Texte Drept Si AP ID (3)

7/28/2019 Texte Drept Si AP ID (3)

1/65

PARTICIPANTS IN A TRIAL

The Parliament in Great Britain has the role of making the laws, which are interpreted bythe law courts or the courts of justice. The British legal profession includes two members: thesolicitor and the barrister.

The solicitor is consulted if a person needs the assistance of a law for a certain problem,like: a divorce, a fight with the neighbours, setting of a business, to make a will or to sell aproperty. The barrister is consulted if a person has a more serious and difficult problem, whichneed to be judged in a civil or criminal court of law. This will represent him in the court andwill plead for his case. The barrister will take part in the trial as part of the Council for theProsecution, as council for the plaintiff, or of the Council for the defence, as council for thedefendant.

The main role in a trial is held by the judge, who is in charge of the followingresponsibilities: to conduct the proceedings, to point out the matters which have to be clarified,to ask questions to the parties and witnessesl to examine the documents and the evidence, to

present the summary of the case to the jury, to interpret the laws and to pass the sentence. The

jury is formed by twelve persons, called jurors, aged between 21 and 60 years old. The jury isalways present in a criminal court and sometimes in a civil court and has the role ofunanimously giving the verdict "Guilty" or "Not guilty" (if the jury can't reach an agreement,then a new jury has to rejudge the case).

In a criminal case, according to the English law, a person is considered innocent and isnot accused of robbery or murder until his guilt is proved. For this, the two parties usually bringwitnesses, who are called into the court by the barristers, in a witness box, where they are askedto swear on oath and then say what they saw, not what they heard from other persons.

The court system in the us is formed by the us Supreme Court and over eighteen thousandother American smaller courts, like the Trial courts, the Appellate courts and the District courts.Each state has a specific court system.

The lowest level of the court system is represented by the Trial courts, or lithe courts offirst instance", possessing original jurisdictionl which is the power of being the first court tohear a case. The role of these courts is to take evidence, listen to witnesses and decide what istrue and what is not, handling both with civil and criminal matters. The decisions in this courtare made by a judge or by a jury, made up of citizens selected from the community. Most of the

parties involved in a civil litigation demand a judge and not a jury to take part in a trial, becausethe decision is reached faster by the judge.

The Appellate courts are charged with the responsibility of reconsidering the decisionsmade by a Trial court, if the defendant requests it. It makes a review to ensure that there is noerror in the interpretation of a law, by using only judges and not jury.

The District courts deal both with criminal and civil matters, the so called diversity cases,like suits between parties from different states, when the amount in controversy is over$50,000, the approval of passports, the solving of the federal prisoners' cases and thenaturalization of the immigrants.

According to the American law, rooted in the Bill of Rights, the rights of persons accusedof crimes are meant to protect the individual from the arbitrary use of police power. An accused

person has the right to representation by a lawyer, who is compulsory provided by the state tothose unable to afford one.

BASIC VOCABULARY

1


2/65

law = 1. body of enacted or customary rules recognized by a community as binding; 2.one of these rules; 3. their controlling influence, jurisprudence; law as a system (court of low)or science (to read law); 4. one of the branches of the study of law, the lows concerningspecified deportment (commercial law)

member = 1. person belonging to a society; 2. MP (one formerly elected to toke part inproceedings), member of Parliament;legal = 1. required or appointed by law; 2. based on, occupied with law

barrister = is called to Bar and has the right to participate as advocate in superior courtssolicitor = member of the legal profession, competent to advise clients, instruct and

prepare causes for barristers, but not to appear as advocate except in certain lower courtsdispute = controversy, debate, difference of opinionwill = the declaration of a person's wishes regarding the disposal of his property after his

deathto set up a business = to start a businessto sue somebody = to bring somebody to court; to bring/enter an action against somebody

to plead = to address court as advocate on behalf of either partyto plead (not) guilty = to deny, confess liability or guilt liabilityto represent somebody = to act as embodiment for, to stand for, to be entitled to speak for

somebodyplaintiff = party who brings suit into court of lawdefendant = person sued in law-suit

judge = public officer appointed to hear and try causes in courts of justiceto preside = to exercise controlevidence = information, statement, proof (given personally or drawn from documents)

admissible as testimony in court to establish the factsto rule = to give judicial or authoritative decision; to keep under control

jury = body of twelve persons who try final issues of fact in criminal or civil cases andpronounce the verdict

to make the summing-up = to make the review of evidence or argument (especially ofjudge after both sides have been heard)

to summon = to demand the presence of, to call upon, to appearto return a verdict = to communicate a verdictwitness = person whose existence, position, state, serves as testimony or proof and who

gives sworn testimony in low courtto swear something on an oath = to state something by a solemn appeal to Godto hear = to listen judicially to

hearsay = what one hears, but does not know to be trueto pass a sentence = to give a sentenceto agree on a verdict = to pronounce a verdictto reach agreement = to have on accordance in opinion

SYNONYMSdispute = controversy, debateto set up = to startto plead guilty = to confess guiltto plead not guilty = to deny guiltcounsellor = adviser

to iudge = to tryproceeding = piece of conduct

2


3/65

eye-witness = bystandercase = couse, suitwitness-box = dock

ANTONYMS

legal - illegalplaintiff - defendantdefence - prosecutionstraightforward indirect

1.Answer the questions:

1. When will a person consult a solicitor?2. When does a person appeal to the services of a barrister?3. Who are the participants in a criminal court?4. Who may a barrister represent in a court?

5. Who presides over a court in England?6. What does a jury consist of ?7. What are the duties of a jury?8. How long is the accused person supposed innocent?9. What is the role of a witness?10. Where is the evidence given?11. What is "hearsay" evidence?12. Is "hearsay" evidence token into consideration in English law courts?13. Who posses the sentence on the accused?14. What is the role of the Bill of Rights in the US law (ourt?15. What kind of rights does it refer to?16. What is the structure of the court system in the US?17. What is the role of the Trial courts?18. What is the meaning of the "original jurisdiction"?19. Who takes decisions in a trial court?20. What is the role of an Appellate court?21. Why does an Appellate court not use a jury?22. What kind of matters do the District courts deal with?

2. Fill in the blanks with the missing words:

a) Civil cases are brought by a plaintiff against a ......... .b) The ......... consists of twelve people selected at random from the lists.c) First the council for the ......... presents the case.d) ......... plead his case in court.e) Under English low, a person is considered innocent until his ......... is proved.f) According to the court system in the US, each state has a ......... court system.g) The decisions in Trial court are made by a ......... or by a ......... .h) The Appellate courts ......... the decisions made by a Trial court.i) The District courts deal both with ......... and ......... matters.

3. Which of the following sentences are true and which are false? Correct the false ones :

3


4/65

a) Civil cases are brought by a plaintiff against a defendant and the lawyers, who act foreach side, will hire solicitors 10 plead the case in court.

b) A jury consists of twenty people selected according to a special procedure.c) The judge may intervene at any point and ask questions to clarify matters.d) It is the judge's duty to conduct the proceedings, interpret the laws and give the verdict

of "Guilty" or "Not Guilty".e) The witness must not swear on oath on giving evidence before the jury.f) The decisions in a Trial court in America are always made by a judge and by a jury.g) The role of the Appellate courts is to take evidence, listen to witnesses and review the

written records of the lower courts.h) The Trial courts form the lowest level of the court system in the US.i) The Bill of Rights protects the individuals from the wrong use of police power.

4. Here are some expressions connected with a law court trial. Put them in the rightorder:

a) to bring somebody to court

b) to accuse somebody of somethingc) to return a verdictd) to give evidencee) to pass a sentencef) to arrest on a charge ofg) to plead guiltyh) to commit a crimei) to prosecute

j) to win a casek) to release on bail

5. What do you call a person who:

a) pleads a case in courtb) undertakes legal business for ordinary peoplec) gives evidence in triald) is summoned to court to give a verdict in a casee) presides over a magistrates' courtf) is brought to the court on the initiatives of the parties

MAGNA CARTAAn island on the Thames between Staines and Windsor had been chosen as the place of

conference: the King encamped on one bank, while the barons covered the marshy flat, stillknown by the name of Runnymede, on the other. Their delegates met on the island betweenthem, but the negotiations were a mere cloak to cover John's purpose of unconditionedsubmission. The Great charter was discussed, agreed to and signed in a single day (1215, June16).

One copy of it still remains in the British Museum, injured by age and fire, but with theroyal seal still hanging on the brown, shrivelled parchment. It is impossible to gaze withoutreference on the earliest monument of English freedom which we can see with our own eyes

and touch with our own hands, the Great Charter to which from age to age patriots have lookedback as the basis of English liberty. But in itself the Charter was no novelty, nor did it to

4


5/65

establish any new constitutional principles. The character of Henry the First formed the basis ofthe whole and the additions to it are for the most part formal recogni tion of the judicial andadministrative changes introduced by Henry the Second. But the vague expressions of the othercharacters were now changed for precise and elaborate provisions. The bounds of unwrittencustom, which the older grants did little more then recognise, had proved too weak to hold the

Angevins; and the baronage now threw them aside for the restraints of written law.It is in this way that the Great Charter marks the transition from the age of traditionalrights, preserved in the nation's memory and officially declared by the Primate, to the age ofwritten legislation, of parliaments and statues, which was soon to come. The church had shownits power of self-defence in the struggle over the interdict, and the clause that recognised itsrights alone retained the older and general form. But all vagueness ceases when the Charter

passes on to deal with the rights of Englishmen at large, their right to justice, to security ofperson, to good government. "No freeman", run the memorable article that lies at the base ofthe whole judicial English system, "shall be siezed or imprisoned, or dispossessed, or outlawed,or in any way brought to ruin: we will not go against any man nor send against him, save bylegal judgement of his peers or by the law of the land". "To no man will we sell", runs other, or

"delay, right or justice".

Adapted from "A Short History of the English People", by J.R. Green

5


6/65

SOLICITORS AND BARRISTERS

The legal profession in England and Wales is divided into solicitors and barristers. Theduty of the solicitor is to give advice and to lead the business of the client. He will also have a

barrister to care of a specific matter of the client's business. The solicitors have the right to a

brief council, who will be called in if the situation requires, in order to give specialist advice, todraft documents or to act as advocates in the higher courts. He is the one who will entitle thebarrister to act as an advocate in the higher courts.

The solicitors have been usually considered the junior part of the legal profession, buthave increasingly become the dominant part of it. They are only admitted for practice if theycomplete three stages of training: the academic stage, the vocational stage and theapprenticeship. The academic stage of training is satisfied by the completion of a qualifyinglaw degree containing the six core subjects or by passing the Common ProfessionalExamination. The six core subjects are Constitutional and Administrative Law, Contract, Tort,Criminal Law, Land Law and Equity and Trust. The last stage consists of a two yearsapprenticeship to an established solicitor and can be regarded as the clinical stage of training. In

this stage, they learn various skills that are necessary for a solicitor, like managing an office,interviewing clients, writing letters, instructing counsel and handling money. Once admitted,the solicitor is required to maintain a practising certificate, for which a substantial annual fee ischarged.

The governing bodies of the barristers are more complex then those of solicitors. First ofalt in order to become a barrister, it is necessary to become a member of one of the Inns ofCourt, like the Inner Temple, the Middle Temple, Lincoln's Inn or Gray's Inn. Thoughadmission to the Bar is still largely the domain of the individual Inns, the formal education of atrainee barrister is centralised through the Inns of Court School of Law. Another governing

body for barristers is the Bar Council, which is the barristers' elected representative body.Like in the case of solicitors, the training of barristers is divided into three stages:

academic, vocational and apprenticeship. The requirements of the academic stage are the samewith those of the solicitors. Barristers work in offices, in groups of between twelve and twentysharing services notably of a derk, but also secretarial and other services. Each chamber isrequired to have at least one clerk, who performs the functions of office administrator andaccountant, business manager and agent. After around ten to fifteen years in practice, asuccessful barrister can consider applying for promotion to Queen's Counsel known as "silk"from the material of which the Queen's Counsel formal gown is made.

The distinction between the two branches of the legal profession is an artificial one. Infact, there are no tasks exclusive to one branch. Solicitors regularly appear as advocates in thelaw courts and sometimes in Crown Courts, which are geographically remote from barristers'

chambers. Equally, there are many barristers who very seldom appear in the court, spendingtheir time on written opinions on the law. Over the years, there has been debate on the fusion ofthe two branches of the profession.

BASIC VOCABULARYfusion = the result of fusing; a coalition of ideas, conceptsl bronches, parties etc.advice = an opinion or recommendation offered as guide to action, conduct etc.to draft = to draw the outlines or plan of; to sketch; to drow up in written form, to

composecircumstance = a condition, detail, part or attribute, with respect to time, place, manner,

agent etc. which accompanies, determines, or modifies a fact or event; a modifying orinfluencing factor

6


7/65

senior = more advanced in age or older in standingl superior in age or standing to, ofhigher or highest degree

to carry out = to put (principles, instruction) in practicetask = piece of work imposedto handle = to manage (thing, person)

(to) brief = 1. summary of facts and law points of a case drawn up for counsel; 2. toinstruct (barrister, solicitor) by brief, employcompletion = the act of completing; fulfilmentapprenticeship = working for another in order to learn a trade, for instruction, trainingvocational stage = educational training that provides a student with practical experience

in a particular occupational fieldInns of court = a legal society occupying such a buildingsole = belonging or pertaining to one individual or group to the exclusion of all others;

exclusivepractitioner 1. one engaged in the practice of a profession, occupation; 2. one who

practices something specified

clinical = extremely objective and realisticequity = 1. the application of the dictates of conscience or the principles of natural justice

to the settlement of controversies; 2. a system of jurisprudence or a body of doctrines and rulesdeveloped in England and followed in the United States, serving as supplement and remedy thelimitations and the inflexibility of the common law

trust = a fiduciary relationship in which one person (the trustee) holds the title to property(the trust estate or trust property) for the benefit of the other (the beneficiary)

gown = official or uniform robe of various shapes worn by judge, lawyer, clergyman,college

tort = a wrongful act, not including a breach of contract or trust, which results in injury toanother's person, property, reputation, or the like, and for which the injured party is entitled tocompensation

SYNONYMSto divide = to separateoccasion = opportunityto maintain = to keep upartificial = syntheticto spend =to disburseadvice = guidance

ANTONYMSincreasingly - decreasinglysatisfied - unsatisfiedsubjective - objectiveto maintain - to discontinuesimple - complexartificial - genuineto spend - to earn


1. What are the solicitors dealing with?2. Is there any difference between solicitors and barristers?

7


8/65

3. Which is the historical recognition regarding the two branches of the legal profession?4. Which is the final stage in the solicitor's education?5. Name some barrister's governing bodies.6. Which are the stages the solicitors and the barristers are supposed to pass through?7. What do the barristers deal with?

8. When can a barrister consider applying for promotion to Queen's Counsel?9. Can the two legal professions interfere within each other?10. Which are the motives that can lead to a fusion of the branches of the legal

profession?

2. What part does each of the following take in a trial?

a) The judgeb) The solicitorc) The barrister

3. Which of the following statements are true and which are false? Correct the false ones.

a) The barrister gives advice and has the conduct of the business of the client from day today.

b) The solicitor has the conduct of the business and he will retain another solicitor tocarry out a specific task in handling the client's business.

c) Barristers are increasingly becoming the dominant branch of the profession.d) There are eight core subjects for the final stage of training of the solicitors.e) In order to become a solicitor it is necessary to become a member of the Inn's Court.f) After around ten years in practice, successful barristers can consider applying for

promotion the Oueen's Counsel.

4.Fill in the blanks with the missing words:

a) The ........ , is currently alone entitled fo act as advocate in the low higher courts.b) The six core subjects are.....and .c) Once admitted, the . is required to maintain a practising certificate.d) The .. of the academic stages are common to both branches of the profession.e) .. are all sole proctitioners.f) .......... regularly appear as advocates in the low courts.

8


9/65

THE ROLE OF JUDGE AND JURY

There is a very subtle difference between the iudge and the iury: the judge deals withquestions of law, while the jury deals with questions of fad. The difference between thequestions of law and the questions of Fad is also a very subtle one. An example of a question of

fact is the issue whether the defendant was at a particular place at a particular time. This issue iscalled by lawyers a question of primary fact. On the other hand, in a criminal trial, where theintention is relevant, a question of fact will require an evaluation of all the surroundingcircumstances in coming to a conclusion about the defendant's state of mind. For example, in ashop lifting (the offence of theftL if the defendant was in a state of confusion resulted from theside effects of medication and he had no intention to steal goods, the jury would be called uponto elucidate these facts. This is no longer conclusive in the complex cases of fraud or deception,where these issues are more important than the primary facts. Moreover, the judge will have todeal with a question of law when defining the constituent elements of the offence of theft.

The role of the judge in a court of law is a passive one. He has the role of the arbiter ofthe law, who controls the trial and directs the jury. The length of a trial may vary from a few

hours to a month or more; the average length of a contested case is just under nine hours, whichis about two days of court time. If there are points of law involving admissibility of evidencewhich are easy to decide upon without too much argue, the judge may exclude the jury.Otherwise, the jury will listen to and will form opinions about the veracity of witnesses. In thiscase, the judge will direct the iury to reach a verdict of guilt or innocence. The iudge will berequired to direct the jury to give a verdict of "not guilty" if a conviction cannot, as a matter oflaw, be sustained in a case, during a trial. The judge cannot ignore such a direction, theresulting verdict being called a direct acquittal. The judge will also sum up the case for the jury,

before it retires to consider a verdict. In the summing up, the judge will summarize the case,explain the legal issues in contention, comment on factors that lend weight to or cast doubt oncertain evidence, from an independent and impartial standpoint. If the jury ignores the judge'sexplanation of the law when drawing a conclusion or if the jury returns a verdict suspect ofcoming against the weight of evidence, the verdict will be called perverse.

The jury is considered the arbiter of the fact, who deals with all the issues of fact, whodeals with all the issues of fact. The jurors will secretly deliberate about whom they believe anddisbelieve. They must form a collective viewpoint about the case, as close to reality as possible,resulted from the evidence beFore them. After determining whether the defendant's actionsconstitute the offence charged, the jury retires and is not allowed to interfere until a decision isreached. If the jurors cannot agree and if every effort of coming to a conclusion fails, a new

jury will be called and the case will be retried. The old discharged jury is called a "hung" jury.At first, the decision of the jury in a trial court had to be unanimous, although it was

usually requiring a new trial of the same case. This problem was solved in 1967, when TheCriminal Justice Act was adopted. It introduced the principle of majority in the decisionreached by the jury. Nowadays, it is possible to acquit a convict if ten jurors agree on a verdict,even if the jury consists of eleven or twelve jurors, or if nine agree when the jury consists of ten

jurors. If a member of a twelve parties jury dies during the course of a trial, the trial will go on,even if the decision will have to be reached by eleven jurors. It will stop if the number of jurorsdecreases below ten.

Usually, the decision of the jury cannot be changed by an appeal. The Court of Appealwill not reopen a case or reconsider the decision made by the jury, unless there had been amistake in the use of the right procedure. If this happens, it means that the judge will fail toconduct the trial correctly and the case is retried by the Court of Appeal.

BASIC VOCABULARY

9


10/65

issue = a point in question or a matter that is in dispute as between contending parties inan action of law

to require = to call upon or oblige (a person) authoritatively; order or command; todemand someone to account for his actions

evaluation = determining or setting the value or amount of

shoplifting = stealing goods from the shelves or displaying of a retail store while posingas a customerside-effect = any effect of a drug, chemical or other medicine that is in addition to its

intended effect, especially an effect that is harmful or unpleasantfraud = 1. deceit, trickery, sharp practice or breach of confidence, used to gain some

unfair or dishonest advantage; 2. a particular instance of such deceit or trickerydeception = something that deceives or is intended to deceive; fraud; subterfuge; trickeryto contest = to call a witness (in a lawsuit); to testifyadmissibility = capability of being admittedveracity = conformity to truth or fact; accuracyto empanel = 1. to enter on a panel or list for jury duty; 2. to select (a jury) from the panel

(to) convict = 1. to prove or declare guilty of an offence, especially after a legal trial; 2. aperson serving a prison sentence

standpoint = the mental position, attitude, from which one viewsn and judges thingscontention = struggle between opponents; dispute; controversy

perverse = wilfully determined or disposed to go counter to what is expected or desired;contrary

to mitigate = to make less severeconfines = a boundary; border; frontierto acquit = to declare innocent; settle (a debt); behave oneselfaquittal = declaration of innocence in court

SYNONYMSto require = to demandshoplifting = theftfraud = deceptionto contest = to testifyveracity = honestycontention =controversy

ANTONYMSto require to forgo

veracity - dishonestypartial - impartialcontention - disagreementto believe - to disbelieve


1. What does the judge deal with?2. What do the jurors deal with?3. Give an example of a question of fact.4. Name a question of low.

5. What are the relations between the judge and the jury?6. What happens when the jury cannot agree on the verdict?

10


11/65

7. How many jurors are needed to obtain an accepted verdict?8. When is the trial considered a failure by the trial judge?

2. Which of the following statements are true and which are false? Correct the false ones.

a) The judge deals with questions of fact and the jury deals with questions of law.b) The judge is the arbiter of the law.c) The judge cannot ever exclude the jury.d) The judge is required to direct the jury to return a verdict of "nof guilty" if during a

trial a conviction cannot be sustained in a case.e) Once the jury is refired, the judge delivers the sentence.f) Acquittal by a jury is sacred. The Courf of Appeal can reopen or reconsider the jury's

decision.

3. Fill in the blanks with the missing words:

a) When the defendant committed a public offence under the effects of medication, thejury will be called upon to ......... the facts.

b) At all stages, the role of the...........is passive.c) The ........... has the last word before the ......retires to consider a verdict

when he sums up the case for the jury.d) The verdict is called ..........when the jury ignores the judge's explanation of the law.e) ......... must debate in secret their deliberations about whom they believe and disbelieve.

4. What do you call a person who:

a) Deals with questions of lawb) Deals with questions of fadc) Is the arbiter of the lawd) Is the arbiter of the foct

SELECTION OF THE JURYThe principle underlying the selection of the English jury is that of randomness. The

theory is that a jury chosen at random will be representative of the community. Any prejudicesheld by particular members of the jury are likely to be counteracted by the good sense of theother members of the jury. In marked contrast, the principle underlying the selection of the jury

in the United States is that of securing a "neutral" jury which will try the case dispassionatelyaccording to the evidence. Potential jurors are subjected to detailed questioning either by thecouncilor by the judge to reveal any prejudices and to confirm neutrality.

The basic qualification for the jury service in England and Wales is the simple age andresidence qualification. All persons aged between 18 and 70 registered as Parliamentary orlocal government electors who have been resident in the United Kingdom for at least five yearssince attaining the age of 13 are eligible for jury service. The advent of computerised databasesmeans that today jury panels are selected genuinely at random from electoral lists using randomselection computer programmes. Persons with certain criminal convictions are disqualifiedeither for life or for ten years depending on the seriousness of the offence.

There is a group in the population who have a right to be excused if summoned; for them,

service as jurors is optional. These include those over 65, members and officers of Parliament,the military and the medical profession, including veterinary practitioners. There are two

11


12/65

general grounds on which a juror has a right to claim to be excused of jury service: when thejuror has attended court for jury service within the previous two years or when the juror hasbeen excused jury service for a longer period which has not expired (to those who have servedin long and complex trials). A juror who shows, or about whom it becomes apparent that he orshe cannot efficiently be elected as a juror because of a physical disability or insufficient

understanding of English, must be discharged.

From "The Administration of Justice", by Robin C. White

12


13/65

JUSTICE ON ANCIENT ROMANIAN LAND

The legislation of the Geto-Dacian state

Besides the unwritten law, expressed in the Geto-Dacian State, there was a law system.Strabon, a Greek geographer and historian, as well as lordanes, a historian of the Goths, at the

court of the Ostrogoths' kings, in Italy, stated that Geto-Dacians' laws were adopted during theruling of Burebista, who sustained that the laws he imposed were inspired by gods.The laws were transmitted from generation to generation, in written form and they have

been kept untillordanes' times (the 6-th century O.E.). By the agency of these laws there havebeen introduced new standards -commandments of the king who resorted to the authority ofreligion in order to be taken into account by his people. There was the need of maintaining thefear of gods in order to be sure of the observance of the

Legal institutions

At the same time with the extension of the slave-owning system, the difFerences ofwealth strengthened the great private extems property. In Dacia there were great landholdersthat used the labour of the slaves. Besides the private property, there existed the collective

property of the territorial community.Through the agency of information, recorded by Horatio, we know that the Geto-Dacians

were great tillers.Regarding the organization of the family, there are a lot of information recorded by

Herodot, Ovid and Horatio. There was monogamy and the future husband had to bought hisbride from her parents. On the other hand, the future wife had to bring to her new house adowry consisting in money or goods.

Ovid affirmed that woman was on an inferior level compared to that of man. She workedhard and she was sentenced to death if she had committed adultery.

There is no recorded information about the existence of any standards regardingobligations and commercial contracts, but scientists consider that they existed (the argumentwas the intensification of trade and the large use of coin).

In the field of criminal law, the main disposals considered the defence of the state and ofthe private property. Generally speaking, the state was charged with the justice, but they stillapplied the system of the blood revenge.

The Dacian State was concerned with the organization of the legal system. The kingComosycus -as lordanes recorded -took care of the organization of the trial and the trial itself,

but he was at the same time the great priest. Some historical texts certify the use of the judiciarycombat in order to solve different litigation. As for the diplomatic activity of the Dacians, theyused norms of international law, the priests using a certain ritual at the conclusion of thetreaties.

BASIC VOCABULARYcustom = usual practice; (law) established usage having the force of a lawgeneration = 1. whole body of persons born about the same lime; 2: procreation,

propagation of species, begetting or being begotten; 3. production by natural or artificialprocess; 4. overage time in which children are ready fo replace parents (reckoned at 30 years, asa time measure)

agency = active operation, action; instrumentalityslave = person who is legol property of another and is bound to absolute obedienceat the same time = concurrentlywealth = welfare, prosperity, riches, large possessions, opulence, abundance

collective = of, from, many individuals, common, by all, for the benefit of allprivate = individual, personal, not affecting the community

13


14/65

community = 1. joint ownership, fellowship; 2. body of people living in the samelocality; 3. body of people having religion, profession in common

to strengthen = to become stronger, to make strongertiller = ploughman, farmer, cultivatormonogamy = practice, circumstance of being married to one at a time

information = 1. informing, telling; 2. thing told, items of knowledge, news; 3.(low)charge, complaint, lodged with court or magistrate (against)dowry = 1. property or money brought by wife to husband; 2. endowment, marriage

portion; 3. gift of nature, talentadultery = voluntary sexual intercourse of married person with one of the opposite sex,

other than his or her spousetrade = 1. exchange of commodities for money or other commodities, commerce; 2.

exportation or importation of goods from or to home countries, or exchange of commodities ofdifferent countries

to revenge = to satisfy oneselt to be satisfied with retaliation (for offence, upon, on theoffender); to take vengeance

ritual = 1. prescribed order or performing religious service; 2. performance of religiousacts

SYNONYMSconcurrently = simultaneouslywealth = fortuneto strengthen = to accentuatedisposal = disposition, measure; stipulationto attest = to certifycombat = duelconclusion = settlement

ANTONYMSwritten - unwrittendifference - resemblancemonogamy - polygamy

private - collectiveequality - inequality


1.What did Strabon and lordanes say about the Geto-Dacians; laws?2.What was property in Dacia like?3.What is the information recorded by Horatio regarding the Geto-Dacians?4.What do we know about the family organization at that time?5.What do we know about the criminal law?6.Who was in charge with the organization and the trials?7.Did the Geto-Dacians use any norms of international law?

2. Translate into English:

a ) n epoca sclavagist exista o accentuat inegalitate intre femei i brbai.b) Respectarea legilor statului asigura libertatea indivizilor.

14


15/65

c) Dezinformarea completului de judecat atrage dup sine penalizarea celui in cauz.d) Unii oameni cred c au numai drepturi n societate.e) n ara noastr nu este acceptat bigamia.f) Fiind adaptabil, omul a reuit s reziste transformrilor naturale de-a lungul timpului.

3. Some of the following sentences are true and some are false. Correct the false ones :

1) Iordanes was a Greek historian and geographer.b) Burebista used the fear of gods in order fo impose the obedience of the law.e) In Dacia there were slaves who worked on the private properties as well as on the

collective ones.d) Dacians were polygamous.e) Geto-Dacians used the coin and made trade.f) They still applied the blood revenge.

4.Explain the following terms:

generationcommunityadulterytrade

6. Use the antonyms of the following words in sentences of your own:

resemblanceanycollectiveto strengthen

polygamy

BILL OF RIGHTS. COMMON LAWSThe first three amendments to the Constitution of the United States are generally referred

to as the National Bill of Rights. At the time Constitution was submitted to the people in 1787,there was much criticism of the document due to the fact that it did not contain a Bill of Rights.The explanation of this goes bock to the original English common low idea of government.

According to this, individual rights exist themselves as inborn and inalienable. The Constitutionand government are merely an added protection to those rights people already possess. Thisidea is today underlined by the government of Great Britain and the United States, by those ofthe self-governing British Commonwealth.

In contrast to this, the doctrine and belief that were and still are prevalent in othercountries should be mentioned, such as the states of the Continental Europe, which are underwhat might be termed a prerogative type of government. Even the most free of these countriesin their written constitutions make statements of individual rights that are based on theunderlying thought that these rights are the gift of the state. Thus, we find the Constitution ofSwitzerland (Article 55): "The freedom of the press is guaranteed. However, the lows of thecantons shall enact the necessary provisions to avoid abuse; these provisions should be

submitted to the approval of the Federal Counsel. The Confederation may also fix penalties inorder to prevent abuses directed against itself or its authorities."

15


16/65

This provision is characteristic to the most enlightened European democracies and is indirect contrast to the British and American common-law idea of protection for already existing,inalienable rights.

Common-law, originally custom and usage, become the law 'common' to all the people ofEngland by judicial enforcement. Thus it originated in England, but has come to consist in great

part in the principles which have been declared and developed in the decisions of the courtswhen adducting upon the private law in the countries of Anglo-Saxon origin. It is usually notincorporated in the Constitution or written statutes of a country, but is the term generally usedto describe that system of fundamental law, which is in force among the English-speaking

peoples as contrasted, with Roman law and derivative systems based on an enacted code. Theearly settlers of the United States claimed and were in fact supposed, to have brought with themin America their inherent common-low rights of person and property. It is the English common-law, which thus is recognized throughout the United States as the common-law of the countryand is the fundamental basis of the institutions of Government.

Primarily the Governments of each of the states and territories enforce the common-law.The Code Napoleon and its development in the State of Louisiana due to the original French

settlement there have inAuenced it to some extent. It is, of course, subject to repeal oramendment by statute, but primarily the common-law has been developed and extended by thestate and Federal Courts, past and present.

In those states where the common-law has been codified, these codes consist in large partof a restatement of the common-law doctrines and their later development up to the time ofcodification. In addition, the common-law rights of the individual, as generally accepted, have

been stated to a greater or lesser extent at various times in American history. Among thesestatements is that in the Declaration of Independence, which says that all men "are endowed bytheir creator with certain unalienable rights, that among these are life, liberty and the pursuit ofHappiness."

Also, the Bill of Rights or the first ten amendments to the United States Constitution andthe Bill of Rights in the various states constitutions are in whole or in large part made up ofstatements, common-law rights, which are inborn, inherent and inalienable and not granted byany Government, according to Anglo-Saxon and American theory. Thus, the AmericanGovernments, national or state, are merely added protection to the common-law rights, whichthe citizens already possess.

Adapted from "Concise Dictionary of American History"

16


17/65

CIVIL PROCEEDINGS

Understanding the English legal system must start with the distinction between civil andcriminal proceedings. Civil and criminal proceedings require different courts and procedures,although some judges sit in both civil and criminal courts. The distinction between civil and

criminal proceedings consists mainly in the legal consequences that follow a particular act.The role of the civil law and civil proceedings is to determine the rights and obligations

of individuals themselves, as well as in their relations with the others. Such civil acts could be:the determination of rights arising under a contract, the rights regarding property andsuccession, the obligations of paying damages for torts, like negligence, nuisance ordefamation, questions of status, such as divorce, adoption and the custody of children. Theserights belong to the area of private law, as they are of private nature; but there are also rightsthat belong to the public law, like questions of taxation, or questions of planning andcompulsory purchase, which are of public nature.

In a civil proceeding, the person who begins the proceeding is the plaintiff and he sues orbrings an action against a defendant. The plaintiff will be seeking a remedy, usually in the formof damages (money compensation), but possibly also in the form of an injunction (an order

prohibiting the defendant from committing or continuing to commit a wrongful act). Most civilproceedings are heard by a judge sitting alone; in defamation cases, which are very rarel thejudge will be helped by a jury in civil proceedings. The judge delivers a judgement afterhearing the action. The terminology is not the same in all the civil proceedings. For instance, indivorce proceedings, the petitioner, who asks for the marriage to be dissolved, partitions for adecree against the respondent. If it is certain that the marriage has broken down irretrievably

because of the respondent's adultery, the person with whom the respondent is alleged to havecommitted adultery must usually join the proceedings. This party is called co-respondent.

In civil proceedings, the plaintiff usually must prove the facts on which the claim is

based. This means that the plaintiff has the burden of proof, which in the civil cases is said tobe on the balance of probabilities. In other words, the plaintiff must satisfy the judge throughadmissible evidence, which is more reliable than his statements which he pretends to be true.

BASIC VOCABULARY. IDIOMSprocedure = 1. act or manner of proceeding in any action or process; conduct; 2. a

particular course or mode of action; 3. mode of conducting legal parliamentary, or otherbusiness, especially litigation and judicial proceedings

obligation = 1. an argument enforceable by law, originally applied to promises under seal;2. a document containing such an agreement; 3. a bond containing a penolty with a condition

annexed for payment of money, performance of covenance etc.; 4. any bond, note, biltcertificate, or the like, as of a government or a corporation, serving os evidence ofindebtedness; 5. something by which a person is bound to do certaih things, and which arisesout of a sense of duty or results from custom, low etc.;

succession = the descent or transmission of a throne, dignity, estate, or the like;nuisance = something offensive or annoying the individuals or to the community,

especially in violation of their legal rights;defamation = false or unjustified injury of the good reputation of another as by slander,

libel, calumnycompulsory = required without exception; mandatory; obligatory;

SYNONYMS

17


18/65

fundamental = essentialconsequence = effectobligation = (1) contract; (2) = responsibilitycompulsory = obligatory

ANTONYMOUSfundamental - secondarynegligence - care

private - publiccompulsory - voluntary


1. Is there any difference between civil and criminal proceedings?2. Which are the aims of the civil law and civil proceedings?3. Who is the person who begins the proceedings and what does he do?

4. Which is the schedule of a civil proceeding?5. What about divorce?6. What does the burden of proof imply?

2. Complete the blank spaces with the missing words:

a) Different ......... and ......... are used for civil and criminal proceedings.b) Civil law and proceedings aim to determine the ......... and ......... of individuals as well

as between each other.c) Questions of taxation or questions concerning planning or compulsory purchaseare rights that belong to ......... low.d) Most civil proceedings are heard by a ......... sitting alone.e) In civil proceedings, the plaintiff usually has the ......... of proof.

3. What do you mean by:

-proceeding-procedure-case-burden of proof-litigation

4. Which of the following statements are false and which are true? Correct the false ones :

a) The distinction between civil and criminal proceedings is of no importance inunderstanding English legal system.

b) The questions of taxation are of private law nature.c) In most criminal proceedings the person beginning the proceedings is the plaintiff.d) Most civil proceedings are heard by a jury of 12 persons.e) The plaintiff must satisfy the judge through admissible evidence, which is nof as

reliable as his statements that he pretends to be true.

RULES OF CIVIL PROCEDURE

18


19/65

The English system of civil procedure is based upon the adversary principle: a series ofstatements of fact are put forward by one party to be attacked by the opposing party. The judgeacts principally as umpire or referee and leaves it to the parties to put the case before him. Therules of civil procedure which govern the handling of cases are technical, complex and detailed.They are designed to regulate the conduct of the parties and their advocates in an adversary

trial. They can be found in large volumes entitled The supreme Court Practice (known amonglawyers as 'The White Book') and The County Court Practice (known among lawyers as 'TheGreen Book'). This mass of rules really has three objectives. The first objective is to ensure thatthe facts on which a claim is based are accurately found and appropriately arranged so that theissues between the parties can be identified. The second is to ensure that the correct andappropriate rule of law is found and applied. The third objective is to ensure that the remedy orremedies prescribed by that rule of law can adequately be enforced.

It is not necessary to dwell on the detail of the rules of procedure, since a broad outline ofthe process in action in contract and tort will serve for our enquiry.

Whether the rules actually achieve their objectives remains to be assessed, but there hasbeen a succession of calls over the last 30 years for the redrafting of the rules in order to make

High Court practice and procedure quicker, simpler and cheaper. Few of their recommendationshave been implemented. The recommendations of the Civil Justice Review pick up some ofthese recommendations and their implementation will mark the start of a new era in the

processing of civil disputes.

Adapted from "The Administration of Justice", by Robin C. White

19


20/65

TRUTH -THE PRINCIPLE OF THE JUDICIAL PLEADING

Truth is the accurate reflection of the objective reality in thinking, by comparing whatexists with what really happens.

There are two kinds of truth: the objective and the relative truth.

The objective truth reflects the existing reality, which is independent from the humanconsciousness. The criterion and the source of truth are the socialhistorical experience ofhumankind, which makes the process of finding out the truth a continuous and unlimited intime one.

The relative truth is the reflection of reality, which is just, but approximate. For example,the scientific fact is a relative truth. Using the relative truth, the human consciousness

permanently aims to the absolute truth.The absolute truth includes all the relative truth in its progressive and infinite historical

sequence. Any relative truth contains elements of absolute truth.Along the history, all the conceptions, systems and schools were appreciated through

their attitude towards the truth. Truth is the key to any lawsuit or juridical proceeding.

At the basis of all the branches of the studies of law lies the principle of absolute truth,especially in the procesuallaw, where complete concordance between the facts regarding thecause and the conclusion of the criminal lawsuit is demanded. A person who has to giveevidence in a trial will have to swear on oath that he will tell the truth and nothing but the truth.He is required not to make a false statement or pass the truth over in silence.

What we mean by telling the truth is that a person says a true sentence and not a falseone. As Aristotle said, "a true statement is the one by which you say that it is what it is and thatit is not what it is not".

In the Middle Ages, philosophers sustained that truth is the accord between object andintellect. Legally speaking, we have the right to sustain that our opinions are true, but we must

be able to motivate them, seriously and firmly.

BASIC VOCABULARY. IDIOMSaccurate = careful in exact conformity with a standard or with a truthreally = in fact, in reality, positivelyreality = property of being realobjective = belonging not to the consciousness or the perceiving or thinking subject, but

to what is presented to this, external to the mind, realrelative = pertinent, relevant, related to the subjectabsolute = complete, pure, mere; real, unconditionat self-existent and conceivable without

relation to other things

truth = quality or state of being true or accurate; honest; sincere; loyal; accurately shaped;adjustedirrespective of = not taking into account; without reference tomotive = what induces a person to actconsciousness = totality of a person's thoughts and feelingscriterion = principle, standard a thing is judged byhumankind = mankind, human speciessource = origin, places where things come from

permanent = intended to lost indefinitelyopinion = judgement or belief not founded on certainty or proof; view held as probableconception = thing conceived, idea

lie = intentional false statementconclusion = final result

20


21/65

statement = stating, expression in wordsintellect= faculty of knowing and reasoning

SYNONYMSto assert = to declare

accurate = precisereally = indeedabsolute = perfectrelative = pertinentcriterion = principlehumankind = mankindsource = origin

permanent = lasting

ANTONYMStruth - lie

accurate - inaccuratereality - fictionrespective - irrespectivefalse - true


1.What is truth?2. What kinds of truth did you read about?3. What does objective truth deal with?4. What about the relative one?5. What is the absolute truth?6. What are the words a person has to soy before giving evidence?7. What is a true statement in Aristotle's way of thinking?8. How did philosophers in the Middle Ages define the truth?

2.Fill in the blank spaces with the missing words:

a ) Truth demands the complete ......... of facts.b) The relative truth is the ........., but ......... reflection of reality.

c) To say a truth means to say a ......... sentence, not a false one.d) The scientific fact is a ......... truth.e) The process of finding out truth is ......... and ......... in time.f) Before giving evidence in a trial, the witness must say the .................., the whole .........

and nothing but the ......... .

3.Make sentences using the antonyms of the following words:

limited, silence, truel serious, permanent, relative

4. Use the following expressions in sentences:

21


22/65

- to give evidence- to tell the truth- to pass something over in silence- judidal proceedings

5.How many meanings can you find to these words?

-sentence-firm

6. Write a paragraph composition using the following:

lawyer, pleading, justice court, to lie at the basis, truth, accord, fact, exact, regarding,reality

CHARTISM AND THE NEW POOR LAWThe history of the chartist movement (1838 -1848) is really an illustration of this. It is

usual to point out that, when payment of MP's was authorised in 1911, all the six politicalpoints of the Charter had been in principle conceded, except the not very sensible proposal forgeneral elections to be held annually. But William Lovett and Feargus O'Connor, the two

principal leaders -both of whom were sent to prison during the period of agitation -and the bulkof their followers wanted something more than manhood suffrage, vote by ballot and otherchanges in electoral procedure. They aimed at getting a different kind of MP, the sort ofmember who had first experience of sufferings of the being completed in 1911, the Chartistdemands in this sense only began to be considered after 1906, the year in which Members ofParliament of a new social type first appear in significant numbers.

The social reform which the Chartists advocated, were often vaguely described asimpracticable and inconsistent with each other. But they were certainly united in their outcryagainst the new poor relief system of 1834. Joseph Naylor Stephens, a Wesleyan ministerturned into a Chartist agitator called it "this damnable law", which violates all the laws of God".Yet the law which bore more hardly upon the lives of the workers was left unaltered throughoutthe Queen's reign.

The Poor law of 1834 stopped the Speenhamland systems of rates in aid of the wages bytrying to abolish outdoor relief. If the poor needed help, they were let to come to the workhousefor it. If they came to the workhouse, they found that the help they got -food and shelter forthemselves and their families -was administered in such a strict, mean and humiliating fashion

that people would rather die than become paupers. If they would not become paupers, than theymust either find a job, however hard and poorly paid, or emigrate, or die. In spite of Dickens'"Oliver Twist" and in spite of Chartist agitation, the grim new workhouses remained the typical

buildings of Victorian England.Outdoor relief was never wholly abolished, especially in the case of the aged, and after

about 1870 the principle of abolition survived chiefly in rural areas. Some relieving officers andworkhouse masters administered the law in a kindlier spirit than others, and the workhouseinfirmary, where the sick law, gradually took on more the character of a hospital than a place of

punishment. But the fear of the workhouse remained one of the biggest factors in creating andmaintaining the habits of hard work, thrift and adaptability. Whole families would move aboutthe country, on foot if necessary, in search of employment -which made what the books call our

Labour Force so efficient an instrument for creating wealth.

22


23/65

The supervision of the Poor Law, at first entrusted the commissioners, was the main taskof a new government department set up in 1871. This was the local Government Board, havingas its other work the control of the town councils, which had been reformed and put on anentirely new basis in 1835. Local government was a second point at which the law affected thelife of the workers, especially in the new industrial towns, for the law intervened to restrict

within narrow limits the improvements which a council could provide for the town it served.

Adapted from "British Life and Civilization", by Livia Deac, Adrian Nicolescu

23


24/65

ELOQUENCE

Eloquence is the art of beautifully, enthusiastically, thrilling and convincing speaking.

Judicial eloquence

In trials or instances regarding the commitment of serious offences, speeches or orationsmust be distinguished by very serious argumentation. In order to obtain the forgiveness of thejudge, the accused must attract the attention of the audience and generate powerful emotions.We call a good speech that which connects the public speaker and the listener. Thismasterstroke consists of various ways of persuasion, remarks, comments upon rules, the stavingoff the hypothetical impediments and bewilderment. In fact, the whole pleading with a logical

background has a subtle and touching demonstration.

Demonstrative eloquence

There are many cases in which the demonstrative speech is expressed. Isocrate, thefounder of a school of rhetoric in Ancient Greece, distinguished himself by his speeches, which

represented real masterpieces. Panagiric and About Panatheene celebrations would be someexamples of these. He used a very delicate style, a juicy and nonpretentious vocabulary,harmonious sentences with figures of speech, an equal and eloquent rhythm and a poetry ofwords loaded with maximum emotional value.

Latin eloquence

The Romans created an original rhetoric, whose outlines were represented by theorientation to pragmatism and Stoic philosophy, as they had roots and developed the presocraticand isocratic tradition.

Another outstanding figure of Roman culture and civilisation was Cicero, famous for hisrare qualities of the perfect orator. As he stated, "an orator must have the logician's sharpness ofmind, the thinking of the philosopher, the poet's way of expressing his thoughts, the jurist'smemory, the tragedian's voice and, above all, the gesture of a famous actor".

Quintilian the greatest rhetor master and expert, defined oratory as the art of eloquenceand the orator was "a good man speaking". His lectures about rhetoric were well known andhighly appreciated at that time. In Quintilian's work we can find out the basic features of theideal advocate: sincerity, sensibility, morality, modesty. He has to be kind, but not familiar; hehas to give the proper advice knowing what was all aboutJnot to be passionate, not to get angry,

but to be calmJto keep his interior equilibrium and, moreJ to be impartial.

BASIC VOCABULARY. IDIOMS

eloquence = fluent, forcible and apt use of languagespeech = public addressargumentation = methodical reasoningoration = a formal public declaration or speech; discourseorator = eloquent public speaker; the person who makes a good speechaudience = persons within hearing; assembly of listenersto generate = to bring into existencemasterstroke = surpassingly skillful octmasterpiece = consummate piece of workmanship

persuasion = persuading, persuasivenesst convictionremark = a written or spoken comment, anything said

to stave off = to avert, to ward offbewilderment = perplexity

24


25/65

demonstration = outward exhibition of feelings, of opinion, logically proveddemonstrative = serving to point out or to exhibitfounder = one who founds institutionsrhetoric = the art of persuasive and impressive speakingrhetor = Ancient Greek or Roman feacher or professor of rhetoric; rare, orator

tradition = fact handed down from ancestors to posterityoriginal = innate, initial; that has served as patternoutlines = main features

pragmatism = doctrine that estimates any assertion solely by its practical bearing uponhuman interests

stoic philosophy = making virtue the highest good, concentrating attention on ethics andinculcating control of the passions and indifference to pleasure or pain (school founded inAthens, 308 BC by Zeno)

feature = distinctive or characteristic port of something or somebodyequilibrium = stote of balance; neutrality of judgementimpartial = unprejudiced

SYNONYMSorator = public speakeroration = discourseto generate = to produceclemency = mercymaster = teacherto stave off = to avert, to ward off, to deferimpediment = obstruction

bewilderment = confusionideal = perfectimpartial = fair

ANTONYMSwell - badfavourable - unfavourable, disadvantageous

pretentious - nonpretentiousequal - unequalrare - numerousfamous - unknowncalm - anxious

interior - exteriorimpartial - prejudiced


1. What do the orators try to do during their speech?2. How do they succeed in doing this?3. What was Isocrate's style like?4. What are the characteristics of latin eloquence?5. Describe the perfect orator in (icero's version.6. How is Quintilian's vision different from thot of Cicero?


25


26/65

a) An ......... must have the logician's sharpness of mind, the thinking of a ........., the .........'s way of expressing his thoughts, the ......... 's memory, the ......... 's voice and, above all, thegesture of a famous ..................

b) A good .......... must connect the public speaker and the ..................c) ................. was the founder of a school of rhetoric in Ancient Greece.

d) ..................defined the orator as "a good man speaking well".

3. Translate into English:

a) Cicero a fost o personalitate a retoricii romane.b) Pledoaria avocatului a fost perfecta i la obiect.c) Procurorul s-a dovedit a fi foarte inteligent.d) Discursul judiciar trebuie bine pregtit.e) Avocatul trebuie s fie bine informat pentru apararea inculpatului.f) Prietenii comenteaz verdictul. Au spus c judecata nu a fost corect.

4. Use the following words in sentences of your own:

eloquent; clemency; thrilling; founder; favour; persuasion; impediment; support; famous;impartial; to get angry; quality

ANGLO-SAXON GOVERNMENTThe corner-stone of Government in the Saxon society was the king.Although there were certain reins of his power controlled by the Witan full Witenagemot,

a council of 'wise men' chosen from the aristocracy), this council should not be seen as any sortof democratic Parliament. True, it was responsible for the election of the king -qualification forkingship of the royal family and the Witan chose from within that membership the mostsuitable successor, not necessarily the son of the previous king -and also advised him onmatters of government, but in the long run the king, once elected, was free to act much as hechose.

Successful rule, then, depended greatly on the personality of the king, who, to begin with,had no fixed court, but travelled around with his followers, mainly in order to collect his rents,which, being paid in food, had to be eaten on the spot. A king of no fixed abode, he couldsummon his Witan when he required it (to approve new laws, for example) to whichever realestate he happened to be occupying at the time.

Later, as kingdoms became bigger, royal representatives were created to administer local

justice. These, earldormen attended and supervised the meetings of the local court and theprocess whereby the handling of regional affairs passed from the freemen to the king, wasunder way.

By the time of the Norman Conquest this process was so complete and efficient for royalpurposes that William made little attempt to change it, so well did it to strengthen his hold ofthe country as a whole and enable him to establish a firm feudal superstructure on society.

The old popular assemblies remained in existence -the 'hundred' (most likely, to beginwith any rate, meetings of groups of a hundred families); above this, the 'shire-moot'; and abovethis still, the 'folk-moot' -but these moots or courts, were now controlled by the king's officers.The shire-reeve (the origin of the present-day sheriff) was one of the most vital figures in thesystem, personifying royal authority to lord and peasant alike, delivering the king's writ and

ensuring his wishes were carried out in the area.

26


27/65

This process of change in local government was a slow gradual one, only dearing inoutline in the 10-th and ll-th centuries, when the Danish invasions undoubtedly added impetusto it, hustling the development of this near feudal state by forcing the poor into the hands of thelord. In addition, many of the institutions of government were most likely Danish innovations.We have already noted the 'husting'; it may be that the 'hundred' (in Danish areas, the

'wapentake') was likewise a Danish introduction, or at least a refinement of an earlier Saxonidea.In London, by the end of the Saxon period, local government was much more complex,

with a larger number of courts, one for each of the wards into which the city had been divided.There were also the 'sokes' privileged areas that came under private iurisdiction. But publicauthority was the general rule, and the court of highest authority remained the folk-moot, whichmet three times a year, attended by every citizen (in theory, at leastL in the open air on thehighest ground in the city -beside St. Paull s Cathedral.

LAW AND ORDEROn the basis there is the Saxon law of compensation to the injured party by payment of

his 'wergild' to his kinsfolk. Some crimes were considered, of course, beyond compensation

-witchcraft, arson and predictably, treachery to one's lord or king. The punishment for this washanging. But in the crimes of the first category it was legal for the kindred 10 refuse payment ofthe wergild and take revenge into their own hands. This meant of course, retaliation of thekindred of the original criminal and the blood feud thus embarked on could continue for manyyears.

Later kings tried to stamp out his practice with his inherent danger that a kindred mightgrow too powerful and set itself above the law. But passing laws is one thing ensuring they areobserved is another, especially in an age when a police source as we know it was non-existent.Maintenance of law and order was in the hands of people themselves. That it worked at allshows the genius for cooperation that the Saxons possessed. When a crime was committedthere followed a 'hue and cry' - all freemen were called out to pursue and catch the criminal.

Once captured, the criminal was brought to trial - a trial that bore little resemblance to thecourt procedures today. It was, in fact, a Trial by Ordeal, provided, this is, the accused failed toget through the early stages which consisted in swearing on oath -'By the Lord, I am not guiltyof the act or pact in the crime with which I am charged -backed by his helpers' who swore, 'Bythe Lord, the defendant'soath is true and not false'. This was preceded by an oath made by theaccuser, swearing that he was justified in bringing the charge. If this was successful and thedefendant's was not, the Trial by Ordeal commenced.

In the ordeal by fire, the accused took a bar of red-hot iron in his hand and walked for afixed distance, or he walked over red-hot ploughshares set unequally apart. In the ordeal bywater, he plunged his hand into boiling water to draw out a stone. The part affected was

wrapped in linen (in Christian times, by a priest) and if on removal after three days the woundwas healed, the accused was found not guilty. The idea behind the Ordeal was that in heavenmight intervene the pass-judgement. Maintenance of law and order remained for a long time thetask of the people themselves, co-operative but unorganised. The first appearance of anythingresembling a police force seems to have been made in London in the early 10-th century wherea peace-gild was formed. Composed of groups of ten men, combining to form groups of onehundred under a headman, its aim was not only to create more organised action againstcriminals, but also to make available out of the common property of the gild money tocompensate the iniured party. It was a police 'force', then, but it remained a voluntaryorganisation run by the people, not a state-run institution.

From ''The Conqueror's London", by Derek Brechin

27


28/65

METHODS OF JURIDICAL INQUIRY

The methods of inquiry used for juridical sciences are adapted and taken over from othersciences about society. Some of these are: the logical method, the method of sociological

inquiry, the quantitative method, the method of the experiment, the systemical method and thestructural and functional method.Speaking about the logical method, we can say that it represents the summing-up of all

the methodological proceedings and operations which make possible the cognition of thestructure, and of the dynamics of the relations between the various components of the judicialsystem in society. There is a system of elements, rules and types of general formal logic neededin order to explain the law. Among these we can mention: the inductive arguments, thedeductive arguments, syllogisms, the demonstrative elements, the analysis, the synthesis.

The comparative method is used in studying law by the simultaneous approach of thesame kind of juridical institutions that exist at the same time or successively within the same ordifferent societies or law systems. The essence of this method consists in comparing some

phenomena, like the institution of property, marriage, family, punishment, in order to reveal thesimilitude, and much more, the difference of substance and contents between the comparedfactors. The comparative study of some contemporary juridical institutions allows the sharingof legislative experience within the way of settlement of social relations (commercial societies,tariff system, juridical protection, human rights).

The historical method consists in the progressive analysis of the juridical phenomena, intime and space, in their historical development and, of course, connected to the socio-politicalmoment. It reveals the causes and the circumstances in which some juridical institutionsappeared or vanished (take for example a type of law, like the Roman private law).

The method of sociological inquiry consists in making direct investigations, by theagency of sociological inquests (descriptions, interviews, questionnaires) in order to achieve a

better cognition of the juridical phenomena. The use of this method enables us to formulateconclusions and assessments regarding the utility and the social efficiency of the juridicalinstitutions and the juridical regulations.

The quantitative method is used to analyse some commensurable juridical phenomena(the frequency and the repartition of the criminal phenomena) in order to formulateobservations and conclusions regarding the causes and tendencies of the respectivemanifestations of the phenomena. The statistical methods are frequently used in law; moreover,they determine the appearance of computer sciencies in the juridical systems.

The method of the experiment has a larger and larger applicability in the field ofeconomic organisation, of retribution, of establishing prices, or taxation on turnover.

The systemic and functional method is based on the fact that the juridical phenomenarepresent assemblies of systems and complex actions, as well as stable and organised actions,forming part of the socio-political environment.

BASIC VOCABULARY. IDIOMSmethod = a particular way of doing something; orderly arrangement of ideas; scheme of

classificationscience = study of the nature and behaviour of natural things and the knowledge that we

obtain about them through observation and experimentsociety = 1. peoples way of life the customs and organization of a civilized nation; 2. the

upper classes of a community, whose doings are socially distinguished and well-to-do; 3.

association of persons united by a common aim, interests or principles

28


29/65

logical = 1. of logic or formal argument; 2. not contravening the laws of thought,correctly reasoned; 3. reasonably to be believed or done; 4. capable of correct reasoning

experiment = 1. test, trial; 2. trying out of a new idea or method in order to see what it islike and what effect if has

structure = the way in which a thing, a building, an organisation or other complete whole

is constructed, supporting framework, or whole of the essential parts of somethingcognition = action or faculty of knowing, perceiving, conceiving, as opposed to emotionor volition

dynamics = moving forces, physical or moral, in any spherecomponent = contributing to the composition of a whole based on inductionto analyse = to examine minutelysimultaneous = occurring or operating at the some time

progressive = moving forwardto reveal = to make known, to divulgeto asses = to estimate valuesyllogism = form of reasoning in which from two given or assumed propositions called

the premisses, that have a (ammon or middle ferm, a third is deduced, called the conclusion,from which the middle term is absent

synthesis = combination, composition, putting together, building up of separate elements,especially of propositions, facts or conceptions, into a connected whole, especially a theory or asystem

SYNONYMSinquiry investigationlogical deducibleexperiment testtendency inclinationcomponent partsimilitude likenessto reveal to let appear

ANTONYMSanalysis - synthesislogical - illogical

possible - impossibleinductive - deductive

progressive - regressiveto appeor - to vanishstable - unstable


1. Can you give examples of methods of inquiry?2. What can we use the logical method for?3. What is the comparative method used like?4. How can the historical method help us?5. Make a difference between the method of the experiment and the method of

sociological inquiry.6. What is the quantitative method used for?

29


30/65


a) In order to explain the law are needed all the ........., the ......... and the ......... of generalformal logic.

b) The comparative method presumes the ......... of some phenomena.c) The historical method reveals the ......... and the ......... in whichsome juridical institutions appeared or vanished.d) The quantitative method is used to analyse some ......... juridical phenomena.

3.Explain the following terms: syllogism, analysis, cognition and synthesis.

4. Use the following words in sentences of your own : science, cognition, inductive,deductive, to reveal.

5.Form sentences with the two meanings of the word'trial'.

APPEALS FROM COLONIAL COURTS (USA)In the latter part of the 17-th century the new colonial charters propietary and royal,

reserved for the king in council the right to hear cases on appeal from provincial courts wherethe sum litigated exceeded 300 sterling. In the New England colonies particularly the appellateauthority was at best grudgingly conceded, as the Connecticut Rhode Island charters made no

provision for judicial review. At times, as in the case Frost v. Veighton (1739) an order of thePrivy Council was deliberately ignored by the Massachusetts authorities. Pending appeals,executions of the colonial courts were suspended. Such appeals were both costly and

protracted.Through this appellate procedure the Privy Council sought to bring the legal systems of

the colonies into conformity with that of England, particularly in such matters as the rules ofevidence and jury system. Major issues on colonial policy were reviewed in litigation broughton appeal, notably Indian relations, the colonial currency lawsand interstate succession.Currency practices in the colonies were more generally dealt with by the Privy Council underits authority to disallow colonial legislation or by Parliament. In the suit of the Virginia clergyinstituted to recover back salaries resulting from the disallowance of the 'two penny act', theCouncil, in view of the constitutional storms raised by the Stamp Act, was prompted by the

political considerations to dismiss the appeal on a technicality. In the notable case of Winthropv. Lechmere the Council held the Connecticut custom of divisible descent of the estates invalid

as contrary to the common law, but reversed itself in Clark v. Tousey and in the Massachusettscase of Philips v. Savage, a great victory for egalitarian property concepts in New England.

Adapted from "Concise Dictionary of American History"

30


31/65

THE LAW

Generally speaking, by law we understand any normative act issued by a legislative bodyof a state, following a pre-established procedure. But, what we understand by law is only thenormative act passed in Parliament, following, of course, a pre-established procedure.

Constitution makes provision for three types of laws: constitutional laws, organic lawsand ordinary laws.The constitutional laws establish the organisation of the political powers and the

principles of government of one state, regulate the rules, the fundamental civil liberties andsome important social relations, which are the juridical basis of the other laws.

The constitutional law has to be adopted with a majority of at least two thirds from thetotal number of the members of the Parliament and it is approved by referendum.

The constitution is the fundamental law of a state, consisting of a system of juridicalstandards invested with a superior juridical force. The Constitution is the mirror of theeconomic structures, of the forms of property, of the organization of a state.

The organic laws have the second juridical force after Constitution and after the

constitutional laws. These two establish: the electoral system, the organization of thegovernment, the organization of the Supreme Council of Defence and of the political parties, ofthe referendum and of the local administration, of the education and of the culture. These lawsdeal with the statute of the civil servants, the administrative disputed claims office, the criminalactions, the punishment and its execution, the conciliation on amnesty and the collective

pardon, too. The organic laws are adopted with the absolute majority of the members of the twoHouses of Parliament.

The ordinary laws are adopted with the absolute majority of the members who are presentin each House of Parliament. The ordinary laws represent the development of the principlesformulated in the constitutional laws and cannot confute or cannot limit these principles. Theyestablish the most various social relations.

The law has three major characteristics: it is general, compulsory and permanent. The lawis a conscious act of will, which is made to reach some aims and to realise some social ideals. Itis general because it is valid for all the members of a society (an exception is represented by theind ividuallaws, which are adopted for certain specific acts). The law is compulsory because itsobservance does not depend on the option of those asked to conform themselves to itsdisposals. As a rule, the law is permanent; itis in operation until it is -if it is abrogated. The onlyexception is represented by the temporary laws, which are in operation up to a certainestablished date or an event foreseen by that law itself.

WORD STUDY

to issue = to emerge from a condition; to result, to be derived (from); to end, to result (in);to come out; to be publishedconstitution = body of fundamental principles according to which a state is governedorganic = inherent, fundamental, structuralto regulate = to control by rule, to adapt to requirements, to moderateliberty = being free from captivity, imprisonment, slavery or despotic controlliberties = privileges, immunities or rightscivil = people or things in a country that are not connected to its armed forcescivil law = the law of a state related to private and civilian affairsto approve = to confirm, to sanction, to pronounce satisfactory, to acceptreferendum = a vote in which the people in a particular country are all asked to say

whether they agree or disagree with a particular policy

31


32/65

will = a document in which you declare what you want to happen to your money andproperty after you die

valid = legally acceptable, having legal force, effective, executed with proper formalitiesinvalid = having no legal forcedisposal = disposing of, getting rid of, settling, dealing with, assignment; control;

disposition, arrangementto foresee = to see beforehand, to predict, to exercise foresightproperty = owning, thing owned, possessionto claim = to demand as being due or as one's property; to assert as a fact, maintain

against denialto conciliate = to overcome the hostility of; placate; win over; to win or gain, especially

by making friendly overturesconciliation = the act or process of conciliating, especially the involvement of a third

party in an industrial dispute to assist the parties in reaching a settlementamnesty = intentional overlooking; a general pardon, especially for offences against a

government

to confute = to prove (a person or thing) wrong, invalid or mistaken; disprovecompulsory = enforced, compelling, mandatoryto abrogate = to cancel a law or customaim = purpose, object, design

SYNONYMScommon = ordinaryto regulate = to moderateaim = purposecompulsory = enforcedliberty = freedomto approve = to confirmconscious = aware

property = possessionliberties = privileges

ANTONYMSgeneral - special

permanent - temporaryvalid - invalidconscious - unconscious

majority - minoritysuperior -inferior


1. What do we understand by law?2. Which are the three 1ypes of laws?3. What are the constitutional laws?4. What is the Constitution?5. Who votes the ordinary laws?6. Talk about the characteristics of the law.

32


33/65

2.Form sentences with different meanings of the following words: will, property, disposatclaim, liberty, conscious, to issue


a) A law passes in Parliament following a ......... procedure.b) There are three types of laws: ......... laws, ......... laws and ......... laws.c) Constitution is the ......... law of a statel is the ......... of the organisation of a state.d) The ordinary laws ore adopted with the ......... majority of the members ......... in each

House of Parliament.e) The law is the conscious act of ........ ..f) The law is valid for all the members of the ........ ..

4.Explain the following terms: referendum, wilt to foresee, amnesty

5. What do you call the laws which:

a) establish the organisation of the political powers?b) establish the referendum?c) represent the development of the principles of the constitutional laws, but cannot

confute them?

6. Use the following words in sentences: to regulate, liberties, conscious, disposal toclaim, amnes1y

ADMIRALTY IN LAW AND COURTS IN THE USAIn the 17-th century American colonies, admiralty iurisdiction was generally exercised by

the ordinary common law courts, although governors had the right to commission courts of viceadmiralty; but by the end of the century, royal patents were being issued for the establishmentof vice admiralty courts, beginning in New York in 1696.

In addition to the English jurisdiction of the English admiralty courts over such matters asprize, wreck, salvage, insurance, freight and passenger contracts, bottomry charter parties andseamen's wages, the colonial vice admiralty courts enforced the Acts of Trade. Piracy, whichoriginally was under the jurisdiction of the admiralty, was in the colonies normally dealt with

by courts specially commissioned by the crown to deal with particular cases. Procedure in viceadmiralty was in rem rather than in personam. As the vice admiralty courts exercised summary

jurisdiction and did not have trial by jury, they attained a considerable degree of unpopularityamong that element in the colonies opposed to the Acts of Trade, and in some colonies writs ofprohibition were frequently issued by the common law courts again on the vice admiralty onthe ground that the latter court was incompetent to act in particular litigation. As a rule, suchwrits were obeyed. Common law courts throughout the colonial period, as, for example, theMayor's Court of New York City, continued to exercise a good deal of admirality jurisdiction.

After the Revolution, most of the states erected their own courts of admiralty, reallycontinuing the provincial courts, but the Federal Convention gave to the federal courts "all thecases of admiralty and maritime jurisdiction". Among the anachronisms surviving to the 20-thcentury in American admiralty law had been the privilege of the shipowner to limit liabilityafter a disaster to whatever the value of the vessel or wreckage may be after the occurrence of

the act.

33


34/65

The Titanic and the Marro Castel are two notorious examples of the application of thisrule. The evolution of the doctrine of the continuous voyage by the federal courts during theCivil War provided Great Britain during World War I with a convenient precedent to justify theseizure of the ships bound for neutral ports on the ground that their ultimate destination wasGermany.

ABOLITION MOVEMENTThe first recorded vote against slavery in the United States was that on February 18-th,

1688, by the Monthly Meeting of the Germantown, Pa., Society of Friends. Long before that,even in 1624, protests were heard against slavery in the colonies, both in the South and in the

North. When the Revolution came, it was plain to increasing number that slavery wasinconsistent with the sentiments of the Declaration of Independence. In Jefferson's first draft ofthe document, the slave trade was described as a "cruel war against human nature itself,violating its most sacred rights of life and liberty". Negroes were freed on enlisting in theContinental armies, in which many of them served.

The early Formation of the antislavery soci

Documents

Texte Drept Si AP ID (3)