© 2006 Lola Gamboa García 1 CURSO DE ESPECIALIZACIÓN EN DERECHO PARA TRADUCCIÓN JURÍDICA Y COMUNITARIA Lengua B: Inglés Jurídico Lola Gamboa © 2006 Lola Gamboa García 2 BIBLIOGRAPHY • Alcaraz Varó, E., y Hughes, B. (1.993): Diccionario de términos jurídicos (inglés-español, español-inglés) , Ariel Derecho, Barcelona • Black, H.C. (1.990): Black’s Law Dictionary, Definitions of the Terms and Phrases of American and English Jurisprudence, Ancient and Modern, West, St. Paul, Minn. • Collin, P. H. (1.986): Dictionary of Law, Peter Collin Publishing, Middelsex • Collin, P.H.: Spanish Law (español-inglés-inglés-español), Peter Collin Publishing, Middelsex • Martin, E. A. (1.983): Oxford Dictionary of Law, Oxford University Press, Oxford • Alcaraz Varó, E.(1994): El inglés jurídico, Textos y documentos, Ariel Derecho, 3ª edición. • Riley, A (1991): English for Law, Longman. © 2006 Lola Gamboa García 3 UNIT I: THE ENGLISH LEGAL SYSTEM In this unit we shall be reading about ... -The English legal system -The sources of English Law -Case Law -Law Reports 1.-Reading for general understanding. Back in his country, Thomas returns to his classes at London University. On his first day, he meets Victoria at the canteen, a Spanish student on an Erasmus grant, who is a bit lost on her first day at the English university. Thomas decides to help her. Thomas: Ok Victoria, so let’s start from the very beginning. I know what you are going through, initially everything seems quite a mess. But, you’ll see, soon you will be coping with all new terminology as any other English undergraduate does. Victoria: I really appreciate it, Thomas. First thing I am not very clear about is the sources of English law. Your system seems to be quite different from ours, isn’t it?. Thomas: Yes, that’s right. As in Spain, the word “sources” means the various ways in which the law in the English legal system can come into being, and will be recognised and given effect by the English courts. At the present time the main sources of law reflect the complexity of our modern society. Most new law is produced by delegated legislation, its sources being either the E.U. law or an Act of Parliament. But you must bear in mind that an equally important source of law here is the decisions of the judges in cases forming precedents in the higher courts. Victoria: Really? Thomas: Yes, this is a great difference. A judge in each case is stating what the law is in the circumstances of the particular case and so, in effect, she is making new law. Victoria: So, the two primary sources of English law are ... © 2006 Lola Gamboa García 4 Thomas: Legislation and Case Law. The former refers to law enacted by Parliament. And the latter, also called Common law or Judgement Law, is created by the courts. That’s why it is said that the English legal system is a Common Law System. Victoria: I see. So by case law is meant the decisions of the judges. Thomas: Yes, that’s right. You see, the practical effectiveness of legislation depends on it being published. That’s the same with case decisions; their importance can only be of practical value if there is a full system of law reporting, with the law reports being published immediately following the decision and being made easily accesible to lawyers and other interested parties. Victoria: So, judicial decisions are published in law reports. Thomas: Exactly, and that is the law. Victoria: And, do you have codes? You know, a civil code, a criminal code ... . Thomas: No, basically we don’t. Our system is based on Case Law, whereas your system is a Civil Law system based on Roman Law and codification. Although many continental countries have codified their law, public or private, in England unwritten law is predominant, for more of our law derives from judicial precedents than from legislative enactment. Victoria: That is quite confusing. You know that in my country, law is characteristically derived from a code, that is, from an enacted body of rules which contains the whole of the law, or some considerable part of it. I think this is quite useful in order to find the applicable law, you just have to turn to the codes. It is quite a reliable and accesible system. Thomas: Yes, I see your point. Here the major problem with the two main sources is not accessibility so much as the tremendous bulk of law being produced. Judges make law every day when they deliver judgements. So more and more the maxim “everyone is presumed to know the law” is demonstrably false. That’s why lawyers increasingly tend to specialise in particular branches of the law, in order to keep pace with developments Victoria: I am starting to understand ... . And what about the other sources of English Law?. Thomas: Well, we have the custom and books of authority. But neither of them is fractionally as important today as legislation and case law. Victoria: I see. So, we could say that one thing which is distinctive of the English system is that because the English judge has, through precedent, power to make new law, his position in your legal system is central. © 2006 Lola Gamboa García 5 Thomas: Well done Victoria! You won’t be having any problem in understanding our legal system, I tell you. a.-Comprehension questions. After reading the dialogue, answer the following questions about the English legal system: 1. What are the two main sources of law?. 2. Is most English law codified?. 3. Who makes legislation in England?. 4. May Parliament delegate legislative powers to other bodies? 5. Which are the two sources that are considered to be subsidiary?. 6. What is a judicial precedent? 7. Is Case Law as important as law produced by Parliament?. 8. Where are judicial decisions published? 9. Why do lawyers tend to specialise? b.-New vocabulary. In the dialogue, find the words or expressions whose definitions come below. This exercise is arranged according to the order of appearance of the words/expressions in the text. 1. Place where a trial is held: 2. Legislation which has the power of Acts of Parliament, but which is passed by a body or individual to whom Parliament has delegated its authority: 3. Statute which has been passed by a law-making body (in Great Britain, by Parliament): 4. Something (such as a judgement) which has happened earlier than the present, and which can be a guide as to what should be done in the present case: 5. An official who presides over a court and decides which party is right: 6. The general term for laws, written rules which are passed by Parliament and implemented by the courts: 7. Source which refers to law as established by precedents, that is, by the decisions of courts in earlier cases: 8. Elected group of representatives who form the legislative body which votes the laws of a country. In the UK its formed by the House of Commons and the House of Lords: 9. Regular reports of cases decided by the courts: 10. A complete written formulation of a body of law: 11. The act of codifying laws: 12. A decision made by a court in respect of the matter before it: 13. Areas of law: 14. A practice that has been followed in a particular locality in such circumstances that it is to be accepted as part of the law of that locality: 15. Textbooks that are accepted as an original source of law: © 2006 Lola Gamboa García 6 c.-Matching. Match the items in the left-hand column with their synonyms in the right-hand column. Make law Judgement Case law Judicial decisions Conventional Legislate Statute Promulgate Judicial decision Act Law-making Common law Enact Customary Case decisions Legislative 2.-Reading for detail: Let’s now consider Case Law in detail. Remembering that the English legal system is a common law system, (indeed the mother of all common law systems), the significance of case law (i.e. common law) in creating law cannot be underestimated. The law produced by the courts can be just as important as the law produced by Parliament. By case law is meant the decisions of the judges laying down legal principles of law derived from the circumstances of the particular disputes coming before them. Those decisions are published in law reports, and that is the law. The reason why such importance is attached to case decisions is explained by the doctrine of judicial precedent, which is also known as “stare decisis” (to stand upon decisions). This doctrine, in its simplest form, means that when a judge comes to try a case, she must always look back to see how previous judges have dealt with previous cases (precedents) which involved similar facts in that branch of the law. The decision which she makes will thus seek to be consistent with the existing principles in that branch of the law, and may, in its turn, develop those principles a stage further. Because the branches of the law have been gradually built up over the centuries, the are now hundreds of thousands of reported case decisions available with many more on databases such as Lexis, so that the task of discovering relevant precedents is by no means simple. An added factor, and one of the greatest importance, is that the standing of the precedent is governed by the status of the court which decided the case. Therefore, precedents of superior courts, if found to be relevant to the facts of a particular case, are trated as “binding” on the lower courts. So, the judge in the lower court must follow the © 2006 Lola Gamboa García 7 reasoning and apply it to the case in hand. The judge is thus obliged to decide the case in accordance with the binding judicial precedent. Adapted from “Eddey on the English Legal System”, Penny Darbyshire, Sweet and Maxwell a.-After reading the text determine if the following consequences are to be considered advantages or disadvantages of the doctrine of judicial precedent: 1. Consistency in the application and development of the principles in each branch of the law. 2. The bulk of cases is overwhelming. 3. The task of discovering relevant precedents is by no means simple. 4. Lawyers may forecast with reasonable certainty what the attitude of the court is likely to be to a given set of facts. 5. Increasing complexity in each branch of the law. 6. The system is flexible as it can find an answer to any legal problem. 7. Lawyers need to specialise. Outside a special field of knowledge, the lawyer is likely to flounder nearly as badly as the lay person. 8. Courts are perpetually dealing with actual circumstances. 9. A tremendous wealth of detail and considerable precision. 10. Judges cannot escape from a precedent. 11. People don’t have codes which may allow them to know the applicable law on a certain area. b.-Gap filler: Law Reports. A direct result of the application of the doctrine of judicial precedent is that cases must be properly (1)__________ and that the published reports must be readily (2)__________. One consequence is that in the English legal system there is a vast collection of law reports, of varying degrees of (3)__________, stretching back over the centuries. The earliest case (4)_________ were collected in manuscript form. With the invention of printing, the production of law reports for (5)___________ to the legal profession became common practice. Since 1865, law (6)__________ has been placed on a different basis, although it remains a matter for private (7)__________. A Council was set up in that year and in 1870 was (8)__________ as the Incorporated Council of Law Reporting. It consists of representatives of the Law Society and the Inns of Court, and publishes what have come to be the (9)__________ Law Reports. These are in four series: Appeal cases (A.C.), Queen’s Bench (Q.C.), Chancery (Ch.) and (10)__________ (Fam.). The reports are (11)__________ some considerable time after the judgement has been given, but are regarded as authentic. The Council also publishes the Weekly Law Reports (W.L.R.), which are available sooner, and there is another series called All England Law Reports (All E.R.), which is also published weekly, by a (12)___________ of law publishers. All decisions of the Crown Court, High Court and above, whether or not reported elsewhere, are stored on Lexis, the best known law (13)__________. © 2006 Lola Gamboa García 8 It has long been a practice for the work of law reporting to be done by (14)__________ who attend the court throughout the (15)__________ of the case. The preparation of a law report, and in particular the head-note summarising the relevant facts and the legal (16)_________ arising, is a specialised task. Adapted from “Eddey on the English Legal System”, Penny Darbyshire, Sweet and Maxwell Family Accesible Principles Database Accuracy Hearing Summaries Firm Reporting Barristers Enterprises Reported Incorporated Official Sale Published 3.-Direct Translation exercises. Translate these sentences into your own language: 1. Laws can be either written or unwritten. The expression “written” law signifies any law that is formally enacted. For example, judicial decisions, although reduced to writing in the form of law reports, are “unwritten” law. 2. The reliance upon precedent has been both the hallmark and the strenght of the common law. 3. The authority of the courts is hierarchical: a court which is inferior in authority to another court is bound by a higher court if called upon to decide upon facts similar to facts already tried by the superior court. 4. Statutes are interpreted by the courts. 5. Sometimes cases bear no resemblance to the facts of any previous case. When a judge rules in such a case, he legislates, because future courts must usually follow him. 6. The judges have a field of choice in making their decisions, but they do not exercise their discretion in an arbitrary way. 7. Courts have sought to make rules of law sufficiently general in scope to serve as guides to lawyers faced with the task of giving advice in future legal disputes. 8. The task of attepting to dispense justice, while satisfying the essential need for certainty, has not been an easy one. 9. Customs are social habits, patterns of behaviour, which all societies seem to evolve with no express formulation or concious creation. Law was originally based upon it. Moreover, custom is not solely important as a source of law, for even today some customary rules are observed in their own right and they command almost as much obedience as rules of law proper. 10. In modern times, most general customs have either fallen into desuetude or become absorbed in rules of law. 11. On the Continent the writings of legal authors form an important source of law. 12. Books of authority, written by authors of outstanding eminence, may not only be cited as independent sources in themselves for the law of their times, but also carry a weight of authority almost equal to that of precedents. 4.-Structure of judgements. The most important and binding part of a judgement is the legal reasoning, the reason for the decision or “ratio decidendi” as it is known. Then the remainder of the judgement, which deals by © 2006 Lola Gamboa García 9 way of explanation with cases cited and legal principles argued before the court, is called “obiter dicta” or things said by the way. These two parts are not easy to find in a judgement, they are not indicated not preceeded by any title or heading introducing that part. When in a case a judge is referred to a precedent, the first task of the court is to decide what was the “ratio” of that case, as the “ratio” constitutes the binding precedent. Whilst an “obiter dictum” is not binding, it can, if it comes from a highly respected judge, be very helpful in establishing the legal principles in the case under consideration. So, what are the main parts of English judgements? Now you are presented a real judgement from “The Weekly Law Reports”. Indicate the formal structure of this document. After reading the judgement, answer the following questions about it: a.-Who were the parties to the case? b.-The plaintifs brought an action against the defendants before applying for the interim injunction. What were thay claiming? c.-What did the plaintiffs intend to avoid the defendants to do? What did the shipwoners applied for to yield their purpose? d.-Was the injunction granted by Donaldson J.? e.-What did the plaintiffs do afterwards? f.-Was the appeal allowed or dismissed? g.-Was Lord Denning M.R. creating a precedent?. Why?