Воробьёва Т. А. , Перевалова А. Е. , Лобач Л. Н. , Холодинская И. И.

ВОРОБЬЁВА Т.А., ПЕРЕВАЛОВА А.Е., ЛОБАЧ Л.Н., ХОЛОДИНСКАЯ И.И.

STUDYING LEGAL ENGLISH

Part I

Учебное пособие (в двух частях)

МИНСК 2011

 

Рекомендовано к изданию

Научно-методическим советом МИТСО

протокол № 1 от 12.01.2011

 

Авторы-составители:

Воробьева Т.А., Перевалова А.Е., доценты кафедры иностранных языков МИТСО, Лобач Л.Н., Холодинская И.И., старшие преподаватели кафедры иностранных языков МИТСО

Рецензенты:

Котенко Е.В., кандидат филологических наук, доцент кафедры белорусского и иностранных языков УО «Академия МВД Республики Беларусь»

Титовец Т.Е., кандидат педагогических наук, доцент, заведующая сектором методологии и теории педагогического образования Центра развития педагогического образования БГПУ им. М. Танка

	Studying Legal English: учебное пособие (в двух частях). Часть 1 / авт.-сост.: Воробьева Т.А., Перевалова А.Е., Лобач Л.Н., Холодинская И.И. – Мн.: МИТСО, 2011. – 155 с. Первая часть пособия состоит из 8 разделов, содержащих профессионально ориентированные материалы по следующей тематике: «Право и юриспруденция», «Римское право», «Международное право, его источники, субъекты», «ООН», «Европейский союз и его право». Адресовано студентам юридической специальности дневной формы обучения МИТСО, а также специалистам, изучающим английский язык для применения в правовой сфере деятельности.
		© Воробьева Т.А., Перевалова А.Е., Лобач Л.Н., Холодинская И.И., авт.-сост., 2011 © МИТСО, 2011

 

 

ОГЛАВЛЕНИЕ

ПРЕДИСЛОВИЕ.. 6

UNIT 1: LAW & JURISPRUDENCE.. 7

TEXT 1. HISTORY OF LAW... 7

TEXT 2. JURISPRUDENCE.. 9

TEXT 3. CIVIL LAW... 10

UNIT 2: ROMAN LAW... 12

TEXT 1. ANCIENT ROMAN LAW... 12

TEXT 2. ROMAN LAW... 14

TEXT 3. THE LAW OF JUSTINIAN.. 18

TEXT 4. ROMAN FAMILY.. 20

TEXT 5. ROMAN LAW: CORPORATIONS. 22

TEXT 6. ROMAN LAW: THE LAW OF PROPERTY AND POSSESSION.. 23

TEXT 7. ROMAN LAW: DELICT AND CONTRACT.. 25

TEXT 8. Roman LaW: The law of succession.. 27

UNIT 3: INTERNATIONAL LAW... 32

TEXT 1. INTERNATIONAL LAW: AN OVERVIEW... 32

TEXT 2. INTERNATIONAL LAW AND MUNICIPAL LAW... 35

TEXT 3. INTERNATIONAL LAW (INTERNATIONAL PUBLIC LAW & INTERNATIONAL PRIVATE LAW) 37

TEXT 4. CONFLICT OF LAWS. 40

TEXT 5. THE STAGES IN A CONFLICT CASE.. 41

TEXT 6. CHOICE OF LAW RULES. 42

UNIT 4: THE SOURCES OF INTERNATIONAL LAW... 43

TEXT 1. THE SOURCES OF INTERNATIONAL LAW... 43

TEXT 2. THE SOURCES OF INTERNATIONAL LAW – THE PLACE OF TREATIES. 46

UNIT 5: THE SUBJECTS OF INTERNATIONAL LAW... 51

TEXT 1. SUBJECTS OF INTERNATIONAL LAW... 51

TEXT 2. THE HOLY SEE.. 52

TEXT 3. INTERGOVERNMENTAL ORGANIZATIONS (IGOS). 54

UNIT 6: THE UNITED NATIONS ORGANIZATION.. 58

TEXT 1. THE UNITED NATIONS ORGANIATION (UNO): OVERVIEW... 58

TEXT 2. GENERAL ASSEMBLY.. 60

TEXT 3. SECURITY COUNCIL.. 62

TEXT 4. ECONOMIC AND SOCIAL COUNCIL AND The un Secretariat.. 63

TEXT 5. TRUSTEESHIP COUNCIL.. 66

TEXT 6. INTERNATIONAL COURT OF JUSTICE: AN OVERVIEW... 67

TEXT 7. INTERNATIONAL COURT OF JUSTICE: HOW THE COURT WORKS. 68

UNIT 7: EUROPEAN UNION.. 73

TEXT 1. EU INSTITUTIONS AND OTHER BODIES. 75

TEXT 2. The European Parliament.. 77

TEXT 3. The Council of the European Union.. 80

TEXT 4. THE EUROPEAN COMMISSION.. 86

TEXT 5. THE EUROPEAN COUNCIL - AN OFFICIAL INSTITUTION OF THE EU.. 90

TEXT 6. THE COURT OF JUSTICE.. 92

TEXT 7. The European Court of Auditors. 95

TEXT 8. THE EUROPEAN CENTRAL BANK.. 96

TEXT 9. THE EUROPEAN ECONOMIC AND SOCIAL COMMITTEE.. 98

TEXT 10. THE COMMITTEE OF THE REGIONS. 99

TEXT 11. The European Investment Bank.. 101

TEXT 12. THE EUROPEAN INVESTMENT FUND.. 103

TEXT 13. THE EUROPEAN OMBUDSMAN.. 103

TEXT 14. THE EUROPEAN DATA PROTECTION SUPERVISOR.. 104

TEXT 15. INTERINSTITUTIONAL BODIES. 106

TEXT 16. SPECIALISED EU AGENCIES. 106

TEXT 17. THE HISTORY OF EUROJUST.. 112

UNIT 8: EUROPIAN UNION LAW... 113

TEXT 1. LEGISLATION AND TREATIES. 113

TEXT 2. WHAT IS EU LAW?. 114

TEXT 3. TREATIES. 115

TEXT 4. JUSTICE, FREEDOM AND SECURITY.. 117

TEXT 5. DECISION-MAKING IN THE EUROPEAN UNION.. 121

TEXT 6. EUR-Lex: PROCESS AND PLAYERS. 123

APPLICATION 1. LINKING WORDS. 147

APPLICATION 2. THE PLAN FOR WRITING ABSTRACTS OF THE TEXT 151

BIBLIOGRAPHY.. 155

 

 

ПРЕДИСЛОВИЕ

 

Совершенствование навыков реферирования представляет собой способ формирования профессиональной компетентности студентов-правоведов.

Реферирование – творческий процесс, включающий осмысление первичного, авторского текста, преобразование информации и создание вторичного, производного, собственного текста.

Организация самостоятельной работы студентов является обязательным компонентом учебного процесса в системе высшего образования Республики Беларусь. Под самостоятельной работой понимается как внеаудиторная работа, так и работа в аудитории под контролем преподавателя.

Данный вид работы направлен на решение следующих задач:

- закрепление, обобщение и повторение пройденного учебного материала;

- применение полученных знаний в стандартных ситуациях и при решении задач высокого уровня сложности и неопределенности;

- формирование готовности студентов к самообразованию в течение всей жизни.

Данное пособие представляет собой комплекс текстов по различным аспектам, касающимся права и юридической системы европейских стран в целом.

Пособие состоит из двух частей, содержание которых составляют современные профессионально ориентированные материалы. Каждая из частей содержит набор слов и выражений, необходимых для реферирования текста, а также примерный план анализа текста. В первую часть включены материалы по следующим темам: «Право и юриспруденция», «Римское право», «Международное право, его источники, субъекты», «Организация Объединённых Наций», «Европейский союз и его право».

Тематическое наполнение пособия обусловлено учебным планом по специальности «Международное право». Текстовый материал, подобранный из оригинальных источников (книг, Интернет-ресурсов), способствует повышению уровня владения студентами юридической лексикой и терминами, а также направлено на формирование профессиональной компетенции студентов.

Пособие способствует расширению и систематизации знаний у студентов, имеющих деловые связи в области права.

 

 

UNIT 1: LAW & JURISPRUDENCE

TEXT 1. HISTORY OF LAW

 

The history of law or legal history is the history of our race, and the personification of its experience. Law developed before history was even recorded and rules were recognized to reconcile discussions before written laws or courts ever existed. This dates back to the age of the ancient Egyptians and Babylonians. Different to idea, law was discovered and not invented. It was systematically discovered established on historical experiences and historical events of generations for years and centuries.

In Babylonia, the Mesopotamia region, ethnic customs were transformed into social laws thousands of years ago. Laws also existed in ancient Greece. Our information of ancient Greek laws comes from several Homeric writings. As well, the Roman law was the legal system not only in ancient Rome, but was applied all over Europe until the eighteenth century. A lot of European modern laws are still influenced by Roman law. English and North American common and civil laws also be obliged some debt to Roman ancient law.

Customary law dictated human actions, for a long time, by reflecting the conduct of people towards one another. Below customary law, rules spontaneously emerged and developed to establish an argument between people. These spontaneously born rules are voluntarily pursued by the parties implicated in the dispute and are more likely to be gratifying to the parties than a rule imposed on them by an authoritative body. The customary law was the procedure that guides to the discovery of natural law. Natural law is the irrefutable standard to which laws must be stable in order to be legitimate. In other words, we can say that natural law is the body of rules of right conduct and justice common to all people. By comparison, common law is a system by which a law comes to pass based on some legal antecedent.

Historically, Anglo-Saxon customary law implicated a group of people known as Bohr. The group compromised a guarantee for each of its members. Each individual would protect his/her property claims by accepting the responsibility to respect the property rights of others. The group would then pay the penalties for any member found to be in infringement of the agreement. Since finances were at stake, the group had an inducing reason to police its members and often invalidate the membership of those found in infringement of the rules. Moreover, it was also common to socially exile those who violate the rules. If the outcast member pays compensation, then they may be permitted to become members of the group again. These rules that evolved spontaneously established disputes between people in a civilized method thus eliminating violent measures. In some cases, the process implicated appeals and mutual disputes. This process and these two way arguments are analogous to financial organizations (in our time) such as insurance companies.

Early Anglo-Saxon courts were assemblies made up of common people and neighbours. These early courts passed their sentence according to customary law. This guaranteed non violent means for solving conflicts.

In the Middle Ages, there was a commercial and trade law that governed the trade and commercial transactions during Europe. This law emerged appropriate to require for certain standards to normalize international trade. Europe wide court systems and legal orders were formed and those who did not abide by the rules, regulations and decisions of this system were excluded from the social as well as business community. That is, the suffered the effect of not being able to conduct business transactions in the future.

Basically, customary law seeks to protect individual rights and during non violent resources. The economic fines imposed on the culpable party are destined to compensate the victim in the dispute. The culpable party is obliged to make payment in order to elude social and commercial exclusion. At the same time, the method permits space for every individual including the supposed guilty party to speak, dispute and express their difference.

Among certain lawyers and historians of legal method it has been seen as the registering of the progress of laws and the technical clarification of how these laws have developed with the view of better considerate the origins of diverse legal concepts, some consider it an area of intellectual history. Twentieth century historians have examined legal history in a more contextualized mode more in line with the thoughts of social historians. They have looked at legal institutions as complicated systems of rules, players and symbols and have seen these elements interrelate with society to change, adjust, oppose or promote certain characteristics of civil society. Such legal historians have tended to evaluate case histories from the parameters of social science investigation, using statistical methods, analyzing class differences among litigants, petitioners and other players in diverse legal processes. By analyzing case results, operation costs, number of settled cases they have begun an examination of legal institutions, practices, actions and briefs that give us a more composite picture of law and society than the study of jurisprudence, case law and civil codes can accomplish.

TEXT 2. JURISPRUDENCE

 

In the United States jurisprudence normally signifies the philosophy of law. Jurisprudence is the study and philosophy of law. Specialists of jurisprudence, or legal philosophers, expect to gain a deeper understanding of the nature of law, of legal analysis, legal systems and of legal institutions.

Legal philosophy has many characteristics, but three of them are the most common:

· Natural law is a school of legal philosophy which considers that there are invariable laws of nature which govern us, which are general to all human societies, and that our institutions should try to equal this natural law.

· Analytic jurisprudence is indicate to be an objective study of law in impartial conditions, distinguishing it from natural law, which evaluates legal systems and laws throughout the structure of natural law theory, asks questions like, "What is law?" "What are the criteria for legal validity?" or "What is the relationship between law and morality?" and other such questions that legal philosophers may compromise.

· Normative jurisprudence looks at the intention of legal systems, and which sorts of laws are adequate, asks what law ought to be. It overlaps with moral and political philosophy, and contains questions of whether one ought to follow the law, on what grounds law-breakers might correctly be punished, the correct uses and limits of regulation, how judges ought to decide cases.

The theory of jurisprudence has been around for fairly a long time. Both the Ancient Greeks and Romans believed the philosophy of law, and earlier societies possibly did as well. The word itself is resulting from a Latin phrase, juris prudentia, significance “ the study, knowledge, or science of law. ” As long as humans have had laws governing their activities, philosophers and commentators have been meditation about these laws and considering how they fit in with the societies which they are presumed to codify and protect.

Since law can frequently be slippery and incomprehensible, it may come as no revelation to learn that jurisprudence is exceptionally complicated and sometimes very confusing. Many of the world's most famous specialists and philosophers have at least dabbled in jurisprudence, elaborating dense tomes, complex arguments, and complicated expression. The study of jurisprudence is also essential for a good lawyer, because it guarantees that he or she deeply understands the law and the philosophical approaches which have been implicated in its conception.

Studying law does not automatically make someone a lawyer, even though it is a significant element of a legal education. For judges and other people who must infer, defend, or refuse the law, jurisprudence is a very important field of study, along with more general studies of history, society, and philosophy. Since laws are such an important emphasizing of society, jurisprudence can also offer important information about a nation and its people.

Modern jurisprudence and philosophy of law is influenced today principally by Western academics. The concepts of the Western legal tradition have become so enveloping all over the world that it is persuasive to see them as universal. Traditionally, however, many philosophers from other civilization have discussed the same questions, from Islamic scholars to the ancient Greeks.

TEXT 3. CIVIL LAW

 

Civil law, or European Continental law, or Romano-Germanic law, is the principal system of law in the world. Civil law is the legal tradition that derives from Roman law. The countries discovered in this category have drawn principally on their Roman legal inheritance in addition to other sources, and while giving anteriority to written law, have determinedly selected for a systematic codification of their ordinary law. Also found in this category are countries, usually of the mixed law diversity, that have not resorted to the method of codifying law but that have retained to varying degrees enough elements of Roman legal construction, " as a written reason ", to be considered associated to the civil tradition. On the other hand, there are countries in this category where Roman influence was feebler but whose law, codified or not, rests on the concept of legislated law which in many ways resembles the systems of countries with a "pure" civil tradition (for example, Scandinavian countries that maintenance a unique position within the "Romano-Germanic" family).

In civil law the sources recognized as authoritative are, principally, legislation – especially codifications in constitutions or statutes passed by government – and, secondarily, custom. In some civil law countries, the legal systems are established around one or various codes of law, which set out the most important principles that conduct the law. The most famous example is possibly the French Civil Code, even though the German Bürgerliches Gesetzbuch (or BGB) and the Swiss Civil Code are also landmark events in legal history. The civil law systems of Scotland and South Africa are without codifying, and the civil law systems of Scandinavian countries remain largely without codifying.

Civil-law systems vary from common-law systems in the substantive content of the law, the operative procedures of the law, legal terminology, the way in which authoritative sources of law are recognized, the institutional framework within which the law is applied, and the education and structure of the legal profession.

Scholars of comparative law and economists instigating the legal origins theory generally subdivide civil law into three different groups:

· French civil law: in France, the Benelux countries, Italy, Spain and former colonies of those countries;

· German civil law: in Germany, Austria, Croatia, Switzerland, Greece, Portugal, Turkey, Japan, South Korea and the Republic of China;

· Scandinavian civil law: in Denmark, Norway and Sweden. Finland and Iceland inherited the system from their neighbours.

Within the United States and its territories, only three jurisdictions are considered civil-law systems - Louisiana, Puerto Rico, and Guam - but because of the strong persuade of common law in these jurisdictions, they are truly “ mixed systems ” of civil and common law. Under the Supreme Court's ruling in Erie v. Tompkins (1938), Louisiana courts are the final authority on subjects concerning topics of civil law under the Louisiana Code of 1870. Similarly, courts in Puerto Rico and Guam have responsibility for the expansion of the civil law in those island jurisdictions.

Civil law is generally of tangential interest to the U.S. Supreme Court. The justices of the Supreme Court are results of the American common-law tradition, and, with few exceptions, they have not been familiar with civil-law sources or systems. Nevertheless, with the expansion of international private law, the increasing commercial significance of the European Union and Japan, and growing contacts among legal practitioners and legal elites across national limits, the Supreme Court will have to come to conditions with the civil law tradition, the most extended and significant legal tradition in the modern world.

 

UNIT 2: ROMAN LAW

TEXT 1. ANCIENT ROMAN LAW

 

As the empire developed, the emperor stood at the top of the administrative system. He served as military commander in chief, high priest, court of appeal, and source of law. All this power was intensely personal: Soldiers swore their oath to the emperor, not to a constitution or a flag. Personal ties of patronage, friendship, and marriage had always bound together Roman society, but during the empire the emperor became the universal patron.

Military loyalty, bureaucracy, and imperial succession were all viewed in personal terms. This concentration of power produced a court in which government officials and the imperial family competed with poets, astrologers, doctors, slaves, and actors for the emperor's attention and favour. The emperor's own slaves and freedmen dominated the clerical and financial posts and formed the core of imperial administration just as they did in the household administration of any Roman aristocrat. Deep ties of loyalty bound Roman freedmen and slaves to their patrons so that they faithfully served even the most monstrous emperors.

The emperors took over the Senate's political and legislative power, but they needed the help of senators who had experience in diplomacy, government, and military command. Since the emperor designated candidates for all government positions, senators had no other access to high office except through loyal service. A shrewd emperor could turn senatorial pride and loyalty to the advantage of the empire. By simply allowing senators to wear a broad purple stripe on their togas, for example, the emperor marked them as rulers of the Mediterranean and added to their prestige.

Only when emperors treated senators with contempt did the senators feel justified in conspiring against the emperor under the banner of freedom. Some ambitious senators dreamed of reaching supreme power and even of replacing the emperor. An occasional opportunity presented itself - Nero's death brought four senators to the imperial throne in the single year of AD 69.

However, most senators remained loyal to the emperor because the constant danger of displeasing suspicious emperors outweighed the remote chance of success. As the old noble families died out, the emperors found new blood among the local elite of Italy and the provinces. In the 2nd century AD more than half the senators were of provincial origin.

The emperor Augustus had first given the equestrian order increased responsibilities, and they continued to play an important role in the governance of the empire. Only a few of the equites actually worked for the emperor, some served as officers of Rome's auxiliary forces, and others as civil administrators.

Most members of this order remained in their home cities - there were 500 in the Spanish seaport of Cadiz alone - and formed the basis of a loyal elite that characterized the early empire. As the government expanded, the "equestrian career" began to resemble a modern civil service with ranks, promotions, and a salary scale. While retired centurions occasionally advanced into the equestrian order and equestrians into the Senate, social mobility remained limited.

The emperors tried to keep the equestrians loyal by permitting them signs of privilege similar to senators. Tens of thousands of equestrians across the empire marked their status by wearing togas with a narrow purple stripe and sitting in the front row at public games.

Senators and equestrians whom the emperor appointed as governors, generals, and prefects held substantial power in the provinces, although provincial administration was initially restricted to issues of taxation and law and order. The system grew increasingly complex, but it always remained rather small for such an expansive empire.

Twelfth-century China had an elite government official for every 15,000 subjects, as compared to Rome, which had one for every 400,000 people in the empire. Such figures are crude, but they show that Roman administration was less intrusive than its counterparts in China and many other modern states. The empire, with its limited administrative system, could not have functioned without local officials in the provinces or subject kings appointed by Rome, like Herod the Great in Judea.

Historians often focus on political leaders, but it is local grievances about high taxes, crime, or the price of bread that most often provoke people to revolt against a government. The Romans relied on civil laws to address a variety of these issues. Roman law in the republic was often based on custom. During the Roman Empire, however, the emperor became the final source of law.

People in the provinces were well aware that the emperor sat atop the chain of command as recorded in the New Testament to the Bible. In regard to taxation, for example, a passage in Luke 2:1 notes: "And it came to pass in those days, that a decree went out from Caesar Augustus, that the whole world should be enrolled to be taxed." However, popular anger over issues such as taxation was still directed toward the political officeholders who administered the laws.

Roman law was one of the most original products of the Roman mind. From the Law of the Twelve Tables, the first Roman code of law developed during the early republic, the Roman legal system was characterized by a formalism that lasted for more than 1,000 years. The basis for Roman law was the idea that the exact form, not the intention, of words or of actions produced legal consequences. To ignore intention may not seem fair from a modern perspective, but the Romans recognized that there are witnesses to actions and words, but not to intentions.

Roman civil law allowed great flexibility in adopting new ideas or extending legal principles in the complex environment of the empire. Without replacing older laws, the Romans developed alternative procedures that allowed greater fairness. For example, a Roman was entitled by law to make a will as he wished, but, if he did not leave his children at least 25 percent of his property, the magistrate would grant them an action to have the will declared invalid as an "irresponsible testament." Instead of simply changing the law to avoid confusion, the Romans preferred to humanize a rigid system by flexible adaptation.

Early Roman law derived from custom and statutes, but the emperor asserted his authority as the ultimate source of law. His edicts, judgments, administrative instructions, and responses to petitions were all collected with the comments of legal scholars. As one 3rd-century jurist said, "What pleases the emperor has the force of law." As the law and scholarly commentaries on it expanded, the need grew to codify and to regularize conflicting opinions. It was not until much later in the 6th century AD that the emperor Justinian I, who ruled over the Byzantine Empire in the east, began to publish a comprehensive code of laws, collectively known as the Corpus Juris Civilis, but more familiarly as the Justinian Code.

TEXT 2. ROMAN LAW

Part I

Roman law is the law of ancient Rome from the time of the founding of the city in 753 BC until the fall of the Western Empire in the 5th century AD. It remained in use in the Eastern, or Byzantine, Empire until 1453. As a legal system, Roman law has affected the development of law in most of Western civilization as well as in parts of the East. It forms the basis for the law codes of most countries of continental Europe and derivative systems elsewhere.

The term Roman law today often refers to more than the laws of Roman society. The legal institutions evolved by the Romans had influence on the laws of other peoples in times long after the disappearance of the Roman Empire and in countries that were never subject to Roman rule. To take the most striking example, in a large part of Germany, until the adoption of a common code for the whole empire in 1900, the Roman law was in force as “subsidiary law”; that is, it was applied unless excluded by contrary local provisions. This law, however, which was in force in parts of Europe long after the fall of the Roman Empire, was not the Roman law in its original form. Although its basis was indeed the Corpus Juris Civilis - the codifying legislation of the emperor Justinian I - this legislation had been interpreted, developed, and adapted to later conditions by generations of jurists from the 11th century onward and had received additions from non-Roman sources.

Development of the jus civile and jus gentium

In the great span of time during which the Roman Republic and Empire existed, there were many phases of legalistic development. During the period of the republic (753–31 BC), the jus civile (civil law) developed. Based on custom or legislation, it applied exclusively to Roman citizens. By the middle of the 3^rd century BC, however, another type of law, jus gentium (law of nations), was developed by the Romans to be applied both to themselves and to foreigners. Jus gentium was not the result of legislation, but was, instead, a development of the magistrates and governors who were responsible for administering justice in cases in which foreigners were involved. The jus gentium became, to a large extent, part of the massive body of law that was applied by magistrates to citizens, as well as to foreigners, as a flexible alternative to jus civile.

Roman law, like other ancient systems, originally adopted the principle of personality - that is, that the law of the state applied only to its citizens. Foreigners had no rights and, unless protected by some treaty between their state and Rome, they could be seized like ownerless pieces of property by any Roman. But from early times there were treaties with foreign states guaranteeing mutual protection. Even in cases in which there was no treaty, the increasing commercial interests of Rome forced it to protect, by some form of justice, the foreigners who came within its borders. A magistrate could not simply apply Roman law because that was the privilege of citizens; even had there not been this difficulty, foreigners would probably have objected to the cumbersome formalism that characterized the early jus civile.

The law that the magistrates applied probably consisted of three elements: (1) an existing mercantile law that was used by the Mediterranean traders; (2) those institutions of the Roman law that, after being purged of their formalistic elements, could be applied universally to any litigant, Roman or foreigner; and (3) in the last resort, a magistrate’s own sense of what was fair and just. This system of jus gentium was also adopted when Rome began to acquire provinces so that provincial governors could administer justice to the peregrini (foreigners). This word came to mean not so much persons living under another government (of which, with the expansion of Roman power, there came to be fewer and fewer) as Roman subjects who were not citizens. In general, disputes between members of the same subject state were settled by that state’s own courts according to its own law, whereas disputes between provincials of different states or between provincials and Romans were resolved by the governor’s court applying jus gentium. By the 3^rd century AD, when citizenship was extended throughout the empire, the practical differences between jus civile and jus gentium ceased to exist. Even before this, when a Roman lawyer said that a contract of sale was juris gentium, he meant that it was formed in the same way and had the same legal results whether the parties to it were citizens or not. This became the practical meaning of jus gentium. Because of the universality of its application, however, the idea was also linked with the theoretical notion that it was the law common to all peoples and was dictated by nature - an idea that the Romans took from Greek philosophy.

TEXT 4. ROMAN FAMILY

 

The chief characteristic of the Roman family was the patria potestas (paternal power in the form of absolute authority), which the elder father exercised over his children and over his more remote descendants in the male line, whatever their age might be, as well as over those who were brought into the family by adoption - a common practice at Rome. Originally this meant not only that he had control over his children, even to the right of inflicting capital punishment, but that he alone had any rights in private law. Thus, any acquisitions made by a child under potestas became the property of the father. The father might indeed allow a child (as he might a slave) certain property to treat as his own, but in the eye of the law it continued to belong to the father.

By the 1st century ad there were already modifications of the system: the father’s power of life and death had shrunk to that of light chastisement, and the son could bind his father by contract with a third party within the same strict limits that applied to slaves and their masters. Sons also could keep as their own what they earned as soldiers and even make wills of it. In Justinian’s day, the position regarding property had changed considerably. What the father gave to the son still remained, in law, the father’s property, but the rules concerning the son’s own earnings had been extended to many sorts of professional earnings; and in other acquisitions (such as property inherited from the mother), the father’s rights were reduced to a life interest (usufruct). Normally, patria potestas ceased only with the death of the father; but the father might voluntarily free the child by emancipation, and a daughter ceased to be under her father’s potestas if she came under the manus of her husband.

There were two types of marriage known to the law, one with manus and one without, but the manus type of marriage was rare even in the late republic and had disappeared long before Justinian’s day. Manus was the autocratic power of the husband over the wife, corresponding to patria potestas over the sons.

Marriage without manus was by far the more common in all properly attested periods. It was formed (provided the parties were above the age of puberty and, if under potestas, had their father’s consent) simply by beginning conjugal life with the intention of being married, normally evidenced by the bringing of the bride to the bridegroom’s house. The wife remained under her father’s potestas if he were still alive; if he were dead, she continued (as long as guardianship of women continued) to have the same guardian as before marriage. Both spouses had to be citizens, or if one was not, he or she must have conubium (the right, sometimes given to non-Romans, of contracting a Roman marriage). In marriage without manus, the property of the spouses remained distinct, and even gifts between husband and wife were invalid.

Divorce was permitted to the husband in early Rome only on specific grounds. Later, divorce was always possible at the instance of the husband in cases of marriage with manus; in marriage without manus, either party was free to put an end to the relationship. A formal letter was usually given to the spouse, but any manifestation of intention to end the relationship - made clear to the other party and accompanied by actual parting - was all that was legally necessary. The Christian emperors imposed penalties on those who divorced without good reason, including prohibitions on remarriage, but the power of the parties to end the marriage by their own act was not taken away.

Concubinage was recognized in the empire as a “marriage” without a dowry, with a lower status for the woman, and with provisions that the children were not legally the father’s heirs. A man could not have both a wife and a concubine. In the 4th century the emperor Constantine first enacted a law enabling the children of such unions to be legitimated by the subsequent marriage of their parents. Medieval civil law extended this rule to all illegitimate children.

Persons under the age of puberty (14 for males, 12 for females) needed tutores if they were not under patria potestas. Such tutors could be appointed under the will of the father or male head of the household. Failing such an appointment, the guardianship went to certain prescribed relatives; if there were no qualified relations, the magistrates appointed a tutor. Originally, children were considered adults at the age of puberty; but, after a long development, it became usual for those between the ages of puberty and 25 to have guardians who were always magisterially appointed. Originally, all women not under patria potestas or manus also needed tutores, appointed in the same way as those for children. By the early empire, this provision was little more than a burdensome technicality, and it disappeared from Justinian’s law.

The law of procedure

The earliest law suits (legis actiones) were conducted orally in two stages: a preliminary one before the jurisdictional magistrate, in which the issue was developed; and then the actual presentation of evidence to the judex, or judge. The first stage required that set forms of words be spoken by the parties and, sometimes, by the magistrate. The parties making an assertion of ownership, for instance, would grasp the thing in dispute and lay a wand on it, after which the magistrate would intervene and say, “Let go, both of you.” So formal was the procedure that a plaintiff who made the slightest mistake lost his case. For the second stage, before the judex, there were no formal rules. However, the plaintiff had the burden of proof, was responsible for physically producing the defendant in court and, often, for carrying out the sentence.

Under new procedures developed in the 2nd and 1st centuries BC, the issue at the magisterial stage was formulated in written instructions to the judex, couched in the form of an alternative: “If it appears that the defendant owes the plaintiff 10,000 sesterces, the judex is to condemn the defendant to pay the plaintiff 10,000 sesterces; if it does not so appear, he is to absolve him.” A draft of these written instructions was probably prepared for the plaintiff before he came into court, but there could be no trial until it was accepted by the defendant, for there was always a contractual element about a lawsuit under both the new and the old systems. Pressure, however, could be exercised by the magistrate on a defendant who refused to accept instructions that the magistrate had approved, just as a plaintiff could be forced to alter instructions that the magistrate had disapproved, by the magistrate’s refusal to otherwise give the order to the judex to decide the case.

In late republican times, still another system developed, first in the provinces, then in Rome. Under the new system the magistrate used his administrative powers, which were always considerable, for the purpose of settling disputes He could command: thus if one person brought a complaint against another before him, he could investigate the matter and give the order he thought fit. As imperially appointed officers superseded republican magistrates, this administrative process became more common. The result was that the old contractual element in procedure disappeared as did the old two-stage division. Justice was now imposed from above by the state - not, as originally, left to a kind of voluntary arbitration supervised by the state.

Roman law today

Today, Roman law is no longer applied in legal practice, even though the legal systems of some states like South Africa and San Marino are still based on the old Ius Commune. However, even where the legal practice is based on a code, many rules deriving from Roman law apply: No code completely broke with the Roman tradition. Rather, the provisions of Roman law were fitted into a more coherent system and expressed in the national language. For this reason, knowledge of Roman law is indispensable to understand the legal systems of today. Thus, Roman law is often still a mandatory subject for law students in civil law jurisdictions.

As steps towards a unification of the private law in the member states of the European Union are being taken, the old Ius Commune, which was the common basis of legal practice everywhere, but allowed for many local variants, is seen by many as a model.

UNIT 3: INTERNATIONAL LAW

TEXT 4. CONFLICT OF LAWS

 

Conflict of laws (or international private law) is a set of procedural rules which determine which legal system, and the law of which jurisdiction, applies to a given dispute. The rules typically apply when a legal dispute has a "foreign" element such as a contract agreed by parties located in different countries, although the "foreign" element also exists in multi-jurisdictional countries such as the United Kingdom and the United States.

The term conflict of laws itself originates from situations where the ultimate outcome of a legal dispute depended upon which law applied, and the common law courts manner of resolving the conflict between those laws. In civil law lawyers and legal scholars refer to conflict of laws as international private law. However, international private law has no real connection with international public law, and is instead a feature of municipal law which varies from country to country.

The three branches of conflict of laws are:

· Jurisdiction – whether the forum court has the power to resolve the dispute at hand.

· Choice of law – the law which is being applied to resolve the dispute.

· Foreign judgements – the ability to recognise and enforce a judgement from an external forum within the jurisdiction of the adjudicating forum.

Terminology

Its three different names – conflict of laws, international private law, and international private law – are generally interchangeable, although none of them is wholly accurate or properly descriptive. The term conflict of laws is primarily used in jurisdictions of the Common Law legal tradition, such as in the United States, England, Canada, and Australia. International private law (droit international privé) is used in France, as well as in Italy, Greece, and the Spanish and Portuguese speaking countries. International private law (internationales Privatrecht) is used in Germany - along with other German-speaking countries) - and Scotland.

Within the federal systems where legal conflicts among federal states require resolution, as in the United States, the term conflict of laws is preferred simply because such cases do not involve an international issue. Hence, conflict of laws is a general term to refer to disparities among laws, regardless of whether the relevant legal systems are international or inter-state. The term, however, can be misleading when it refers to resolution of conflicts between competing systems rather than "conflict" itself. The term conflict of laws is usually used by common law countries, while for civil law countries the term international private law is more appropriate. The term international private law was coined by American lawyer and judge Joseph Story, but was abandoned subsequently by common law scholars and embraced by civil law lawyers.

 

TEXT 6. CHOICE OF LAW RULES

 

Courts faced with a choice of law issue have a two-stage process: the court will apply the law of the forum (lex fori) to all procedural matters (including, self-evidently, the choice of law rules); and it counts the factors that connect or link the legal issues to the laws of potentially relevant states and applies the laws that have the greatest connection, e.g. the law of nationality (lex patriae) or domicile (lex domicilii) will define legal status and capacity, the law of the state in which land is situated (lex situs) will be applied to determine all questions of title, the law of the place where a transaction physically takes place or of the occurrence that gave rise to the litigation (lex loci actus) will often be the controlling law selected when the matter is substantive, but the proper law has become a more common choice.

For example, suppose that Alexandre, who has a French nationality and residence in Germany, corresponds with Bob who has American nationality, domicile in Arizona, and residence in Austria, over the internet. They agree to the joint purchase of land in Switzerland, currently owned by Heidi who is a Swiss national, but they never physically meet, executing initial contract documents by using fax machines, followed by a postal exchange of hard copies. Alexandre pays his share of the deposit but, before the transaction is completed, Bob admits that although he has capacity to buy land under his lex domicilii and the law of his residence, he is too young to own land under Swiss law. The rules to determine which courts would have jurisdiction and which laws would be applied to each aspect of the case are defined in each state's laws so, in theory, no matter which court in which country actually accepts the case, the outcome will be the same (albeit that the measure of damages might differ from country to country which is why forum shopping is such a problem). In reality, however, moves to harmonise the system have not reached the point where standardisation of outcome can be guaranteed.

 

Part I

Customary law and conventional law are primary sources of international law. Customary international law results when states follow certain practices generally and consistently out of a sense of legal obligation. Recently the customary law was codified in the Vienna Convention on the Law of Treaties.

Conventional international law derives from international agreements and may take any form that the contracting parties agree upon. Agreements may be made in respect to any matter except to the extent that the agreement conflicts with the rules of international law incorporating basic standards of international conduct or the obligations of a member state under the Charter of the United Nations. International agreements create law for the parties of the agreement. They may also lead to the creation of customary international law when they are intended for adherence generally and are in fact widely accepted. Customary law and law made by international agreement have equal authority as international law. Parties may assign higher priority to one of the sources by agreement. However, some rules of international law are recognized by international community as peremptory, permitting no derogation. Such rules can be changed or modified only by a subsequent peremptory norm of international law.

General principles common to systems of national law is a secondary source of international law. There are situations where neither conventional nor customary international law can be applicable. In this case a general principle may be invoked as a rule of international law because it is a general principle common to the major legal systems of the world and not inappropriate for international claims.

Part II

Article 38 of the Statute of the International Court of Justice, considered by some as the "Bible of the Poor" of those who seek quick answers despite of the complexity of international relations, constitutes nevertheless a good starting point for the understanding of the sources of international law. According to this article, international law finds its origin in the following three sources:

· international conventions of general or particular nature;

· international custom, as evidence of a general practice accepted as law;

· the general principles of law recognized by civilized nations.

Most international law experts would rush to add the "unilateral acts" to these three sources of law and to declare that Article 38 of the Statute has omitted to mention these unilateral acts for which the United Nations' International Law Commission (ILC) has elaborated Guiding Principles in 2006. Contrary to this opinion, other international lawyers would maintain that these unilateral acts constitute specific expressions of the will of States leading eventually to agreements which are then governed by the rules applicable to international conventions.

Finally, the idea of justice and equity originating in the philosophy of natural law is not to be discarded as a source of international law, since it is the opinion of the International Court of Justice itself that whatever the legal argumentation of the judge, his or her decisions have to be just and in that sense must correspond to justice and equity. Moreover, the judges of the International Court of Justice are expressly authorized to decide a case ex aequo et bono, if the parties agree thereto, i.e. to found their judgements on arguments of equity (Article 38 (2) of the Statute of the International Court of Justice).

International treaty law as codified by Vienna Convention on the Law of Treaties of 1969 is open for considerations of justice too. Moreover, the concept of "jus cogens" seems also to be an angle of incidence for natural law ideas.

Since, on the basis of their sovereignty and therefore independence, the equality of all States constitutes the theoretical foundation of international relations and although public international law, by definition, does not belong to civil law, international legal debates are often reminiscent of the discussions known in the latter area, in particular in the context of the law of contracts.

However, the analogy with the law of contract ends where measures are taken on the basis of Chapter VII of the Charter of the United Nations. Although they are foreseen in an international treaty - in particular by Article 25 of the Charter - these measures deserve to be highlighted because of the legal obligations they impose to the whole world, their political significance and the remarkable development they have undergone since the Gulf War of 1991. The measures taken by the Security Council and which are expressly based on Chapter VII of the Charter encompass not only military as well as economic sanctions against:

· certain States (Ethiopia, Eritrea, Iraq, Yougoslavia, Sierra Leone etc.);

· or insurgents (Angola's UNITA, see resolution 1173/1998 of 12 June 1998) or even political parties in government (the Afghan faction of the Taliban, see res.1267/1999 of 15 October 1999);

but also:

· the creation of special tribunals to prosecute war crimes or crimes against humanity in the territory of the former Yugoslavia (res. 827/1993 of 25 May 1993) and in Ruanda (res. 955/1994 of 8 November 1994);

· or of special administrative zones like in East Timor (see res. 1272/1999 of 25 October 1999) or in Kosovo (see res.1244/1999 of 10 June 1999);

as well as:

· measures against terrorism in general (res. 1373/2001 of 28 September 2001).

These sources of international law are supplemented by two subsidiary means for the determination of rules of law (Article 38 (1) (d) of the Statute), i.e. by:

· judicial decisions (although even the decisions of the International Court of Justice have binding force only between the parties and in respect of the particular cases submitted to the Court - Article 59 of the Statute) and

· the teachings of the most highly qualified publicists of the various nations.

Part I

Traditionally, the sources of international law are regarded as being listed in Article 38 of the Statute of the International Court of Justice.

These are:

· International Conventions whether general or particular establishing rules expressly recognized by 'the contesting states';

· International custom as evidence of a general practice accepted as law;

· The general principles of law recognised by civilised nations; and

· Judicial decisions and the teachings of the most highly qualified publicists of the various nations (as subsidiary means for the determination of rules of law).

Nowadays, the term ‘convention’ is assumed to be referring to a multilateral treaty; but at the time Article 38 of the UN Charter was drafted ‘convention’ denoted any sort of treaty: bilateral, plurilateral or multilateral. And in the context of Article 38 it still has this meaning.

Since WWII, treaties have assumed a clear prominence as the primary source of law-making on the international plane, especially multilateral treaties. Even so, international tribunals have clarified customary international law in ways which have developed the legal principles governing the law applying to treaties. For example, the International Court of Justice has done a lot to clarify the general rules for the interpretation of treaties. With the increased focus on relations between States that comes with globalisation, there has been greater pressure and demand to codify rules obtaining between those States. This codification has been done mainly through treaties because they are a relatively simple, clear and quick way of crystallizing existing international rules and developing new ones. Indeed, it is now commonplace for legal scholars to classify those treaties which lay down universal (or even fairly general) rules governing international society as 'law-making' or 'normative' treaties. The Hague Peace Conferences of 1898 and 1907 are often cited not only as a watershed in the institutionalisation of international co-operation, but also as the first major international ‘law-making’ conferences.

So-called ‘normative treaties’ are:

· characterised metaphorically as 'international legislation', and

· extolled as necessary to accommodate the urgent dynamics that are transforming international relations.

Multilateral treaties (they have a larger number of parties) are more effective than bilateral treaties in codifying international law. In negotiating multilateral treaties its parties often try to address the subject matter of the treaties as comprehensively as possible. Of course, States negotiating these agreements often have different or conflicting interests; so the final multilateral treaty text may not fully reflect the views and positions of all the States which negotiated it.

You can imagine how difficult it is to try and achieve conformity of views and approaches in relation to a multilateral instrument that is intended to be comprehensive – even where the instrument’s subject matter is relatively narrow.

Even if you can settle the text of a law-making treaty you then face the risk that it may conflict with other law-making treaties. And the legal principles for resolving these conflicts may prove – in particular cases – to be anything but clear and simple.

There are many examples of law-making treaties. A classic case is the Law of the Sea Convention, which took nearly a decade to negotiate.

This Convention:

· codifies the international law applying to the oceans and seas;

· develops international law;

· provides an invaluable source of the law relating to those aspects of the law of the sea which took its parties so long to negotiate, and

· is, by and large, extremely clear and explicit - even if there are some provisions that are ambiguous.

Another example of a codifying or 'normative' instrument is the Statute of the International Criminal Court (or ‘Rome Statute’).

The Rome Statute is regarded by some as the most important multilateral instrument negotiated in the last decade of the twentieth century. The Statute codifies international law regarding war crimes and other crimes against humanity. This was premised on certain customary international law norms having achieved such broad acceptance internationally that they could be enshrined in a formal document which would be generally acceptable as binding to a large number of States.

The Statute illustrates how a treaty can not only crystallize putative customary international norms as conventional law, but also further develop such norms and related standards.

Of course, the outcomes of treaty negotiations are not always so exemplary. Negotiating States may refuse to adopt an international norm in a treaty because it does not suit their interests or because they sincerely believe that the norm does not represent customary international law.

In such cases you may get straightforward compromises; or you may get (what diplomats call) 'constructive ambiguity' where the meaning of the settled text is not clear.

This ambiguity allows the parties to interpret the treaty provisions in the way that most suits their interests. This may not sound like much of a solution, but often - with diplomats - 'half of something is better than a lot of nothing'. A 'fuzzy' treaty is better than none at all.

Part II

The Antarctic Treaty is an archetype of such a ‘treaty’ solution. During the 1950’s a ‘tacit agreement’ developed between certain states which were active in Antarctica. (It was called a ‘gentleman’s agreement’ in the sexist terminology of the times.) Under this agreement states would not try to advance or enhance claims to territorial sovereignty in Antarctica.

Arguably (although I would not want to argue this) the gentleman’s agreement constituted customary regional international law which was legally binding. However, it was not at all clear that the parties to this tacit agreement regarded their agreement as legally binding. Contrariwise, there had been many acrid territorial disputes over Antarctica, which the gentleman’s agreement had put a lid on. There was no optimism that this lid would stay on. And, if the lid blew off – with the parties terminating their tacit agreement – the consequences could have been quite grave. There were even fears of armed conflict between Argentina and the UK over their territorial disputes.

So, Article IV of the Antarctic Treaty addressed the problem by providing that: ‘No new claim or enlargement of an existing claim, to territorial sovereignty in Antarctica …’ should be asserted while the Treaty was in force. This meant – in theory – that claims to Antarctica could neither be improved nor worsened.

Article IV did not resolve the problem of competing claims to sovereignty in Antarctica. Indeed, it was depicted as the ‘non-solution of a problem that could never be swept completely under the carpet’. However, the Treaty has undoubtedly promoted stability in the international politics of Antarctica. Moreover, what was originally regarded as a modus vivendi (that is an interim arrangement which stays in place till a legal solution is reached) now - with the passage of time - looks increasingly like it will be down a permanent, legal status quo.

It is even being argued that the Antarctic Treaty has created an objective legal regime which is binding on all states irrespective of whether or not they are parties to the Treaty. (In much the same way as a bilateral treaty which changes borders between countries is regarded as objectively binding on all states.)

Just as interesting is the fact that a whole legal regime has sprung up from the fountainhead of Article IX of the Antarctic Treaty. This article provides that parties carrying out scientific research may - by consensus - recommend measures which further the objectives of the Antarctic Treaty. Article IX does not provide any measure adopted pursuant to it is legally binding; but the practice of the parties to the Antarctic Treaty shows that they normally regard such measures as legally binding. From 1961 to 1995 over 200 measures were promulgated under this provision regarding (among other things) environmental protection, telecommunications, tourism and mining. A treaty that was once disdained as a ‘non-solution’ has proven to be the solid foundation for an exemplary international legal regime.

There was also criticism of the Antarctic treaty regarding the vagueness of its terms. For example, the term ‘territorial sovereignty’ is ambiguous. Lawyers could argue over whether claims to the territorial sea or the straight baselines adjacent to Antarctic territory are prohibited by Article IV of the Antarctic Treaty. Yet I prefer to see this terminology as ref