English for the Legal Profession
II. Subsidiary sources of English law
Custom
Customs are social habits, patterns of behavior. Some laws are originally based upon them. For example, the law of contract and most international laws.
Books of authority
On the Continent the writings of legal authors form an important source of law. In England, in accordance with the tradition that the law is to be sought in judicial decisions, later the writings of the judges became an independent source of law.
III. The difference between “written law” and “unwritten law”
“Written” law signifies any law that is formally enacted, whether reduced to writing or not. “Unwritten” law signifies all unenacted law. For example, as will appear, judicial decisions are often reduced to writing in the form of law reports, but because they are not formal enactments they are “unwritten” law.
9
English for the Legal Profession
Chapter 4 State and government of the UK
Composition and Formation of the UK
The UK (United Kingdom of Great Britain and Northern Ireland) is a constitutional monarchy and a unitary state,(君主立宪制的中央集权国家) which is made up of the island of Great Britain (including England, Scotland and Wales) and of Northern Ireland. The common language is English.
Edward I launched a war between England and Welsh and later made Welsh part of England by Treaty of Union in 1536 and 1542.
England and Scotland were first linked by personal union of the Crowns of both countries when James VI of Scotland succeeded to the throne of England (as King James I) in 1603 after the death of Elisabeth. But the political unification of the two countries was only effected more than 100 years later through the Treaty of Union of 1707. The Treaty and the subsequent Acts of Union abolished the separate parliaments and established one parliament for Great Britain which was situated in London.
Great Britain was united with Ireland by the Act of union of 1800 which came into effect in the following year. By this Act, provision was made for Irish representation I the parliament at Westminster. The UK and Ireland existed from 1801 until 1922, at which time, in consequence of the partition of Northern and Southern Ireland, the tile was changed to the present one of The United Kingdom of Great Britain and Northern Ireland.
The Irish Treaty of 1921 gave Dominion Status (自治领) to 26 Irish counties under the name of the Irish Free State.
English law and Scots law are very different from each other in form and substance. The separate evolution of the two legal systems, both before and after Union, has resulted in different principles, institutions and traditions. Although in modern times Scots law has been greatly influenced by English law, it is still based upon principles of Roman or Civil law and upon rules of Canon (教规), feudal or customary law origin. In spite of the existence of a common parliament for England and Scotland for over 250 years there has been no assimilation of the legal systems of the two countries. A fusion has taken place between England and Wales. The law of Northern Ireland, although administered as a separate system, is similar in many essentials to English law.
10
English for the Legal Profession
Chapter 5 The UK system of Government
The Monarchy, legislative, executive and judicial organs
Is there a constitution in UK?
The constitutional principles, rules and practices of the United Kingdom have never been codified [enacted]. They derive from statute law, from common law, and from conventions of the constitution. They are not laws at all; instead, they are political practices which are indispensable to the smooth working of the machinery of government.
1. The Monarchy
It is an ancient institution [custom or convention] of the UK with a history of over a thousand years. The monarchy is hereditary and the succession of the Crown cannot be altered except by common consensus[整体一致] of the member states of the Commonwealth which owe allegiance [Loyalty or the obligation of loyalty] to the Crown.
Queen Elizabeth II
She succeeded to the throne in 1952. She is an integral part of the legislature, the head of the judiciary, the commander-in-chief of the armed forces of the Crown, and the temporal head of the established Church of England.
The monarchy in the UK has evolved over the centuries from absolute personal authority to the present constitutional form by which the Queen reigns but does not rule [女王在位，但不当政]. The government governs in the name of the Queen, who must act on the advice of her ministers.
Royal Prerogative
Prerogative rights are of legislative, executive and judicial character.
1) The Monarch must give the Royal Assent before a Bill which has passed all its stages in both Houses of Parliament can become a legal enactment. 2) The Monarch’s consent and approval is required before a Cabinet can be formed or a minister takes up office. The Monarch also makes appointments to all important offices of state, including judges, officers in the armed services, diplomats and the leading positions in the established Churches.
3) As head of Sate the Monarch has the power to sign international agreements, to cede [give up] or receive territory, and to declare war or make peace.
4) As the “fountain of justice” [正义之源泉], it is only the Monarch who is able to remit [To pardon; forgive] all or part of the penalties imposed upon persons convicted of crimes through the exercise of the prerogative of mercy on the advice of the appropriate minister.
11
English for the Legal Profession
The Privy Council1 [枢密院]is the body on whose advice and through which the Monarch exercises most prerogative powers. There are about 330 members of the Privy Council. All cabinet ministers are members; other members are appointed by the Monarch on the recommendation of the Prime Minister.
2. Legislature
Parliament is the legislative organ and is constitutionally composed of the Monarch, the House of Lords, and the House of Commons.
1) The Parliament at Westminster legislates for the United Kingdom, for any one of the constituent countries. It may legislate on certain “excepted” and “reserved” matters for Northern Ireland. It may also legislate for the Channel islands and the Isle of Man, under certain conditions, although these islands possess their own ancient legislatures.
Parliament consists of two Houses: the House of Lords and the House of Commons.
The House of Lords is for the most part still a hereditary body. It consists of the Lords Temporal [世俗贵族] and the Lords Spiritual [神职贵族]. The Lords Temporal include hereditary peers [贵族], life peers and the Lords of Appeal in Ordinary. The House of Lords is presided over by the Lord Chancellor. The Lords Spiritual include the most of the bishops of the Church of England. The main function of the House of Lords is to bring the wide experience of its members into the process of lawmaking. In other words, the non-elected House is to act as a chamber of revision, complementing but not rivaling the elect House. (非选举的上议院是修正议院，补充而非反对由选举产生的下议院。)
The House of Commons is an elected and representative body; members elected by almost universal adult suffrage(投票，投票权) to represent constituencies(英国国会议员选举区) in England(523), Scotland (72), Wales (38) and Northern Ireland (17). Any British subject aged 21 or over, not otherwise disqualified may be elected a Member of Parliament (M.P.). All seats are subject to a General Election after a parliament is dissolved. It is the House of Commons that has the ultimate authority of legislation.
The supremacy or sovereignty of the UK parliament is the most basic principle of British constitutional law. (下议院拥有最终立法权。)
2) The Parliament of Northern Ireland
Under the Government of Ireland Act, 1920, a separate parliament and government, each with limited powers, were established for Northern Ireland. The parliament and government were then abolished and replaced by the Assembly elected under the provisions of the Northern Ireland Assembly Act,
1
The Privy Council was formerly the chief source of executive power in the state and give private advice to the King. So the Privy Council was also called the King's Council in history. Today its role is largely formal, advising the sovereign to approve certain government decrees.Its membership is about 400, and includes all Cabinet ministers, the speaker of the House of Common and senior British and Commonwealth statement.
12