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International Comparisons

Thus, in England the law on anyone subject can be found in different cases and statutes. A lawyer dealing with a new case has to look through dozens of cases and statutes to support his argumentation. The same is true, of course, of other common-law countries and jurists. An American lawyer takes the 50 state systems and the federal law into daily account in his practice of the law. The Australian or Indian, or Kenyan lawyer must take into account not only his own national system but also the laws of England and of other common-law jurisdictions in the Commonwealth. But although judges in one common law country cannot directly support their decisions by cases from another, it is permissible for a judge to note such evidence in giving an explanation. In codified systems, the law is more certain since all the legal rules of a country are brought together in one place, in codes, in an accessible and understandable form.

 

Text 1 comprehension questions

Read the text again and answer these questions.

1 Why did equity come into existence?

2 When and why were the common law and equity unified?

3 When and why did legislation acquire the importance it has nowadays?

4 What does the doctrine of the legislative supremacy of Parliament mean?

5 In which three important ways did the Human Rights Act affect the law and public life?

6 Which three conditions are necessary for a local custom to be a separate source of law?

 

True-false statements

Confirm or refute these statements. Begin with a short answer, e.g. 'Yes, it is/has/does, etc.' or 'No, it isn't/hasn't/doesn't, etc. and add one sentence to prove your point.

 

1 Statutes need to be interpreted by judges.

2If a judge disagrees with an Act of Parliament, he can change it by passing his own

decision, and it will become a new law.

3 If an existing law is not compatible with the Convention rights, English Parliament must

revise the law.

4 Most customs are not regarded as a separate source of law.

5 Canon law made the greatest contribution to common law in the areas of contract and

tort.

6 A common law judge may base his decision on precedents from other common law

countries.

 

4. Equity Law

a) Answer these questions.

1 What is equity?

2 How did the Lord Chancellor make his decisions?

 

b) The rules of equity were more flexible than common law. This led one critic to say that equity varied with the length of the Chancellor's foot. Another critic said that in England one court was set up to do an injustice and another to stop it. How do you understand their words?

 

c) There are several sayings, or ‘maxims’, associated with equity. See if you can guess what they mean:

1Equity acts on the conscience.

2 Delay defeats equity.

3He who comes to equity must come with clean hands.

4 Equity looks to the intent rather than the form.

5 Equitable remedies are discretionary.

6 Equity is not past the age of child-bearing.



7 Equity follows the law.

 

d) Write seven well-rounded sentences explaining each maxim.

Custom Law

a) Before you read the text match the legal terms in the box (1-4) with their definitions (a-d).

1 legal memory 2 living memory 3 time immemorial 4 right of way

a. time before legal memory

b. the period over which the law’s recollection extends.

Its commencement was arbitrarily fixed at 1189 by the Statute of Westminster I 1275

c. the right to pass over another’s land

d. the period over which the recollection of living people extends

 

b) Read the following and say what you would have to prove to establish a custom as a law.

 

CUSTOM

Very occasionally a local custom is discovered and the courts, under stringent rules, may accept this. If, for example, someone could prove a right of way which had existed from ‘time immemorial’, then this could become a legal right of way. This source is now very rarely used. An example may assist an understanding of this.

Michael Moss has regularly taken a short cut between his house and a neighbour’s which means his going across land owned by a Mr. Cyril Rubeck. On one occasion he is surprised to see the pathway has been blocked. He seeks legal advice and is told that, if he can show the pathway existed from ‘time immemorial’, which means right back to the eleventh century, then the right of way would be legal. This is difficult to prove and so courts have taken the view that it is sufficient to show it existed within the living memory of the oldest resident of the area who has retained his/her faculties. Michael consults Olwyn Selby, who declares that it was a right of way when she was a child 79 years ago. The burden of proof lies now with Mr. Rubeck who has to show that a right of way could not have existed since the eleventh century because, for example, historical records show the area was completely water-logged for 50 years, between 1715 and 1765.

(Price, 1995, p.31)

6. Speak about the sources of English law. Have a clear plan of your talk. Link the ideas with connecting words and phrases. E.g.: ‘I’ll begin with the first source ... Now I’d like to move on to the next point... To conclude...’

7. ‘Law’ and synonyms

a) Read the following definitions and complete the examples with one of these words:


Date: 2016-03-03; view: 1005


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