Lesson One: Legal System 法律制度
Background背景
自从哥伦布(Christopher Columbus)于1492年航行至美洲之后，大批欧洲人便开始拥向这片"新大陆"。不过，人们通常把第一批英国定居者(the first English ttlers)于1607年到达弗吉尼亚(Virginia)的詹姆斯顿(Jamestown)视为美国法律制度历史的起点。美国法制史可以大体上分为两个时期，即英属殖民地时期(the Period of the English Colonies)和美利坚合众国时期(the Period of the United States)。虽然美国的法律制度是在英国法律传统的基础上形成和发展起来的，但是在近四百年的历史进程中，美国的法律制度也形成了一些不同于英国法律制度的特点，如公诉制度(public procution)等。
高见是什么意思
美国属于普通法系(Common Law Legal System)国家，其法律制度有两个基本特点：其一是以分散制(decentralization)为原则；其二是以判例法(ca law)为主体。美国除联邦政府外，还有州政府、县政府、市政府、镇政府等等，而且这些政府都是相互独立的，各自在其管辖范围内享有一定的立法权和执法权。因此，有人说美国是"一个有许多政府的国家"(a country of many governments)；而美国的法律体系则是一个"零散的无系统"(fragmental no system)。
诚然，美国现在也有很多成文法(written law)或制定法(statutory law)，但是其法律制度仍是以判例法为主体的。换言之，"遵从前例"(stare decisis)仍然是美国司法活动中最重要的原则之一。以上两点对于理解美国的法律制度具有重要意义。
Text课文
Part One
The United States is at once a very new nation and a very old nation. It is a new nation compared with many other countries, and it is new, too, in the n that it is constantly being renewed by the addition of new elements of population and of new States. But in other ns it is old. It is the oldest of the "new" nations--the first one to be made out of an Old World colony. It has the oldest written constitution, the oldest continuous federal system, and the oldest practice of lf-government of any nation.
One of the most interesting features of America冰川时代1’stiffany啥意思 youth is that the whole of its history belongs in the period since the invention of the printing press. The whole of its history is, t
herefore, recorded: indeed, it is safe to say that no other major nation has so comprehensive a record of its history as has the United States, for events such as tho that are lost in the legendary past of Italy or France or England are part of the printed record of the United States. And the American record is not only comprehensive; it is immen. It embraces not only the record of the colonial era and of the Nation since 1776, but of the prent fifty States as well, and the intricate network of relationships between States and Nation. Thus, to take a very elementary example, the reports of the United States Supreme Court fill some 350 volumes, and the reports of some States are almost equally voluminous: the reader who wants to trace the history of law in America is confronted with over 5,000 stout volumes of legal cas.
新东方英语视频
No one document, no handful of documents, can properly be said to reveal the character of a people or of their government. But when hundreds and thousands of documents strike a consistent note, over more than a hundred years, we have a right to say that is the keynote. When hundreds and thousands of documents address themlves in the same ways, to the same overarching problems, we have a right to read from them certain joan什么意思
croquisconclusions which we can call national characteristics.
over the moonPart Two
The American legal system, like the English, is methodologically mainly a ca law system. Most fields of private law still consist primarily of ca law and the extensive and steadily growing statutory law continues to be subject to binding interpretation through ca law. Knowledge of the ca law method as well as of the technique of working with ca law therefore is of central importance for an understanding of American law and legal methodology.
写给朱丽叶的信The Common Law is historically the common general law -- with supremacy over local law--which was decreed by the itinerant judges of the English royal court. The enforcement of a claim presuppod the existence of a special form of action, a writ, with the result that the original common law reprented a system of "actions" similar to that of classical Roman law. If a writ existed (in 1227) a claim could be enforced; there was no recour for a claim without a writ, the claim did not exist. This system became inflexible
when the "Provisions of Oxford" (1258) prohibited the creation of new writs, except for the flexibility which the "writ upon the ca" allowed and which later led to the development of contract and tort law.
The narrow limits of the forms of action and the limited recour they provided led to the development of equity law and equity ca law. "Equity", in its general meaning of doing "equity", deciding ex aequo et bono, was first granted by the King, and later by his Chancellor as "keeper of the King's conscience", to afford relief in hardship cas. In the fifteenth century, however, equity law and equity ca law developed into an independent legal system and judiciary (Court of Chancery) which competed with the ordinary common law courts. Its rules and maxims became fixed and, to a degree, inflexible as in any legal system. Special characteristics of equity law include: relief in the form of specific performance (in contrast to the common law award of compensatory damages), the injunction (a temporary or final order to do or not to do a specific act), the development of so called maxims of equity law which permeated the entire legal system and in many cas explain the origin of modern legal concepts. However, equitable relief
regularly will lie only when the common law relief is inadequate. For instance, specific performance for the purcha of real property will be granted becau common law damages are deemed to be inadequate since they cannot compensate the buyer in view of the uniqueness attributed to real property.smilence
