法律英语-何家弘(课文)

Lesson One: Legal System 法律制度

Background背景

自从哥伦布(Christopher Columbus)于1492年航行至美洲之后，大批欧洲人便开始拥向这片"新大陆"。不过，人们通常把第一批英国定居者(the first English settlers)于1607年到达弗吉尼亚(Virginia)的詹姆斯顿(Jamestown)视为美国法律制度历史的起点。美国法制史可以大体上分为两个时期，即英属殖民地时期(the Period of the English Colonies)和美利坚合众国时期(the Period of the United States)。虽然美国的法律制度是在英国法律传统的基础上形成和发展起来的，但是在近四百年的历史进程中，美国的法律制度也形成了一些不同于英国法律制度的特点，如公诉制度(public prosecution)等。

美国属于普通法系(Common Law Legal System)国家，其法律制度有两个基本特点：其一是以分散制(decentralization)为原则；其二是以判例法(case law)为主体。美国除联邦政府外，还有州政府、县政府、市政府、镇政府等等，而且这些政府都是相互独立的，各自在其管辖范围内享有一定的立法权和执法权。因此，有人说美国是"一个有许多政府的国家

"(a country of many governments)；而美国的法律体系则是一个"零散的无系统。诚然，美国现在也有很多成文法(written law)或制定法(statutory law)，但是其法律制度仍是以判例法为主体的。换言之，"遵从前例"(stare decisis)仍然是美国司法活动中最重要的原则之一。以上两点对于理解美国的法律制度具有重要意义。

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Part One

The United States is at once a very new nation and a very old nation. It is a new nation compared with many other countries, and it is new, too, in the sense that it is constantly being renewed by the addition of new elements of population and of new States. But in other senses it is old. It is the oldest of the "new" nations--the first one to be made out of an Old World colony. It has the oldest written constitution, the oldest continuous federal system, and the oldest practice of self-government of any nation.

One of the most interesting features of America’s youth is

that the whole of its history belongs in the period since the invention of the printing press. The whole of its history is, therefore, recorded: indeed, it is safe to say that no other major nation has so comprehensive a record of its history as has the United States, for events such as those that are lost in the legendary past of Italy or France or England are part of the printed record of the United States. And the American record is not only comprehensive; it is immense. It embraces not only the record of the colonial era and of the Nation since 1776, but of the present fifty States as well, and the intricate network of relationships between States and Nation. Thus, to take a very elementary example, the reports of the United States Supreme Court fill some 350 volumes, and the reports of some States are almost equally voluminous: the reader who wants to trace the history of law in America is confronted with over 5,000 stout volumes of legal cases.

No one document, no handful of documents, can properly be said to reveal the character of a people or of their government. But when hundreds and thousands of documents strike a consistent note, over more than a hundred years, we have a right to say that is the keynote.

When hundreds and thousands of documents address themselves in the same ways, to the same overarching problems, we have a right to read from them certain conclusions which we can call national characteristics.

Part Two

The American legal system, like the English, is methodologically mainly a case law system. Most fields of private law still consist primarily of case law and the extensive and steadily growing statutory law continues to be subject to binding interpretation through case law. Knowledge of the case law method as well as of the technique of working with case law therefore is of central importance for an understanding of American law and legal methodology.

The Common Law is historically the common general law -- with supremacy over local law--which was decreed by the itinerant judges of the English royal court. The enforcement of a claim presupposed the existence of a special form of action, a writ, with the result that the original common law represented a system of "actions" similar to

that of classical Roman law. If a writ existed (in 1227) a claim could be enforced; there was no recourse for a claim without a writ, the claim did not exist. This system became inflexible when the "Provisions of Oxford" (1258) prohibited the creation of new writs, except for the flexibility which the "writ upon the case" allowed and which later led to the development of contract and tort law.

The narrow limits of the forms of action and the limited recourse they provided led to the development of equity law and equity case law. "Equity", in its general meaning of doing "equity", deciding ex aequo et bono, was first granted by the King, and later by his Chancellor as "keeper of the King's conscience", to afford relief in hardship cases. In the fifteenth century, however, equity law and equity case law developed into an independent legal system and judiciary (Court of Chancery) which competed with the ordinary common law courts. Its rules and maxims became fixed and, to a degree, inflexible as in any legal system. Special characteristics of equity law include: relief in the form of specific performance (in contrast to the common law award of compensatory damages), the injunction (a temporary or final order to do or not to do a specific act),

the development of so

permeated the entire legal system and in many cases explain the origin of modern legal concepts. However, equitable relief regularly will lie only when the common law relief is inadequate. For instance, specific performance for the purchase of real property will be granted because common law damages are deemed to be inadequate since they cannot compensate the buyer in view of the uniqueness attributed to real property.

As the common law, equity law became part of American law either through judicial acceptance or through express statutory provision. Today, both legal systems have been merged in many American jurisdictions (beginning with New York in 1848), with the result that there is only one form of civil suit in these jurisdictions as well as in federal practice. Only few States continue to maintain a separate chancery court. Nevertheless, the reference to the historical development is important because, on the one hand, it explains the origin and significance of many contemporary legal concepts (for instance the division of title in the law of property) and, on the other hand, it is still relevant for the decision of such questions whether, for

instance, there is a right to a trial by jury (only in the case of common law suits, in other cases only before the judge). In addition, the differentiation will determine whether the "ordinary" common law relief of damages applies or whether the "extraordinary" equity remedy of specific performance is available.

"Case law"describe

and today includes common law and equity precedents. In imprecise and confusing usage the terms "common law" and "case law" are often used synonymously, with the term

n general as contrasted with statutory law. "Case law"

contrast--depending on the meaning intended--describes either the judge made law in common law subject matters or, more extensively, all judge made law.

Lesson Two：Legal Profession 法律职业Background背景

美国的法律职业由律师、法官、检察官和法学教师组成。不

过，这几种人又都可以称为"律师"(lawyer)，而且他们都可以是律师协会(Bar)成员。由此可见，美国法律职业内部的"职业划分"并不象中国及世界上大多数国家那样严格和确定。诚然，这里有语言习惯问题，但它也在一定程度上反映了美国各种法律工作者之间人员变换的频繁性，而且这种变换总以律师为中心。美国的法官一般都从律师中产生，而且他们在担任法官期间仍可保留律师资格，只是不能从事律师业务而已。美国的检察官与律师之间几乎没有任何职业差别。实际上，美国的检察官就被称为律师(attorney)。检察官与律师(我们中国人所熟悉之含义上的律师)之间的区别仅在于前者受雇于政府，后者受雇于私人或自己开业；前者在刑事案件中负责公诉，后者在刑事案件中负责辩护。此外，美国的法学教师一般都是当地的律师。

美国律师之多，在世界上堪称第一。据1984年的统计，美国共有万名律师，其与人口的比例为1∶364。美国律师多的主要原因是法律在其社会生活中起着非常重要的作用。除各种法律纠纷外，人们从生到死、从结婚到离婚、从生活到工作，往往都需要律师的帮助。有些人几乎事事都要请教律师。诚然，这说明美国人具有很强的法律意识，但也说明美国的许多法律规定过于复杂。一般来说，美国人认为到法院去解决社会生活中的法律纠纷是天经地义的，但这

并不等于说美国人喜欢打官司。例如，美国有一个流传颇广的谐音字谜："有一种套服无人喜欢，是什么?"(There is a kind of suits that nobody likes. What is it?)回答是："打官司。"(lawsuits.)其实，美国人事事找律师也往往出于无可奈何。因此，美国的律师才得到了各种各样、褒贬不一的外号，如："租用之枪"(hired guns)；"讼棍"(shysters)；"职业投刀手"(professional knife throwers)；"限用之友"(limited purpose friends); "社会工程师"(social engineers)；"社会正义之斗士"(champions for social justice)等。

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Part One：The Bar

The regulation of the legal profession is primarily the concern of the states, each of which has its own requirements for admission to practice. Most require three years of college and a law degree. Each state administers its own written examination to applicants for its bar. Almost all states, however, make use of the Multistate Bar Exam, a day

A substantial fraction of all applicants succeed on the first try, and many of those who fail pass on a later attempt. In all, over forty thousand persons succeed in passing these examinations each year and, after an inquiry into their character, are admitted to the bar in their respective states. No apprenticeship is required either before or after admission. The rules for admission to practice before the federal courts vary with the court, but generally those entitled to practice before the highest court of a state may be admitted before the federal courts upon compliance with minor formalities.

A lawyer's practice is usually confined to a single community for, although a lawyer may travel to represent clients, one is only permitted to practice in a state where one has been admitted. It is customary to retain local counsel for matters in other jurisdictions. However, one who moves to another state can usually be admitted without examination if one has practiced in a state where one has been admitted for some time, often five years.

A lawyer may not only practice law, but is permitted to engage in any activity that is open to other citizens. It is not

uncommon for the practicing lawyer to serve on boards of directors of corporate clients, to engage in business, and to participate actively in public affairs. A lawyer remains a member of the bar even after becoming a judge, an employee of the government or of a private business concern, or a law teacher, and may return to private practice from these other activities. A relatively small number of lawyers give up practice for responsible executive positions in commerce and industry. The mobility as well as the sense of public responsibility in the profession is evidenced by the career of Harlan Fiske Stone who was, at various times, a successful New York lawyer, a professor and dean of the Columbia School of Law, Attorney General of the United States, and Chief Justice of the United States.

There is no formal division among lawyers according to function. The distinction between barristers and solicitors found in England did not take root in the United States, and there is no branch of the profession that has a special or exclusive right to appear in court, nor is there a branch that specializes in the preparation of legal instruments. The

counselling, and drafting. Furthermore, within the sphere broadly defined as the "practice of law" the domain is exclusive and is not open to others. In the field of advocacy, the rules are fairly clear: any individual may represent himself or herself in court but, with the exception of a few inferior courts, only a lawyer may represent another in court. Nonlawyers are, however, authorized to represent others in formal proceedings of a judicial nature before some administrative agencies. The lines of demarcation are less clear in the areas of counselling and drafting of legal instruments, as for example between the practice of law and that of accounting in the field of federal income taxation. However, the strict approach of most American

court that a lawyer admitted to practice in a foreign country but not in New York is prohibited from giving legal advice to clients in New York, even though the advice is limited to the law of the foreign country where the lawyer is admitted.

A foreign lawyer may, however, be admitted to the bar of one of the states and may, even without being admitted, advise an American lawyer as a consultant on foreign law.

Part Two：Lawyers in Private Practice

Among these fifteen lawyers in practice, nine, a clear majority, are single practitioners. The remaining six practice in law firms, which are generally organized as partnerships. Four or five of these six are partners and the others are associates, a term applied to salaried lawyers employed by a firm or another lawyer. This trend toward group practice is of relatively recent origin. Throughout most of the nineteenth century law practice was general rather than specialized, its chief ingredient was advocacy rather than counselling and drafting, and the prototype of the American lawyer was the single practitioner. Marked specialization began in the latter part of that century in the large cities near the financial centers. With the growth of big business, big government, and big labor, the work of the lawyer accomodated itself to the needs of clients for expert counselling and drafting to prevent as well as to settle disputes. The best lawyers were attracted to this work and leadership of the bar gravitated to persons who rarely if ever appeared in court and who were sought after as advisors, planners, and negotiators. Today the lawyer

regards it as sound practice to be continuously familiar with

in the shaping of their policies. Major business transactions are rarely undertaken without advice of counsel.

Part Three: House Counsel

Out of every twenty lawyers, two are employed by private business concerns, such as industrial corporations, insurance companies, and banks, usually as house or

growth of corporations, the complexity of business, and the multitude of problems posed by government regulation make it desirable for such firms to have in their employ persons with legal training who, at the same time, are intimately familiar with the particular problems and conditions of the firm. In large corporations the legal department may number one hundred or more. The general counsel, who heads the office, is usually an officer of the company and may serve on important policy making committees and perhaps even on the board of directors. House counsel remain members of the bar and are entitled to appear in court, though an outside lawyer is often

skill as advisor rather than as advocate that is a valued

house counsel is ideally situated to practice preventive law and may also be called upon to advise the company on its broader obligation to the public and the nation.

Part Four：Lawyers in Government

A parallel development has taken place in government and two out of twenty lawyers are now employees of the federal, state, county, and municipal governments, exclusive of the judiciary. Many of those entering public service are recent law graduates who find government salaries sufficiently attractive at this stage of their careers and seek the training that such service may offer as a prelude to private practice. Limitations on top salaries, however, discourage some from continuing with the government. The majority serves by appointment in the legal departments of a variety of federal and state agencies and local entities. The United States Department of Justice alone employs more than two thousands, and the Law Department of the City of New York more than

four hundreds. Others are engaged as public prosecutors. Federal prosecutors, the United States attorneys and their assistants, are appointed by the President and are subordinate to the Attorney General of the United States. State prosecutors, sometimes known as district attorneys, are commonly elected by each county and are not under the control of the state attorney general. As a rule, lawyers in government are directly engaged in legal work, since law training is infrequently sought as preparation for general government service. However, a small but important minority that constitutes an exception to this rule consists of those who have been appointed to high executive positions and those who have been elected to political office. Though the participation of lawyers in government has declined recently, for two centuries lawyers have made up roughly half of the Congress of the United States and of the state governors. These figures bear out the comment of Chief Justice Stone that, "No tradition of our profession is more cherished by lawyers than that of its leadership in public affairs."

Lesson Three: Legal Education 法律教育

Background背景

美国的法律教育体制具有一个不同于世界上其他国家的特点，即没有一般意义上的法学本科生。美国法学院的学生都是本科毕业生。换言之，申请入法学院学习者必须已在其他专业领域内获得了学士学位。这反映了美国人注重权利和法律的传统。他们认为，法律事务涉及人的各种权利和复杂的社会生活，因此从事法律工作的人应该象医生一样，具有比从事其他职业的人更为丰富的学识和经历。从理论上讲，在任何专业领域内获得学士学位的人都可以考法学院；但是在实践中，法学院学生多在政治学(Political Science)、经济学(Economics)、刑事司法(Criminal Justice)、社会学(Sociology)、新闻学(Journalism)等学科获有学士学位。

虽然美国律师协会(ABA)对其认可的法学院有统一的评估标准，但是各法学院在学位设置和课程设置上仍有很大的自主性和灵活性。一般来说，美国法学院设置的学位主要有法律博士(JD, 即Juris Doctor)、法学硕士(LLM，即Master of Laws)和法学博士(SJD，即Doctor of Juridical Science)。法律博士学位课程是法学院的基本教育课程，犹如中国及其他国家的法学专业本科课程。法律博士学位的学制一般为三

年，其第一年以必修课(Required Course)为主，包括合同法(Contract Law)、侵权法(Tort Law)、财产法(Property Law)、刑法(Criminal Law)、民事诉讼(Civil Procedure)和法律文书写作(Legal Writing)等；第二年和第三年则以选修课(Elective Course)为主，学生可以根据自己的兴趣和意愿从几十门法律课程中选修若干门，但要达到学校规定的学分标准。法学硕士和法学博士的培养属于法学院的研究生教育。攻读法学硕士学位的人必须已经获得了法律博士学位或者在其他国家获得了法学学士学位；其学制一般为一至二年；其学习方式以修课为主，而且法学院一般允许学生以增修一定学分的方式代替毕业论文。攻读法学博士学位的人一般应已获得了法学硕士或法律博士学位；其学制一般为三至五年；其学习内容主要为撰写学位论文，但法学院院长或其导师也可能要求其选修一定课程或从事一定研究工作。法学院很少开设专门面向研究生的课程，因此研究生多与"本科生"(JD生)一起听课。

美国法学院的教授在教学过程中较重视对批判性思维(critical thinking)方式的培养，且多采用案例教学法(Case Method)和问答式即苏格拉底式教学法(Socratic Method)。诚然，在美国的法学教授中亦不乏偏爱讲演式教学法(Lecture Method)的"说书人"(story-teller)。

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In 1983, over 125,000 law students were studying in more than 170 ABA accredited law schools including public law schools supported in part by government funds; private law schools supported by contributions from individuals and foundation funds; and local or national schools offering full time or part time legal study programs. As virtually the only way to prepare for membership in the legal profession, law schools in the United States fulfill several functions including professional training and socialization of future lawyers and screening and gatekeeping for entrance to the profession. Since there is no central institution where all lawyers practice, the only institutional experience which lawyers have in common is law school.

The criticisms which range from "mild to caustic" of the way in which law schools have carried out these functions and of the functions themselves have been persistent, diverse and rooted in the historical and political development of the profession. These criticisms have focussed on the curriculum and the dominance of the case method; the

distribution of power and prestige reflected in the hierarchy within and among the law schools; and the imbalance in terms of women and minorities in the student body and faculty in the law schools.

Part One：Curriculum and the Case Method

The traditional

American law schools includes contracts, torts, property, criminal law and civil procedure. Duncan Kennedy has

teaching the ground rules for late 19th century

course expound the moderate reformist New Deal program and the administrative structure of the modern regulatory state. The peripheral subjects, if they are offered, include legal philosophy, legal history, legal process, and clinical education, a "kind of playground or finishing school for learning the social art of self presentation as a lawyer".

However, as new areas of the law continue to develop in response to contemporary issues and problems, some law