L.V. KNODEL ENgLish fOr Law HISO T rY Of Law TExTbook iEV - 2019 К УДК 340; ББК 67.0 Кнодель Л. В. English for Law: History of law (Английский язык для юристов: история права) : учебник / К53 Л. В. Кнодель. – Киев : ФОП Кандиба Т. П., 2019. – 218 с. Учебник рекомендуется студентам, которые хотят расширить свой кругозор и углубить свои знания в профессиональном поле в юридической сфере. В учебнике «History of law» подробно раскрывается содержание трех глав: Исторический экскурс в сферу право; 2. Юридическая терминология; 3. Сущность понятия «государство». В приложение приводятся содержание и статьи Римского права. This textbook is recommended to students who will liberalize their range of interests and deepen their knowledge in their professional field. There are three main chapters in the book: Historical survey; Law definitions; the Essence of state. In the Appendix there are articles and contents of Roman Law. УДК 340; ББК 67.0 © Кнодель Л. В., 2019 © Видавець, ФОП Кандиба Т. П., 2019 C H A P T E R I. HISTORICAL SURVEY Introduction Legal history or the history of law is the study of how law has evolved and why it changed. Legal history is closely connected to the development of civilisations and is set in the wider context of social history. Among certain jurists and historians of legal process, it has been seen as the recording of the evolution of laws and the technical explanation of how these laws have evolved with the view of better understanding the origins of various legal concepts; some consider it a branch of intellectual history. 20th century historians have viewed legal history in a more contextualised manner more in line with the thinking of social historians. They have looked at legal institutions as complex systems of rules, players and symbols and have seen these elements interact with society to change, adapt, resist or promote certain aspects of civil society. Such legal historians have tended to analyse case histories from the parameters of social science inquiry, using statistical methods, analysing class distinctions among litigants, petitioners and other players in various legal processes. By analysing case outcomes, transaction costs, number of settled cases they have begun an analysis of legal institutions, practices, procedures and briefs that give us a more complex picture of law and society than the study of jurisprudence, case law and civil codes can achieve. The "law" cannot be spoken of as a single homogenous entity. "Law" is defined in the Concise Oxford Dictionary as “a rule or system of rules recognised by a country or community as regulating the actions of its members and enforced by the imposition of penalties”. Beyond this the history of law of different communities has developed in distinct ways, reflecting the prevalent socio-political norms and values of the society which they regulate. The history of “laws” of pre-literate African societies, for example, are significantly different from the history of laws of a developed Western democracy. This essay will consider the history of English law, and will outline how it has developed over the centuries. The history of the law of England and Wales has developed in tandem with the peculiarly English unwritten constitution, which sets out the broad principles on which the common law is based. The United Kingdom is virtually alone amongst modern democratic states in not having a written constitution. This means that the sources of law in England are varied, and include not only the statutes that Parliament passes, but also the judicial decisions of judges on a case by case basis. This means that all three branches of the state, that is the executive, the legislature and the judiciary, all have a role to play in developing the history of the law. This collaborative system has developed throughout the history of the United Kingdom, and while the lack of any major single political upheaval has been cited as the reason the UK has not found the need for a written constitution, her history reveals much about her unique legal system. One of the fundamental doctrines that is prevalent through the history of law in England is that of the supremacy of Parliament. This means that although all three branches of the state have a role to play in making the law, Parliament (that is, the legislative body) is the highest source of law. These laws must be applied and upheld by the courts. This doctrine is premised on the principle that Parliament is democratically elected, so should have the upper hand in making the law. This doctrine has a sturdy historical basis, having developed since the Middle Ages, although in recent decades it has been somewhat undermined by the increase of judicial activism in making and interpreting the law, and by the increasing influence of EU jurisprudence since the UK's joining of it. 3 The other major source of English law that has developed through the history of law is the common law, which will now be considered. The common law is the law made by the courts (be based on statutory law). The historical background to the development of the law in England is significant. It should be noted that historically, England was not governed by a single system of law. Rather, prior to the Norman Conquest in the eleventh century, there were several different systems in operation. There developed, however, a common principle of stare decisis (meaning "let the decision stand") which made the law more predictable in similar cases. The law was administered according to local laws by representatives of the Crown. Eventually this led to a "common law" throughout the country, which became the historical basis for the common law of today. The basis of stare decisis developed into a more general system of precedent, which now manifests itself in the doctrine of binding judicial decisions (facilitated by the inception of a system of publishing the case reports of higher courts). This, then, is the history of the common law in England, which was subsequently exported to many jurisdictions around the world, largely as a result of Britain's colonial activities. The historical development of the common law has seen different eras of activity in judicial law-making. Until the 20th century, for example, the judiciary were generally less prepared to “legislate from the benches”. Throughout that century, and in the early years of the present one, judicial activity in this respect has generally increased. In 1952, Lord Denning, a particularly activist judge, encouraged the judges not to be too timid in developing and adapting the law to meet the changing societal needs, in a lecture entitled "The Need for a New Equity". One can discern a change in the focus of the history of the English law towards the judiciary. In the 1980s, Lord Scarman publicised his own view in McLoughlin v O'Brian (1982); namely that it was the courts' role to adjudicate according to principle, and Parliament's role to legislate in order to overrule any results of this that it considered to be socially unacceptable. He was concerned that if the common law remained static, it would be incapable of adapting to the changing needs of society. Particularly in the light of the Human Rights Act 1998 and the increase of European legislation, we have seen this degree of judicial influence on the law increase substantially. This was a crucial point in the history of the law. Another major aspect of the English legal system's history is, in the context of the criminal law, trial by jury. Historically, this was imported into English law by the French during the Norman Conquest. Jurors initially acted as witnesses, however, and often had an administrative role. Gradually, through the history of the law, their function changed, and the principle emerged that jurors should know as little as possible about the case with which they are involved prior to the hearing. The historical significance of Bushell's Case (1670) cannot be overstated. This established that juries are sole judges of fact, who have the right to give verdicts according to their conscience. The effect of this today is that juries may acquit a defendant even in circumstances where the law demands a guilty verdict. This, then, outlines the historical development of two fundamental aspects of the English law; the common law and the juries. The richness of the English law is largely the result of the long and turbulent history, without the need to establish a codified constitution along the lines of civil law countries. Active vocabulary Legal, law, history, common law, jury, English law, to give verdicts, to effect, major sources, development of civilisations, social history, historians of legal process, evolution of laws, origins of various legal concepts; to consider, branch of intellectual history. Task 1. Analyze the text and use it in practice. Task 2. Digest the information briefly in English. 4 Timetable of the history of law The history of law is closely intertwined with the history of civilisation. Ever since humans first established complex societies characterised by a social hierarchy, symbolic communication forms (writing) and separation from the natural environment, an established set of rules used to govern behaviour has existed. Here’s a timeline of the key developments which brought us to how law is practised today: ▪ 30th century B.C. Ancient Egyptians establish a set of civil codes based on social equality and impartiality. ▪ 22nd century B.C. The oldest known law code formulated in Sumer (modern-day Iraq). ▪ 18th century B.C. King Hammurabi further develops Babylonian law by inscribing in stone. Several copies of the code are placed around the Kingdom of Babylon as stone or wooden slabs, for the public to see.