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Institutions of Law and Government G

2021-07-20 来源: 51Due教员组 类别: Essay范文

各位留学生大家好,今天100Due给大家分享一篇法律学essay代写范文,主要内容讲的是:世界上的法律制度主要有两种类型,大多数国家将其中一种或另一种的特点纳入本国的法律体系,即英美法系和大陆法系。

Institutions of Law and Government G

Part B

Answer to Question 2:

There are two main types of legal system in the world, with most countries adopting features from one or other into their own legal systems, Common Law and Civil law.

A. Civil Law

Countries following a civil law system are typically those that were former French, Dutch, German, Spanish or Portuguese colonies or protectorates, including much of Central and South America.

Main features of civil law:

a) There is generally a written constitution based on specific codes (e.g., civil code, codes covering corporate law, administrative law, tax law and constitutional law) enshrining basic rights and duties; administrative law is however usually less codified and administrative court judges tend to behave more like common law judges;

b) Only legislative enactments are considered binding for all. There is little scope for judge-made law in civil, criminal and commercial courts, although in practice judges tend to follow previous judicial decisions; constitutional and administrative courts can nullify laws and regulations and their decisions in such cases are binding for all.

c) In some civil law systems, e.g., Germany, writings of legal scholars have significant influence on the courts;

d) Courts specific to the underlying codes – there are therefore usually separate constitutional court, administrative court and civil court systems that opine on consistency of legislation and administrative acts with and interpret that specific code;

e) Role of judges: Chief investigator; makes rulings, usually non-binding to 3rd parties. In a civil law system, the judge’s role is to establish the facts of the case and to apply the provisions of the applicable code. Though the judge often brings the formal charge.

f) Less freedom of contract - many provisions are implied into a contract by law and parties cannot contract out of certain provisions.

g) Type of argument and role of lawyers: Inquisitorial. Judges, not lawyers, ask questions and demand evidence. Lawyers present arguments based on the evidence the court finds.

 

B. Common Law

Countries following a common law system are typically those that were former British colonies or protectorates, including the United States.

Main features of common law:

a) There is not always a written constitution or codified laws;

b) Judicial decisions are binding – decisions of the highest court can generally only be overturned by that same court or through legislation;

c) Extensive freedom of contract - few provisions are implied into the contract by law (although provisions seeking to protect private consumers may be implied);

d) Generally, everything is permitted that is not expressly prohibited by law.

e) Role of judges: Makes rulings; sets precedent; referee between lawyers. Judges decide matters of law and, where a jury is absent, they also find facts. Most judges rarely inquire extensively into matters before them, instead relying on arguments presented by the part

f) Type of argument and role of lawyers: Adversarial. Lawyers ask questions of witnesses, demand production of evidence, and present cases based on the evidence they have gathered.

 

In my opinion, the civil law system provides law with more certainty. For two main reasons:

Firstly, the as mentioned above, under the civil law system, it has less freedom of contract, many provisions are implied into a contract by law and parties cannot contract out of certain provisions. This means that there is a basic rule for contract parties to comply with, and the result of violating the rule has always been clear at the time of contracting. Therefore, such it provides more certainty for contracting parties.

Secondly, common law system emphasizes the importance of flexibility of law. It requires judges to make judgments based on different situation of each case. Judges under a common law system can make rulings and set precedent, they are granted with a great discretion in making judgment. Therefore, the trial result is largely based on the subjective judgment of judges, which is influenced by experiences, knowledge and even mood of the judge. In a civil law system, the judge’s role is to establish the facts of the case and to apply the provisions of the applicable code. They have little discretion on making judgment and their judgment should be made strictly according to the established rules, which have been declared to parties. As a result, parties can, in most cases, roughly anticipate the result of their behavior by learning the rules prescribed under laws, which reflecting the certainty of law.

 

Part C :

Legal globalization involves the transnationalization of certain legal models, frameworks and ideas. There is no doubt that law is an agent of globalization. However, law is not merely an agent of globalization, legal globalization is itself a result of globalization. In other words, the relationship between law and globalization is mutual promotion.

The globalization of markets and business practices of the multi-national corporations has promote a relatively uniform global contract and commercial law. Contracts, by their very nature, are kind of private lawmaking system. The two or more contracting parties create a set of rules to govern their future relationships. The economic globalization, which promotes the business activities between parties in different districts and countries, is also leading to the emergency of more contracts between these parties. An accompanied problem emerged under the background is that, when disputes appear between these parties in different jurisdictions, which law and which court can govern? Typically the contract parties may have specified in the contract itself the courts and the contract and commercial law of some particular country to resolve and govern contract disputes. As a result, a global commercial law can come into being by private lawmaking when the courts and law of most individual nation states are prepared to recognize and enforce the judgements of the others.

Law is playing an important role in promoting closer interaction between peoples, political elites and business entities. Law establishes rules for activities between parties and also provides mechanisms for resolving disputes arising from these activities, which increases the certainty and efficiency of political, commercial, cultural cooperation between parties in different districts and countries. For example, in the last decades, to decrease transactional risks and to insure expected benefits, rules for transnational transactions had been established. Businessman had set up or unified numerous commercial rules through their institutions. For example, the Uniform Rules for Collection (the “URC522”) released by the International Chamber of Commerce have been adopted by relevant institutions in most countries and it, to a large extent, has reduced disputes in collection. URC522 is not only the international rule for corporations carrying out collection activities, but also the important rule for lawyers, courts and arbitration institutions to resolve collection-related disputes. There is no doubt that such a rule has promoted the collection transaction by regulating commercial behaviors of transactional parties and reducing risks emerged from the transactions. However, law is not always the promoter of globalization, it may, on the other hand, play a role in hindering the globalization. If legislators of a country oppose the globalization, they can impede or delay the course of globalization by establishing some rules in the domestic laws. For example, some countries may increase tariffs by revising domestic tax laws, which will no doubt throttle trade between countries.

At the background of globalization, in order to better blend in transnational commercial activities, every participative country has to adjust its domestic law to comply with international common rules. When their domestic laws conflict with international rule, they should make some revision in domestic laws. For example, to promote transnational transactions of their domestic businessman or corporations, some countries have become a member of WTO and as a result, these countries have to comply with international rules established by WTO and to signed treaties or agreements with other countries which are also members of WTO. To carry out the treaties or agreements, these countries have to include the prescribed rule which are established by WTO and prescribed in the treaties into their domestic laws. Therefore, domestic law itself is becoming more international and transnational at the background of globalization. However, what should be noticed is that every country has its political system different from other countries’, which means that the difference of legal system among countries is always exist. Therefore,although domestic law is becoming more international and transnational, this legal transformation does not mean that domestic laws of different countries will develop to be the same in the end.

Legal globalization had a profound impact on states and on relations between states and their citizens. One of these was the spread of human rights doctrine. Human rights can be understood as an international legal framework of treaties and conventions that codify the inherent rights of human beings and the obligations of states towards them. While the idea of human rights have long been used to oppose and resist state violence, since the end of the Cold War human rights has also become one of the central concepts in the legal reorganization. In this sense, the doctrine of human rights constitutes a fundamental component of the globalization of certain politico-legal norms, values, institutions and models. Accompanied with this main legal value and legal culture —— human rights, many affiliated legal values and legal cultures also emerged. The tendency that more countries around the world are putting welfare rights in the constitution is one of the phenomena. Post-World War II constitutions tend to be replete not only with negative rights, but also with positive ones such as the right to education, housing, health care and employment. Here the demand is not that the government stay out of things, but rather that it act positively to assure the well-being of the citizens. Another legal value related with the human rights doctrine is the advocate of abolition of the death penalty. The death penalty is regarded as violating the right to life which happens to be the most basic of all human rights. It also violates the right not to be subjected to torture and other cruel, inhumane or degrading treatment or punishment. Therefore, an increasing number of countries have reform their criminal law system and to eliminate death penalty from it.

An alternative to the present driver is the tendency to put more emphasis on environmental protection among international laws and domestic laws. As it became increasingly clear that the externalities of environmental degradation crossed national boundaries and that some of them, like ozone depletion, were truly global, parallel developments in national environmental law accelerated as did efforts at multi-national and/or international environmental protection law.

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