.As society evolves,so too must the law,adapting to new challenges and ensuring that it continues to serve the needs of the people it governs.。
汉英法律专业词汇6
法律关系legal relation 法律关系的运⾏ process of legal relation 法律关系客体 object of legal relation 法律关系主体 subject of legal relation 法律规定provisions of law 法律规范 norm of law 法律规范的逻辑结构 logical structure of legal rule 法律规则体系 system of legal rules 法律含义 intendment of law 法律另有规定：otherwise stipulated by law 法律现象legal phenomenon 法律研究legal research 法律要件 legal requirement 法律依据 legal basis 法律意见 legal advice 法律意见书 legal opinion 法律意识 law-consciousness 法律意义 legal sense 法律⽤语 legal language 法律与正义先验论 a prior theory of law and justice 法律渊源 source of law 法律原本注释 gloss 法律原理 legal doctrines 法律原则 principle of legality 法律援助legal aid 法律约束 legal binding； legal restraint 法律责任 legal responsibility 法律责任的道义基础 moral basic of legal obligation 法律责任的归结 imputaton of legal responsibility 法律责任的认定 determination of legal responsibility 法律责任的执⾏ enforcement of legal responsibility 法律责任客体 object of legal responsibility 法律责任主体 subject of legal responsibility 法律哲学 philosophy of law； philosophie du droit （法）；philosophia juris 法律政策 policy of the law 法律职业道德 legal ethics 法律指导 legal counsel 法律制裁 legal sanction 法律制度 regime of law； legal system 法律秩序 legal order 法律主体资格 capacity as a subject of law 法律主张 proposition of law 法律属地原则 territoriality of laws 法律著述 legal literature 法律专家 legal expert 法律专业 legal profession 法律专著和教科书 legal treatise and textbook 法律咨询 legal advice 法律尊严 legal sanctity 法盲 legal illiterates 法权 right 法社会学 sociology of law 法系 legal system 法协会 law society 法学 jurisprudence 法学博⼠ doctor of jurisprudence 法学导论 leading principles of law 法学的范畴体系 the system of categories of jurisprudence 法学的范畴意识 the consciousness of category of jurisprudence 法学的基⽯范畴 fundamental categories of jurisprudence 法学⽅法 method of jurisprudence 法学⽅法论 methodology of jurisprudence。
法律专业英语词汇
汉英法律专业词汇（法理、法制史）Jurisprudence, History of Legal Systems按照法律规定：according to law按照确定的份额分享权力：be entitled to rights in proportion to his proper share of the credit按照确定的份额分担义务：assume obligations in proportion to his proper share of the debt案例教学法：case system案例汇编：case book; case report; law report被视为：be deemed as被宣布为非法：be outlawed; be declared illegal比较法：comparative law比较法学：comparative jurisprudence比较法学派：school of comparative jurisprudence比较法制史： comparative legal history比较分析法：method of comparative analysis比较刑法：comparative penal law比较刑法学：comparative penal jurisprudence必然因果关系：positive causal relationship边缘法学：borderline jurisprudence变通办法：adaptation; accommodation补充规定：supplementary provision补救办法：remedial measures不成文法：unwritten law不动产所在地法律：law of the place where the real property is situated; lex loci rei immobilisci不可分割的权利：impartible right不可抗力：force majuere不可侵犯性：inviolability不可让与性：inalienability不履行法律义务：non-performance of obligation不要式行为：informal act不要因的法律行为：non-causal juristic act不因实效而丧失的权利：imprescriptible right不作为：abstain from an act; act of omission部门法：department law部门规章：regulation参照：consult参照具体情况： in the light of actual conditions参照原文： consult the original亚里士多德： Aristotle柏拉图： Plato德拉古： Draco盖尤斯： Gaius西塞罗：Marcus Tullius Cicero乌尔比安 Ulpianus罗马皇帝优士丁尼一世：Justinian I乌尔比安： Ulpianus西塞罗：Marcus Tullius Cicero优士丁尼皇帝：Justinian《罗马法律汇编》：Roman Digest《民法大全》：Corpus Juris Civilis优士丁尼法典： the Codex Justinianus《优士丁尼民法大全》（《国法大全》）：Corpus Juris Civilis《十二表法》： Twelve Tables拿破仑法典： The Code Napolean《日耳曼法》：Germanic law《教会法大全》Corpus Juris Canonici《汉穆拉比法典》： Code of Hammurabi《保护人权与基本自由公约》(1950) ：Convention for the Protection of Human Rights and Fundamental Freedoms, 1950 （罗）查士丁尼法典：Code Justinian; Codex Justinianus查士丁尼法规汇编： Authenticum《德国民法典》：German Civil code《大宪章》(1215) ：Great Charter, 1215(英)欧洲大陆法： continental law南京条约： (1843) Treaty of Nanking, 1843罗马－日耳曼法系： Roman-Germanic family罗马私法： Jus Privatum罗马法学派： school of Romanists家庭法： family law教会法：canon law罗马法理学： jurisprudential教会法学家 decretalists罗马法：Roman Law; Jus Romanum罗马法系： Roman-Law System（古罗马的）元老院： the Senate超出法律范围的：outside of law超出法律权限的：extralegal超过权限： exceed authority; beyond jurisdiction成文法： written law冲突法： conflict of laws; rules of conflict冲突规则： conflict rule; rule of conflict除（本法）另有规定外： except for otherwise stipulated (by this law) 除外条款： provisory clause除外责任条款： exclusion clause触犯公共利益： encroach on the public interests触犯国际利益：go against the state’s interests触犯人民利益： encroach on the interests of the people; go against thepeople’s interests传统法律观念： traditional ideas of law纯粹法学： pure theory of law次要法规： by law次要规则： secondary rule从宽解释原则： doctrine of liberal construction从权利： accessory right达到法定年龄： come of age大法： the fundamental law大法官：Lord High Chancellor大陪审团 grand jury大法官法院：Court of Chancery大陆法系：Continental Legal System大律师：barrister《大明律》：Criminal Law of the Ming Dynasty （中）《大清律例》：the Criminal Laws of the Qing Dynasty (中) 单行法规：specific regulations单一法律体系：unitary legal system单一制政府：unitary government但书：proviso当代法学动向：current trend of jurisprudence当然解释： natural interpretation党纪国法：party discipline and the law of the country道德规范：norm of morality道德义务： moral obligation第二读：second reading第三读： third reading二元论：the dualistic theory二元君主立宪制： dual constitutional monarchy system二元论： the dualistic theory二元论者：dualist二元制： bicameral system法的本质： the nature of law法的变化：changes of law法的定义：definition of law法的发展：development of law法的分类： divisions of law法律概念： legal concept法的概念： concepts of law法的规范作用：normalized usage of law法的继承：succession of law法律的理想：ideal of law法律的权威： authority of law法律的失效：lapse of law法律的实施：administration of law; law enforcement 法律的适用：application of law法律的统一： unification of law法律的推定： presumption of law法律的推理： analogy of law法律的完整性： integrity of law法律的效力范围：force’s scale of law法律的效力形式：force’s form of law法律的修改：alteration of law法律的演进： evolutin of law法律的原理： principle of law法律地位平等：equal in legal status法律对人的效力：personal act of law编纂法律方法： legal methodology法律分类： classification of law法律赋予权力： authority conferred by law法律改革： law reform法律根据： legal basis法律工作者： legal professional法律关系：legal relation法律关系的运行： process of legal relation法律关系客体： object of legal relation法律关系主体： subject of legal relation法律规定：provisions of law法律规范： norm of law法律规范的逻辑结构： logical structure of legal rule 法律规则体系： system of legal rules法律含义： intendment of law法律另有规定：otherwise stipulated by law法律现象：legal phenomenon法律研究：legal research法律要件： legal requirement法律依据： legal basis法律意见： legal advice法律意见书：legal opinion法律意识： law-consciousness法律意义： legal sense法律用语： legal language法律与正义先验论： a prior theory of law and justice 法律渊源： source of law法律原本注释： gloss法律原理： legal doctrines法律原则： principle of legality法律援助：legal aid法律约束： legal binding; legal restraint法律责任： legal responsibility法律责任的道义基础： moral basic of legal obligation法律责任的归结： imputaton of legal responsibility法律责任的认定： determination of legal responsibility法律责任的执行： enforcement of legal responsibility法律责任客体： object of legal responsibility法律责任主体： subject of legal responsibility法律哲学：philosophy of law; philosophie du droit （法）；philosophia juris 法律政策： policy of the law法律职业道德： legal ethics法律指导： legal counsel法律制裁： legal sanction法律制度： regime of law; legal system法律秩序： legal order法律主体资格： capacity as a subject of law法律主张： proposition of law法律属地原则： territoriality of laws法律著述： legal literature法律专家： legal expert法律专业： legal profession法律专著和教科书： legal treatise and textbook法律咨询： legal advice法律尊严：legal sanctity法盲： legal illiterates法权： right法社会学： sociology of law法系： legal system法协会： law society法学： jurisprudence法学士： bachelor of law法学博士： doctor of jurisprudence法学导论： leading principles of law法学的范畴体系： the system of categories of jurisprudence法学的范畴意识： the consciousness of category of jurisprudence法学的基石范畴： fundamental categories of jurisprudence法学方法： method of jurisprudence法学方法论： methodology of jurisprudence法学院： faculty of law; law school法学会： law society法学教科书：law textbooks法学理论： theory of law; legal theory法学权威： an academic authority in law法学体系： system of jurisprudence法学通论： first principles of law法医： forensic medicine法医学： forensic medicine法院： court法院调查： judicial investigation法院管辖权： competence of court法院管辖以外的： extrajudicial法院判决： court decision法院系统： court structure法院组织法： judicature act法则： articles法哲学： philosophy of law法制：legal institution法制传统： tradition of law system法制的精神： spirit of legality法制的尊严： dignity of the legal system法制观念： legal concept法制观念淡薄： very weak in the understanding of law法制教育： legal education; education of legal system法制史： legal history; history of legal system法治： rule of law法治的机制： the mechanism of rule of law法治的要素： the element of rule of law非实质的： immaterial非营利的： non-profit非约束性条款： permissive provision废止法律： annulment of law分别管辖权： separate jurisdiction分别财产制： separation of property regime分别规定： separate provision分担责任： share the responsibility分工负责，互相配合，互相制约： divide responsibility for their own work; coordinate their efforts and check each other分工负责制： division of labor responsibility system分级管理： different levels holding different responsibilities分配制度： distribution system分析法理学： analytical jurisprudence否决权： power veto; veto power否认事实： denial of facts服从法律： amenable to law; subject to the law服从判决： accept a judgment符合程序： be in order符合法律： be in conformity with law符合原则： be in conformity with the principle概括裁定： general verdict概括继承： general succession干扰司法公正： interference with course of justice刚性条款： entrenched clause岗位责任制： post responsibility system高度集中： highly centralize高度民主： high level of democracy高度自治权： high degree of autonomy搁置： set aside; abeyance格式条款： clause of style公认的行为准则： established standard of conduct规避法律： in fraud of law规避义务： evade obligations规范的法律规则： normative rule of law规范法学： normative jurisprudence规范性法律文件： normalizative document of law规范性法律文件的规范化： normalization of normative legal document 过错方： tort-feasor; wrongdoer过错推定原则： doctrine of presumption过错责任： liability for wrongs; tort liability合并条款： consolidation of provisions合法的个人财产： legal personal property合法地位： legal status合法权益： the lawful rights and interests合法行为： lawful acts; legality of purpose合宪性： constitutionality衡平法： equity衡平法规则： rule of equity衡平法学： equity jurisprudence衡平法院： Court of Chancery (美)；Court of Equity （英）后法取代前法： A later statute takes away the effect of a prior one. 后法优于前法： lex posterior derogat priori户籍所在地：the place where his residence is registered互为因果： reciprocal causation基本法： fundamental law基本法律规范： basic norm of law基本方针： basic policies基本权利和义务： basic rights and duties基本司法概念和假设： basic legal conception and assumption技术性法规： technical legal rule建立法律关系：create legal relations解释法律的技术规则： technical rule of interpretation解释权： power of interpretation近因： immediate cause禁治产人： imbecile; interdicted person经常居住地：habitual residence经法律确认的： ascertained by law经法律许可： authorized by law经验法学： scholastic theories of law纠问式审判： trial by inspection or examination 具有法律约束力的文件： legally binding instrument 具有同等效力的： with equal authenticity具有约束力的判例： binding precedent绝对衡平法： absolute equity君主立宪制度： constitutional monarchy开罗会议： Cairo Conference凯恩斯主义： keynesianism可撤销的法律行为： revocable juristic act可让与性： alienability可用法律强制执行的： enforceable at law可预见的： foreseeable可直接适用的法律： directly applicable law可追溯的： retrospective客观条件： objective condition客观因素： objective factor客体： object扩充解释： amplified interpretation理论法理学派： theoretical jurisprudence school 理性决定说： theory of rational decision理性认识： conceptual knowledge历史法学： historical jurisprudence历史法学派： historical school of law历史解释： historical interpretation立法机构：legislative body立法权： law-making power; legislative power立法委任权： legislation mandate立法效力： legislative effect立法议案 bills立法者： law-maker; legislator立宪： constitutionalism利益冲突： conflict of interests利害关系人：interested person连带法律关系： joint legal relations连带责任： joint and several obligation论理解释： logical interpretation逻辑解释： logical interpretation马克思主义法律理论： Marxism-leninism马克思主义法学：Marxist jurisprudence马克思主义法学家： Marxist jurist没有事实根据的： unsubstantial美国国际法协会： American Institute of International Law美国海事法庭： Admiralty Courts of the U.S.A.美国联邦地区法院： United States district courts美国联邦法官： federal judge没有法律依据的： lawless没有判决先例的案件： case of first impression民法典： civil code民法法系：Civil-Law System民法通则： General Principles of the Civil Law民法学： science of civil law民事案件中“占有优势证据”的原则：“by a preponderance of evidence” in civil cases民事权利能力：the capacity for civil rights民事权益：civil rights and interests民事诉讼法学： Civil Procedure Law民事制裁： civil punishment; civil sanction民政部门：the civil affairs department明代法规： laws and regulations of Ming Dynasty明示或默示的： express or implied默示表达： communication by implication内部规章： internal regulations纳妾制： concubinage拟制理论： fiction theory拟制买卖： mancipatio偶然权利： contingent right偶然因果关系： fortuitous causal relationship偶然因素： accidentalia偶因： accidental cause排他的权利： right to exclude all others派生的权利： derived right派生取得： derivative acquisition判例法系： Case Law System普通法法系： Common-Law System判例法系： Case Law System判例汇编： reports; reports of judgments普通法： common law普通法法系： Common-Law System普通法上的补偿： common-law remedy普通法上的过失： common-law negligence普通法上的留置权： common-law lien普通法学： general jurisprudence强制办法： coercive method强制规定： mandatory provisions强制性法规： mandatory rule of law强制性条款： mandatory term侵犯财产权： property torts侵权行为法： tort law侵权责任： tortious liability清理法规： check up laws and regulations区域性法律体系： regional system of laws取证： obtain evidence确权之诉： affirmative petitory action; cause for ownership affirmation 确认之诉： action for confirmation; actio confessoria权威解释： authentic interpretation人法： human law, statute personalia人格减等： capitis deminutio人身不可侵犯： inviolability of the person人身非财产关系： personal non-property relations人身关系： personal relation任意解释： arbitrary interpretation柔性宪法： flexible constitution三权分立： separation of powers善意推定： presumption of good faith商法： commercial law商法典： code of commerce社会法学：sociological jurisprudence社会关系： social relations社会规范： social regulation社会连带主义法学： social solidarism jurisprudence社会契约论： theory of social contract社会团体：social organization社会主义法学： socialist jurisprudence社会主义法制： socialist legal system; socialist rule of law神法： divine law神权说： theory of divine right审查制度： censorship; inspection system审计监督： supervise through auditing审计监督权： power to supervise through auditing生效条款： operative clause失效法律： expired laws失效日： expiry date施行细则： implementary provisions实证主义法学派： the positivist school实体法： material law; substantial law实体法上的抗辩： substantial defense实体权利： substantive right实用主义法学： judicial pragmaticism实在法： positive law实在法学： positive jurisprudence实在法学派： positivist实在主义法学： positivist jurisprudence实证法学： positive jurisprudence实质条款： material stipulation实质性的瑕疵： defect of substance实质性解释： material interpretation事实的推定： presumption of fact事业单位：institution适用法律： reference to the law; applicable law适用范围： area of application; sphere of application适用中国法律：be governed by the law of PRC (The law of PRC shall apply to)溯及既往原则： doctrine of retroactivity溯及力： retrospect; retrospective effect损害赔偿： damages梭伦： Solon弹性宪法： elastic constitution特别程序： special procedure特别但书： special proviso特别法： special law特殊主体： special subject提案：motion; overture; proposal提出抗辩： raise a plea; raise a plead条约法： law of treaties同态复仇： retaliation推定合法：presumption of legality停止生效：cease to have effect外国法： foreign law外国法制史： foreign legal history外国人待遇： foreigner treatment完全民事权利能力：full capacity for civil conduct完全丧失行为能力的人： person entirely incapable of legal transaction 完全无行为能力： absolute disability万民法： jus gentium违法构成要件： essential condition of delict违宪： violation of constitution无国籍人：stateless persons无条件解释： unconditional interpretation无效的法律： void law无效法律行为： void act; act without legal effect物权： property习惯法：custom law细则： detailed rules and regulations; details by-laws狭义解释： narrow definition下文另有规定者除外： except as hereinafter provided先决条件：precedent condition; prerequisite现实主义法学： realism jurisprudence现行法律： current law; existing law限制解释： restrictive interpretation无国籍人：stateless persons无条件解释： unconditional interpretation无效的法律： void law无效法律行为：void act; act without legal effect物权： property习惯法：custom law细则： detailed rules and regulations; details by-laws狭义解释： narrow definition下文另有规定者除外： except as hereinafter provided先决条件： precedent condition; prerequisite现实主义法学： realism jurisprudence现行法律： current law; existing law限制解释： restrictive interpretation相对主义法学： relativist jurisprudence新分析法学： new analytical jurisprudence新律： New Law , Novellae行为规范： code of conduct学说编纂：the Pandekta形式主义法学： formalist jurisprudence严格解释： strict interpretation严重不法行为： aggravated misconduct; gross misbehavior严重违法： break the law on a serious scale要件： important condition; essential condition一般客体： general object一般权利能力： general legal capacity一般主体： general subject一事不再理的保证： guarantee against double jeorpardy依法办案： handle cases according to law依法独立行使职权： independent exercise of powers within the framework of the law依照法律的规定： as prescribed by law以法律为准绳： take law as the criterion依法治国： genuine rule of law; running the country according to law义务性规范： obligatory rule义务主体： subject of duty英美法系： Anglo-American Legal System永恒法： eternal law有法必依： ensure that laws are observed有法律约束力： legally binding有条件解释： conditional interpretation有效期间： time of effect; term of validity与法律规定不符： against the forms of the statute与法律相抵触的行为：act going against the law域外效力： extraterritorial effect援引法律条文： invoke a legal provision约束力： binding; binding effect 在法律的范围内： within the law暂行条例：interim regulations; provisional regulation整体法学： integrative jurisprudence正当权益： justified rights; legitimate interests正式解释： official interpretation正式渊源： formal source政法学院： institute of political science and law知法犯法： deliberately break the law执法必严：ensure that law’s enforcement be strict执法人员： law enforcement officials执行权： enforcement power直接故意 actual intent; direct intent直接后果：immediate consequence直接客体： direct object直接主体： direct subject制定法： statute治外法权： extraterritoriality; extraterritorial jurisdiction中端时效： interrupt the running of the statute of limitation中国大陆的法律：law of China’s mainland中国法制： Chinese legal system中国法制史： Chinese legal history中国特色的社会主义法制： socialist legal system with Chinese character 中华法系： Chinese legal system《中华人民共和国香港特别行政区基本法》：the Basic law of Hong Kong Special Administrative Region of the People’s Republic of China主要法律体系：principal legal system自然法： natural law自然法学派： natural law school组成合议庭开庭审理：form a collegial panel to conduct the trial最高国家权力机关： highest organ of state power最高人民法院的解释：interpretation of supreme people’s court遵循先例原则：The Doctrine of Stare作为或不作为： act or omission宪法学行政法学Constitution and Administrative Laws制宪权：constituent power宪法的解释： interpretation of constitution宪法修正案： constitution amendment宪法学： constitutional jurisprudence成文宪法written constitution不成文宪法unwritten constitution符合宪法： constitutionality符合宪法的法律 constitutional law刚性宪法： rigid constitution马伯里诉麦迪逊案： Marbury vs. Madison抽象行政行为： abstract administrative act非法活动： unlawful activities非法利益： unlawful interests非法手段： illegal means非强制性行政行为： non-coercive form of administrative action非正式的：informal; irregular非政府机关： non-governmental organization非主要条件： non-essential stipulation非专业的： non-professional国家赔偿案件： case of state compensation 国家赔偿的归责原则： principle of culpability for state compensation 国家赔偿的双重过错原则： principle of dual faults for state compensation 国家赔偿法： state compensation law国家赔偿主体： subject of state compensation行政法： administrative law; executive law行政法规： administrative laws and regulations行政法学： administrative jurisprudence行政解释： administrative interpretation行政救济： administrative remedy治安管理： security administration治安条例： security regulations高级人民检察院：Higher People’s Procu ratortate国家权力机关： state authority国际审判机关： state judicial organs国家行政机关： state administrative organs国家意志：state’s will国家职能： function of the state国民待遇： national treatment公安部： Ministry of Public Security公安分局： public security sub-bureau公安厅： public security bureau at the levels of provinces, autonomousregions and cities under direct jurisdiction of central government地方各级人民代表大会：local people’s congresses at different levels 地方各级人民法院：local people’s courts at different levels地方各级人民检察院：local people’s procur atorates at different levels 地方各级人民政府：local people’s governments at different levels罚款： impose a fine刑法学Criminal Laws犯罪预防： crime prevention预防犯罪： anti-crime帮助当事人毁灭、伪造证据罪： crime of aiding a client to destroy or forge evidence绑架妇女儿童罪： crime of kidnapping women and children包庇、纵容黑社会性质组织罪： crime of harboring a mafia-style syndicate 包庇毒品犯罪分子罪： crime of harboring drug criminals报复陷害罪：case of retaliation and frame-ups必要共同犯罪： indispensable joint crime并科原则： doctrine of cumulating punishments剥夺权利：deprival of rights不能犯： impossibility; unrealized offense参加恐怖活动组织罪： crime of taking part in an organization engaged in terrorist activities超越管辖权： excess of jurisdiction超越职权范围：overstep one’s authority惩办和宽大相结合：combine punishment with leniency惩办少数、改造多数的原则： principle of punishing the few and reforming the many惩罚措施： punitive measure惩罚性制裁： punitive sanction惩罚与教育相结合： combination of punishment and education处以刑罚： inflict punishment处以有期徒刑： sentence to fixed-term imprisonment触犯法律： break the law; violate the law抽逃出资罪： crime of flight of capital contribution出口骗税犯罪活动： criminal activities of cheating out of tax rebates in export出售伪造发票罪： crime of selling counterfeit currency出于对法律的无知： from ignorance of law出于恶意： from malevolence从轻处罚： gie a lesser punishment从重处罚： give a severer punishment单位受贿罪： crime of bribe taken by a unit单一犯罪构成： single constitution of crime盗伐林木罪： crime of illegally chopping down trees; crime of illegally felling trees盗窃、抢夺枪支、弹药、爆炸物罪： crime of stealing or seizing guns, ammunition or explosives盗窃犯： theft act; larcenist渎职犯罪案件：case of dereliction of duty对象不能犯： object impossibility多次作案： repeatedly commit crimes罚不当罪： punishment does not fit the crime犯意： criminal intent; mens real犯罪低龄化： lowering ages of criminal offenders犯罪动机： criminal motive犯罪构成： constitution of a crime; constitutive elements of a crime 犯罪构成要件： special constitutive elements of crime犯罪故意： criminal intent; guilty intent; meas rea犯罪集团： criminal gang; criminal group犯罪客观要件： objective circumstances of a crime犯罪客体： criminal object; object of a crime犯罪实行终了： completion of a criminal act犯罪学： criminology犯罪中止： discontinuance of crime; desistance of crime犯罪主观方面要素： subjective elements of crime犯罪主体： subject of crime犯罪着手： initiate a crime犯罪组织： criminal organization贩卖毒品罪： drug offense; crime of drug trafficking防卫过当： unjustifiable self-defense防卫挑拨： instigation of defense; provocation of defense防卫限度： limit of defense防止类似事件重演： prevent the recurrence of similar incidents妨碍公务罪： crime of disrupting public service妨害公共安全罪： crime of impairing public security放弃权利： withdraw a claim; waive a right非法持、私藏枪支、弹药罪： crime of illegally holding or hiding a firearm or ammunition非法持有毒品罪： crime of illegally holding drugs非法干涉： illegal intervention非法干预： unlawful interference非法出售增值税专用发票罪： crime of illegal selling invoice for exclusive use of VAT诽谤罪： crime of defamation隔地犯： offense of segregation by location隔时犯： offense of segregation by time工具不能犯： impossibility of instruments故意犯罪： calculated crime; intentional crime故意杀人罪： crime of intentional homicide故意伤害罪： crime of willful and malicious injury管辖：jurisdiction惯犯： habitual criminal惯例： custom and usage过失犯罪： criminal negligence; involuntary crime; negligent crime黑社会性质的犯罪集团： gangland criminal syndicate; mafia-style criminal gang缓期二年执行： with a two-year reprieve缓刑： probate cessat executio集合犯： aggregate offense; collective offense既遂犯： accomplished crime继续犯： continuous crime加重处罚： give an aggravated punishment beyond the maximum prescribed 假冒他人注册商标罪： crime of counterfeiting the registered trademark of another假释： parole假想防卫： imaginative defense假想数罪： imaginatively several crimes简单共同犯罪： simple joint crime间接故意： indirect intent; indirect iintentino教唆未遂： attempt of solicitation劫持船只、汽车罪： crime of hijacking a ship or an automobile劫持航空器罪： crime of skyjacking结果犯： consequential offen结果加重犯： aggregated consequential offense结合犯： combinative crime; integrated offense se拒不执行人民法院判决、裁定罪： crime of refusing o execute judgments or orders of the People’s Court具结悔过： make a statement of repentence具体行政行为： specific administrative act具体罪名：concrete accusation绝对不确定法定刑： absolutely indeterminate statutory punishment军人违反职责罪： crimes of soldiers violating military dutie抗税罪： offense of resisting taxes客体不能犯： object impossibility空白罪状： blank facts about a crime滥伐林木罪： crime of illegal denudation累犯： recidivist; repeat offender; cumulative offense连续犯罪： continuing crime量刑： criterion for sentencing; sentencing criterion量刑不当： criterion for sentence量刑幅度： extent for discretionary action of sentencing虐待罪： cri me of abusing member of one’s family挪用公款案： case of misappropriation of public funds偶犯： casual offender; casual offense情节加重犯： aggravated offense by circumstances情节特别严重： when the circumstances are particularly wicked情节严重、构成犯罪的： when the circumstances are so serious as to constitute a crime取保候审： post a bail and await trial with restricted liberty of moving 扰乱公共场所秩序罪： crime of disturbing order at public places刑法： criminal law刑罚： penalty; punishment刑事责任能力： criminal capacity民商法学与经济法学（Civil Laws, Commercial Laws and Economic Laws）按照出资比例：in proportion to one’s respective contributions to the investment办理注销登记：cancel the registration被代理人：the principal被侵权人 the infringed本人名义：in one’s name标的：subject matter补偿制度：compensation system不动产登记制：Lot and Block System财产法： property law财产的添附： accretion of property; property accession财产抵押权： property mortgage财产继承权：the right of inheritance财产关系和人身关系：property relationships and personal relationships 财产管理人： property administrator; custodian of property财产混同： confusion; hotchpot财产留置权： encumbrance采用书面形式：in writing仓单： warehouse voucher草签合同： initial a contract; sign a referendum contract; ad referendum contract长期合同： long-term contract偿付能力： solvency capability of reimbursement超越代理权：beyond the scope of one’s power of agency撤消合同：cancellation of contract撤销合同： cancel a contract; rescind a contract; avoid a contract撤销权： right of rescission; right of revocation撤销要约： revocation of offer; revoke an offer撤销遗赠： cancellation o will; revocationi of will承运人： actual fault of the carrier承运人的留置权：carrier’s lien诚信原则： principle of good faith诚实信用原则：principle honesty and credibility; principle of honestry and good faith; good faith principle ; bona fide principle船舶承租人： charterer船舶抵押权： right of mortgage with respect to a ship; mortage of the ship; ship mortgage船舶抵押权的设定： establishment of mortgage of the ship船舶抵押的消灭： extinguishments of the mortgage of the ship船舶抵押权登记： registration of ship mortgage船舶留置权： possessory lien; lien of ship村民委员会：the village committee惩罚性的损害赔偿： punitive damages乘人之危：take advantage of one’s unfavorable position处分财产： dispose of properties处分权： act of disposition处分原则： principle of disposition代理民事活动：be represented in civil activities by代理权终止：the expiration of one’s power of agency单独承担的责任： undivided responsibility单方法律行为：unilateral obligation单方行政行为： unilateral administrative act等价有偿：making compensation for equal value对等原则：principle of reciprocity对价：consideration对抗措施：counter measure对人权：right in personam; personal right对世权： real right; right in rem恶意串通：conspire maliciously恶意行为：ill will mala fides法人： judicial person; legal body法人的权利能力： legal capacity of juristic person法人的责任能力： capacity for responsibility of juristic person法人权限： corporate power法人人格： corporate personality法人身份： status of a legal person法人团体： corporation法人资格： corporate capacity法人组织章程：the articles of association of the legal person负共同连带责任： liable jointly and severally负全部责任： bear all responsibilities; in all charge。
法律专业翻译
10, to begin with,the legal system has structure. the structure of a legal system consists of this kind:the number and size of courts;their jurisdiction;and modes of appeal from one court to another.structure also means how the legislature is organized,what a presidentcan(legally)do or not do,what procedures the police department follows,and so on. another aspect of thelegal system is its substance. by this it meant the actual rules,norms,and behavior patterns of peopleinside the system.第一，法律制度有结构。
一个法律制度的结构由这种的数目和大小的法院；管辖；和诉求方式从一个法院another.structure 也意味着如何立法组织，什么总统（法律）做或不做，什么程序，警察部门以下，等等。
法律制度的另一个方面是它的本质。
这意味着系统中的人的实际规则、规范和行为模式。
11 , the law of contract is concerned with the enforcement of promissory obligations. contractuai liability is usually based on consent freely giventhe parties. in some circumstances,however,the courts will imply a promise(often called implied in law or quasi contract)in order to avoid unjust enrichment in spite of lack of consent by the party who is bound by.合同法与推行义务有关。
(完整版)Unit1LegalSystems
Legal SystemsCommon LawPolitically, it is certainly true to say that each independent jurisdiction has its own independent legal system. However, in terms of legal traditions and legal methods, most of the world’s legal systems belong to one of a few legal traditions. In the Western World, and in parts of the world that have been colonized or strongly influenced by the West, there are two main legal traditions or legal families—the civil law and the common law.Common law is law developed by judges through decisions of courts and similar tribunals (also called case law), rather than through legislative statutes or executive branch action. A "common law system" is a legal system that gives great precedential weight to common law on the principle that it is unfair to treat similar facts differently on different occasions. The body of precedent is called "common law" and it binds future decisions. In future cases, when parties disagree on what the law is, an idealized common law court looks to past precedential decisions of relevant courts. If a similar dispute has been resolved in the past, the court is bound to follow the reasoning used in the prior decision (this principle is known as stare decisis). If, however, the court finds that the current dispute is fundamentally distinct from all previous cases (called a "matter of first impression"), judges have the authority and duty to make law by creating precedent. Thereafter, the new decision becomes precedent, and will bind future courts.In practice, common law systems are considerably more complicated than the idealized system described above. The decisions of a court are binding only in a particular jurisdiction, and even within a given jurisdiction, some courts have more power than others. For example, in most jurisdictions, decisions by appellate courts are binding on lower courts in the same jurisdiction and on future decisions of the same appellate court, but decisions of lower courts are only non-binding persuasive authority. Interactions between common law, constitutional law, statutory law and regulatory law also give rise to considerable complexity. However stare decisis, the principle that similar cases should be decided according to consistent principled rules so that they will reach similar results, lies at the heart of all common law systems.Common law legal systems are in widespread use, particularly in England where it originated in the Middle Ages, and in nations that trace their legal heritage to England as former colonies of the British Empire, including the United States, Singapore, Pakistan, India, Ghana, Cameroon, Canada, Ireland, New Zealand, South Africa, Hong Kong and Australia.Origins of the two legal traditions and their diffusion around the world1) common lawThe common law tradition originated in England. A new legal order was established as early as 1066 by the Norman conquest, but the common law did not exist in 1066. William the Conqueror did not abolish the local customs and the local courts. Local courts continued to apply local customs. There was no law common to the whole kingdom. The King did however establish some royal courts at Westminster. Their jurisdiction was at first very limited but eventually expanded to the point where the local courts fell into disuse. The decisions of the royal courts became the law common to the whole kingdom, the common law.The common law has its source in previous court decisions. The main traditional source of the common law is therefore not legislation but cases. This is so true that when the common law evolved into an unfair set of rigid and formal procedural rules the King, rather than legislate toamend the law, created a new court. When a subject thought that a common law decision lead to an unfair result he (and at the time usually not she) would petition the King. There were so many petitions that the King created the court of Chancery which could grant a discretionary relief “in equity” to correct the common law. The decisions of this court gave birth to a bo dy of law called equity which is also based on previous judicial decisions. Both law and equity are part of what is called the common law tradition.The British Empire brought the common law to all continents. The common law was “received” in many countries but its reception has been most successful in countries where the European settlers became a majority and imposed their law over indigenous populations. This is the case in Australia, English Canada, New Zealand and the United States (except Louisiana where the civil law was in place before the United States gained jurisdiction.) The common law was also imposed on many other colonies but usually with some adaption to take into account the local customs. In some cases, the United States imposed parts of the common law on newly entrusted territories (e.g. the Philippines). Still today in Africa and Asia, former British colonies continue to apply the common law. Today, India is the most populous common law country.A note about the common law in the United States. Because of the early independence of the United States, the common law here has evolved separately from the common law of England and of other Commonwealth countries. Commonwealth nations became independent only fairly recently, and even long after they were independent, some nations continued to allow appeals to the Judicial Committee of the Privy Council in London (some countries still allow such appeals). This has had a unifying effect on the law of these countries and still today the courts of one country will consider the decisions of the courts of another Commonwealth country as very persuasive. By contrast, only rarely, if ever, does a United States court determining a matter of domestic law invoke a decision of a foreign country’s courts. It is therefore even more striking that notwithstanding years of “legal separation” the law of this country still has so much in common with the law of other common law countries.2) civil lawThe origins of the civil law go further back. They can be traced to the Twelve Tables of the Republic of Rome (probably in the fifth century B. C.). In its origin, it is the law of the city of Rome, the law applied to a citizen (in Latin, civis) of Rome as opposed to the law applied to a non-citizen. The expressio n “civil law”, in Latin jus civilis, literally means the law of the citizens of Rome.After the fall of the Western Roman Empire (476 A. D.), the so-called barbarians brought their law to Rome, and although Roman law continued to apply to the Romans, the Germanic influence grew quickly and the law became more and more a mixture of Germanic and Roman law. This would later be known as the vulgarized Roman law. This law had very little in common with the classic Roman law. Canon law, the law of the Catholic Church, was the only Western legal system that kept intact many elements of the Roman law. However, in 529-34, the Eastern Roman Emperor Justinian published the Corpus Juris Civilis, an articulation and reformulation of Roman law. The Justinian Code and accompanying compendia remained in force in Byzantium until and even after the fifteenth-century conquest by the Ottoman Turks.At the end of the eleventh century, the University of Bologna started teaching Roman law, more specifically the Corpus Juris Civilis. This was at first a purely intellectual endeavor since Roman law was no longer the law anywhere in Western Europe. This marked the beginning of what wouldlater be known as the resources of Roman law. Soon other Western European universities followed the Bologna’s lead and after a few centuries and for reasons too complex to be considered here, the Roman law was received almost everywhere in continental Europe. It became the jus commune(the “common law”) of continental Europe.The Roman law actu ally “received” was in fact limited to what we call “private law” (property, torts, contracts, etc.). That is why civilian jurists refer to what we call private law simply as “the civil law” (persons, property and obligations).Although most civil law countries now have a civil code, codification is in fact a fairly recent phenomenon. The first French Civil Code dates back only to 1804 and the first German Civil Code, to 1896 (in force in 1900).The French and German Codes are the two main civil law models. Napoleon brought his Code wherever he and his armies traveled. The French model has been influential in Latin countries both in Europe and in America (Central and South America, Louisiana and Quebec). It has also influenced former European countries before the Soviet occupation. German law has also been received by Japan.Legal methods—a comparisonYou must understand that a civil-law legal method course would be completely different from the course you are now taking. It is important at the beginning of your legal career that you realize that law can take different forms and play different roles in different societies and cultures. What you will be studying is not the law as it necessarily has to be but the law as it is in the United States. Here are a few differences between the civil law and common law.First and foremost, in common law countries, cases are usually considered to be the primary source of law. Your legal method class starts with the study of cases. In civil law countries, cases are simply not a source of law—at least in theory. The reality might well be that legislation has become extremely relevant in common law countries and that cases are becoming more and more relevant in civil law countries, but the attitudes of civilians and common lawyers toward legislation and cases differ greatly.Civil law jurists will consider the civil code as an all encompassing document. They will interpret it generously in order to allow it to reach its goal of regulating the whole private law. The code lends itself to this kind of interpretation since its articles are usually drafted in very general and abstract terms.On the contrary in common law jurisdictions legislation tends to be considered as an exception to the case law. The courts therefore have a tendency to interpret legislation more restrictively. In consequence both the courts and the legislator tend to enunciate legal rules in very specific terms meant to resolve very specific problems. Generally, cases and legislation will not tend to use abstract terms or to enunciate general principles.Civil law students will read “law doctrine” more than cases. The “doctrine” is the cumulated writings of law professors on what the law is or should be. In civil law the “doctrine” is considered to be a source of law and a highly respected one. You have to remember that the University, not the courts, reintroduced the civil law in Continental Europe. It is therefore not surprising that law professors still have an important role in defining the law. Common law professors generally do not enjoy a similar prestige within their own jurisdiction. Here the judges get most of the prestige.Legal education differs a lot from country to country but it is fair to say that American legaleducation is very original and in many respects unique. The case method or Socratic method is peculiar to this country. It must be clear to you by now that the “case” method could not have been thought of in a civil law country. In those countries (as in the case in England) law is an undergraduate degree. Legal education tends to be longer than in the United States. The teaching style is magisterial—the professor exposes the law to his or her students, who take notes and do not intervene in class.Case Law: Origins, Nature and AuthorityJane GinsburgHow Cases Make LawThe decisions of judges, or of other officials empowered by the constitution or laws of a political entity to hear and decide controversies, create case law. As the name “case law” suggests, a particular decision, or a collection of particular decisions, generate law—that is, rules of general application. How is it that a court’s determination of the rights and obligations of the particular parties before it can apply to the disputes of persons who were not before the court? From the point of view of parties to a lawsuit or other contested controversy, what matters is the immediate outcome, the result the tribunal reaches in their case. Suppose that A has sued B for damages for asserted breach of contract, and that the court has reached a decision in their case. For A and B, the decision has immediate, and specific significance: B either will or will not have to pay a determined amount of damages to A. In the view of judges, lawyers, and law students, however, the decision takes on broader perspective. The decision becomes a possible source of general applicable case law. In other words, the decision in A v. B becomes authority for determining subsequent controversies. Just as the court in A v. B will have sought guidance from prior, similar, decisions, so later judges and advocates will look to A v. B for a rule by which to measure later parties’ conduct.The wider authority of prior decisions in individual cases may not seem self-evident at first, but consider the possible proposition. Suppose a society in which every disputed claim is heard and decided on its own individual merits, and with no regard whatever for consistency of the results from case to case. This society offers the means of setting dispu tes, but the society has no “case law.” Each decision presents a result unto itself. Each decision is therefore unpredictable. Unpredictability in adjudication may provoke both instability in social relations, and the fear that little more than personal wh im controls the judge’s decision.There is in fact, in most societies, a strong urge to make general law from particular decisions. How are we to account for this widespread inclination to make general law from particular decisions? Karl N. Llewellyn, the leading spokesman for the group of legal philosophers known as the American Legal Realists, offered the following explanation:“Case law in some form and to some extent is found wherever there is law. A mere series of decisions of individual cases does not of course in itself constitute a system of law. But in any judicial system rules of law arise sooner or later out of such decisions of cases, as rules of action arise out of the solution of particular problems, whether or not such formulations are desired, intended or consciously recognized. These generalizations contained in, or built upon, past decisions, when taken as normative for future disputes, create a legal system of precedent. Precedent, however, is operative before it is recognized. Toward its operation drive all those phases of human make-up which build habit in the individual and institutions in the group:laziness as to the reworking of a problem once solved; the time and energy saved by routine as a curb on arbitrariness and as a prop of weakness, inexperience and instability; the social values of predictability; the power of whatever exists to produce expectations and the power of expectations to become normative. The force of precedent in the law is heightened by an additional factor: that curious, almost universal, sense of justice which urges that all men are properly to be treated alike in like circumstances. As the social system varies we meet infinite variations as to what men or treatments or circumstances are to be classed a s ‘like’; but the pressure to accept the views of the time and place remains.”Students will become aware, as their study of law proceeds, that adherence to precedent has its other side. A court that follows precedent mechanically or too strictly will at times perpetuate legal rules and concepts that have outlived their usefulness. The continuing problem in a legal system that recognizes past decisions as authoritative sources of law for future cases is how to maintain an acceptable accommodation of the competing values of stability in a law, served by adherence to precedent, and responsiveness to social change, which may call for the abandonment of an outworn legal doctrine. This problem of stability versus change will be a recurring theme in this casebook.The Common Law Doctrine of PrecedentProfessor Llewellyn was undoubtedly right in his contention that case law can be found “in some form and to some extent” in every legal system. But case law is uniquely authoritative and influential in a “common law country,” which the United States is by inheritance from England. The Anglo- American legal system, unlike the “civil law” system which prevails with variations in most of the other non-Commonwealth countries of the world, explicitly recognizes the doctrine of precedent, known also as the principle of stare decisis. It is the distinctive policy of a “common law” legal system that past judicial decisions are formally and “generally binding” for the disposition of factually similar present controversies. This basic principle, firmly established centuries ago in the royal courts of England, was naturalized as American by the “reception” of common law in the United States.When, and for what future cases, will a judicial decision or groups of decisions operate as precedent? The term “precedent” is a crucially important term of art in the vocabulary of our law. Let us note, first, a kind of territorial limitation: a judicial decision is a precedent in the full sense of the word only within the same judicial sy stem or “jurisdiction.” Thus a decision of the Supreme Court of California is a precedent and so generally binding in future “like” cases in that court and in “lower” California courts, but it is not a full-fledged precedent for future case arising in the courts of Ohio or Vermont or some other state. Even a decision of the Supreme Court of the United States is not a binding precedent in a state court, say the Court of Appeals of New York, unless the legal issue decided by the Supreme Court decision was a federal question, that is, one involving the interpretation or effect of a federal statute or regulation or of the Constitution of the United States.Even within the same jurisdiction, a decision is precedent only for “like,” that is, factually similar, future cases. To put the matter more precisely, a judicial decision is a precedent, and so generally binding, only in future cases involving the same material facts. As the first-year law students will soon discover, this limitation is far easier to state in general terms than to apply in concrete situations. No two disputes will ever be identical in every factual particular. How is one to determine, or argue, that a factual difference between a past decided case and a case nowpresented for decision is, or is not, a difference in material facts? Case law processes require careful analysis, matching and distinguishing of the facts of cases. By the end of the first semester, the beginning law student will find that case matching and comparison has become a matter of his or her second nature.Even when the jurisdiction is the same and the pending new case is found to possess the same material facts, some judicial decisions will have greater weight as precedent than others. Thus, for example, the weight or influence of a precedent is greatly affected by the place of the court that decided it in the judicial hierarchy of its jurisdiction, that is, by whether it was a “higher court” decision or a “lower court” decision. Three tiers of courts exist in the federal judicial structure and in the more populous states: (1) trial courts, (2) intermediate appellate courts, and (3) a highest appellate court or “court of last resort,” called in most jurisdictions the Supreme Court. Less populous states are likely to have only two tiers in their judicial structures: trial courts and an appellate court of last resort. One should not assign the same force as precedent to the decision of a state intermediate appellate court as to a decision of that state’s court of last resort, and should not expect a decision of a United States Court of Appeals to have the same precedent force as a decision of the Supreme Court of the United States. As to the decisions of the trial courts, particularly State trial courts, where most of law’s da y-to-day business is done, these are rarely published and, even when published, are not likely to have much force as precedent except in future cases in the same trial court. As a result, the overwhelming majority of the cases included in the law school casebooks are decisions of appellate courts.“Res Judicata" and “Stare Decisis”; “Reversal” and “Overruling”Every final decision of an appellate court has a dual impact or effect: (1) as an authoritative settlement of a particular controversy then before the court; and (2) as a precedent, or potential precedent, for future cases. A lawyer’s Latin expression denominates each of these effects: stare decisis, as we have seen, for the impact of the decision as precedent; res judicata for its effect as a resolution of the immediate controversy. Do not confuse these Latin terms and the concepts they symbolize. The latter addresses a decision’s impact in the individual case; the former, its impact on the legal norm of conduct.The following example should illustrate the difference. Suppose that P (plaintiff) sued D (defendant) advertiser in State X, for using P’s photograph without his permission in an advertisement for breakfast cereal. The trial court decides in D’s favor, on the ground that in State X, there is no claim against the non consensual use of private citizens’ private photographs for purposes of trade, nor have the courts there recognized a “right of privacy.” The Supreme Court of X, the court of last resort in that state, affirms the judgment. This decision is a final and conclusive settlement of the controversy between P and D: The case is now res judicata, and the losing party, P, cannot bring this claim again.Now, to make plain the difference between res judicata and stare decisis as legal terms of art, suppose further that the Supreme Court of X, two years later, and in another case involving the non consensual use of private citizens’ private photographs for purposes of trade, is persuaded that its refusal to recognize a right of privacy in this contexts is not a sound legal doctrine for present-day conditions, and so “overrules” P v. D, thus finding against the advertiser in the new case. Although this overruling decision is a deviation from the norm of stare decisis, U. S. courts of last resort have never regarded precedents as absolutely binding—only as “generally” binding—and have reserved to themselves a largely undefined authority to overrule even clearprecedents when considerations of public policy require a change in the case law.What, however, of the particular claim of P v. D? Now that the Supreme Court of X has changed the law, and “overruled” the decision reached in P’s case two years earlier, should not P be able to bring his suit again, and prevail in his claim? The answer is clear, and adverse to P. His particular claim has been finally and conclusively settled against him; the doctrine of res judicata bars him from ever suing on that claim again. As a result, the final decision of a court of last resort can be more conclusive and permanent in its aspect as a settlement of a particular case (res judicata) than it may be in its aspect as general law for the future (stare decisis).It is important here to underscore one other distinction in legal terminology: between “overruling” and “reversal.” In the later privacy case, the Supreme Court of X “overruled” its decision in P v. D. The Supreme Court of X did not“reverse” P v. D. The two notions are distinct, and carry different consequences. They are not interchangeable. The highest court of the jurisdiction “overrules” its own precedent. The prior decision continues to bind the parties to it, but the overruled decision is no longer authoritative as to subsequent controversies. By contrast, a higher court “reverses” the decision of a lower court. When a higher court “reverses” a decision, it reviews the lower court’s judgment, and concludes that the lower court has reached an erroneous result (on the facts or on the law) in that case. As a result, the lower court’s judgment is set a side and is no longer effective as to the parties to that controversy.A judicial decision, as we have seen, is a “precedent” in the full sense only within the same jurisdiction. In their opinions, however, American appellate courts frequently—indeed, more often than not—cite and draw upon decisions from other jurisdictions. Thus, for example, the Supreme Court of Tennessee, in support of the result it has reached in a case, may quote from or cite decisions from the courts of last resort of Massachusetts, Oregon, Virginia and a half-dozen other states—even perhaps decisions from England and other “common law” jurisdictions. Such outstate decisions are not full-fledged precedents, but they are accorded the status and weight of persuasive authority, which mea ns that they are not “binding” in any sense but may have influence, often very great influence, in cases where there is no local precedent or the local precedents are conflicting or unclear.The case law process in American courts thus has a considerable comparative-law ingredient: A court of last resort in one state does not consider itself bound to follow another state’s case law rules, but it will carefully consider the outstate decisions and, if it finds their reasoning persuasive, make use of them as sources of guidance and justification. This disposition to give persuasive weight to outstate case authority is not surprising. The “reception” of the common law in the United States means that all the case law decisions of each state reflect common law principle. Because of the important influence of outstate decisions as persuasive authority in American law, law school casebooks, other than those on Constitutional Law and other federal law subjects, usually include cases drawn from many jurisdictions. The law students, as he or she reads cases from different jurisdictions, will find that American appellate courts exhibit a marked degree of comity, mutual respect, for each other’s decisions. Some decisions will have greater influence than others on the thinking of judges in other states. The prestige of the court that rendered the decision, or the prestige of the particular judge (e.g., Cardozo) who wrote the opinion of the court, may also affect the persuasiveness of the decision to the courts of other jurisdictions.However hospitable a court of last resort may be to persuasive authority from other jurisdictions, an outstate case is not as authoritative and should not be assigned the same force as a true local“precedent.” The difference in degree of infl uence is much like the difference between the holding of a case and dictum in a judicial opinion, the “holding” being fully authoritative and generally binding and the “dictum” only, again, persuasive authority. (Jane Ginsburg: Legal Methods)。
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LEGAL STRUCTURES FOR SOCIAL ENTERPRISE AT A GLANCEThis is a rough guide to the legal structures most commonly associated with social enterprise. For more information on them, see the websites listed below. For more general information about business structures, including other options such as partnerships and limited liability partnerships, see . However, there are a variety of legal requirements associated with setting up the structures described below and you should consider seeking professional advice before your organisation adopts any one of them.Legal structure Summary: mosttypical featuresOwnership,governance andconstitutionIs it a legal persondistinct fromthose who ownand/or run it?Can its activitiesbenefit those whoown and/or run it?Assets 'lockedin' forcommunitybenefit?Can it be acharity and getcharitable statustax benefits?Differences in thelaw as it applies inScotland orNorthern Ireland?Unincorporated association Informal; no generalregulation of thisstructure; need tomake own rules.Nobody owns -governed accordingto own rules.No, which cancreate problems forcontracts, holdingproperty and liabilityof members.Depends on ownrules.Would needbespoke draftingto achieve this.Yes, if it meets thecriteria for being acharity.No specificdifferences.Trust A way of holdingassets so as toseparate legalownership fromeconomic interest. Assets owned bytrustees andmanaged in interestsof beneficiaries onthe terms of the trust.No, which meansthe trustees arepersonally liable.Not usually.Trustees/directorscan only benefit iftrust, court or CharityCommission givepermission.Yes, if trustestablished forcommunitybenefit.Yes, if it meets thecriteria for being acharity.No, subject todifferences betweenEnglish and Scotstrust law.Limited company (other than Community Interest Company) Most frequentlyadopted corporatelegal structure; canbe adapted to suitmost purposes.Directors managebusiness on behalf ofmembers.Considerableflexibility over internalrules.Yes, members'liability limited toamount unpaid onshares or byguaranteeYes, but no dividendsetc to members if it isa company limited byguarantee.Would needbespoke draftingin articles, whichcould beamended bymembers.Yes, if it meets thecriteria for being acharity.Scotland: no.Northern Ireland:separate but similarlegislation.Community interest company (CIC) An effective limitedcompany structure forsocial enterprise withsecure 'asset lock'and focus oncommunity benefit.As for other limitedcompanies, butsubject to additionalregulation to ensurecommunity benefits.Yes, members'liability limited toamount unpaid onshares or byguarantee.Yes, but must benefitthe wider community.Can pay limiteddividends to privateinvestors anddirectors can be paid.Yes, throughstandardprovisions whichall CICs mustinclude in theirconstitutions.No, but canbecome a charity ifit ceases to be aCIC.Scotland: no.Northern Ireland:legislation not yet inplace.Industrial & Provident Society (IPS)(Co-operative)For bona fide co-operatives that servemembers’ interestsby trading with themor otherwisesupplying them withgoods or services.Committee / officersmanage on behalf ofmembers. Onemember, one vote(regardless of size ofrespectiveshareholdings).Yes, membersliability limited toamount unpaid onshares.Yes, but should do somostly by memberstrading with society,using its facilities etc,not as a result ofshareholdings.Would needbespoke draftingin articles, whichcould beamended bymembers.No, would have tobe constituted ascommunity benefittype of IPS.Scotland: no.Northern Ireland:separate but similarlegislation.Industrial & Provident Society (IPS) (Community Benefit Society (BenComm))Benefit communityother than just ownmembers and havespecial reason not tobe companies.Like Co-op type, butnew legislationprovides option ofmore secure form of'asset lock'.Yes, membersliability limited toamount unpaid onshares.Must primarily benefitnon-members - 'assetlock' applies.Yes, asset lockonly survivesdissolution if newstatutory form ofasset lockadopted.Yes, if it meets thecriteria for being acharity.Scotland: no.Northern Ireland:legislation not yet inplace.Charitable Incorporated Organisation First ready-madecorporate structurespecifically designedfor charities.Similar to companybut with differentterminology, eg'charity trustee'instead of 'director'.Yes, memberseither have noliability or limitedliability.Members are notpermitted to benefitand charity trusteesare only able tobenefit if constitution,court or CharityCommission givepermission.Yes. Cannot beanything but acharity, and mustmeet the criteriafor being a charity.Scotland: separatebut similarlegislation andregulator. NorthernIreland: legislationnot yet in place./pa ges/doing/small_firms/ms r/societies/index.shtml /regist ration/charcio.asp。