English for the Legal Profession

1973. The Northern Ireland Act, 1974 dissolved the Assembly, and direct rule by the Parliament at Westminster has been imposed ever since.

3. Executive

The government consists of the ministers appointed by the Crown on the recommendation of the Prime Minister, who is appointed directly by the Crown, and is the leader of the political party which for the time being has a majority of seats in the House of Commons.

The Prime Minister is the head of the government and presides over meetings of the Cabinet. He is always a Member of the House of Commons. He consults and advises the Monarch on government business, supervises and coordinates the work of the various ministers and departments. He is the principal spokesman for the government in the House of Commons. He also makes recommendations to the Monarch on many important public appointments, including the Lord Chief Justice, etc.

The Cabinet is the nucleus (核心) of government. Its principal function is to determine, control and integrate the policies of the government for submission to Parliament.

The central government ministries and departments give effect to government policies and have powers and duties conferred on them by legislation, and sometimes under the Royal Prerogative. Each is headed by a minister who is member of either the House of Lords or the House of Commons.

The Lord Chancellor and Law Officers of the Crown deserve special mention here. The Lord High Chancellor of Great Britain presides over the House of Lords both in its legislative capacity and as a final court of appeal. He is a member of the Cabinet and also has departmental responsibilities in connection with the appointment of certain judges.

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English for the Legal Profession

Chapter 6 General Features of American Legal System

We all know that Constitution is usually regarded as the most important and fundamental law of a country. What about American Constitution? In what way do you think American Constitution is important in the construction of American legal system?

Founding of the U.S Legal System

The history and development of a nation influence the shape, focus, and scope of its legal system. For example, the United States, Canada, and Great Britain once shared the same system, but since the American War of Independence (1775-1783) that common system has split into three distinct systems.

The United States has one relatively brief document that is known as the first complete Constitution of the capitalist world; all other laws in the US, whether state or federal, must be consistent with it. Because of its importance, the Constitution is very difficult to amend [change]. In Canada, however, there are many documents that together form that country’s constitution. The UK, on the other hand, has no special documents, and Parliament may change the law at any time.

The early constitution Topics for discussion:

How much do you know about the first Constitution of America? How did it define the powers of the central government? Read The Articles of Confederation and tell me what it is mainly about.

In order to understand US law, we must look at the founding of the US and the uniting of the individual colonies into a single nation. The American War of Independence brought the original thirteen colonies together to fight a common foe, the British. The colonies, declaring themselves independent states, originally agreed to a very weak confederation in order to defeat their common enemy. This first federal constitution of the US, “The Articles of Confederation,” was written in 1777 and was finally ratified [approved] by the states in 1781. (The first constitution of the United States, passed by The second Continental Congress in 1787, but not ratified until 1781, replaced by the present constitution in 1789 due to lack of governmental powers.)

In this first form of American government, there were neither federal courts nor a president and the single chamber of Congress had no way to enforce its laws. The individual states could and did ignore federal laws with impunity. It quickly became clear that the US would not remain united long unless the role of the federal government was strengthened.

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English for the Legal Profession

Constitution of 1787 Topics for discussion:

For what reason was the constitutional convention held in 1787? What powers did the federal government have according to the new Constitution? How was the government instituted?

In 1787, a constitutional convention (制宪会议) was convened to form a stronger, more durable union. The primary concern of the participants was the formation of a strong union without the disappearance of the states as individual powers in the system. The inevitable compromise among the delegates led them away from the earlier loose confederation of sovereign states toward a stronger central government. In the end this movement resulted in a central government, still protective of states’ rights, but with broader federal powers over individuals. We the people of the United States, in order to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America. 我们，美利坚合众国的人民，为了组织一个更完善的联邦，树立正义，保障国内的安宁，建立共同的国防，增进全民福利和确保我们自己及我们后代能安享自由带来的幸福，乃为美利坚合众国制定和确立这一部宪法。 Broadened powers, however, didn’t mean unlimited powers. The “Founding Fathers” (remember, women were not allowed to vote in the U.S until ratification of the 19th Amendment to the Constitution in 1920) designed the federal government with limited powers, which included the right to impose certain federal taxes, to wage war in the name of all the states, to regulate interstate and foreign commerce, and to make treaties with foreign governments or nations. The remaining powers belonged to the states.

This new constitution added two branches to the federal government: a federal system of courts with the Supreme Court as its head and the executive branch under the control of the newly created office of the president. Additionally, to help solve a major problem of representation between the large and the small states, the legislative branch was changed to its present bicameral [two chamber] form----the House of Representatives and the Senate, known collectively as Congress. Article I Section 1. All legislative powers herein granted shall be vested in a

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English for the Legal Profession

Congress of the United States, which shall consist of a Senate and House of Representatives. 第一条 第一款：本宪法所规定的立法权，全属合众国的国会，国会由一个参议院和一个众议院组成。 Article II Section 1. The executive power shall be vested in a President of the United States of America. He shall hold his office during the term of four years, and, together with the Vice President, chosen for the same term, be elected, as follows: 第二条 第一款： 行政权力赋予美利坚合众国总统。总统任期四年，总统和具有同样任期的副总统，应照下列手续选举： Article III Section 1. The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish. The judges, both of the supreme and inferior courts, shall hold their offices during good behaviour, and shall, at stated times, receive for their services, a compensation, which shall not be diminished during their continuance in office. 第三条 第一款： 合众国的司法权属于一个最高法院以及由国会随时下令设立的低级法院。最高法院和低级法院的法官，如果尽忠职守，应继续任职，并按期接受俸给作为其服务之报酬，在其继续任职期间，该项俸给不得削减。 Topics for discussion:

What are checks and balances? It seems that the Constitution did not explicitly give the power of judicial review to the newly created federal judiciary. Then how did the power of judicial review come into existence?

The Constitution2 established a series of checks and balances (制衡机制) so that each of these three federal branches could maintain a watch on the other two. These checks and balances ensure that no one branch of the federal government becomes too powerful. Additionally, the states, ever mindful of retaining their powers, also provide an external check to ensure that the federal government as a whole doesn’t become too powerful.

In his decision in the landmark case Marbury V. Madison, 5 U.S (1 Cranch)

2

There are altogether 27 amendments to the American Constitution. The first ten are called Bill of Rights. The 19th Amendment to the Constitution gave women the right to vote.

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