法律英语-何家弘(课文)
法律英语-何家弘
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 interpretationthrough 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 called maxims of equity law which 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 attributedto 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"describes the entire body of judge made law 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 "common law" in this usage connoting judge made law in general as contrasted with statutory law. "Case law" always connotes judge made law, while "common law" in contrast--depending on the meaning intended--describes either the judge made law in common law subject matters or, more extensively, all judge made law.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 long multiple choice test, to which the state adds a day long essay examination emphasizing its own law. A substantial fraction of all applicants succeed on the first try, andmany 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 American lawyer’s domain includes advocacy,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 courts is indicated by a decision of New York’s highest 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 whorarely 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 clients business problems and to participate at all steps 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 corporate counsel in the concern’s legal department. The 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 retained for litigation. However, it is the house counsel s skill as advisor rather than as advocate that is a valued asset. Constantly in touch with the employer s problems, 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 thegovernment. 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 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 first year program offered in virtually all American law schools includes contracts, torts, property, criminal law and civil procedure. Duncan Kennedy has described the traditional first year curriculum as basically teaching the ground rules for late 19th century laissez faire capitalism. The second year and third year 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 schools have expanded curricula to include courses and clinical programs in environmental law, housing and urban development, women s rights, health in the workplace, welfare rights and consumer protection. There are also increasing efforts to teach law in interdisciplinary contexts, drawing on other disciplines such as history, psychology, sociology, medicine, and economics.In teaching the traditional curriculum, law teachers in almost all the law schools use to some extent the case method or the Socratic method. Developed in the 1870s by Christopher Columbus Langdell at the Harvard Law School, the case method looked to thecommon law as the source of legal priniciples and focussed on the teaching of an abstract conception of the law as a science. The legal principles elicited were to be taught divorced from the "grubby world of practice--and also from politics, history, economics, and social contexts". This narrow formalistic approach was justified on the ground that it taught students how to state, analyze, evaluate and compare concrete fact situations thus developing their powers and skills of analysis, reasoning, and expression.However, this process of learning "how to think like a lawyer" has been criticized as having an adverse impact both on the students and the quality of future lawyering. Students, law teachers, and others have pointed to the alienation, anxiety, hostility and aggression caused by use of the case method or Socratic method. The narrow and destructive interaction of this dialogue, or often "nondialogue", contributes to the impairment of the ability to care about other people, a professional unemotionalism and cynicism on the part of law students. And it is not only the law students who suffer from this narrowing of their professional selves. The work of a lawyer involves continuous contacts with clients, associates, other lawyers, judges, witnesses, others affected by the law, and involves the lawyer s own goals, attitudes, performance, and sense of satisfaction.Part Two：Law School Hierarchy Duncan Kennedy has described the law schools as "intensely political places", characterized by a "trade school mentality, the endless attention to trees at the expense of forests." The law schools function as the institution for "ideological training for willing service in the hierarchies of the corporate welfare state". In the ranking and evaluation of students, students learn to accept their place in a hierarchy which is presented as just and inevitable and "so prepare themselves for all the hierarchies to follow". In the law teacher’s modeling of hierarchical relationships with students, colleagues, secretaries and support staff, students learn a particular style of condescension towards perceived inferiors and deference towards perceived superiors. And under thesubtle but intense pressure to conform to the "white, male, middle class tone" set by law faculties which are overwhelmingly white, male, and middle class, law students adapt, "partly out of fear, partly out of hope of gain, partly out of genuine admiration for their role models". In these ways, "legal education is one of the causes of legal hierarchy. Legal education supports it by analogy, provides it a general legitimating ideology by justifying the rules that underlie it, and provides it a particular ideology by mystifying legal reasoning. Legal education structures the pool of prospective lawyers so that their hierarchical organization seems inevitable, and trains them to look and think and act just like all the other lawyers in the system" .In addition to the hierarchy within the law schools suggested by Kennedy, other analyses of the law schools functions and relationship to the profession suggest the existence of a hierarchy among the law schools. The top dozen or so elite law schools occupy a position of power and prestige which is partially reflected in the professional career paths of their graduates and in the "old boy networks" connecting the law schools and the rest of the legal profession. The models of the "law school as the gateway to the American power elite became possible with the New Deal". Felix Frankfurter’s placement network for the "best and the brightest" into influential public policy positions during the New Deal in the 1930s was an early example of this kind of network. During his tenure at Harvard and later while on the Supreme Court, Frankfurter developed an "old boy network" which was intimately involved with the placement of many of the "elite" lawyers, all of whom were white and male, into public service. The typical Frankfurter recruit was "a graduate of Harvard Law School, politically liberal, usually ranked high in his class, and either an obvious product of upper class gentile culture or an obvious product of a radically different culture who was 'comfortable' in the upper class gentile world".In the current hiring practices of the major law firms and in the competition for judicial clerkships, and in the appointments to law faculties, the graduates of the elite schools continue to have an advantage over graduates of other schools. In arecent study of Chicago lawyers, Zemans and Rosenblum found that lawyers who attended "high prestige law schools and graduated in the top 20 percent of their classes were much more likely to practice in large firms and specialize in high prestige fields of law". In terms of appointments to law faculties, 60% of the legal profession’s teaching specialists are produced by fewer than 15% of the nation’s accredited law schools. These law teacher producer schools are mostly national, located in urban locations, and include schools such as Harvard, Yale, Columbia, University of Michigan, Chicago, New York University, Northwestern University, and Georgetown. If it is true that the full time faculty of the law schools "have a virtual monopoly on who will and will not enter the (legal) profession" and "on the power to mold future generations", then the existence of a hierarchy among the law schools suggests that an elite group of schools is primarily responsible for staffing the law schools, which in turn produce lawyers for the hierarchies within the profession.Lesson Four：Judicial System 司法系统Part One：CourtsThere are fifty-two separate court systems in the United States. Each state, as well as the District of Columbia, has its own fully developed, independent system of courts and there is a separate federal court system. The federal courts are not superior to the state courts; they are an independent, coordinate system authorized by the United States Constitution, Art. Ⅲ,§2, to handle matters of particular federal interest. The presence of two parallel court systems often raises questions concerning the relationship of the state and federal systems, presenting important issues of federalism. The United States Supreme Court, composed of nine justices, sits as the final and controlling voice over all these systems.Although a few states, such as Nebraska, have a two tiered system, most states, as well as the federal courts, are based on a three tiered model. That means that for any litigant there will be the opportunity to plead his case before a trial court and then, should he lose, there are two levels of appeal at which he ultimately may succeed. For example, in thefederal system the trial court is the United States District Court, of which there is at least one in every state. Many larger states are divided into two, three or even four judicial districts, depending on population, geography and caseload. There are ninety-four districts in the United States and each district court has one judge, or more commonly two or more. After an adverse judgment in the district court, a litigant may appeal to the United States Court of Appeals for the circuit in which the district court is located. There are eleven numbered intermediate appellate courts in the federal system, each including anywhere from three to ten states and territories. Additionally, there is a Court of Appeals for the District of Columbia, hearing appeals from the federal district court there, and one for the Federal Circuit, taking appeals from various specialized federal tribunals, such as the Claims Court. Each court of appeals has four or more judges who sit in panels of three to review district court decisions, as well as some decisions of administrative agencies. A losing litigant in the court of appeals may, in some cases, be able to obtain review by the United States Supreme Court. Cases in the state courts similarly may proceed through a trial court, a state appellate court, and then the state supreme court. If a federal constitutional question is involved the decision of the state supreme court may be reviewed by the United States Supreme Court. Since 1988, review by the Supreme Court in civil cases is discretionary; virtually all civil appeals as of right to the highest court have been abolished.Three tiered systems vary on the role which the highest court plays. The approaches taken reflect differing philosophies with regard to what the highest court should do. For example, in California only criminal cases in which capital punishment has been imposed are appealable as of right to the state supreme court. Similarly, in the federal courts, except in a few very limited circumstances, appeals to the United States Supreme Court are discretionary, by writ of certiorari. The Court decides for itself what are the most important questions that deserve its attention and will refuse to review decisions raising issues that it feels are not as crucial. In this way it supervises the administration of law by thelower courts on an ad hoc basis. At the other end of the spectrum, such as in New York, appeals to the state’s highest court are as of right in a great many cases provided for by statute. The primary function of the highest court in New York appears to be to assure that cases are correctly decided. It is necessary to check carefully the statutes of the system in which you are appearing to determine the specific rules regarding review by those appellate courts.Part Two：Judges Fewer than one in twenty of those admitted to practice law is a federal, state, county, or municipal court judge. Except for some inferior courts, judges are generally required to be admitted to practice but do not practice while on the bench. There is so little uniformity that it is difficult to generalize further than to point out three salient characteristics that relate to the ranks from which judges are drawn, to the method of their selection, and to their tenure.Judges are drawn from the practicing bar and less frequently from government service or the teaching profession. There is in the United States no career judiciary like that found in many other countries and there is no prescribed route for the young law graduate who aspires to be a judge, no apprenticeship that must be served, no service that must be entered. The outstanding young law graduates who act for a year or two as law clerks to the most distinguished judges of the federal and state courts have only the reward of the experience to take with them into practice and not the promise of a judicial career. While it is not uncommon for a vacancy on a higher court to be filled by a judge from a lower court, even this cannot be said to be the rule. The legal profession is not entirely unaware of the advantages of a career judiciary, but it is generally thought that they are outweighed by the experience and independence which American lawyers bring to the bench. Many of the outstanding judges of the country’s highest courts have had no prior judicial experience. Criticism has centered instead on the prevalent method of selection of judges.State court judges are usually elected, commonly by popular vote, but occassionally by the legislature. Popular election has been。
法律英语-何家弘
Lesson One: Legal System 法律制度英属殖民地时期(the Period of the English Colonies)和美利坚合众国时期(the Period of the United States)。
公诉制度(public prosecution)美国属于普通法系(Common Law Legal System)分散制(decentralization)为原则；以判例法(case law)为主体。
"零散的无系统"(fragmental no system)。
成文法(written law)或制定法(statutory law)，遵从前例"(stare decisisPart OneThe 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.美国既是一个非常新的国家也是一个非常老的国家。
何家弘 法律英语 翻译 第七课 刑法
第七课刑法课文：杀人罪杀人（homicide）就是一个人杀掉另一个人。
但并非所有的杀人都是犯罪。
比如一个人在自卫当中杀掉另外一个人就不是犯罪，而是正当的杀人。
在警察为了制止暴力性重罪，如抢劫或入室盗窃，杀人是一种合理而必需的制止措施的时候，或者警察为了防止危险的重罪犯逃跑而将其杀死，都是正当的。
而且某些杀人行为也是可以宽恕的，如一个人在意外而且没有重大疏忽的情况下导致他人的死亡。
杀人如果没有法定的正当性或原因就构成有罪杀人。
它根据具体情况不同构成谋杀罪或过失杀人罪。
在我国早些时候以及在那时以前的英格兰，谋杀和过失杀人犯罪的要件是由法院裁决规定的。
这些裁决被认为是“普通法”。
后来，大多数州的谋杀和非预谋杀人都由立法以单行法规形式或者作为刑法典的某个条文进行了重新定义。
第一部分谋杀根据普通法，谋杀是有“预谋”的杀人，而且在当今的一些立法和法典中也有这种“预谋”的要求。
比如，《加利福尼亚刑法典》就保留了这一点。
与普通法一样，该法典规定：“……预谋可以是明示的也可以是默示的。
在明显故意夺取他人生命的情况下，就是明示的。
而在没有故意挑衅或者在该杀人行为的有关情况表明了一颗冷酷邪恶之心的情况下，就是暗示的。
”一个人故意将他人推下悬崖就是明显表明具有明示的预谋的一个例子。
暗示的预谋的一个例子是一个人仅仅为了吓唬一列正在行进中的列车上的乘客或者为了展示它能够将子弹正好打过两节车厢之间而不会击中任何人而开枪的情况。
至于那些可以合理地归入这种行为范畴的杀人，该行为的危险性就是“预谋”的证明。
对于加利福尼亚法院或陪审团来说，它表明了“一颗冷酷邪恶之心”。
谋杀罪在一些州当中可判处死刑，在另一些州仅判处终身监禁或若干年徒刑。
（a）重罪中的谋杀预谋要件得以满足的另一个例子是在诸如抢劫之类的重罪中杀人。
即使抢劫者的枪走火致使抢劫受害人或旁观者或警察死亡，其实施诸如抢劫之类的危险犯罪的行为就满足了预谋的要求，因此这种杀人可按谋杀罪惩处。
法律英语课文汇总-何家弘
法律英语课文汇总-何家弘————————————————————————————————作者：————————————————————————————————日期：Lesson One: Legal System 法律制度Part OneThe 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 Americans 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 TwoThe 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 locallaw--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 andjudiciary (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 called maxims of equity law which 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" describes the entire body of judge-made law 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 "common law" in this usage connotingjudge-made law in general as contrasted with statutory law. "Case law" always connotesjudg-made law, while "common law" in contrast--depending on the meaningintended--describes either the judge made law in common law subject matters or,Lesson Two：Legal Profession 法律职业Part One：The BarThe 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 long multiple choice test, to which the state adds a day long essay examination emphasizing its own law. No apprenticeship is required either before or after admission.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. 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 orof 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 American lawyer s domain includes advocacy, 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 courts is indicated by a decision of New York s highest 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 PracticeAmong 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 theprototype 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 clients business problems and to participate at all steps in the shaping of their policies. Major business transactions are rarely undertaken without advice of counsel.Part Three: House CounselOut of every twenty lawyers, two are employed by private business concerns, such as industrial corporations, insurance companies, and banks, usually as house or corporate counsel in the concern s legal department. The 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 retained for litigation. However, it is the house counsel s skill as advisor rather than as advocate that is a valued asset. Constantly in touch with the employer s problems, 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 GovernmentA 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 StatesDepartment 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 MethodThe traditional first-year program offered in virtually all American law schools includes contracts, torts, property, criminal law and civil procedure. Duncan Kennedy has described the traditional first-year curriculum as basically teaching the ground rules for late 19th century laissez-faire capitalism. The second year and third year 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 schools have expanded curricula to include courses and clinical programs in environmental law, housing and urban development, women`s rights, health in the workplace, welfare rights and consumer protection. There are also increasing efforts to teach law in interdisciplinary contexts, drawing on other disciplines such as history, psychology, sociology, medicine, and economics.In teaching the traditional curriculum, law teachers in almost all the law schools use to some extent the case method or the Socratic method. Developed in the 1870s by Christopher Columbus Langdell at the Harvard Law School, the case method looked to the common law as the source of legal priniciples and focussed on the teaching of an abstract conception of the law as a science. The legal principles elicited were to be taught divorced from the "grubby world of practice--and also from politics, history, economics, and social contexts". This narrow formalistic approach was justified on the ground that it taught students how to state, analyze, evaluate and compare concrete fact situations thus developing their powers and skills of analysis, reasoning, and expression.However, this process of learning "how to think like a lawyer" has been criticized as having an adverse impact both on the students and the quality of future lawyering. Students, law teachers, and others have pointed to the alienation, anxiety, hostility and aggression caused by use of the case method or Socratic method. The narrow and destructive interaction of this dialogue, or often "no dialogue", contributes to the impairment of the ability to care about otherpeople, a professional unemotionalism and cynicism on the part of law students. And it is not only the law students who suffer from this narrowing of their professional selves. The work of a lawyer involves continuous contacts with clients, associates, other lawyers, judges, witnesses, others affected by the law, and involves the lawyer’s own goals, attitudes, performance, and sense of satisfaction.Part Two：Law School HierarchyDuncan Kennedy has described the law schools as "intensely political places", characterized by a "trade school mentality, the endless attention to trees at the expense of forests." The law schools function as the institution for "ideological training for willing service in the hierarchies of the corporate welfare state". In the ranking and evaluation of students, students learn to accept their place in a hierarchy which is presented as just and inevitable and "so prepare themselves for all the hierarchies to follow". In the law teachers modeling of hierarchical relationships with students, colleagues, secretaries and support staff, students learn a particular style of condescension towards perceived inferiors and deference towards perceived superiors. And under the subtle but intense pressure to conform to the "white, male, middle class tone" set by law faculties which are overwhelmingly white, male, and middle class, law students adapt, "partly out of fear, partly out of hope of gain, partly out of genuine admiration for their role models". In these ways, "legal education is one of the causes of legal hierarchy. Legal education supports it by analogy, provides it a general legitimating ideology by justifying the rules that underlie it, and provides it a particular ideology by mystifying legal reasoning. Legal education structures the pool of prospective lawyers so that their hierarchical organization seems inevitable, and trains them to look and think and act just like all the other lawyers in the system" .In addition to the hierarchy within the law schools suggested by Kennedy, other analyses of the law schools functions and relationship to the profession suggest the existence of a hierarchy among the law schools. The top dozen or so elite law schools occupy a position of power and prestige which is partially reflected in the professional career paths of their graduates and in the "old boy networks" connecting the law schools and the rest of the legal profession. The models of the "law school as the gateway to the American power elite became possible with the New Deal". Felix Frankfurter’s placement n etwork for the "best and the brightest" into influential public policy positions during the New Deal in the 1930s was anearly example of this kind of network. During his tenure at Harvard and later while on the Supreme Court, Frankfurter developed an "old boy network" which was intimately involved with the placement of many of the "elite" lawyers, all of whom were white and male, into public service. The typical Frankfurter recruit was "a graduate of Harvard Law School, politically liberal, usually ranked high in his class, and either an obvious product of upper class gentile culture or an obvious product of a radically different culture who was 'comfortable' in the upper class gentile world".In the current hiring practices of the major law firms and in the competition for judicial clerkships, and in the appointments to law faculties, the graduates of the elite schools continue to have an advantage over graduates of other schools. In a recent study of Chicago lawyers, Zemans and Rosenblum found that lawyers who attended "high-prestige law schools and graduated in the top 20 percent of their classes were much more likely to practice in large firms and specialize in high-prestige fields of law". In terms of appointments to law faculties, 60% of the legal prof ession’s teaching specialists are produced by fewer than 15% of the nation s accredited law schools. These law teacher producer schools are mostly national, located in urban locations, and include schools such as Harvard, Yale, Columbia, University of Michigan, Chicago, New York University, Northwestern University, and Georgetown. If it is true that the full time faculty of the law schools "have a virtual monopoly on who will and will not enter the (legal) profession" and "on the power to mold future generations", then the existence of a hierarchy among the law schools suggests that an elite group of schools is primarily responsible for staffing the law schools, which in turn produce lawyers for the hierarchies within the profession.Lesson Four：Judicial System 司法系统Part One：CourtsThere are fifty-two separate court systems in the United States. Each state, as well as the District of Columbia, has its own fully developed, independent system of courts and there is a separate federal court system. The federal courts are not superior to the state courts; they are an independent, coordinate system authorized by the United States Constitution, Art. Ⅲ,§2, to handle matters of particular federal interest. The presence of two parallel court systems often raises questions concerning the relationship of the state and federal systems, presentingimportant issues of federalism. The United States Supreme Court, composed of nine justices, sits as the final and controlling voice over all these systems.Although a few states, such as Nebraska, have a two-tiered system, most states, as well as the federal courts, are based on a three-tiered model. That means that for any litigant there will be the opportunity to plead his case before a trial court and then, should he lose, there are two levels of appeal at which he ultimately may succeed. For example, in the federal system the trial court is the United States District Court, of which there is at least one in every state. Many larger states are divided into two, three or even four judicial districts, depending on population, geography and caseload. There are ninety-four districts in the United States and each district court has one judge, or more commonly two or more. After an adverse judgment in the district court, a litigant may appeal to the United States Court of Appeals for the circuit in which the district court is located. There are eleven numbered intermediate appellate courts in the federal system, each including anywhere from three to ten states and territories. Additionally, there is a Court of Appeals for the District of Columbia, hearing appeals from the federal district court there, and one for the Federal Circuit, taking appeals from various specialized federal tribunals, such as the Claims Court. Each court of appeals has four or more judges who sit in panels of three to review district court decisions, as well as some decisions of administrative agencies. A losing litigant in the court of appeals may, in some cases, be able to obtain review by the United States Supreme Court. Cases in the state courts similarly may proceed through a trial court, a state appellate court, and then the state supreme court. If a federal constitutional question is involved the decision of the state Supreme Court may be reviewed by the United States Supreme Court. Since 1988, review by the Supreme Court in civil cases is discretionary; virtually all civil appeals as of right to the highest court have been abolished.Three-tiered systems vary on the role which the highest court plays. The approaches taken reflect differing philosophies with regard to what the highest court should do. For example, in California only criminal cases in which capital punishment has been imposed are appealable as of right to the state supreme court. Similarly, in the federal courts, except in a few very limited circumstances, appeals to the United States Supreme Court are discretionary, by writ of certiorari. The Court decides for itself what are the most important questions that deserve its attention and will refuse to review decisions raising issues that it feels are not as crucial. In this way it supervises the administration of law by the lower courts on an ad hoc basis. At the other end of the spectrum, such as in New York, appeals to the state s highest court are as of rightin a great many cases provided for by statute. The primary function of the highest court in New York appears to be to assure that cases are correctly decided. It is necessary to check carefully the statutes of the system in which you are appearing to determine the specific rules regarding review by those appellate courts.Part Two：JudgesFewer than one in twenty of those admitted to practice law is a federal, state, county, or municipal court judge. Except for some inferior courts, judges are generally required to be admitted to practice but do not practice while on the bench. There is so little uniformity that it is difficult to generalize further than to point out three salient characteristics that relate to the ranks from which judges are drawn, to the method of their selection, and to their tenure.Judges are drawn from the practicing bar and less frequently from government service or the teaching profession. There is in the United States no career judiciary like that found in many other countries and there is no prescribed route for the young law graduate who aspires to be a judge, no apprenticeship that must be served, no service that must be entered. The outstanding young law graduates who act for a year or two as law clerks to the most distinguished judges of the federal and state courts have only the reward of the experience to take with them into practice and not the promise of a judicial career. While it is not uncommon for a vacancy on a higher court to be filled by a judge from a lower court, even this cannot be said to be the rule. The legal profession is not entirely unaware of the advantages of a career judiciary, but it is generally thought that they are outweighed by the experience and independence which American lawyers bring to the bench. Many of the outstanding judges of the country s highest courts have had no prior judicial experience. Criticism has centered instead on the prevalent method of selection of judges.State court judges are usually elected, commonly by popular vote, but occassionally by the legislature. Popular election has been the subject of much disapproval, including that of the American Bar Association, on the ground that the public lacks interest in and information on candidates for judicial office and that therefore the outcome is too often controlled by leaders of political parties. The situation has been somewhat improved since many local bar associations have undertaken to evaluate the qualifications of candidates and to support or oppose them on this basis.。
何家弘法律英语第一课
Common law legal system Civil law legal system
•Case law
•形成于英国，包括加拿大，澳大利亚，新西兰， 爱尔兰，印度、巴基斯坦，马来西亚和新加坡， 香港
1. 2. Decentralization Case law
3.
Stare decisis
TEXT——PART ONE
• The United States is at once
a very new nation a very old nation
IT IS A NEW NATION
• Compared with many other countries
• 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 chara cter of a people or of their government.
• 若是没有公众舆论的支持，法律是丝毫没有力量的。 美国废奴运动领袖 菲力普斯
BACKGROUND
• Two periods of legal history:
1. On May 14, 1607, the Virginia Company explorers landed on Jamestown Island to establish the Virginia English colony
何家弘法律英语第四版翻译完整版
法律英语何家弘编第四版课文翻译(1-20课)第一课美国法律制度介绍第一部分特征与特点美国既是一个非常新的国家也是一个非常老的国家。
与许多别的国家相比它是一个新的国家。
同时，它还因新人口成分和新州的加入而持续更新，在此意义上，它也是新国家。
但是在其它的意义上它是老国家。
它是最老的“新”国家——第一个由旧大陆殖民地脱胎而出的国家。
它拥有最古老的成文宪法、最古老的持续的联邦体制以及最古老的民族自治实践。
美国的年轻（性）有一个很有意思的特点就是它的历史肇始于印刷机发明之后。
因此它的整个历史都得以记录下来：确实可以很有把握地说，任何其它国家都没有像美国这样全面的历史记录，因为像在意大利、法国或者英国过去的传说中湮没的那样的事件在美国都成了有文字记载的历史之一部分。
而且其记录不仅全面，还非常浩繁。
不仅包括这个国家自1776年以来的殖民时期的记录，还有当前五十个州以及各州和联邦（nation）之间错综复杂的关系网络的历史记录。
因此，据一个非常简单的例子，美国最高法院判例汇编有大约350卷，而一些州的判例汇编也几乎有同样多的卷数：想研究美国法律史的读者要面对的是超过5000巨卷的司法案例。
我们不能说一个文件或几个文件就能揭示出一国人民或其政府的特性。
但如果横跨一百多年的千百万个文件敲出始终如一的音调，我们就有理由说这就是其主调。
当千百万个文件都以同样的方式去解决同样的中心问题，我们就有理由从中得出可以被称为国民特定的确定结论。
第二部分普通法和衡平法同英国一样，美国法律制度从方法论上来说主要是一种判例法制度。
许多私法领域仍然主要是由判例法构成，广泛而不断增长的制定法一直受制于有约束力的（解释制定法的）判例法。
因此，判例法方法的知识以及使用判例法的技巧对于理解美国法律和法律方法是极其重要的。
从历史的角度来看，普通法就是由英国皇家法院的巡回法官的判决所得出的普通的一般法——优于地方法。
采纳或执行某项诉讼请求是以存在法院令状这种特殊形式的诉为前提的，而这就使最初的普通法表现为由类似于古罗马法的“诉”所构成的体系。
何家弘 法律英语 第一章 法律制度 英汉对照
Lesson 1 法律制度Part One Featuers and Characteristics 第一部分特征与特点The United States is at once a very new nation and a very old nation.美国既是一个非常新的国家也是一个非常老的国家。
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.与许多别的国家相比它是一个新的国家。
同时，它还因新人口成分和新州的加入而持续更新，在此意义上，它也是新国家。
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.但是在其它的意义上它是老国家。
它是最老的“新”国家——第一个由旧大陆殖民地脱胎而出的国家。
It has the oldest written constitution, the oldest continuous federal system, and the oldest practice of self government of any nation.它拥有最古老的成文宪法、最古老的持续的联邦体制以及最古老的民族自治实践。
One of the most interes ting features of America’s youth is that the whole of its history belongs in the period since the invention of the printing press.美国的年轻（性）有一个很有意思的特点就是它的历史肇始于印刷机发明之后。
法律英语翻译何家弘
L e s s o n O n e:L e g a l S y s t e m法律制度英属殖民地时期the Period of the English Colonies和美利坚合众国时期the Period of the United States..公诉制度public prosecution美国属于普通法系Common Law Legal System分散制decentralization为原则；以判例法case law为主体.."零散的无系统"fragmental no system..成文法written law或制定法statutory law;遵从前例"stare decisisPart OneThe 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.美国既是一个非常新的国家也是一个非常老的国家..与许多别的国家相比它是一个新的国家..同时;它还因新人口成分和新州的加入而持续更新;在此意义上;它也是新国家..但是在其它的意义上它是老国家..它是最老的“新”国家——第一个由旧大陆殖民地脱胎而出的国家..它拥有最古老的成文宪法、最古老的持续的联邦体制以及最古老的民族自治实践..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.美国的年轻性有一个很有意思的特点就是它的历史肇始于印刷机发明之后..因此它的整个历史都得以记录下来：确实可以很有把握地说;任何其它国家都没有像美国这样全面的历史记录;因为像在意大利、法国或者英国过去的传说中湮没的那样的事件在美国都成了有文字记载的历史之一部分..而且其记录不仅全面;还非常浩繁..不仅包括这个国家自1776年以来的殖民时期的记录;还有当前五十个州以及各州和联邦nation之间错综复杂的关系网络的历史记录..因此;据一个非常简单的例子;美国最高法院判例汇编有大约350卷;而一些州的判例汇编也几乎有同样多的卷数：想研究美国法律史的读者要面对的是超过5000巨卷的司法案例..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.我们不能说一个文件或几个文件就能揭示出一国人民或其政府的特性..但如果横跨一百多年的千百万个文件敲出始终如一的音调;我们就有理由说这就是其主调..当千百万个文件都以同样的方式去解决同样的中心问题;我们就有理由从中得出可以被称为国民特定的确定结论..Part TwoThe 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 extensiveand 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.同英国一样;美国法律制度从方法论上来说主要是一种判例法制度..许多私法领域仍然主要是由判例法构成;广泛而不断增长的制定法一直受制于有约束力的解释制定法的判例法..因此;判例法方法的知识以及使用判例法的技巧对于理解美国法律和法律方法是极其重要的..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.从历史的角度来看;普通法就是由英国皇家法院的巡回法官的判决所得出的普通的一般法——优于地方法..采纳或执行某项诉讼请求是以存在法院令状这种特殊形式的诉为前提的;而这就使最初的普通法表现为由类似于古罗马法的“诉”所构成的体系..如果存在令状于1227年;诉讼请求就可以被采纳或执行；没有法院令状为前提的诉讼请求就没有追索权;因而该诉讼请求也不存在..“牛津条例”1285年禁止创设除了“个案令状”之外的新令状;这种“个案令状”使该制度变得较为灵活了;而且导致了后来合同和侵权法的发展..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 called maxims of equity law which 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 对于诉的形式的严格限制及由此产生的对追索权的限制导致了衡平法和衡平判例法的发展..“衡平”的一般意义就是寻求“公平”;即公平且善良地裁决;它最初是由国王;后来由作为“国王良知守护人”的大法官颁行;以便在艰难的案件中提供救济..但是到了十四世纪;衡平法和衡平判例法发展成了一个独立的法律制度和与一般的普通法法院一争高下的司法系统衡平法院..其规则和格言变得非常固定而且在某种程度上不像在其它法律制度中一样灵活..衡平法的特点有：以特定履行或实际履行的方式提供救济与普通法提供补偿性损害赔偿金的救济方式形成对照；强制令为或者不为某项具体行为的临时或者最终法令；渗透了整个法律制度并且能在许多场合下揭示现代法律概念的起源的所谓的衡平法格言的发展..不过;一般都是只有在普通法救济不充分时;才会出现衡平法救济..比如;优于普通法损害赔偿金被认为是不充分的;这是因为考虑到不动产所具有的唯一性;这些赔偿金无法补偿不动产购买人的损失;就可能判以特定履行购买不动产..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 theresult 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.与普通法一样;衡平法通过司法接纳或通过明确的制定法条款;成了美国法律的一部分..目前;这两个法律制度在许多美国司法管辖区中得以融合始于1848年的纽约;因而;在这些司法管辖区以及联邦的实践中只存在一种形式的民事诉讼..只有为数很少的州还保留着单独的衡平法院..尽管如此;提及这一历史演变仍然是很重要的;因为它一方面解释了许多当代法律概念如财产法中的所有权分割的起源和意义;另一方面;它仍然与做出某些裁决有一定的关联;比如是否有权获得陪审团的审理这仅发生与普通法的讼案中;在其它案件中仅由法官审理..另外;这种区别将决定“通常的”普通法赔偿金救济是否适用或者是否可以使用“特别的”衡平法特定履行救济.."Case law"describes the entire body of judge made law 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 "common law" in this usage connoting judge made law in general as contrasted with statutory law. "Case law" always connotes judge made law; while "common law" in contrast--depending on the meaning intended--describes either the judge made law in common law subject matters or; ore extensively; all judge made law.“判例法”代表了整个的法官造法体系;而且在现代还包括了普通法和衡平法先例..在不准确的和令人迷惑的用法中;“普通法”和“判例法”这两个术语通常被当作同义词来使用;在这里;“普通法”这个术语一般代表着法官制定的法;以示区别制定法..“判例法”总是代表着法官制定的法律;而“普通法”则相对来说;根据想表达的意思不同;要么代表普通法主题事项即具体问题上法官制定的法律;要么在更广范围内指所有法官制定的法律..Lesson Two：Legal Profession 法律职业Part One： The BarThe 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 long multiple choice test; to which the state adds a day long essay examination emphasizing its own law. 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.法律职业的规范主要是各州的事务;每一各州对于执业许可都有其自己的要求..大多数州都要求三年的学业和法律学位..各州自行管理本州申请律师资格的书面考试..不过;几乎所有的州都利用“多州律师资格考试”;这是一种长达一天的多项选择测试;在这项考试之外;各州还会再增加一次主要是关于其本州法律的时长一天的论文考试..大多数申请人都可以通过第一次考试;而且许多失败者都会在下一次考试中通过..每年有四万多人通过这些考试;在经过人品调查之后;他们便可获准在相应的州执业许可..在获得许可之前或之后都不要求实习..到各联邦法院执业的许可规则互不相同;但一般来讲;那些获准在州最高法院执业的律师在办理一些无关紧要的手续之后即可获准在联邦法院执业..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.律师执业范围通常仅限于一个地区;因为尽管律师可以代表当事人到其它地区办理事务;但是一个人只能在其获得许可的州内执业..人们习惯雇用本州的律师办理其它洲的事务..但是;只要一个人已经在其获得职业资格的州执业达一定时间通常是五年;那么他移居到另外一个州时通常无需考试便可获得执业许可..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.律师不仅可以从事法律事务;还允许从事任何其他公民能从事的事务..执业律师在企业客户的董事会中工作、从事商业或者积极参与公共事务都是很平常的事情..律师即使在成为法官、政府或者私人企业集团的雇员或者法律教师之后仍然是律师协会的会员;他们可以辞掉这些其它事务;回头开始私人执业..为了在工商业中担任重要的执行职务而放弃执业的律师人数相对较少..这一职业中的流动性和公共责任感的一个例证是哈兰·菲斯克的职业生涯;他曾多次成为一名纽约州律师、一名教授和哥伦比亚法学院院长、美国总检察长和美国最高法院首席大法官..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 American lawyer s domain includes advocacy; 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 courts is indicated by a decision of New York s highest 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律师并不按照职责进行正式的划分..在英国对诉讼律师和非诉律师的区分并没有移植到美国;既不存在拥有特别或者专有出庭权的职业群体;也没有专门制作法律文书的职业群体..美国律师的业务范围包括出庭辩护、咨询和起草文书..另外;在被广泛地成为“法律执业”的范围之内;律师的业务范围是专有性的;不对其他人开放..在出庭辩护领域;这种规则非常清楚：任何个人都可以代表其自己出庭;但除了一些基层法院之外;只有律师可以代表他人出庭..不过;律师不得代表他人参与一些行政机关设立的具有司法性质的正式程序当中..在咨询和起草法律文书领域的界限并不是太清晰;比如在在联邦所得税领域的法律执业和会计执业之间就是如此..但是;纽约最高法院的一个裁决表明了大多数美国法院的严格标准;该裁决认为;一个获准在外国执业单位获准在纽约执业的律师不得在纽约对客户提供法律咨询;即使该意见仅限于该律师获准执业的该外国的法律..但是;一个外国律师可能获准在一个州执业;而且无需获得许可便可以以一个外国法律顾问的身份向美国律师提供法律咨询..Part Two： Lawyers in Private PracticeAmong 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 clients business problems and to participate at all steps in the shaping of their policies. Major business transactions are rarely undertaken without advice of counsel.第二部分私人执业中的律师每十五个执业律师中有九个明显的多数都是单独执业者..剩下六个在律师事务所执业;这些所一般是合伙制..这六个律师中有四到五个都是合伙人;其余的为非合伙律师雇佣律师..这种集体执业的趋势只是在近年来才开始出现..十九世纪的大多数时间内;律师执业都是非专业化的;其主要内容是辩护而不是咨询和起草法律文书;因此美国律师的最早形式是单独执业..明显的专业化出现于十九世纪后期金融中心附近的大城市里..随着出现大型的企业、庞大的政府和大规模的劳工;律师的工作本身要适应客户对解决争端以及专业咨询和起草法律文书等预防性法律事务的需要..出类拔萃的律师都被吸引到这一领域;而且律师职业领导的重心转向了那些很少出庭的从事顾问、做计划以及从事谈判的人..现在;律师认为不断熟悉客户的业务问题并参与其政策制定的各个步骤已经成了一种正常、合理的执业形式..Part Three: House CounselOut of every twenty lawyers; two are employed by private business concerns; such as industrial corporations; insurance companies; and banks; usually as house or corporate counsel in the concern s legal department. The 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 retained for litigation. However; it is the house counsel s skill as advisor rather than as advocate that is a valued asset. Constantly in touch with the employer s problems; 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.第三部分专职法律顾问每二十个律师当中有两个受雇于私人企业;如工业公司、保险公司和银行..他们通常在企业的法律部门工作;作为专职或者企业法律顾问..公司规模的扩大、业务的复杂以及政府管制所产生的问题的多样化使得这类企业需要在企雇员中有受过法律培训的人员;这些人同时还非常熟悉企业的具体问题和情况..在一些大公司中;法律部的人数可能超过百人..该部门的主任;也叫总法律顾问;通常是公司的一名高级职员;可能供职于重要的决策委员会;甚至是董事会成员..专职法律顾问也是律师协会的成员并有权出庭代理诉讼;尽管公司打官司通常还是回请外部律师担任诉讼代理人..但是;专职法律顾问的特长是咨询而不是诉讼代理;这是他的一种宝贵资产..由于不断接触雇主的各类问题;专职法律顾问的理想定位是预防性法律事务;它还可以根据要求向公司就其对公众和国家更为广泛的义务提供咨询..Part Four： Lawyers in GovernmentA 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."第四部分政府律师律师职业在政府中也出现了同样的发展;目前每二十个律师中有两个不包括法官受雇于联邦、州、县和市镇政府..进入公共服务领域的人许多是认为在其工作生涯的这一阶段政府工资有吸引力和寻求锻炼机会并将这种锻炼作为私人执业前奏的法学毕业生..他们大多数都是通过任命而供职于联邦和州的各级政府机关以及劳工组织中的法律部门..仅美国司法部一家就雇佣了两千多名律师;纽约市的法律部雇的人数超过四千..其他律师的角色是公诉人..联邦公诉人;即美国的检察官及其助理由总统任命;受美国总检察长领导..州公诉人;有时是地区检察官;通常由各县选举产生;并且不受州检察长的控制..作为一种规则;政府律师都是直接从事法律工作;因为法律培训很少作为一般的政府服务的准备工作..但是;那些被任命为高级行政职务和被选举担任政治官职的人是这一规则的一个少数但却很重要的例外..尽管近来律师参与政府工作在减少;但两个世纪以来律师已经构成了美国国会和各州州长的大约半数..这些数字证明了斯通大法官的话：“在我们的职业传统中;没有一个能像其担任公共事务领导的传统那样受到律师们的钟爱..”Lesson Three: Legal Education 法律教育必修课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；选修课Elective Course 批判性思维critical thinking案例教学法Case Method和问答式即苏格拉底式教学法Socratic Method..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.1983年;在170多所经美国律师协会认可的法学院里就读的法学学生有125000多名..这些法学院包括由部分由政府资助的公立法学院、靠个人和基金会捐助维持的私立法学院、以及提供全日制或者业余法律学习课程的地方性和全国性学校..作为事实上的走向法律职业的唯一途径;美国的法学院履行着许多职能;包括开展职业培训、使未来的律师具备社交能力以及对准备进入法律职业的人进行筛选和把关等..由于没有一个供所有律师进行实习的中心机构;律师共同拥有的机构性经历只能是法学院..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那些关于法学院行使这些功能的方式以及这些功能本身的从温和到刻薄的批评是持续的、多样化的;而且根植于该职业的历史和政治发展之中..这些批评集中于课程和以案例教学法为主导方面、在法学院内部和法学院之间的等级制度上的权力和声望的分配方面以及在法学院的学生中和教师中的女性和少数民族成员的不平衡问题..Part One： Curriculum and the Case MethodThe traditional first year program offered in virtually all American law schools includes contracts; torts; property; criminal law and civil procedure. Duncan Kennedy has described the traditional first year curriculum as basically teaching the ground rules for late 19th century laissez faire capitalism. The second year and third year 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".第一部分课程与案例教学法实际上在所有的美国法学院中都开设传统的一年级课程;包括合同、侵权、财产、刑法和民事程序等..Duncan Kennedy认为这些传统的一年级课程基本上是讲授19世纪晚期自由资本主义的基础性规则..二年级和三年级课程讲述的是温和改革主义的“新政”课程和现代法治管制国家的行政结构..可能开设的边缘学科包括法哲学、法律史、法律程序以及诊所式教育;即“一种学习作为律师所应具备的自我表达社交艺术的操练场和精修学校”..However; as new areas of the law continue to develop in response to contemporary issues and problems; some law schools have expanded curricula to include courses and clinical programs in environmental law; housing and urban development; women s rights; health in the workplace; welfare rights and consumer protection. There are also increasing efforts to teach law in interdisciplinary contexts; drawing on other disciplines such as history; psychology; sociology; medicine; and economics.但是由于新的法律领域随着当代问题的出现而不断发展;一些法学院将课程予以扩展;包括环境法方面的课程和诊所式课程;住房和城市发展、女权、工作场所的健康、福利权以及消费者保护等..并且还越来越多地以交叉学科的背景讲授法律;向其他学科靠近;如历史、心理学、社会学、医学以及经济学等..。
法律英语 何家弘编 第四版课文翻译(1 20课)
法律英语何家弘编第四版课文翻译(1 20课)法律英语何家弘编第四版课文翻译(1-20课)第一课美国法律制度简介第一部分特征与特点美国既是一个非常新的国家，也是一个非常古老的国家。
与许多其他国家相比，它是一个新的国家。
同时，由于新的人口构成和新国家的加入，它也是一个新的国家。
但在其他意义上，这是一个古老的国家。
它是最古老的“新”国家——第一个从旧大陆殖民地诞生的国家。
它有最古老的成文宪法、最古老的连续联邦制度和最古老的民族自治实践。
美国的年轻（性）有一个很有意思的特点就是它的历史肇始于印刷机发明之后。
因此它的整个历史都得以记录下来：确实可以很有把握地说，任何其它国家都没有像美国这样全面的历史记录，因为像在意大利、法国或者英国过去的传说中湮没的那样的事件在美国都成了有文字记载的历史之一部分。
而且其记录不仅全面，还非常浩繁。
不仅包括这个国家自1776年以来的殖民时期的记录，还有当前五十个州以及各州和联邦（nation）之间错综复杂的关系网络的历史记录。
因此，据一个非常简单的例子，美国最高法院判例汇编有大约350卷，而一些州的判例汇编也几乎有同样多的卷数：想研究美国法律史的读者要面对的是超过5000巨卷的司法案例。
我们不能说一份或几份文件能够揭示一个民族或政府的特征。
但如果跨越100多年的数百万份文件的基调是一致的，我们有理由说这是它的主调。
当数以百万计的文件以同样的方式解决同一个中心问题时，我们有理由得出某些结论，这些结论可以被称为国家特有的。
第二部分普通法和衡平法与英国一样，美国的法律体系在方法论上主要是判例法体系。
私法的许多领域仍然以判例法为主，广泛且不断增长的成文法受到具有约束力（解释性）的判例法的约束。
因此，了解判例法方法和运用判例法的技能对于理解美国法律和法律方法至关重要。
从历史的角度来看，普通法就是由英国皇家法院的巡回法官的判决所得出的普通的一般法――优于地方法。
采纳或执行某项诉讼请求是以存在法院令状这种特殊形式的诉为前提的，而这就使最初的普通法表现为由类似于古罗马法的“诉”所构成的体系。
法律英语翻译-何家弘20938
Lesson One: Legal System 法律制度英属殖民地时期(the Period of the English Colonies）和美利坚合众国时期（the Period of the United States)。
公诉制度(public prosecution) 美国属于普通法系(Common Law Legal System)分散制（decentralization)为原则;以判例法(case law）为主体。
"零散的无系统”（fragmental no system)。
成文法（written law）或制定法(statutory law），遵从前例"(stare decisisPart OneThe 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.美国既是一个非常新的国家也是一个非常老的国家.与许多别的国家相比它是一个新的国家。
法律英语-何家弘编-第四版课文翻译(1-20课)
美国的年轻(性)有一个很有意思的特点就是它的历史肇始于印刷机发明之后。因此它的整个历史都得以记录下来：确实可以很有把握地说，任何其它国家都没有像美国这样全面的历史记录，因为像在意大利、法国或者英国过去的传说中湮没的那样的事件在美国都成了有文字记载的历史之一部分。而且其记录不仅全面，还非常浩繁。不仅包括这个国家自1776年以来的殖民时期的记录，还有当前五十个州以及各州和联邦(nation)之间错综复杂的关系网络的历史记录。因此，据一个非常简单的例子，美国最高法院判例汇编有大约350卷，而一些州的判例汇编也几乎有同样多的卷数：想研究美国法律史的读者要面对的是超过5000巨卷的司法案例。
但是由于新的法律领域随着当代问题的出现而不断发展，一些法学院将课程予以扩展，包括环境法方面的课程和诊所式课程，住房和城市发展、女权、工作场所的健康、福利权以及消费者保护等。并且还越来越多地以交叉学科的背景讲授法律，向其他学科靠近，如历史、心理学、社会学、医学以及经济学等。
何家弘法律英语第六课
Informal rulemaking
The agency explain its basis and purpose Decision is taken bureaucratically
Judicial review
Full force of statutory law
Interpretation
行政法的主要任务是确保对政府的控制，并保证政府 的工作效率。
Paradigmatic procedures
Paradigmatic relationship with overseers 标准程序、标准关系
Can and do vary to meet the needs of particular situations
……Can be connected with public administration
The central tasks of administrative law
Assuring the control as well as the effectiveness of government
Inspection
Direct physical view by a qualified government official A substitute for adjudication procedures Determine the existence or not of conditions warranting formal administrative action
Three concerns: 1. The procedures employed by “agencies” in effecting “agency action” 2. Judicial review of those actions 3. Special procedures relating to the handling and release of information in the government’s possession
法律英语翻译-何家弘
法律英语翻译-何家弘Lesson One: Legal System 法律制度英属殖民地时期(the Period of the English Colonies)和美利坚合众国时期(the Period of the United States)。
公诉制度(public prosecution) 美国属于普通法系(Common Law Legal System) 分散制(decentralization)为原则；以判例法(case law)为主体。
"零散的无系统"(fragmental no system)。
成文法(written law)或制定法(statutory law)，遵从前例"(stare decisisPart OneThe 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.美国既是一个非常新的国家也是一个非常老的国家。
法律英语-何家弘 第十六课 环境保护法 全文
第十六课环境保护法第一部分全国环境政策法案（1970年实施；1975年修订）第一节全国环境政策宣言§101[《美国法典》第42章第4331条]（国会国家环境政策宣言）（a）鉴于人类活动对自然环境一切构成部分的内在联系具有深远影响，尤其在人口增长、高密度人口城市化、工业发展、资源开发以及技术日益进步所带来的深远影响，并鉴于恢复和保持环境质量对于全人类的福利与发展所具有的重要性，国会特宣布持续性的政策，联邦政府将与各州、地方政府以及有关公共和私人团体合作采取一切切实可行的手段和措施，包括财政和技术上的援助，发展和增进一般福利，创造和保持人类与自然得以共处与和谐中生存的各种条件，满足当代国民及其子孙后代对于社会、经济以及其他方面的要求。
（b）为执行本法规定的政策，联邦政府有责任采取一切切实可行、并与国家政策的其他基本考虑相一致的措施，改进并协调联邦的计划、职能、方案和资源，以达到如下目的，即国家应当：（1）履行每一代人作为后代的环境受托管理人的责任；（2）保证为全体国民创造安全、健康、富有生命力并符合美学和文化上的优美的环境；（3）最大限度地合理利用环境，不得使其恶化或者对健康和安全造成危害，或者引起其他不良的和不应有的后果；（4）保护国家历史、文化和自然等方面的重要国家遗产，并尽可能保持一种能为每个人提供丰富与多样选择的环境；（5）谋求人口与资源的利用达到平衡，促使国民享受广泛舒适的生活和高度的生活水平；（6）提高可再生资源的质量并最大限度地回收可耗尽资源。
（c）国会认为，每个人都可以享受健康的环境，同时每个人也有责任参与对环境保护与改善。
§102[《美国法典》第42章第4332条]国会授权并命令国家机构，应当尽一切可能实现：（1）国家的各项政策、法律以及公法解释与执行均应当与本法的规定相一致。
（2）所有联邦政府的机关均应当：（A）在进行可能对人类环境产生影响的规划和决定时，应当采用足以确保综合利用自然科学、社会科学以及环境设计工艺的系统性和多学科的方法。
法律英语-何家弘
Lesson One: Legal System 法律制度英属殖民地时期(the Period of the English Colonies)和美利坚合众国时期(the Period of the United States)。
公诉制度(public prosecution)美国属于普通法系(Common Law Legal System)分散制(decentralization)为原则；以判例法(case law)为主体。
"零散的无系统"(fragmental no system)。
成文法(written law)或制定法(statutory law)，遵从前例"(stare decisisPart OneThe 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.美国既是一个非常新的国家也是一个非常老的国家。
何家弘 法律英语 第一章 法律制度 英汉对照.doc
Lesson 1 法律制度Part One Featuers and Characteristics 第一部分特征与特点The United States is at once a very new nation and a very old nation.美国既是一个非常新的国家也是一个非常老的国家。
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.与许多别的国家相比它是一个新的国家。
同时，它还因新人口成分和新州的加入而持续更新，在此意义上，它也是新国家。
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.但是在其它的意义上它是老国家。
它是最老的“新”国家——第一个由旧大陆殖民地脱胎而出的国家。
It has the oldest written constitution, the oldest continuous federal system, and the oldest practice of self government of any nation.它拥有最古老的成文宪法、最古老的持续的联邦体制以及最古老的民族自治实践。
One of the most interes ting features of America’s youth is that the whole of its history belongs in the period since the invention of the printing press.美国的年轻（性）有一个很有意思的特点就是它的历史肇始于印刷机发明之后。
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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"(fragmental no system)。
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。
Text课文Part OneThe 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 isthat 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 TwoThe 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 tothat 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 called maxims of equity law which 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, forinstance, 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"describes the entire body of judge made law 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 "common law" in this usage connoting judge made law in general as contrasted with statutory law. "Case law" always connotes judge made law, while "common law" in 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。