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Legal English

Legal English, con particolare riferimento al sistema giuridico britannico e all’iter legislativo anglofono.
Materiale nel riassunto: The Roman Legal System/ What’s law?/ Domestic sources of law/The legislative
process/ The European Court of Justice/
Provisions of the United Nations/
Criminal law/civil law/common law/
Treaties/ regulations/directives/decisions/ Constitutional... Vedi di più

Esame di Lingua inglese docente Prof. A. Bonomo

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Civil Offences that can go before a

Magistrates' Court:

• Cases concerning the welfare of children.

• Dealing with people who don't pay their council tax.

• Family law including maintenance orders.

• Granting* alcohol licences.

• *to grant: concedere.

The doctrine of the precedent:

The fundamental assumption is:

• All cases should be treated alike

• The latin maxim, “stare decisis ” (stand by the decisions of past

cases) is the basis of the doctrine of the Precedent.

• Whitin the English law system, in certain circumstances a decision

on a legal point made in an earlier case MUST be followed.

Stare decisis:

(Lo “stare decisis” rappresenta un principio generale dei sistemi

di common law, in forza del quale il giudice è obbligato a

conformarsi alla decisione già adottata in una precedente

sentenza, nel caso in cui la fattispecie portata al suo esame sia

identica a quella già discussa nel caso deciso. In questo modo, i

precedenti tratti dalle sentenze anteriori operano come fonte di

diritto e, negli ordinamenti di common law, a tutt'oggi, la maggior

parte delle norme è prodotta proprio tramite questo sistema.)

STARE DECISIS :"to stand by that which is decided." The

principle is that the precedent decisions are to be followed by the

courts. It is a general maxim that when a point has been settled

by decision, it forms a precedent which is not afterwards to be

departed from.

When these itinerant justices returned to Westminster , they were

able to discuss the different customs they met in different parts of

the country and by a process of selection, rejecting unreasonable

ones and accepting those that seemed more rational, they formed

a consistent body of rules (the “stare decisis”) making the law

more predictable.

Does reexamining exist?:

Although the doctrine of stare decisis does not prevent reexamining and,

if need be, overruling prior decisions, "It is a fundamental jurisprudential

policy that prior applicable precedent usually must be followed even

though the case, if considered anew, might be decided differently by the

current justices. This policy 'is based on the assumption that certainty,

predictability and stability in the law are the major objectives of the legal

system; i.e., that parties should be able to regulate their conduct and

enter into relationships with reasonable assurance of the governing

rules of law.'

According to such a principle:

• All courts are bound to follow decisions made by courts above

them in the hierarchy.

• Appellate courts are normally bound by their own past decisions.

• The principles of law that are essential to the decision are known

as the “ratio decidendi ”, they are defined as “any rule expressly or

impliedly treated by the judge as a necessary step in reaching his

conclusion”

CASE LAW:

Case law comes from the decisions made by judges in the cases

before them. In deciding a case we may finf two basic task:

1. Establishing what the facts are, meaning what actually happened.

2. How the law applies to those facts.

Ratio decidendi/ obiter dicta:

• The explanation of the legal principles on which the decidon is

made is called “ratio decidendi” (English: reason for deciding)

• All parts of the judgement which do not form part of the “ratio

deicidendi2 of the case are called “obiter facta” (English: things

said by the way). These are often discussions of hypothetical

situations but none of the obiter dicta forms part of the case law.

Common Law:

• Before the Norman Conquest in 1066 different areas of England

were governed by different systems of law. When William the

Conqueror gained the English throne in 1066, he established a

strong central government abd began to standardize the law.

• Represenatives of the King were sent out to the countryside to

check the local administartion, and were given the job of

adudicating in local disputes, according to local law.

A common law (1250)

The result of such a situation was that by about 1250 a common law had

been produced and it ruled the whole country. It contained many of what

are now basic points of English law (the fact that a murder is a crime for

example).

The English common law system was exported around the world

wherever British influence dominated during the colonial period

(including USA and Commonwealth countries)

Equity or not?:

The common law became very rigid and it was not always an adequate

solution to every problem. When people were unable to seek redress

for wrongs through the c.law courts they petitioned the king. These

petitions were passed to the Chancellor, the king’s chief minister.

Litigants appeared before the Chancellor, who would question them, and

then deliver a verdict based on his own moral view of the question. The

Court, relying entirely on the Chancellor’s view of right and wrong , it

could enforce rights not recognized by the common law, which was

failing to adapt to new circumstances. This type of justice came to be

known as equity.

By the nineteenth century equity had become a body of law with

established cases, rather than an arbitrary exercise of conscience.

Today equity is still a separate body of rules, distinct from the common

law rules, but it is applied in the same courts as the common law.

Where there is a conflict between the two, equity prevails.

Advantages of binding precedent:

• Certainty: this helps people plan their affairs.

• Detailed practical rules: case law is a response to real situations,

as opposed to statutes which may be more based on theory and

logic. Case law shows the detailed application of the law to various

circumstances.

Disadvantages of binding precedent:

• Complexity and volume: there are hundreds of thousands of

decided cases. Judgments themselves are long and the ratio

decidendi of a case may be buried in a sea of irrelevant material.

• Rigidity: the rules of judicial precedent mean that judges should

follow a binding precedent even where they think it is a bad law, or

inappropriate. This can mean that bad judicial decisions are

perpetuated for a long time before they come before a court high

enough to have the power to overrule them.

• Dependence on chance: case law changes only in response to

those cases brought before it, so important changes may not be

made unless someone has the money and determination to push a

case far enough through the appeal system to allow a new

precedent to be created.

• Retrospective effect: if a case changes the law, the parties

concerned in that case could not have known what the law was

before they acted.

The Civil courts:

• Civil action takes place between individuals or organisations in

dispute.

• These actions range through disputes between nieghbours,

families, companies, consumers and manufacturers.

• When a party (the claimant/plaintiff ) takes an action against

another party (the defendant ), the defendant is required to enter a

defence within fourteen days . Once the defence has been filed

the case management has started.

Tracks…

• First the court allocates the case to one of three tracks . The

values of these tracks refer to the sum claimed by the claimant.

1. The small claims track : actions with a value of less than £5.000

2. The fast track : actions of value between £ 5.000 and £15.000

3. The multi-track : actions with a higher value than £ 15.000.

Differences between Civil and Criminal Law:

Purpose of the Civil Law: To regulate relationships between individuals;

To settle disputes.

Civil Possible outcomes: Damages; Injunction; Declaration.

Purpose of the Criminal Law: To prevent certain types of conduct;

To enforce behaviour; To punish offenders.

Criminal Possible outcomes: Imprisonment; Fine; Community service.

Primary Legislation:

• There are no limits to the power of Parliament and it could

legislate to do anything it wishes.

• The Human Rights Act ( 1998) is also compatible with this

convention that Parliament can legislate to do anything.

The parliamentary process:

Bill drafted

Whitehall stage House of Lords

amendments

House of Commons

Westmister stage Royal Assent

Act of Parliament

The legislative stages in The House of

Commons:

1. First Reading Title of the Bill is read out and the Bill is printed.

2. Second Reading Debate on the general principles of the Bill. Vote

taken on whether to proceed.

3. Committee Stage Passes to a Committee of the House.

4. Report Stage Amended Bill is reprinted and voted on.

5. Third Reading Final amendments and vote. Passed to House of

Lords if relevant.

In the House of Lords the process adopted is almost identical.

Consideration of amendments:

- In many cases it is likely that the second House to consider the

Bill will produce a slightly different Bill than that which was handed

to them not least because members of the second House have

had the opportunity to table amendments. Assuming that this

happens then the matter returns to the originating House (so in our

example the House of Commons) where that House must consider

the amendments. If they do not agree them (and therefore make

further amendments themselves) then the matter returns to the

other House and the process is repeated in a ‘ping-pong’ fashion

until one of three things happens:

-the two Houses agree the content of the Bill.

-the Houses cannot agree and parliamentary time runs out. in this

case the Bill is normally lost.

Royal Assent:

Assuming that the two Houses manage to agree the content of the Bill

then the Bill is

sent to the Queen for Royal Assent. The date on which the Royal

Assent is given is also

marked on the Act and it becomes itself part of the Act.

Content of a statute:

1. Short title:Most statutes will be referred to by their short title. Ex:

Constitutional Reform Act 2005

2. Royal Coat of Arms

An Act of Parliament is made under the authority of the Queen in

Parliament because the United Kingdom is a constitutional monarchy.

Accordingly when any legislation is passed the Royal Coat of Arms is

affixed to the statute to act as a seal for the legislation.

3. Chapter number:

The second official way in which a statute should be cited (the first was

the short title) is in respect of its chapter number. Each Act that is

passed by both Houses of Parliament and which receives Royal Assent

is assigned a sequential number to identify what order the legislation

was passed in any parliamentary session.

Ex: 2005 CHAPTER 4

4. Long title

Although each Act is given a short title by which it will ordinarily be

known, there is also a ‘long title’ to the Act which serves a description of

the purposes of the Act.

EX: An Act to make provision for modifying the office of Lord Chancellor,

and to make provision relating to the functions of that office; to establish

a Supreme Court of the United Kingdom, and to abolish the appellate

jurisdiction of the House of Lords etc…

5. Date of Royal Assent

Royal Assent is the final part of the process required to enact

legislation and the date on which assent is given is placed on the Act

and on all copies of the Act.

EX: [24th March 2005]

6. Enacting formula

The enacting formula is just a formal wording that demonstrates that the

legislation passed the relevant legislative processes.

Ex: BE IT ENACTED by the Queen’s most Excellent Majesty, by and

with the advice and consent of the Lords Spiritual and Temporal,

and Commons, in this present Parliament assembled, and by the

authority of the same as follows:

7. Part number and heading:

Where an Act is long it is not uncommon for the Act to be split into Parts.

The Constitutional Reform Act 2005 is divided into seven Parts each

dealing with a discrete set of provisions in a broad area. Each Part is

usually accompanied by a heading, or more properly referred to as a

‘note’.

Ex: Part 1

The Rule of Law

Constitution:

• The act or process of constituting.

• The state of being; that form of being, or structure and connection

of parts, which constitutes and characterizes a system or body;

natural condition; structure; texture; conformation.

• The fundamental, organic law or principles of government of men

embodied in written documents, or implied in the institutions and

usages of the country or society; also, a written instrument

embodying such organic law, and laying down fundamental rules

and principles for the conduct of affairs.

Constitutional monarchy :

A monarchy in which the powers of the ruler are restricted to those

granted under the constitution and laws of the nation.

A form of national government in which the power of the monarch

(the king or queen) is restrained by a parliament, by law, or by

custom. Several nations, especially in modern times, have passed

from absolute monarchy to a constitutional monarchy, including

Belgium, Britain, Denmark, The Netherlands, Norway, Spain, and

Sweden.

Monarchy and constitution?

In a monarchy the head of state, the nation's representativ, inherits

that position from her or his parents and is entitled to hold it until

death. The people have no say in who should represent them.

In Britain we have a "constitutional monarchy" in which the

monarch acknowledges the rights of the legislature and the

executive branch of government.

There are also 16 countries (all members of the Commonwealth)

that have Britain’s Queen Windsor as head of state. They are, for

example: Antigua and Australia, Bahamas, Barbados, Belize,

Canada, Jamaica, New Zealand, Papua New Guinea.

The British Constitution:

The British constitution, unlike that of most other countries, is not

written and not set out in any single document. Instead it is made

up of statute law, common law and conventions.

The Bill of Rights (1689) was the first step towards constitutional

monarchy.

This Bill prevented the monarch from making laws or raising an

army without Parliament’s approval. Since 1689 the power of

Parliament has grown, while the power of the monarch has

weakened.

Nowadays Parliament is the legislature and the supreme authority.

The executive consists of:

the Government, the Cabinet and other ministers responsible for

national policies,

-government departments, responsible for national administration;

-local authorities, responsible for many local services;

-public corporations, responsible for operating particular

nationalised industries or other bodies subject to ministerial

control.

The judiciary determines common law and interprets statues, and

is independent.

The Cabinet:

A group of members of a government who are chosen by the leader of

the government to give advice and be responsible for its policies. In the

British political system, members of the cabinet are called cabinet

ministers and each minister is usually the head of one of the main

government departments, such as Health or Defence.

Law: primary/secondary sources:

PRIMARY:

• Acts of Parliament (An Act is a statement of the law approved by

Parliament)

• Statutory Instruments (Statutory Rules are subordinate, delegated

legislation made under the authority of an act.

Statutory Rules are also known as Regulations, are delegated

legislation. Such rules are made by organizations and official

bodies, which have the delegated authority from Parliament to

carry out this area of law-making.)

• Decisions of superior courts :

Judicial decisions, often published in law reports are the reports of

judgments, cases or decisions of the law courts. These decisions

are often generically called common law.

• Orders in Council : are Orders that have been approved at a

meeting of the Privy Council personally by The Queen.

Secondary sources of law:

Secondary legal resources are materials that comment on the

legislation or case law. including:

• Legal Dictionaries & Glossaries.

• Legal Encyclopedias.

• Law Journals.

• Legal Electronic Discussion Lists.

• Other Key Legal Internet Resources and Guides.

• Guides to Secondary and Primary ResourcesThere is a range of

material in this category.

Writing emails

DOS

- Use an informative subject line, which

says what the email is about.

- Write the most important information

first.

- Use simple grammar. Avoid things like

the passive. (As emails are a fast means

of communication, they tend to be less

wordy and complex than formal letters.)

- Write short sentences.

- Use paragraphs to keep the email clear

and easy to understand.

DON'T S

- Write ‘hello’ as your subject line.

- write about irrelevant issues. The reader will soon hit ‘delete’ if the

email doesn’t get to the point.

- Give personal information that you don’t want anyone else to know.

(The email could end up in the wrong hands)

- Use capital letters to write whole words as in emails, this is considered

shouting.

- Use different fonts in the email (the recipient’s computer may not be

compatible)

- Use Italics (the reason may be misunderstood, due to cultural

differences).

- Use exclamation marks.

- Use abbreviations, as the recipient may not understand them.

-Use acronyms for the same reason.

-Use smiles. They may bemisunderstood and come across as

unprofessional.

E-mail:

Many people enjoy sending an receiving e-mail, especially if they share

a common interest. Writing e-mails to a friend in English allows you as

much time as you need to write the message and look up any words or

grammar that you don't know.

E-mails are usually written in a less formal style than letters. It is

common to start an e- mail with the name of the person you are writing

to, without starting with the word "Dear".

The following are examples of some appropriate ways to start and end

an e-mail:

1) Writing to your partner Start: Use the person's first name or nickname

Ending: "Take care", or "Love", or "Thinking of you" Signature: Your first

name, or nickname

2) Writing to a friend Start: Use the person's first name Ending: "Best

wishes", or "Yours", or "Take care" Signature: Your first name

(3) Writing to someone in your own company Start: Use the person's

first name (in a few companies you might need to be more formal, but

this is rare in the UK) Ending: "Regards", or "Best wishes " Signature:

Your first name and last name, and put below your job title and

department, and phone number.

4) Writing to someone in another organisation or someone in a formal

position of responsibility Start: Use the person's title (eg: Mr, Mrs, Ms,

Dr) and surname (eg: Smith), or just "Sir/Madam" if you don't know the

nameEnding: "Regards"Signature: Your first name and last name (you

might add your title if you want to make it clear if you are a man or

woman). Below you can add your job title (if appropriate) and contact

details (you may want to include your telephone number or address)

How to read email addresses:

(_ ) underscore

( @ ) at

( - ) hyphen USED TO JOIN WORDS AND TO SEPARATE

SYLLABLES OF A SINGLE WORD

BUT if the punctuation mark is longer we have DASH ( – )

( / ) slash

(.) dot (.com)

FORMAL LETTER:

Dear Mr Jones,

I am writing to enquire about your language courses in the summer. I am

a university student studying to become a translator.

----------------------------------------------------------------------------------------------------

I would like to know whether your school offers courses specifically for

university level students as I would like to study techniques for essay

writing in English. Could you also tell me how many hours of lessons

there are per week?

----------------------------------------------------------------------------------------------------

With regards to accommodation, are there different possible alternatives? I

feel I would

prefer to stay in shared accommodation with self-catering facilities.

----------------------------------------------------------------------------------------------------

Finally, I was wondering if any extra-curricular activities such as

lectures or excursions are offered at your school. If so, are these

included in the price, or at an additional cost?

----------------------------------------------------------------------------------------------------

I would be grateful for any information you can give me and I look

forward to hearing from you soon

Yours sincerely,

Jaana Nikkinen

BUSINESS LETTER:

Note that there are some differences in style between letters written in

American English and British English. For example, the way of writing

dates is different (the order is day, month, year in Britain, eg 1/2/2002 or

1 Feb 2002 or 1st February 2002; month, day, year in the US, eg

2/1/2002 or Feb 1 2002 or February 1st 2002.

At the top of the letter, write your address (using English letters) on the

right hand side. You do not need to put your name at the top of this

address, because it will already be written at the bottom of the letter .As

well as your postal address, you may want to include your telephone or

fax number (if you are not in the same country as the person to whom

you are writing, you should use the international way of writing this,

including the country code. You may also want to include your e-mail

address.

Write the full name and address of the person to whom you are writing

on the top left hand side of the letter. On the right hand side,

underneath your own address, write the date on which you wrote the

letter. To avoid any possible confusion, it may be better to write the

address in full (for example: 1st February 2002).

In Britain, when you do not know the name of the person to whom you

are writing (or if you know the name but you want to write in a very

formal style), you normally start a business letter with the words "Dear

Sir". "Sir" is a word for a man, but it is understood that it is just a

convention to use this and that the letter may be read by either a man or

a woman. You can write "Dear Sir/Madam" instead if you prefer, but it is

not common to write "Dear Madam" unless you are certain that the letter

will be read by a woman. You should end the letter with "Yours faithfully"

("Faithfully yours" is only used in American English).

Note that you shouldn't add a full stop at the end of abbreviated words if

the last letter of the abbreviation is the same as the last letter of the full

word. For example, you should write Mr Smith (short for Mister) or Dr

Smith (short for Doctor), but Prof. Smith (short for Professor) - there is a

full stop in the last example because "f" is not the last letter of the word

"professor".

When you start the letter, you may want to put a special heading to

make the subject of the letter clear, especially if your letter is quite long.

It is common to start with "Re: " ("re" introduces the subject: it means

"about") and then give a one-line summary of the subject (for example:


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DESCRIZIONE APPUNTO

Legal English, con particolare riferimento al sistema giuridico britannico e all’iter legislativo anglofono.
Materiale nel riassunto: The Roman Legal System/ What’s law?/ Domestic sources of law/The legislative
process/ The European Court of Justice/
Provisions of the United Nations/
Criminal law/civil law/common law/
Treaties/ regulations/directives/decisions/ Constitutional conventions/ Solicitors
and Barristers/ Legal correspondence (Letters/faxes and emails)


DETTAGLI
Corso di laurea: Corso di laurea in scienze strategiche e della sicurezza
SSD:
A.A.: 2017-2018

I contenuti di questa pagina costituiscono rielaborazioni personali del Publisher Merca-Tino di informazioni apprese con la frequenza delle lezioni di Lingua inglese e studio autonomo di eventuali libri di riferimento in preparazione dell'esame finale o della tesi. Non devono intendersi come materiale ufficiale dell'università Kore Enna - Unikore o del prof Bonomo Annalisa.

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