INGLÊS JURÍDICO

SEGUNDO
SEMESTRE
 ~ 2º SEMESTRE, 1º TESTE ~
Common Law and Civil Law
Nations follow one of 2 major LEGAL TRADITIONS:

Common Law => emerged in England during Middle Ages [applied within British
colonies]

Civil Law => developed in continental Europe during Middle Ages [applied in the
colonies of European imperial powers – Portugal, Spain]. BUT it was also
adopted in the 19th and 20th centuries by countries formerly possessing distinctive
legal traditions [Russia, Japan].

Common Law
Common Law is uncodified > there is no comprehensive compilation of legal rules
and statutes.

It relies on some scattered statutes – legislative decisions – BUT its largely based
on precedent (the judicial decisions have already been made in similar cases).

The precedents are maintained over time through the records of the courts as
well as historically documented in collections of case {yearbooks and reports}.

The precedents to be applied in the decision of each new case are determined
by the presiding judge.

JUDGES have an enormous role in shaping American and British Law.

Common Law functions as an adversarial system, a contest between two

opposing parties before a judge who moderates. A jury of ordinary people without
legal training decides on the facts of the case. The judge then determines the
appropriate sentence based on the jury’s verdict.

 Historical development:

English Common Law emerged from the changing and centralizing powers of the
king during the Middle Ages.
New forms of legal action established by the crown functioned through a system
of writs1, or royal orders, each of which provided a specific remedy for a specific
wrong.

The system of writs became so highly formalized that the laws the courts could
apply based on this system were too rigid to achieve justice in an adequate
way. In these cases, a further appeal to justice would have to be made directly
to the king. This gave birth to a new kind of court – the court of equity.

Courts of equity were authorized to apply principles and equity based on many
sources (such as roman law and natural law), rather than to apply only the
common law, to achieve a just outcome.

Courts of law and courts of equity functioned separately until the writs
system was abolished in the mid-19th century. However, even today, some
US states maintain them separate. Certain kinds of writs, such as warrants and
subpoenas, still exist in the modern practice of common law. Example: the writ of
habeas corpus, which protects the individual from unlawful detention.

In the Middle Ages, common law in England coexisted, as civil law did in other
countries. Church courts applied canon law, Chancery and maritime courts
applied Roman Law.

Only in the 17th century did common law triumph over the other laws when
Parliament established a permanent check on the power of the English king and
claimed the right to define the common law and declare other laws subsidiary to
it. This evolution of a national legal culture in England was contemporaneous with
the development of national legal systems in civil law countries during the early
modern period.

But where legal humanists and Enlightenment scholars on the continent looked
to shared civil law traditions as well as national legislation and custom, English
jurists of this era took great pride in the uniqueness of English legal customs and
institutions. That pride resulted in the first systematic, analytic treatise on English
common law: William Blackstone’s Commentaries on the Laws of England.

1 Writ: document informing someone that they will be involved in a legal process and instructing
them what they must do
In American Law, Blackstone’s work now functions as the definitive source
for common law precedents prior to the existence of the United States.

Civil Law
Civil Law is codified > there are comprehensive, continuously updated legal
codes that specify all matters capable of being brought before a court, the
applicable procedure, and the appropriate punishment for each offense.

The codes distinguish between different categories of law:

• substantive law – establishes which acts are subject to criminal or civil

prosecution.
• procedural law – establishes how to determine whether a particular action
constitutes a criminal act.
• penal law – establishes the appropriate penalty.

In a Civil Law system, the judge’s role is to establish the facts of the case and to
apply the provisions of the applicable code. The judge often brings the formal
charges, investigates the matter, and decides on the case BUT they work within
a framework established by a comprehensive, codified set of law. The judge’s
decision is consequently less crucial in shaping civil law than the decisions of
legislators and legal scholars who draft and interpret the codes.

 Historical development:

Civil Law – Latin ‘’ius civile’’ > the law applicable to all Roman citizens.

The origins and model are found in the monumental compilation of Roman law
– it was lost to the West within of decades of its creations. However, it was
rediscovered and made the basis for legal instructions in the 11th century Italy
and in the 16th, century came to be known as Corpus iuris civilis.

Legal scholars throughout Europe adapted the principles of ancient Roman law
in the Corpus Iuris Civilis to contemporary needs.

Medieval scholars of Catholic church law, or canon law, were also influenced by
Roman Law scholarship as they compiled existing religious legal sources into
their own comprehensive system of law and governance for the Church.
By the late Middle Ages both laws, civil and canon, were taught at most
universities and formed the basis of a shared body of legal thought
common to most of Europe.

The Birth and evolution of the medieval civil law tradition based on Roman Law
was integral to European legal development – it offered a store of legal principles
and rules invested with the authority of ancient Rome and centuries of
distinguished jurists; it held out the possibility of a comprehensive legal code
providing substantive and procedural law for all situations.

Civil Law came into practice throughout Europe, so the role of local custom as a
source of law became important. One attempt was the emblematic Dutch jurist
Hugo Grotius and his 1631 work – Introduction do Dutch Jurisprudence, which
synthesized Roman Law and Dutch Customary Law into a cohesive whole.

In the 18th century the reforming aspirations of Enlightenment rulers aligned with
jurists’ desire to rationalize the law to produce comprehensive, systematic legal
codes. Such codes, shaped by Roman Law tradition, are the models of
today’s civil law systems.

 Civil Law influences in American Law:

The American Legal system remains firmly within the common law tradition
brought to the North American colonies from England. Yet traces of the civil law
traditions and its importance in the hemisphere may be found within state legal
traditions across de United States. Most prominent is the example of Louisiana –
state law is based on civil law as result of Louisiana’s history as a French and
Spanish territory prior to its purchase from France in 1803.

While Blackstone prevails as the principal source for pre-American precedent in

the law, it is interesting to note that there is still room for the influence of Roman
civil law in American legal tradition.

The founding fathers and their contemporaries educated in the law knew not only
the work of English jurists such as Blackstone, but also the work of great civil law
jurists and theorists.
Pierson v. Post: a New York judge, deciding on a case that involved a property
dispute between two hunters over a fox, cited a Roman Law principle on the
nature and possession of wild animals from the Institutes as the precedent for his
decision. Today Pierson V. Post is often one of the first property law cases taught
to American Law Students.

United States v. Robbins: a 1925 California case that went to the Supreme Court
and paved the way for the state’s modern community property laws, was based
upon a concept of community property that California inherited not from English
common law but from legal customs of Visigothic Spain, that dated to the fifth
century CE.

Cases such as these illuminate the rich history that unites and divides the civil
and common law traditions and are a fascinating reminder of the ancient origins
of modern law.
Legal Systems: UK and USA
The structure of the law
The study of law distinguishes between PUBLIC LAW and PRIVATE LAW, but
in legal practice in the UK the distinction between CIVIL LAW and CRIMINAL
LAW is more important to practicing lawyers.

 Public Law => relates to the state; concerned with laws which govern
processes in local and national government; conflicts between the
individual and the state in areas (immigration, social security).
 Private Law => concerned with relationships between legal person –
individuals and corporations (family law, contract law, property law)
 Criminal law => deals with certain forms of conduct for which the state
reserves punishment (e.g., murder and theft). The state prosecutes the
offender.
 Civil law => concerns relationships between private persons, their rights,
and their duties; it is concerned with conduct which may give rise to a claim
by a legal person for compensation or an injunction – an order made by
the court.

Each field of law tends to overlap with others.

 Substantive law => creates, defines, or regulates right, liabilities and

duties in all areas of law.
 Procedural law => defines the procedure by which a law is to be enforced.

Substantive law and procedural law contrast with one another.

United Kingdom’s Legal System:

The Monarch: at the top; has no powers; is head of state; does not rule;
represents the nation; is the link between past present and future [Currently the
Queen].

The Executive System: government – prime-minister [Currently Boris].

The Legislative System: The Westminster Parliament – it is divided in two
chambers: The House of Lords (nobility) and the House of Commons
(commoners, common people). The two chambers sit separately and are
constituted of different principles.

The Judicial System: Courts – the highest court in the land used to be the House
of Lords but that has changed, the UK has undergoing a reformation of their
constitutional system. The highest court is the High Court.

There is no written constitution, but the constitutional law consists of statute law,
common law, and constitutional conventions.

UK’s Jurisdiction:
 What kingdoms are united? We are talking about 3 kingdoms: England,
Scotland, and Ireland.
 Who is the grand monarch of the UK? Queen Elizabeth II.
 Who is the heir to the throne? Prince Charles, the prince of Wales. Wales
is a principality within the English Kingdom; that is why Wales is not a
kingdom, it belongs to the realm of England.
 That is why there are 3 kingdoms and one of them, England, has a
principality attached to them – WALES.
 The UK has 4 countries (England, Scotland, Northern Ireland, and Wales)
and 3 jurisdictions (English, Scottish, Irish).
 There are 3 legal systems within the same kingdom, and each of them has
its own Assembly or Parliament (the only one that does not have on is
England).
 The members of the Scottish Parliament are called SMPs (Scottish
Member of Parliament). The members of the British Parliament are called
MPs (Member of Parliament) and they used to have their own MIPS
(Members of the European Parliament – they do not have them anymore
since the UK left the EU).
 European law no longer has any jurisdiction in the UK, they used to when
they belonged to the EU, and that is one of the points of contention that
lead to Brexit.
United States’ Legal System:
The Executive System: President of the USA – POTUS [Currently: Joe Biden].

The Legislative System: Congress, divided in two chambers: The House of the
Representatives and The Senate, which is the upper house. The Senate
represent the states (2 representatives per state = 100 senators) *. The House of
representatives represents the people of each state = 125 representatives. Each
state has a different number of representatives because it is proportional to their
population. That means that a state like California, with 4M people, will have more
representatives than Rhode Island, which is the smallest state in the union.

*Currently they are talking about having a 51º state, the district of Colombia, and
it will have two senators as well and maybe Porto Rico too.

The Judicial System: Federal Courts – Supreme Court of the United States of
America, with 9 justices.

Who elects the President of the US?

 The electoral college.

And who do they represent? =>

They represent the states (so they elect the president, not the people).

The Constitution of the USA: Federal Constitution; tries to keep balance

between the states and the people. It has been amened 27 times and the first-
time amendments are called the Bill of Rights.

The US constitution is the second constitution. The first one did not last long. It
was called The Articles of Confederation; the states were republics, and the
republicans came together to fight the British and then they would live separate
lives. But then they revised it in 1787 and a new constitution was implemented in
1789, so the first ten – Bill of Rights – were approved.

The USA has a hugely different understand from our European reality.
So, both USA and UK have a Parliament or Congress, and it is a double chamber
legislative assembly. In Portugal, we follow a semi president system. The
executive is the Government, the legislative with one chamber (parliament and
the judicial with courts.

Constitution for Europe:

The Constitution for the European Union was made in 2003, and it did not go
through because the French and the German voted against it.
VOCABULARY AND NOTES:
Latin terms used for the legal principles:
 Stare decisis – principles of binding precented.
 Ratio decidendi – the rule at law reasoned.
 Obiter dictum – persuasive authority.

Important notes:
Quebec and Louisiana, as mentioned before, do not have common law systems
because they had the influence of France and Spain, so they use civil law. USA
did not override their systems, they incorporated them.

In USA courts, lawyers use precedent cases and apply them to another case =>
CASE CITATION.

Vocabulary:
Override – canceled, ignored.

Binding – compelled to obey, you have to follow it.

Hence – therefore, that is the reason why.

Whilst – although.

Barrister – type of lawyer.

Enact – to pass law, to approve, to create.

Government’s white papers – reports or analysis of laws, examination.

Enshrines – means that the principles fixed in a law cannot be violated –

principles that are particularly important.

Exercises:
 Criminal Law is a law relating to acts committed against the law which are
punished by the state.
  Public Law is concerned with the constitution or government of the state,
or the relationship between state and citizens.
 Procedure Law is rules which determine how a case is administered by
the courts.
 Civil Law is concerned with the rights and duties of individuals,
organizations, and associations (such as companies, trade unions, and
charities), as opposed to criminal law.
 Procedural Law is common law and statute law used by the courts in
making decisions.
 In many systems a president rather than a monarch is head of state.
 The UK system has a parliament with two chambers.
 As in other countries, the courts are organized in a hierarchy of levels.
 The Scottish Parliament has the jurisdiction to legislate on subjects not
reserved to Westminster.
 The EC is an important legislative authority in most European countries.
 A number of international conventions have been incorporated into
national law.

Civil Law: 1) legal system developed from Roman codified law, established by a
state for its regulation; 2) area of the law concerned with non-criminal matters,
rights, and remedies.

Common Law: legal system which is the foundation of the legal systems of most
of the English-Speaking countries of the world, based on customs, usage, and
court decisions (also case law, judge-made law).

Criminal Law: area of the law which deals with crimes and their punishments,
including fines and/or imprisonment (also penal law).

TEXT CONTRASTING CIVIL LAW, COMMON LAW AND CRIMINAL LAW:

 The term ‘civil law’ contrasts with both ‘common law’ and ‘criminal law’. In
the first sense of the term, civil law refers to a body of law based on written
legal codes derived from fundamental normative principles. Legal
disputes are settled by reference to this code, which has been arrived at
through legislation. Judges are bound by the written law and its
provisions.
 In contrast, common law was originally developed through custom, at a
time before laws were written down. Common law is based on precedents
created by judicial decisions, which means that past rulings are taken into
consideration when cases are decided. It should be noted that today
common law is also codified, i.e. (idem est – ou seja), in written form.
 In the second sense of the term, civil law is distinguished from criminal
law, and refers to the body of law dealing with non-criminal matters, such
as breach of contract* (fail to meet the contract’s obligations).

ALTERNATIVE WORDS:

Compelled – bound.

Evaluate – consider.

Follow – apply/rely on.

Note – distinguish.

Refer to – cite.

Following the decisions of higher courts – biding precedent.

Edited – revised.

Pay no attention to – override.

Draft legislation – bill.

Presented – submitted.

Discussed – introduced/proposed.

Incorporates – debated.

Agreed – enshrines.

Shown again – approved.

Formal writing – re-presented.

Done – drafting.

Put forward – undertaking.

 APPROPRIATE WORDS FOR THE SENTENCES

 Well, that decision of the Appeal Court is going to be binding on the case
we have got at trial just now.
 We need to be able to convince the judge that the rule in Meah v. Roberts
is applicable to this case.
 Can you check the case citation? I think the year is wrong.
 Should we add to our argument that Edwards v Peck is a persuasive
precedent given the legal issues, although the judge is not bound to follow
it?

THE PARLIAMENT CAN…

Pass/Enact Acts of Parliament.

Pass/Enact new statutes.

Amend/update existing legislation.

Repeal obsolete law.

Codify statute law, case law, and amendments into one Act.

Consolidate law by repealing and re-enacting in one statute provisions of a

number of statutes on the same subject.

Verb Noun Adjective

Constitute Constitution Constitutional

Legislate Legislation Legislative Verb Noun Adjective

Proceed Procedure Procedural Cite Citation

Convene Convention Conventional Apply Application Applicable

Precede Precedent Preceding

Regulate Regulation Regulatory
Persuade Persuasion Persuasive
Accede Accession
Bind Binding
Elect Election Electoral

Authorize Authorization Authorized

SENTENCES:

 An order made under authority delegated to a government minister by an

Act of Parliament is known as statutory instrument.
 A Bye-law is made by a local authority or a public or nationalized body
and has to be approved by central government.
 Charities like Oxfam and Help the Aged can act as pressure groups,
lobbying for law reform.
 The committee needs to ensure the Bill incorporates the principles agreed
so they check it by scrutinizing the provisions.

LAW, REGULATION, CODE, STATUTE, ORDINANCE AND RULE:

 The rules are quite clear. You cannot smoke in this building.
 A statute, once enacted, remains in force permanently until it is repealed.
 Ignorance of the law is not excuse.
 Doctors must abide by their regulation of practice.
 In most countries the criminal law is contained in a single code, known as
the criminal code or penal code.
 You have to follow the ordinance of the City Council.
 There are two main sources of English law: precedent and legislation.
 Legislation is the body of law which has been formally enacted or made.
 Motorists have to comply with traffic rules.
 The legal code clearly indicates the penalties for such offence.

TYPES OF LAW:

The New EU working hours directive is reported to be causing controversy

amongst the medical profession => NEWSPAPER.

When a statute is plain and unambiguous the court must give effect to the
intention of the legislature as expressed, rather than determine what the law
should or should not be => COURT RULING.

The purpose of this Ordinance is to regulate traffic upon the Streets and Public
Places in the Town of Hanville, New Hampshire, for the promotion of the safety
and welfare of the public => LOCAL GOVERNMENT DOCUMENT.
These workplace safety and health regulations are designed to prevent personal
injuries and illnesses from occurring in the workplace => BROCHURE FOR
EMPLOYEES.

Mr. Speaker, I am pleased to have the opportunity to present the Dog Control
Amendment Bill to the House. It is a further milestone in meeting the changing
expectations we have about what is responsible dog ownership =>
PARLIAMENTARY SPEECH.

MATCH DEFINITIONS:

 Rules issued by a government agency to carry out the intent of law

authorized by a statute, and generally providing more detail on a subject
than the statute => REGULATIONS.
 Law enacted by a town, city or county government => ORDINANCE.
 Draft document before it is made into law => BILL.
 Legal device used by the European Union to establish policies at the
European level to be incorporated into the laws of Member States =>
DIRECTIVES.
 Formal written law enacted by a legislative body => STATUTES.

SENTENCES:

 The Town Council will conduct a public hearing regarding a proposed

ordinance concerning property tax.
 According to the regulations concerning working time, overtime work is
work which is officially ordered in excess of 40 hours in a working week or
in excess of eight hours a day.
 Early this year, the government introduced a new bill on electronic
commerce to Parliament.
 A number of changes have been made to the federal statutes governing
the seizing of computers and the gathering of electronic evidence.
 The European Union directive on Data Protection established legal
principles aimed at protecting personal data privacy and the free flow of
data.
IMPORTANT NOTES:

 ACTS is what it is called to a law that was approved. Before they are
approved, they are called Bill (capitalized always).
 BILL is not a law yet.
 PRIMARY LEGISLATION are acts of Parliament.
 SECONDARY LEGISLATION is a delegated legislation, carried out, made
by other authorities.
 TYPES OF LAW:
➢ Bill – draft legislation.
➢ Law – used as a general term.

EU DIRECTIVES, PRIMARY LEGISLATION, SECONDARY LEGISLATION

EU directives

EUA is bound to follow it.

Primary Legislation

Enacted by legislative body: Parliament/Congress – Acts/Statues.

Secondary Legislation

Regulations/statutory instruments (ministerial departments – Parliament will

enact a law but then its up to a ministry to pass the minutia to all the regulation,
creating specific rules in that law.

Byelaws/ordinances (local authorities).

The words – regulations, code, statute, ordinance – all denote rules of conduct
which are imposed by some authority.

LAW => is the broadest and most general term in this group. It designates a rule
of conduct that is supported by the power of government and that governs the
behavior of members of society.
REGULATION => is a general and less formal word. It denotes any rule or
principle, whether or not it has the effective force of enacted law, which is used
to control or direct some system or organization = rules issued by a government
agency to carry out the intent of the law; authorized by a statute and generally
providing more detail on a subject than the statute.

CODE => denotes an official body of laws that usually pertains to some specific
subject or activity.

STATUTE => refers to any written law enacted by a legislative body and duly
sanctioned by constitutional rule. An Act of Parliament would be considered a
statute = formal written law enacted by a legislative body.

ORDINANCE => denotes any order, rule or statute made by authority or decree
= law enacted by a town, city, or county government.

RULE => refers to a principle or order which guides behavior and says how things
are to be done.

BILL => draft document before it is made into law.

DIRECTIVES => legal advice used by the European Union to establish policies
at the European level to be incorporated into the laws of Member States.

THESE ARE THE WAYS TO REFER TO WHAT A LAW SAYS:

 The law stipules that…

 The law provides that…
 The patent law specifies that…

THESE VERBS CAN ALSO BE USED TO EXPRESS WHAT A LAW SAYS.

THE LAW…

 States…
 Sets forth…
 Determines...
 Lays down…
 Prescribes that…
DEFINITIONS OF DIFFERENT TYPES OF LAW:

Company Law => the area of law relating to business organized as companies.
It includes the formation and ending of companies, their legal status, and the
duties of their members.

EC Law => the system of law created by the European communities.

Civil/Private Law => the part of the law which deals with relations between
ordinary individuals, and also between individuals and the state in circumstances
where the state has no special rights or powers.

Family Law => the area of law relating to the organization of the family and the
legal relation of its members.

International Law => the system of law which regulates relations between
states.

Criminal Law => the law relating to illegal conduct for which a person may be
prosecuted and punished by the state.

Labor Law => the area of law applied to employment, remuneration, conditions
of work, etc.

Public Law => the part of the legal system which deals with the state and also
with relations between the state and ordinary individuals in circumstances where
the state has special rights or powers.

Constitutional Law => the law relating to the legal structure of government in a
state. It defines the principal organs of government and their relationship to each
other and to individuals.

Administrative Law => the area of law relating to the functions and powers of
government organizations and how they operate in practice to administer
government policy.

THE LEGISLATIVE, EXECUTIVE AND JUDICIAL ORGANS IN THE UK =>

TEXT

 Britain is described either as constitutional monarchy (with the monarch as

head of state) or as a parliamentary system. The British political power lies
 on three main branches: legislature, executive and judiciary. These
branches of the governmental system, although distinguishable from each
other, are not entirely separate.
 The Crown is the most ancient secular institution in the UK. It is the
supreme legislative institution although its power is restricted to reigning
not ruling – that is, its political prerogatives are mainly exercised by the
Prime-Minister, his government and the two other branches already
mentioned. The Monarch exercises residual authority by consent of
Parliament. The Queen summons, prorogues and dissolves Parliament.
She opens new sessions and also gives the Royal Assent before a bill
which has passed all its stages in both Houses of Parliament can become
a legal enactment (Act of Parliament).
 In the legislative sphere, Parliament is legally sovereign and master. It
means that all the legislative power within the UK is vested in that
institution. The British Parliament, mainly responsible for law making,
consists of two chambers: the house of lords and the house of commons.
 The house of lords, most of whose members are appointed by the crown
and advised by the government, is a hereditary body presided over by the
lord chancellor who is the head of the judiciary branch.
 The house of commons is an elected and representative body constituted
by 650 members representing different districts or constituencies of
England, Scotland, Wales, and Northern Ireland.
 Bills or proposals, likely to become laws – acts – are usually first
presented in the house of commons by the government, a private MP or
by the lords.
 The proceeding at the house of commons consists of a first and second
reading of the bill, the study of the different clauses of the bill which is
carried out in commissions and the information stage to the whole
chamber to propose possible amendments. After the third reading and
approval, the bill is sent to the house of lords, where it follows a similar
proceeding to be passed or rejected. If rejected it can either be discussed
in a private committee (formed by members of both chambers) or the
commons keep the right of creating a special committee with the purpose
of convincing the lord to approve it. If after this the bill is still rejected, then
 the lords can keep the veto for just one year, after which it can be
presented to the royal assent, becoming an act or law.
 The head of the judiciary system in England and Wales is the House of
the Lords. The Lord Chancellor, its president, is the authority and last
instance in all criminal appeals, whereas the High Court of Justice is the
last instance in civil law. The judiciary power cannot leave without effect
an Act passed by the Parliament and signed by the Monarch. The judiciary
is independent of the legislative and executive branches of government.
The judges of the higher courts determine the law and interpret Acts of
Parliament and European Union Law.
 Britain has no written constitution contained in any one document. Instead,
the constitution consists of statute law (Acts of Parliament); common law
or judge-made law; conventions (principles and practices of government
which are not legally binding but have the force of law); some ancient
documents such as the Magna Carta; and the new addition of the
European Union law.

* assent => concordar

* constituencies => constituintes

* prerogatives => direito/regalia/privilégio

EXPRESSIONS:

 Put into the form of a code => codified

 Earlier decision taken as an example or rule for what comes later =>
precedent
 That obliges somebody to do something => bound to / binding
 Simply => merely
 Task or duty => role
 Brought or gathered together => collected
 According to a custom => customary
 Found or distributed in a large area => widespread
 Restrictions / limitations => constraints
 Embodied => enshrined
CODE OR PRECEDENT => TEXT:

Many countries, particularly in Continental Europe, have no doctrine of binding

precedent. Instead, the main source of law in these countries is a code. Almost
all of the rules of civil and of criminal law have been written out fairly simply, and
then formally enacted by the legislature.

It is largely for historical reasons that the English legal system is based mainly on
precedent rather than on a code, and each alternative has its advantages.

In favor of the English system of judge-made or case law, it is argued that it gives
more flexibility. The law steadily grows as new cases come before the courts, and
new rules develop to meet new situations. A code, once enacted, can only be
changed by a complex legislative process, and can sometimes work injustice as
the rules become outdated. Many European codes for instance, date from the
nineteenth century, and political, social, and economic circumstances have
changed greatly since then.

Systems based on precedent are claimed to be more realistic and practical in

character, being based on actual problems, not on mere theory. On the other
hand, since the courts do not give decisions on academic points it is sometimes
necessary to wait until an actual dispute arises before the law can be known and
this can lead to uncertainty. A code can, without limits, legislate in advance, so
that the parties know what their legal position is without having to go to court to
find out. Finally, although case law provides us with many detailed reports, this
can itself be a drawback. In English law there are at least 1,000 volumes of law
rules in which precedents are to be found. The ease with which cases may now
be discovered by computerized retrieval methods led to the courts expressing
concern at the number of precedents being cited.
 The Passive Voice
John reads the book – Active voice, meaning the action is done by the subject.

The book is read by John – Passive voice, meaning action done to the subject.
The subject changes, something is done to the book now.

Passive voice formula – (be) + Past Participle:

 Regular verbs – ed
 Irregular verbs – no specific ending

Why use the passive voice? Because the passive voice is more formal in
register, more legal, more appropriate.

As we saw in Unit 1, moral or legal obligation may be expressed by certain verbs

often used in the passive voice: forbid, require, force, compel, etc.

Visitors are not allowed to enter the courtroom without permission.

Smoking on these premises is strictly forbidden.

You are supposed to tell the truth in a court. Negative Passive Voice
Everybody is obliged to comply with laws and regulations.

You are expected to collaborate with the prosecutor.

We can also express OBLIGATION with adjectives. The adjectives binding,

statutory, obligatory, compulsory, mandatory and enforceable are alike in
meaning and refer to something that must be done.

 Binding refers to something that must be done or kept because of an

earlier agreement.
 Statutory refers to something that must be done according to statute or
law (‘’obrigação obrigatória’’).
 Obligatory refers to something that is required by law, rule or custom.
 Compulsory is used to refer to something that must be done for any
reason.
 Mandatory refers to something conveying or containing a command.
  Enforceable is used to express something that can be enforced especially
by law.

EXAMPLES:

As a witness your attendance to the trial is OBLIGATORY.

Is military service COMPULSORY in your country?

The clauses of a contract are legally BINDING the moment you sign it.

The local government has a STATUTORY obligation to collect taxes.

The new law is ENFORCEABLE from January.

It is MANDATORY to pay the loan within a fixed period of time.

Joining trade unions is not COMPULSORY for workers.

Apart from the verbs and adjectives mentioned above, we can use certain
prepositional phrases to express legal obligation:

 You are UNDER NO OBLIGATION to say anything if arrested.

 Some citizens think they are ABOVE THE LAW.
 Is it WITHIN OR WITHOUT THE LAW?
The USA Court System
The US system was designed from scratch and so it is very straight forward.

The cases start in the inferior courts, which are 94. You can appeal to US Court
of Appeal – 12 circuits (each one of these receive cases from 4/5 states). Then
you can appeal to the Supreme Court of the USA.

There are 50 states, and each state has its own court [First instance, lover court,
then the appeal court, and supreme state court].

The Federal Court deals with federal or constitutional problems.

Gay marriage is now federal law. Constitutionally, the issue of marriage is left to
each state; each state was free to
determine their definition of marriage.
Some states accepted others did not.
In California they had 2 referenda
(people who voted twice) to determine
if gay marriage should be accepted,
and people decided not to accept it.
But the advocates were not happy
because it can be considered a
constitutional matter and this ended
up in the supreme court, so it was
decided there was a constitutional
issue at stake and to reverse the
popular decision. Now gay marriage
is accepted and recognized.

Each state has its own court system,

and the names may vary but this is the
form of the court system in general.

A State Court can appeal or ask the Federal Court system for guidance if the
issue involves constitutional law. The same thing happens to European law.

The issue is: who rules? The courts and the principle of democracy is put at risk.
The UK Court System
UK’s court is not as straight forward as US’… why?

Due to historical evolution. New courts and

new jurisdictions were created to solve new
problems. What we see here is the
evolution of the court system. So, we have
mixed aspects from that historical
evolution.

Old Court System

New Court System

People in Court:
COURT

 Judge => public official who has the authority to hear and decide cases.
 Claimant/Plaintiff => person who initiates a civil lawsuit.
 Expert witness => person who has specialized knowledge of a particular
subject who is called to testify in court.
 Appellant/Petitioner => person who appeals a decision to a higher court.
 Advocate => person who pleads cases in court.
 Clerk => employee who takes records, files papers and issues processes.
 Bailiff => officer of the court whose duties include keeping order and
assisting the judge and jurors.
 Reasonably prudent person => hypothetical person who uses good
judgment or common sense in handling practical matters, such as person’s
actions are the guide in determining whether and individual’s actions were
reasonable.