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Unit 3 Legal Systems. Text I Introduction to Legal Systems -To learn about the 4 major types of legal systems in the world Text II Introduction to the Legal System of Canada -To learn the legal system of Canada Text III Case Reading

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Unit 3 Legal Systems

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    1. Unit 3 Legal Systems Text I Introduction to Legal Systems -To learn about the 4 major types of legal systems in the world Text II Introduction to the Legal System of Canada -To learn the legal system of Canada Text III Case Reading -To read a case concerning the liability of Internet Service Providers

    2. Text I Introduction to Legal Systems Terms: Romano-Germanic / civil / continental legal system, Common law / Anglo-American legal system, Socialist legal system, Islamic legal system, code, judge-made law, enacted / statutory law, collective ownership, state ownership Proper names: Code of Justinian, Napoleonic codes, Norman Conquest, Bolshevik Revolution

    3. Text I Introduction to Legal Systems Outline • Ⅰ. (para. 1) Introduction: 4 types of legal systems & their distribution • Ⅱ. (para. 2-7) 4 types of legal systems 1. (para. 2-3) Romano-Germanic / civil / continental legal system 2. (para. 4) common-law / Anglo-American legal system 3. (para. 5-6) socialist legal system 4. (para. 7) Islamic legal system

    4. Questions based on part I • What are the 4 major legal systems in the world? • How are they distributed in the world and which countries are the representatives in each legal system?

    5. Representatives of the 4 legal systems • Romano-Germanic / civil / continental legal system: France, Germany, Austria, Belgium, Switzerland, Italy, Spain, Portugal, Thailand, Turkey, Indonesia, Holland (the Netherlands) 2. Common-law / Anglo-American legal system: England, Ireland, USA, New Zealand, Pakistan, Singapore, Malaysia, Australia, Canada (excluding Quebec), Burma, India • Socialist legal system: China, Cuba, North Korea, Vietnam 4. Islamic legal system: Middle East countries: Egypt, Jordan, Lebanon, Syria, Turkey, Iran, Iraq,…

    6. Questions based on part II • What are the sources of law in each legal system? • What are the 3 objectives of classical socialist law? • What is the central notion of socialist law?

    7. Sources of law in each system 1. Romano-Germanic / civil / continental legal system • —major source: Codes: Roman civil law (Code of Justinain); Napoleonoic codes • ---customary law 2. common-law / Anglo-American legal system • —major source: judge-made law / case law 3. socialist legal system • —major source: legislation 4. Islamic legal system • —major sources: Koran, Sunna, judicial consensus, analogical reasoning • —subsidiary sources: custom, judge’s preference, requirements of public interest

    8. Language points • Provide for • 1 If you provide for someone, you support them financially and make sure that they have the things that they need.提供生活费; 养活 • Everyone will be provided for according to his needs. • Her father always ensured she was well provided for. • Elaine wouldn't let him provide for her. • 2 If you provide for something that might happen or that might need to be done, you make arrangements to deal with it.为...作准备, 防备 • Law must provide for national security. • James had provided for just such an emergency. • 3 If a law or agreement provides for something, it makes it possible. 规定 • Analogical reasoning is used in circumstances not provided for in the Koran. • The bill also provides for the automatic review by the appeal court of all death sentences.

    9. Legal systems (from Encyclopaedia Britannica) • civil law • also called Romano-Germanic law, the law of continental Europe, based on an admixture of Roman, Germanic, ecclesiastical, feudal, commercial, and customary law. European civil law has been adopted in much of Latin America as well as in parts of Asia and Africa and is to be distinguished from the common law of the Anglo-American countries. • The term civil law has also been used to distinguish private law, governing the relations among individuals, from public law and criminal law. Finally, the national law of a country is sometimes called civil law, in contrast to international law.

    10. common law • also called Anglo-American law, the body of customary law, based upon judicial decisions and embodied in reports of decided cases, which has been administered by the common-law courts of England since the Middle Ages. From this has evolved the type of legal system now found also in the United States and in most of the member states of the Commonwealth of Nations. Common law stands in contrast to rules developed by the separate acts of equity, to statute law (i.e., the acts of legislative bodies), and to the legal system derived from civil law now widespread in continental Europe and elsewhere.

    11. Soviet law • also called Socialist law law developed in Russia after the communist seizure of power in 1917 and imposed throughout the Soviet Union in the 1920s. After World War II, the Soviet legal model also was imposed on Soviet-dominated regimes in eastern and central Europe. Later, ruling communist parties in China, Cuba, North Korea, and Vietnam adopted variations of Soviet law. Soviet law, which changed radically during its more than 70 years of development in the Soviet Union, revived certain features of earlier tsarist law, shared key elements with the law of other dictatorships, and introduced public ownership of the means of production and subordination of the legal system to the Soviet Communist Party.

    12. Sharī’ah • the fundamental religious concept of Islām, namely its law, systematized during the 2nd and 3rd centuries of the Muslim era (8th–9th centuries AD). • Total and unqualified submission to the will of Allāh (God) is the fundamental tenet of Islām: Islāmic law is therefore the expression of Allāh's command for Muslim society and, in application, constitutes a system of duties that are incumbent upon a Muslim by virtue of his religious belief. Known as the Sharī’ah (literally, “the path leading to the watering place”), the law constitutes a divinely ordained path of conduct that guides the Muslim toward a practical expression of his religious conviction in this world and the goal of divine favour in the world to come.

    13. Chinese law • the law that evolved in China over millennia from earliest times, virtually uninfluenced by foreign jurisprudence until the 20th century, when Western—especially, Western socialist—law was introduced. • The Chinese legal system incorporated elements of contradictory social philosophies of very early China—principally Confucianism and Legalism (or Fa-chia). Both arose as responses to the disorder of the Warring States period (5th to 3rd century BC), the former emphasizing traditional moral teaching (li), the latter advocating the introduction of legally stipulated punishments and rewards (fa).

    14. The Confucian ideology contained the idea of social harmony based on ordered relationships and a hierarchy of classes and persons. According to Confucianism, it was the duty of rulers and superiors to educate their subjects or subordinates in benevolent and righteous conduct that would be appropriate to particular personal relations and concrete situations and that would be expressed in proper etiquette and reinforced by rituals. Punishment might serve as a deterrent but would generally be reserved for those persons hard to educate or too obtuse to behave properly. Abstract concepts and generalizations were uncongenial to Confucianists; hence also was the idea of law.

    15. The Legalist, or Fa-chia, school advocated uniform objective standards that would be published for all to know and that would not require special gifts of character to understand or to apply; most important, these standards would be enforced by a system of defined rewards and punishments. Such standards or laws would serve the ruler as an instrument of control over his subjects. Whereas Confucianists saw punishment only as an extension of education, the Legalists opposed any cult of benevolence as softening and corrupting. Over the centuries, this opposition between conflicting principles continued.

    16. Exercises B. Partial translation • 1. on the basis of • 2. in the form of • 3. brought about • 4. as well as • 5. coexisted with

    17. Exercises Translation • 1. 民法法系作为一个自成一家的法律体系,在欧洲大陆产生并发展。在这种法律的形成过程中,殖民的影响、法学运动、以及各种重要的法典尤其是十九世纪的法典,都起了作用。 • 2. 普通法系,包括几种特有的法律传统,被认为是世界上两大法律体系之一,也是两个最有影响力的法律体系之一。 • 3. 当然,东欧和前苏联传统上被看作社会主义法律体系,这反映了其马克思列宁主义的源头和意识形态。

    18. Exercises • 4. Generally speaking, the legal system in new China develops by imitating that of the former Soviet Union and is therefore a socialist one. However, if we look into history we can still find traces of the Roman tradition. • 5. In China, court verdict, including that of the Supreme People's Court, has no binding power over the later verdict of other courts. Judges usually make their verdict based on promulgated laws.

    19. Alternative translation • 1. 作为一种独立存在的法源体系,大陆法是受欧洲大陆和一些殖民地影响而逐渐形成的,除此还有关于科学立法的运动和各种各样的法律汇编,尤其是在19世纪出现的法典,在这种法系结构的组成中起了关键的作用。 • 2.普通法法系是由一些特有的法律惯例组成的,被视为世界上两大法系之一,并且是最具影响力的两大法系之一。 • 3.东欧与前苏联被理所当然地按照传统观念归为社会主义法律体系,从中也反映出他们存在的马克思列宁主义源头和思想意识。

    20. 4.Generally speaking, the legal system of new China develops from modeling on  what former soviet union had adopted before, so it falls within socialist legal system. However, if we trace back to the history , we could find out some signs of civil law. • 5. In China, judicial decisions, including  judicatio of the supreme court, are not binding to other courts' decisions. Judges make their decisions based on the existing  statutes.

    21. Text II Introduction to the Legal System of Canada Words: passage, penalize, tenancy Phrases: originate from / in, grant leave to appeal, fall within…jurisdiction, per se Terms: constitutional monarchy, federalism, parliamentary democracy, three readings

    22. Text II Introduction to the Legal System of Canada Outline Ⅰ. (para. 1) Introduction: regime, composition, official language and legal system of Canada Ⅱ. (para. 2-6) 5 sources of law Ⅲ. (para. 7-17) role of the legislature, executive and judiciary in the law-making process

    23. Part I Ⅰ. (para. 1) Introduction: regime, composition, official language and legal system of Canada • -regime: constitutional monarchy, federalism and parliamentary democracy • -composition: 10 provinces and 3 territories • -2 official languages: English and French • -2 legal systems: common law and civil law

    24. Part II Ⅱ. (para. 2-6) 5 sources of law • -the Canadian Constitution • -international treaties • -federal / provincial laws • -judicial opinions: case law • -custom: election

    25. Part III Ⅲ. (para. 7-17) role of the legislature, executive and judiciary in the law-making process 1. (para. 7-8) the legislature: -federal: 3 entities: the Governor General, the Senate, and the House of Commons -provincial: 2 entities: the Lieutenant Governor, the Legislative Assembly

    26. III • 2. (para. 9-10) the executive -federal: the Cabinet -provincial: the Executive Council • 3. (para. 11-17) the judiciary -the Supreme Court of Canada -federal court -provincial court: lower court <superior court <provincial court of appeal -administrative tribunal

    27. Terms • constitutional monarchy 君主立宪制 • -Monarchy is the system of government in which a single person called king or queen holds the office of head of state for life, usually by hereditary right; a monarchy is a state governed by such a system. In an absolute monarchy, the monarch rules the country personally; in constitutional monarchy s/he has no real power to govern.

    28. Terms • federalism 联邦制 • -type of government, in which the state is a federation of semi-autonomous provinces or states, with a central federal government

    29. Terms three readings 三读 一项议案要成为法律,先在下议院进行三读,然后在上议院进行三读,上议院若有修订意见,会将议案发回下议院重议,这样往返多次,最后达成一致后需取得皇室的御准后方能成为法律。

    30. Three Readings: another interpretation • 三读(three readings) 西方国家议会立法和审议议案所经过的3个程序。 源于英国,以后为许多国家所仿效。一读又称初读,即提议者宣读议案名称或要点后交有关委员会审查。二读是对委员会审查后的议案的内容和原则展开辩论,然后重交议会有关委员会研究和修正,下院再次辩论并提出修改意见。三读是进行文字修改和正式表决。

    31. Text III words and legal terms: forgery, libel / libelous, be defamatory of sb, allegedly, for the purposes of, within the meaning of http://www.cyber-rights.org/reports/demon.htm The case citation is: Godfrey v Demon Internet Ltd, QBD, [1999] 4 All ER 342, [2000] 3 WLR 1020; [2001] QB 201

    32. Conclusion In my judgment the defamatory posting was published by the defendant and, as from 17 January 1997 it knew of the defamatory content of the posting, it cannot avail itself of the protection provided by s 1 of the 1996 Act and its defence under s 1 is in law hopeless. Therefore the plaintiff's summons to strike out succeeds.With regard to the defendant's application to amend the defence I make no definitive ruling but indicate that it is likely to succeed. It may also be helpful to suggest that on the basis of the proposed amended defence any award of damages to the plaintiff is likely to be very small.

    33. Demon settles internet libel case • Demon Internet faces a legal bill of around £500,000 after settling its long-running libel case about malicious messages posted to its newsgroup servers. • In an out of court settlement, physicist Dr Laurence Godfrey will be paid damages and costs by Demon. • The ISP must pay £15,000 damages plus legal costs, estimated at £230,000. Including its own costs, Demon's bill is likely to approach £500,000.

    34. controversy • The case creates a dilemma for ISPs because if they screen submissions or suspend websites, which would in any case be technically difficult, they could inflame the debate over freedom of expression or damage internet-based businesses.