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Sources of law




John Locke (1632-1704)

The ideas and writing of the seventeenth-century English philosopher John Locke deeply influenced the political outlook of the American colonists. Locke spelled out his political ideas in Two Treatises on Civil Government, first published in 1690. His writings were widely read and discussed in both Europe and America. Locke’s ideas seemed to fit the American colonial experience. Colonial leaders such as Benjamin Franklin, Thomas Jefferson, and James Madison regarded these ideas as political truth. Locke’s ideas became so influential that they have been called the “textbook of the American Revolution”.

Locke reasoned that all people were born free, equal, and independent. They possessed natural rights to life, liberty, and property at the time they lived in a state of nature, before governments were formed. People contracted among themselves to form governments to protect their natural rights. Locke argued that if a government failed to protect these natural rights, the people could change that government. The people had not agreed to be governed by tyrants who threatened their rights but by rulers who defended their rights.

Locke’s ideas were revolutionary in an age when monarchs still claimed they had God-given absolute powers. Locke denied that people were born with an obligation to obey their rulers. Rather, in his Second Treatise on Civil Government, Locke insisted that freedom of people under government is to have a standing rule to live by, common to every one of that society, and made by the legislative power vested in it.

Government, then, was legitimate only as long as people continued to consent to it. Both the Declaration of Independence and the Constitution, written nearly a century after Locke, reflected Locke’s revolutionary ideas.


 

SOURCES OF LAW

Warming-up:

1. What is the main difference between customs and law?

2. Can we refer to the Bible as the main source of law?

Vocabulary notes:

to determine визначати
judicial decisions юридичні рішення
to reduce зменшувати
to set out викласти (у збірці)
to derive походити
a solemnity важливість, законність
misleading помилковий
to enact постановляти, вводити закон
wholesale повний, масовий
subsidiary допоміжний
ultimate основний, кінцевий
a set of laws збірка законів
a volume обсяг
a legislation законодавство
an enactment постанова
a hallmark критерій
to signify визначати
to preponderate, to prevail, to be predominant переважати

The courts are the interpreters and declarers of the law, the ‘sources’ of law are therefore the sources to which the courts turn in order to determine what it is.

Laws are traditionally divided into two main categories according to the solemnity of the form in which they are made. They may either be written or unwritten. These traditional terms are misleading, because the expression ‘written’ law signifies any law that is formally enacted, whether reduced to writing or not, and the expression ‘unwritten’ signifies all unenacted law.

On the Continent the volume of written law tends to preponderate over the volume of unwritten. But in England unwritten law is predominant, for more of the law derives from judicial precedents than from legislative enactments.

Parliament has not adopted the system of wholesale codification which prevails in many continental countries.

Two principal and two subsidiary sources of English law must be mentioned. These principal sources are Legislation, and Judicial Precedent; the subsidiary sources are customs and Books of Authority.

Legislation is enacted law. In England the ultimate legislator is Parliament.

Parliament has no rival within the legislative sphere – and it means that there is no legal limit to the power of Parliament.

In the legislative sphere Parliament is legally ‘sovereign’ and master, but this does not mean that the courts have no influence upon the development of enacted law; in order to be applied, every enactment has to be interpreted and the courts are the recognized interpreters of the law.

In all countries, at all times, the decisions of courts are treated with respect, and they tend to be regarded as ‘precedents’ which subsequent courts will follow when they are called upon to determine issues of a similar kind.

This reliance upon precedent has been both the hallmark and the strength of the common law. Its rules have been evolved inductively from decisions involving similar facts, so that they are firmly grounded upon the actualities of litigation and the reality of human conduct. And new cases lead onwards to reach forward to new rules.

Customs are social habits, patterns of behaviour. Customs should be considered as one of the principal sources of law for much law was originally based upon it.

Some customary rules are observed in their own right and they command almost as much obedience as rules of law proper; they only differ from rules of law in that their observance is not enforced by the organs of the state.

In England there are certain ‘books of authority’, written by authors of outstanding eminence, which may not only be cited as independent sources in themselves for the law of their times but which also carry a weight of authority almost equal to that of precedents.

Many textbooks are now in practice constantly cited in the courts, though only the best of them are likely to command attention.

The reason is that in comparatively recent years a large increase in the popularity of the study of English law has done much to improve the quality of legal writing and to increase the volume of legal literature.

 

Task 1. Give the Ukrainian equivalents of the following words & expressions.

rules, to improve, to increase the popularity, human conduct, to treat with respect, principal, misleading terms, independent sources, to adopt the law, to involve, social habits, to preponderate, precedent, subsequent courts, legal, obedience, the ultimate legislator, hallmark.

 

Task 2. Give the English equivalents of the following words & expressions.

ставитися з повагою, головний, правила, людська поведінка, незалежні джерела, помилкові терміни, збільшити популярність, вдосконалювати, прийняти закон, включати в себе.

 

Task 3. Match the following word-expressions & their definitions.

1. written law a. all unenacted law
2. unwritten law b. the process of making or defending a claim in a court of law
3. judicial precedent c. any law that is formally enacted
4. “Books of Authority” d. social habits, patterns of behavior
5. customs e. the decisions of courts
6. litigation f. legal literature written by authors of outstanding eminence

Task 4. Translate the words into English & complete the following sentences with the appropriate term.

джерела, категорії, звичаї, авторитетні видання, обсяг, законодавство

 

1. … is enacted law.

2. … are social habits, patterns of behavior.

3. On the Continent the … of written law tends to preponderate over the … of unwritten.

4. Two principal and two subsidiary … of English law must be mentioned.

5. Laws are traditionally divided into two main … according to the solemnity of the form in which they are made.

6. Many … are now in practice constantly cited in the courts.




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