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注：相关题目分析在最后。法律类的确让我很头疼，昨天找了3个小时也收获不大，切题比较少，以下都是些基本的知识，好在法律的题目就三个，在最后给了两个题目的分析，最后一个是比较有争论的，只要证明的合情合理即可。
Introduction to Law
Law, body of official rules and regulations, generally found in constitutions, legislation, judicial opinions, and the like, that is used to govern a society and to control the behavior of its members. The nature and functions of law have varied throughout history. In modern societies, some authorized body such as a legislature or a court makes the law. It is backed by the coercive power of the state, which enforces the law by means of appropriate penalties or remedies.
Formal legal rules and actions are usually distinguished from other means of social control and guides for behavior such as mores, morality, public opinion, and custom or tradition. Of course, a lawmaker may respond to public opinion or other pressures, and a formal law may prohibit what is morally unacceptable.
Law serves a variety of functions. Laws against crimes, for example, help to maintain a peaceful, orderly, relatively stable society. Courts contribute to social stability by resolving disputes in a civilized fashion. Property and contract laws facilitate business activities and private planning. Laws limiting the powers of government help to provide some degree of freedom that would not otherwise be possible. Law has also been used as a mechanism for social change; for instance, at various times laws have been passed to inhibit social discrimination and to improve the quality of individual life in matters of health, education, and welfare.
Some experts believe the popular view of law overemphasizes its formal, coercive aspects. They point out that if a custom or norm is assured of judicial backing, it is, for practical purposes, law. On the other hand, a statute that is neither obeyed nor enforced is empty law. Social attitudes toward the formal law are a significant part of the law in process. The role of law in China and Japan, for example, is somewhat different from its role in Western nations. Respect for the processes of law is low, at least outside matters of business and industry. Tradition looms much larger in everyday life. Resort to legal resolution of a dispute is truly a last resort, with conciliation being the mechanism that is preferred for social control.
Why Do We Need the Law?
Almost everything we do is governed by some set of rules. There are rules for games, for social clubs, for sports and for adults in the workplace. There are also rules imposed by morality and custom that play an important role in telling us what we should and should not do. However, some rules -- those made by the state or the courts -- are called "laws". Laws resemble morality because they are designed to control or alter our behaviour. But unlike rules of morality, laws are enforced by the courts; if you break a law -- whether you like that law or not -- you may be forced to pay a fine, pay damages, or go to prison.
Why are some rules so special that they are made into laws? Why do we need rules that everyone must obey? In short, what is the purpose of law?
If we did not live in a structured society with other people, laws would not be necessary. We would simply do as we please, with little regard for others. But ever since individuals began to associate with other people -- to live in society --laws have been the glue that has kept society together. For example, the law in Canada states that we must drive our cars on the right-hand side of a two-way street. If people were allowed to choose at random which side of the street to drive on, driving would be dangerous and chaotic. Laws regulating our business affairs help to ensure that people keep their promises. Laws against criminal conduct help to safeguard our personal property and our lives.
Even in a well-ordered society, people have disagreements and conflicts arise. The law must provide a way to resolve these disputes peacefully. If two people claim to own the same piece of property, we do not want the matter settled by a duel: we turn to the law and to institutions like the courts to decide who is the real owner and to make sure that the real owner's rights are respected.
We need law, then, to ensure a safe and peaceful society in which individuals' rights are respected. But we expect even more from our law. Some totalitarian governments have cruel and arbitrary laws, enforced by police forces free to arrest and punish people without trial. Strong-arm tactics may provide a great deal of order, but we reject this form of control. The Canadian legal system respects individual rights while, at the same time, ensuring that society operates in an orderly manner. In Canada, we also believe in the Rule of Law, which means that the law applies to every person, including members of the police and other public officials, who must carry out their public duties in accordance with the law.
Goals of the Law
In our society, laws are not only designed to govern our conduct: they are also intended to give effect to social policies. For example, some laws provide for benefits when workers are injured on the job, for health care, as well as for loans to students who otherwise might not be able to go to university.
Another goal of the law is fairness. This means that the law should recognize and protect certain basic individual rights and freedoms, such as liberty and equality. The law also serves to ensure that strong groups and individuals do not use their powerful positions in society to take unfair advantage of weaker individuals.
However, despite the best intentions, laws are sometimes created that people later recognize as being unjust or unfair. In a democratic society like Canada, laws are not carved in stone, but must reflect the changing needs of society. In a democracy, anyone who feels that a particular law is flawed has the right to speak out publicly and to seek to change the law by lawful means.
The System of Law and Justice
The law is a set of rules for society, designed to protect basic rights and freedoms, and to treat everyone fairly. These rules can be divided into two basic categories: public law and private law.
Public Law
Public law deals with matters that affect society as a whole. It includes areas of the law that are known as criminal, constitutional and administrative law. These are the laws that deal with the relationship between the individual and the state, or among jurisdictions. For example, if someone breaks a criminal law, it is regarded as a wrong against society as a whole, and the state takes steps to prosecute the offender.
Private Law
Private law, on the other hand, deals with the relationships between individuals in society and is used primarily to settle private disputes. Private law deals with such matters as contracts, property ownership, the rights and obligations of family members, and damage to one's person or property caused by others. When one individual sues another over some private dispute, this is a matter for private law. Private suits are also called "civil" suits.
Of course, there is more to Canada's system of law and justice than the laws themselves. Laws must be enforced, interpreted and applied if they are to be effective, and the legal system includes a number of institutions to carry out these duties. For example, we have police forces to ensure that the law is enforced. We have courts to interpret both private and public laws in specific cases, and to impose remedies, "sanctions" or penalties. Persons found guilty by a court of a criminal act can, for example, be discharged, placed on probation, or sentenced to a fine or a period of imprisonment. Persons who violate rules of private law, such as failing to perform a contract, may be ordered to pay compensation and their property or salaries may be seized if they refuse to pay.
To understand Canada's legal system, we need to look at the way law is applied in practice -- at what happens to a person who violates a law. But first, we should examine our legal inheritance: just where did "the law" come from?
Introduction to the United States Federal System
A. The Structure of the Federal Government
The legal system in the United States is an often uneasy balance of national government and the governments of the fifty states. There are parallel systems of executive, legislative and judicial branches of government, and shared powers among the states and the federal governments. The interrelationship between the state and federal systems can be quite complex. Simply stated, the powers of the federal government are specifically defined in the Constitution. Those powers not expressly prescribed therein are left to the jurisdiction of the fifty sovereign states. Conflicts between state and federal laws are governed by the Supremacy Clause of the United States Constitution, which declares that all laws enacted in the furtherance of the Constitution are the "supreme law of the land," and that federal laws have legal superiority over a state constitution or law.
B. The Constitution
The Constitution is the founding document for the United States federal government. It is the basic and "supreme law of the land." It defines the structure of the federal government, provides the legal foundation on which all its actions must rest, and guarantees the rights due to its citizens. No laws may contradict any of the Constitution's principles. The federal courts have jurisdiction to interpret the Constitution and evaluate the constitutionality of federal and state laws.
The Constitution creates a federal government be comprised of three separate and equal branches: legislative, executive and judicial. The legislative branch, Congress, has the authority to make laws. The executive branch, the President and cabinet, has administrative and regulatory power. The judiciary interprets the laws. The government is designed to provide a system of "checks and balances," in which each branch has oversight powers over the others. For example, the President may veto legislation passed by Congress. For most legal research, the judicial review of legislation is most substantial. Although Congress has the authority to modify prospectively a judgment of the Supreme Court, in practice, the Court is considered to have the "last word" in United States law.
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The Court System (大体了解框架)
The federal courts have the judicial responsibility to rule on the constitutionality of federal laws, to interpret and to apply the laws to resolve disputes. The federal courts have "limited" jurisdiction in that they can only decide certain types of cases as determined by Congress or defined in the Constitution. That means the federal courts decide cases interpreting the Constitution, all federal laws, federal regulations and rules, and controversies between states or between the United States and foreign governments.
The federal district courts are the trial courts, both civil and criminal, in the federal system. A lower court's ruling on an issue of law may be appealed to the intermediate appellate court. In the federal court systems, these intermediate courts are the United States Courts of Appeal. These courts hear appeals from the district courts and federal administrative agencies. The Court of Appeals for the Federal Circuit, located in Washington, has nationwide jurisdiction to hear appeals from specialized cases, like patent cases, as well as appeals for the Court of International Trade and Court of Federal Claims.
The United States Supreme Court is the court of final appeal. The Court is comprised of the Chief Justice and eight Associate Justices. Cases heard by the Supreme Court usually involve questions about the Constitution or federal law. Cases may begin in the federal or state courts. The court has discretionary power to decline review of cases from lower courts by denying petitions of certiorari or dismissing appeals.
详细了解更多的美国法律内容：http://www.law.cornell.edu/topics/topic2.html#public%20benefits
相关题目及分析：
17. There are two types of laws: just and unjust. Every individual in a society
has a responsibility to obey just laws and, even more importantly, to disobey
and resist unjust laws. 【17】
有两种法律：公正的和不公正的。每个社会成员都有责任遵守公正的法律，但是更重
要的是，更应该不遵守和反抗不公正的法律。
思路：
Ø 是否可以将法律分为just and unjust? Why not?
Ø Should individuals obey laws?
Ø How should we react to those laws that harm our benefits? Resis? Or repeal to other channels.
174 Laws should not be stationary and fixed. Instead, they should be flexible
enough to take account of various circumstances, times, and places.【174
】
法律不应该是僵化或固定的，而应该根据不同的环境、时期和地点而足够灵活。
对题目的分析：
Ø Social aspects社会发展所以法律要发展,因为法律是为社会服务的,保证社会有良好的秩序.民主也是在不断进步的,使法律得以不断完善.
Take the United States for example.
(1) democracy. 1787, the first Constitution was born, instead of being fixed, 1791 ten amendments were added to the Constituion to ensure human rights. Until now, there has been twenty-severn amendments, much more words than the initial Constitution.美国在1787年制定了《美利坚合众国宪法》，1791年就作出了史称“人权法案”的10条宪法修正案，迄今为止，美国宪法修正案已经有27条，超过正文三倍之多
(2) the blacks. During the Civial war, Lincoln enacted the laws that entitled the equal rights to the blackes with the whites.
Ø Business world:法律随着出现的经济问题而发展，不断完善，确保市场的稳定和繁荣。
(1)antitrust and anti-dumping laws
(2)enron, a prime beneficiary of the relaxed regulatory climate of the 1990s, finally dissolved into bankruptcy due to its accounting, tax and stock fraud. Enron took advantage of the most arcane accounting and legal technicalities to turn debt into equity, loans into cash flow and tax-deductions into earnings. The excesses of Enron have turned government regulators into reformers and render them to take actions to investigate and punish accounting violations. What is more , energy and securities regulators are engaing in reforms in accounting rules and relevant laws, which are expected to better satisfy the needs of investors.
Ø However, Laws should also have a relative stability.
(1)Within a country , a period of time , laws should stay relatively stable, which doesn't means fixed or stationary ,but keep a consistency in spirit of laws. Without such coherence, people will be confused and distrust laws and legal system.
(2)Ever-changing laws are so elusive that makes them hard to be respected and carryed out by lawman.
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补充：
如何正确认识和处理宪法的稳定性和权威性的关系，是修宪活动的重要课题。宪法的稳定性是指宪法的基本内容和基本原则的稳定。宪法的稳定性的基础是国家政权的稳定。宪法稳定性包括两个方面，一是宪法所确立的根本制度、基本精神、根本原则以及领土范围不得成为修宪的对象。二是修宪的时间和频率的稳定。有的国家宪法规定在宪法颁布实施或者修改后的若干年内不得修改，有的明确规定宪法应当定期修改，有的是依照国家工作和经济社会发展的阶段定期修宪。宪法的权威性的基本内涵有两点，一是指宪法在国家法律体系中地位最高，即宪法是国家的根本大法，是国家的根本活动准则，是一切立法的基础；二是指宪法效力最高，任何法律必须以宪法为依据，而决不能与它相抵触，否则就会失去法律效力，任何违宪行为，即使是国家元首，都是无效的，并要受到专门机关的查处甚至审判。
修宪是保持宪法的稳定性与权威性统一的治国方法。宪法的权威性是宪政的基础和灵魂，是依法治国的精髓，依法治国就是依宪治国。宪法的稳定性是宪法的权威性的基础。如果改变了宪法所规定的国家根本制度和根本原则，宪法的权威性就会受到致命的损害，甚至无从谈起。如果宪法的修改过于频繁或者脱离了法定程序，也会伤及宪法的权威性。但是，对宪法的稳定性不能做片面的理解，尤其不能把宪法的稳定理解成宪法的固定性，认为保持宪法的稳定性就是宪法要一成不变。如果是这样，就会使宪法与现实的社会发展相脱离，造成宪法规定与社会发展现实的抵触。这样反而会使宪法不能充分发挥对经济基础和社会发展成果的保护和调节功能，从而根本丧失权威性。在国家政权性质和制宪权根源没有发生变化的条件下，保持宪法的稳定性与权威性的一致性，化解宪法的稳定性与权威性的矛盾的有效途径就是适应经济基础和社会生活的发展，依据法定程序对宪法进行相应的修改
____________________
178It is possible to pass laws that control or place limits on people's
behavior, but legislation cannot reform human nature. Laws cannot change
what is in people's hearts and minds.【178】
通过法律可以控制或者限制人们的行为，但是立法是无法改变人类本性的。法律无法
改变人们的感情和思想。 |
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发表于 2004-7-1 00:40:55
发表于 2004-7-1 03:25:30
发表于 2004-7-1 16:44:06
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