【正文】 編號(hào)：時(shí)間：2021年x月x日書(shū)山有路勤為徑，學(xué)海無(wú)涯苦作舟頁(yè)碼：第28頁(yè) 共28頁(yè)Lesson One: Legal System 法律制度Background背景自從哥倫布(Christopher Columbus)于1492年航行至美洲之后，大批歐洲人便開(kāi)始擁向這片新大陸。不過(guò)，人們通常把第一批英國(guó)定居者(the first English settlers)于1607年到達(dá)弗吉尼亞(Virginia)的詹姆斯頓(Jamestown)視為美國(guó)法律制度歷史的起點(diǎn)。美國(guó)法制史可以大體上分為兩個(gè)時(shí)期，即英屬殖民地時(shí)期(the Period of the English Colonies)和美利堅(jiān)合眾國(guó)時(shí)期(the Period of the United States)。雖然美國(guó)的法律制度是在英國(guó)法律傳統(tǒng)的基礎(chǔ)上形成和發(fā)展起來(lái)的，但是在近四百年的歷史進(jìn)程中，美國(guó)的法律制度也形成了一些不同于英國(guó)法律制度的特點(diǎn)，如公訴制度(public prosecution)等。美國(guó)屬于普通法系(Common Law Legal System)國(guó)家，其法律制度有兩個(gè)基本特點(diǎn)：其一是以分散制(decentralization)為原則；其二是以判例法(case law)為主體。美國(guó)除聯(lián)邦政府外，還有州政府、縣政府、市政府、鎮(zhèn)政府等等，而且這些政府都是相互獨(dú)立的，各自在其管轄范圍內(nèi)享有一定的立法權(quán)和執(zhí)法權(quán)。因此，有人說(shuō)美國(guó)是一個(gè)有許多政府的國(guó)家(a country of many governments)；而美國(guó)的法律體系則是一個(gè)零散的無(wú)系統(tǒng)(fragmental nosystem)。誠(chéng)然，美國(guó)現(xiàn)在也有很多成文法(written law)或制定法(statutory law)，但是其法律制度仍是以判例法為主體的。換言之，遵從前例(stare decisis)仍然是美國(guó)司法活動(dòng)中最重要的原則之一。以上兩點(diǎn)對(duì)于理解美國(guó)的法律制度具有重要意義。Text課文Part OneThe United States is at once a very new nation and a very old nation. It is a new nation pared with many other countries, and it is new, too, in the sense that it is constantly being renewed by the addition of new elements of population and of new States. But in other senses it is old. It is the oldest of the new nationsthe first one to be made out of an Old World colony. It has the oldest written constitution, the oldest continuous federal system, and the oldest practice of selfgovernment of any nation.One of the most interesting features of Americas youth is that the whole of its history belongs in the period since the invention of the printing press. The whole of its history is, therefore, recorded: indeed, it is safe to say that no other major nation has so prehensive a record of its history as has the United States, for events such as those that are lost in the legendary past of Italy or France or England are part of the printed record of the United States. And the American record is not only prehensive。 it is immense. It embraces not only the record of the colonial era and of the Nation since 1776, but of the present fifty States as well, and the intricate network of relationships between States and Nation. Thus, to take a very elementary example, the reports of the United States Supreme Court fill some 350 volumes, and the reports of some States are almost equally voluminous: the reader who wants to trace the history of law in America is confronted with over 5,000 stout volumes of legal cases.No one document, no handful of documents, can properly be said to reveal the character of a people or of their government. But when hundreds and thousands of documents strike a consistent note, over more than a hundred years, we have a right to say that is the keynote. When hundreds and thousands of documents address themselves in the same ways, to the same overarching problems, we have a right to read from them certain conclusions which we can call national characteristics.Part TwoThe American legal system, like the English, is methodologically mainly a case law system. Most fields of private law still consist primarily of case law and the extensive and steadily growing statutory law continues to be subject to binding interpretation through case law. Knowledge of the case law method as well as of the technique of working with case law therefore is of central importance for an understanding of American law and legal methodology.The Common Law is historically the mon general law with supremacy over local lawwhich was decreed by the itinerant judges of the English royal court. The enforcement of a claim presupposed the existence of a special form of action, a writ, with the result that the original mon law represented a system of actions similar to that of classical Roman law. If a writ existed (in 1227) a claim could be enforced。 there was no recourse for a claim without a writ, the claim did not exist. This system became inflexible when the Provisions of Oxford (1258) prohibited the creation of new writs, except for the flexibility which the writ upon the case allowed and which later led to the development of contract and tort law.The narrow limits of the forms of action and the limited recourse they provided led to the development of equity law and equity case law. Equity, in its general meaning of doing equity, deciding ex aequo et bono, was first granted by the King, and later by his Chancellor as keeper of the King39。s conscience, to afford relief in hardship cases. In the fifteenth century, however, equity law and equity case law developed into an independent legal system and judiciary (Court of Chancery) which peted with the ordinary mon law courts. Its rules and maxims became fixed and, to a degree, inflexible as in any legal system. Special characteristics of equity law include: relief in the form of specific performance (in contrast to the mon law award of pensatory damages), the injunction (a temporary or final order to do or not to do a specific act), the development of socalled maxims of equity law which permeated the entire legal system and in many cases explain the origin of modern legal concepts. However, equitable relief regularly will lie only when the mon law relief is inadequate. For instance, specific performance for the purchase of real property will be granted because mon law damages are deemed to be inadequate since they cannot pensate the buyer in view of the uniqueness attributed to real property.As the mon law, equity law became part of American law either through judicial acceptance or through express statutory provision. Today, both legal systems have been merged in many American jurisdictions (beginning with New York in 1848), with the result that there is only one form of civil suit in these jurisdictions as well as in federal practice. Only few States continue to maintain a separate chancery court. Nevertheless, the reference to the historical development is important because, on the one hand, it explains the origin and significance of many contemporary legal con