Passive voice

Study the following sentence: Before 1066, law was administered by a series of local courts. The highlighted verb form is an example of Passive Voice, which indicates what happens to the subject rather than what the subject does. Who or what causes the action is often unknown or unimportant.

Passive Voice is formed by an appropriate (simple, continuous, or perfect) tense of the verb be + past participle. Thus we have the following main passive forms:

Tense Aspect	Past	Present	Future
Non-perfect simple: continuous	was broken was being broken	is broken is being broken	will be broken ------------------
Perfect simple:	had been broken	have been broken	will have been broken

VIII. Use an appropriate passive verb form to complete each sentence:

1. When a new government comes to power, it usually revises the legal system. - The legal system ………….. when a new government comes to power.

2. England and Wales have retained many laws and legal principles. - Many laws and legal principles ………….. by England and Wales.

3. They will not finish the project by the end of the year. - The project ………….. by the end of the year.

4. The Norman Kings sent travelling judges around the country. - Travelling judges ………….. by the Norman Kings.

5. Congress is passing the new legislation. – The new legislation …………..

6. They may not fulfill the contract. – The contract may …………...

7. The directors will give a press briefing tomorrow. - A press briefing ………….. tomorrow.

IX. Use an appropriate passive verb form to rewrite the following sentences. Put a cross, where passive is not possible:

1. Britain has had an unusual degree of political continuity.

2. The crime rate went down by 5.5 % last month.

3. In some cases judges make law.

4. Judges dealt with both criminal cases and civil disputes between individuals.

5. Sometimes judges could find no precedents.

6. The lord chancellor’s court became more willing to modify existing common law.

X. Render the following text into English:

Английское право развивалось автономно, связи с континентальной Европой оказали на него незначительное влияние. Рецепция римского права в Европе не затронула английское право. Исторической датой в становлении английского права был 1066 год, когда нормандцы завоевали Англию. Общее право— это право, общее для всей Англии, где до этого периода действовали местные обычаи. Утверждение общего права свидетельствовало о централизации власти. С нормандским завоеванием постепенно сформировалась новая феодальная юрисдикция. Общее право было создано королевскими судами, которые, начиная с XIII века, заседали в Вестминстере. С течением времени происходил процесс расширения компетенции королевских судов, совершенствовалась судебная процедура.

Исторические особенности формирования общего права сыграли определяющую роль в том, что английское право не знает деления на публичное и частное, они исключили рецепцию понятий и категорий римского права. Английская национальная юриспруденция разработала многие категории общего права, не известные странам континентальной Европы. На развитие системы права Англии большое влияние оказало формирование и действие права справедливости, в чем большую роль сыграли проходящие через лорд-канцлера обращения подданных, добивающихся справедливого судебного решения, к королю — источнику справедливости и милости.

В начале XVII века был достигнут компромисс между судами общего права и судом лорд-канцлера. Английское право объединяет нормы общего права и нормы права справедливости. Во второй половине XIX века были устранены формальные различия между судами общего права и канцелярскими судами справедливости. В XX веке в английском праве возросла роль законов и регламентов; потребности развития экономики, торговли воздействовали на сближение между английским и континентальным правом.

Additional Reading

Text 1. Read the text about Napoleon’s Code and match each sentence below with a corresponding paragraph:

1. The demand for codification preceded Napoleon’s era. Diversity of laws was the dominant characteristic of the prerevolutionary legal order. Roman law governed in the south of France, whereas in the northern provinces, including Paris, a customary law had developed, based largely on feudal Frankish and Germanic institutions. Marriage and family life were almost exclusively within the control of the Roman Catholic church and governed by canon law. In addition, starting in the 16th century, a growing number of matters were governed by royal decrees and ordinances and by a case law developed by the parlements. Each area had its own collection of customs, and, despite efforts in the 16th and 17th centuries to organize and codify each of these local customary laws, there had been little success at national unification. Vested interests blocked efforts at codification, because reform would encroach upon their privileges.

2. After the French Revolution, codification became not only possible but almost necessary. Powerful control groups such as the manors and the guilds had been destroyed; the secular power of the church had been suppressed; and the provinces had been transformed into subdivisions of the new national state. Napoleon’s Code, therefore, was founded on the premise that, for the first time in history, a purely rational law should be created, free from all past prejudices and deriving its content from “sublimated common sense”; its moral justification was to be found not in ancient custom or monarchical paternalism but in its conformity to the dictates of reason.

3. Under the code all male citizens are equal: primogeniture, hereditary nobility, and class privileges are extinguished; civilian institutions are emancipated from ecclesiastical control; freedom of person, freedom of contract, and inviolability of private property are fundamental principles.

4. The first book of the code deals with the law of persons: the enjoyment of civil rights, the protection of personality, domicile, guardianship, tutorship, relations of parents and children, marriage, personal relations of spouses, and the dissolution of marriage by annulment or divorce. The code subordinated women to their fathers and husbands, who controlled all family property, determined the fate of children, and were favoured in divorce proceedings. Many of these provisions were only reformed in the second half of the 20th century. The second book deals with the law of things: the regulation of property rights—ownership, usufruct, and servitudes. The third book deals with the methods of acquiring rights: by succession, donation, marriage settlement, and obligations. Freedom to contract is not spelled out explicitly but is an underlying principle in many provisions.

5. The code was originally introduced into areas under French control in 1804: Belgium, Luxembourg, parts of western Germany, northwestern Italy, Geneva, and Monaco. It was later introduced into territories conquered by Napoleon: Italy, The Netherlands, the Hanseatic lands, and much of the remainder of western Germany and Switzerland. The code is still in use in Belgium, Luxembourg, and Monaco.

6. During the 19th century, Napoleon’s Code was voluntarily adopted in a number of European and Latin American countries, either in the form of simple translation or with considerable modifications. The Italian Civil Code of 1865, enacted after the unification of Italy, had a close but indirect relationship with Napoleon’s Code. The new Italian code of 1942 departed to a large extent from this tradition. In Latin America in the early 19th century, the code was introduced into Haiti and the Dominican Republic and is still in force there. Bolivia and Chile followed closely the arrangement of the code and borrowed much of its substance. The Chilean code was in turn copied by Ecuador and Colombia, closely followed by Uruguay and Argentina. In Louisiana, the only civil-law state in the United States (which is otherwise bound by common law), the civil code of 1825 is closely connected with Napoleon’s Code.

7. The influence of Napoleon’s Code was diminished at the turn of the century by the introduction of the German Civil Code (1900) and the Swiss Civil Code (1912); the former was adopted by Japan and the latter by Turkey. In the 20th century, codes in Brazil, Mexico, Greece, and Peru were products of a comparative method, with ideas borrowed from the German, French, and Swiss.

A. Royal decrees and ordinances governed a growing number of matters.

B. Napoleon’s Code was adopted in some European and Latin American countries.

C. The French Revolution made changes in legal system inevitable.

D. Napoleon’s Code extinguished class privileges.

E. The German Civil Code and the Swiss Civil Code diminished the weight of Napoleon’s Code.

F. The Code consisted of three books and contained provisions concerning civil rights and property law.

G. Napoleon’s Code was introduced into areas under French control.

Text 2. The following sentences are from the first paragraph of the text below, decide where they fit in the text:

1. In order to separate the roles of the legislature and judiciary, it was necessary to make laws that were clear and comprehensive.

2. His aim had been to eliminate the confusion of centuries of inconsistent lawmaking by formulating a comprehensive system that would entirely replace existing law.

3. They have resulted from attempts by governments to produce a set of codes to govern every legal aspect of a citizen’s life.

Continental systems are sometimes known as codified legal systems. 1……….. It made it necesssary for the legislators to speculate quite comprehensively about human behaviour rather than simply looking into previous cases. In codifying their legal systems, many countries have looked to the examples of Revolutionary and Napoleonic France, whose legislators wanted to break with previous case law, which had often produced corrupt and biased judgements, and to apply new egalitarian social theories to the law. Nineteenth century Europe also saw the decline of several multi-ethnic empires and the rise of nationalism. The lawmakers of new nations sometimes wanted to show that the legal rights of their citizens originated in the state, not in local customs, and thus it was the state that was to make law, not the courts. 2……….. The lawmakers were influenced by the model of the canon law of the Roman Catholic Church, but the most important models were the codes produced in the seventeenth century under the direction of the Roman Emperor Justinian. 3……….. Versions of Roman law had long influenced many parts of Europe, including the case law traditions of Scotland, but had little impact on English law.

It is important not to exaggerate the differences between common law and continental law. For one thing, many case law systems, such as California’s, have areas of law that have been comprehensively codified. For another, many countries can be said to have belonged to the Roman tradition long before codifying their laws, and large uncodified – perhaps uncodifiable – areas of the law still remain. French public law has never been codified, and French courts have produced a great deal of case law in interpreting codes that become out of date because of social change. The clear distinction between legislature and judiciary has weakened in many countries, including Germany, France and Italy, where courts are able to challenge the constitutional legality of a law made by parliament.

Despite this, it is also important not to exaggerate similarities among systems within the continental tradition. For example, while adopting some French ideas, such as separation of the legislature and judiciary, the late nineteenth century codifiers of German law aimed at conserving customs and traditions peculiar to German history. Canon law had a stronger influence in countries with a less secular ideology than France, such as Spain.

Are the following sentences true or false? Correct the false ones:

1. The legislators of Revolutionary and Napoleonic France were not satisfied with previous case law because it had failed to introduce egalitarian social theories to the law.

2. Europe faced the rise of mighty empires in the nineteenth century.

3. In the nineteenth century the lawmakers wanted to emphasize the leading role of the state in the legislative process.

4. The Roman Catholic Church and Justinian Code had the same influence on the lawmakers.

5. Roman law equally affected the case law traditions of Scotland and England.

6. California has a case law tradition, but its laws are codified as extensively as many continental systems.

7. French public law has been codified for three centuries.

8. Most continental law countries have a well-defined separation of the legislature and judiciary.

9. The continental law is applied identically in all the countries of the continental tradition.

Speaking

The history and development of a nation influence the shape, focus, and scope of the legal system. For example, the United States, Canada, and Great Britain once shared the same system, but since the American War of Independence that common system has split into three distinct systems. Divide into small groups. As a group, choose the five most significant events, documents, or even people that have shaped the growth of your legal system. Your answers might include items such as

• Napoleon’s Code

• your Constitution

• joining the European Union

• English commom law

• World War I or II

• becoming an independent nation

• The Koran

• Roman law

As a group, present your choices to the rest of the class. Be prepared to defend your choices.

Part III. Civil Law and Public Law

In civil law systems, there is a fundamental distinction drawn between private law and public law which is much more firmly rooted, and more sharply drawn, than in common law systems. In conceptual terms, both common law and civil law systems recognise that private law governs relations between private citizens and corporations, and public law concerns a dispute in which the State is a party. However, the distinction in civil law systems has far greater practical implications since there are two different hierarchies of courts dealing with each of these types of law.

The main categories of English civil law are:

Contracts: binding agreements between people (or companies);

Torts: wrongs committed by one individual against another individual’s person, property or reputation;

Trusts: arrangements whereby a person administers proprerty for another person’s benefit rather than his own;

Probate: arrangements for dealing with property after the owner’s death;

Family law: family-related issues and domestic relations;

Land law: the legal rules governing land use and protection.

Areas of public law are constitutional law, administrative law and criminal law. Constitutional law deals with the relationship between the state and individual, and the relationships between different branches of the state, such as the executive, the legislative and the judiciary. In most legal systems, these relationships are specified within a written constitutional document. However, in the United Kingdom of Great Britain and Northern Ireland, due to historical and political reasons there does not exist one supreme written document. The UK has an unwritten constitution - the constitution of this state is usually found in statutes, such as the Magna Carta, the Petition of Right, the Bill of Rights, The Act of Settlement 1700 and the Parliament Act 1911 and Parliament Act 1949.

Administrative law refers to the body of law which regulates bureaucratic managerial procedures and defines the powers of administrative agencies. These laws are enforced by the executive branch of a government rather than the judicial or legislative branches (if they are different in that particular jurisdiction). This body of law regulates international trade, manufacturing, pollution, taxation, and the like. This is sometimes seen as a subcategory of сivil law and sometimes seen as public law as it deals with regulation and public institutions.

Criminal law involves the state imposing sanctions for crimes committed by individuals so that society can achieve justice and a peaceable social order. This differs from сivil law in that civil actions are disputes between two parties that are not of significant public concern.