English Legal System Essay Example for Free

English Legal System Essay 1. The Sources of English Law What we are concerned about in this regard is the JUSTIFICATION for the decisions reached by our various courts of law, and the principles of law applied by lawyers in relation to commercial and business practices. Laws are created by lawyers, commercial and business law is created by commercial lawyers, but it is business men and women who must abide by, apply and work within it. There are a number of sources of English law, and this is markedly different from some other jurisdictions, eg China and parts of continental Europe. In the UK, the legal system is a COMMON LAW LEGAL SYSTEM, as opposed to a CIVIL LAW SYSTEM. It is perhaps easier to define a civil law system first, in that a civil law system is a written and accessible set of laws that cover all aspects of activity through codified legal principles and rules. These codified rules are usually created through the political apparatus, the court system is usually inquisitorial, not bound by precedent, and the law is administered by a specially trained judiciary with a limited authority. The judicial role is to INTERPRET the law. Roman law was one of the first major civil law systems, and the Germanic codes that had developed from the 6th and 7th centuries in Germany were adopted by developing Asian nations from the 19th century onwards. The German Civil Code became the basis for the legal systems of countries such as Japan and South Korea, and in China, the German Civil Code was introduced in the later years of the Qing Dynasty and formed the basis of the law of the Republic of China. So in China, in simplistic terms, the law is created by the Legislative Branch of government, the National Peoples Congress and is applied and interpreted by the Judicial Branch of government, the Supreme Peoples Court being at the top of this hierarchy, and Basic Peoples Court at the bottom. In the Common Law legal system of the UK there are a number of primary sources: (i) Common Law (ii) Statute (iii) European Legislation (i)Common Law Sometimes also referred to as CASE LAW, this is judge-made law, a body of legal principles that are made by our judges on a case by case basis. This practice has developed over the centuries in England from the time of the Norman Conquest (1066). Local customary law was gradually brought together as the government and administration of the various parts of England and Wales was centralised in London in one parliament and one supreme court. Knights originally, then judges would travel around the country from London, hearing cases and recording their decisions so establishing a set of PRECEDENTS and a unified system of law. This became known as the COMMON LAW – a law that was common to all, applied to all men in all parts of the country. An area of law that still to this day remains based in principles of common law is the law of contract, and this will be one area of law we will be considering in our studies this semester. While there is some statute law in the law of contract, most of the fundamental principles of how we create interpret and administer contracts at law in England, are to be found in common law, judge-made case law. For example, it is a rule in the law of contract that, in general, only the parties to a contract can sue for breach of contract. A third party, C, cannot sue for a breach of a contract made between A and B. This is known as the COMMON LAW DOCTRINE OF PRIVITY, and as discussed in the case of Tweddle v Atkinson (1861). In this case, the father of the bride and the bridegroom entered into an agreement to pay the groom certain sums when he had married the daughter. On the marriage, one father refused to pay the groom and the court decided that the groom could not sue for breach of contract because he was not a party to the contract even though he was obviously mentioned in it and had benefits under it. (ii)Statute Law or Legislation As judges are making laws in the court room, so our Parliament makes law by way of statute, or Act of Parliament. More and more our law is developed in this codified form, particularly in areas where the principles are complicated and complex eg company law, social security law and tax law. As these fields developed rapidly, it was not feasible to wait for a particular point to be raised by parties to an action in a courtroom, and for clarity and certainty, particularly in the commercial field, rules needed to be established and applied to keep pace with developments. So, for example, as business resorted more and more to conducting commercial ventures through the corporation, it became clear that we needed regulation in codified form to govern the incorporation and ongoing operations of that entity. Hence, most of our company law is contained in statutory form, under the Companies Act 2006. It is the biggest piece of legislation ever passed by a UK parliament and has over 1300 sections. It took 10 years to draft and introduce, and only fully came into force in 2009. Cases on the points of law in the Act are only just now starting to take place in the companies courts. So, in semester 2, in the module Commercial Law, we will be concentrating our focus on statute law, unlike this semesters focus on the common law, as it contains the fundamentals of the law relating to contracts in England. Finally, it should be noted here that if there is a conflict between the common law and statute law, STATUTE WILL PREVAIL. (iii) European law On Britain’s entry into the European Community in 1972, our parliament enacted a piece of legislation called the European Communities Act 1972, under which Britain made an undertaking to be bound by COMMUNITY LAW, that is, laws made by the European Parliament. Section 3 of the ECA 1972 binds our courts to accept the supremacy of community law. It is not however strictly correct to say that EU law automatically applies in the UK and that domestic UK law is therefore redundant. Rather, if there is conflict between the two, in a given area, then EU law is paramount in this instance. Where there is a gap in the UK law, and there is EU law on that point, then again, EU law will apply, to create a certain right or an obligation. A very significant case on the issue of EU supremacy was Factorame Ltd v Secretary of State for Transport (No 2) [1991]. In this case, the EU had made laws to govern the accessibility of all member states of the EU to fish each others waters, setting limits and restrictions on this, but nevertheless granting equal rights to all members to fish each others waters. To fish in UK waters and in this manner, a ship had to be registered under the merchant shipping regulations of the state in whose waters it intends to fish. In response to this, the UK passed an Act of Parliament which required that registration would only be granted if there was a genuine and substantial connection with the UK. As a result of this, a Spanish vessel, the Factorame, could not gain the necessary registration to fish in British waters, and legally challenged the provisions of the Merchant Shipping Act 1988 on the basis that it was incompatible with EU law, and that it had been discriminated against on the grounds of nationality. After protracted court battles, eventually, our highest court at the time, the House of Lords, ruled that indeed that these provisions of the Merchant Shipping Act should be suspended (and in due course amended) as it was incompatible with the EU provisions. In the UK, a DUALIST approach is taken which means that certain types of EU law do not generally become part of the UK law, until they have been brought into effect through the passing of a piece of UK legislation, through the British parliament. This type of law is often brought into effect as an EU DIRECTIVE. Some types of EU law do however have direct effect and do not need domestic national enactment. These are commonly referred to as EU REGULATIONS, made by the EU Commission and the Council of Ministers. Finally, another important provision of EU law in the UK, is based in the European Convention on Human Rights. The UK passed an Act of Parliament, the Human Rights Act 1988, which allows UK courts to declare a provision of statutory law incompatible, if it violates the Convention on Human Rights. 2. The Courts and the Doctrine of Precedent (i)The Courts Today A basic distinction must be made between the CRIMINAL LAW, and the CIVIL LAW. The criminal law is accusatorial, and is applied through the trial mechanism, between the community, here in the UK this is the Queen, and the person accused of the crime, the accused. The case is brought on behalf of the Queen, as the representative of the community, and so this party is referred to as â€Å"R†, and the other party is referred to by name. So for example a case will be cited as R v Brown, and will be followed by the date in brackets (1993). There is also then a citation as to where and in what law report the case can be found. The civil law is concerned with disputes between individuals. The claimant commences proceedings against another, the defendant, who defends the claim, and may also counter-claim against the claimant. So, for example, as we will see, a civil claim may be brought for a breach of contract between the parties to that contract. An example would be the case of Mitchell Ltd v George Finney Lock Seeds Ltd (1983). We will discuss the facts. We will now look in brief at the court systems with reference to the text, Smith and Keenan, at pages 19 and 20. The Courts today have the Supreme Court at the top of the hierarchy, which under the Constitutional Reform Act 2005, creates a new independent Supreme Court of the United Kingdom. Previously, the highest court in the legal hierarchy was the House of Lords, and it enjoyed the jurisdiction as the final court of appellate jurisdiction But again we must remember that in relation to a point in European law, the European Court of Justice has supremacy, and any court may, and in the case of the Supreme Court, must, seek a preliminary ruling on a relevant point of European law from the ECJ. We should also mention the European Court of Human Rights, which sits in Strasbourg. It was set up by the Convention for the Protection of Human Rights and Fundamental Freedoms, to ensure that those of the member states that choose to engage, observe the terms of their engagement. The UK is one of the states which have accepted the courts jurisdiction. The ECHR can now be approached directly by the person alleging a human rights violation, by bringing an action against the state responsible. So, for example in the case of Lustig-Prean and Beckett v United Kingdom (1999), the court decided that certain members of the UK armed forces who were discharged because of their homosexuality had been subjected to a violation of their human rights under the European Convention. The decision of the court meant that the armed forces had to revise their policy on homosexuality, but the case has no binding effect on private business, because it only relates to the state, in this case the UK.

Essay --

Tracing back the history of accounting scandals, major corporate scandals not only hurt the economy but also crush investor confidence on investing in company. Majority of corporate scandal are create by greedy CEOs â€Å"cooking the books† to meet the number that they expected. In this case, Richard Scrushy is one of the greedy CEOs. This is a case of a falling American dream. Richard Scrushy, was a self-made son of the new South, a former teenage parent who hauled himself up from a menial job to become an emperor of the new economy. Health South Corporation is the United States’ largest inpatient rehabilitative hospital. Health South provide the service of rehabilitative care to patient recovering from all kind of conditions. It all started in 1984, the company is used to known as Amcare Inc. at the decade of 1990, Health South Corporation expanded in tremendous speed. At the year of 2003, Health South has expended to two thousand facilities in not only every state in United States but also United Kingdom, Canada, Australia, Puerto Rico, and Saudi Arabia. The company has recorded almost four and half billion U.S dollars in revenue, which dominated the entire rehabilitation care industry. Health South Corporation seems like a dream. Unfortunately, Health South Corporation’s accounting issue started to surface in the end of 2002. Richard Scrushy sold seventy- five million worth of stock a few days before the corporation announced a huge loss to the public. Since that event, the U.S. Securities and Exchange Commission started to investigate whether Richard Scrushy was involved in insider trading. March 20, 2003, Richard Scrushy, the former chief executive officer of HeathSouth Corporation, was charged by the Securities and Exchang... ... you are involved in cheating, your tolerance of unethical behavior will increase. Ethical is one the fundamental virtue for all business student. If business students are not well train for maintaining ethical judgment, the scandals they might create will damage investors’ confidence on investing corporation, which damage nation’s economy as a whole(Works Cited). In conclusion, all officers who are responsible for the Health South Corporation scandal is convicted and pay their penalty. Although Scrushy was not convicted the first trail, but the prosecutor tried their best and successfully bring justice on the Health South scandal. Ethical is one the fundamental virtue for all business student. All business student should be well train to maintain ethical judgment and prepare to have the courage to deny all kind of unethical situations and scandals(Works Cited).

Life in Elizabethan England during the Renaissance

Elizabethan England (in the mid 1500’s to early 1600’s) was dubbed the â€Å"Golden Age† because England was thriving, culturally, socially, and economically. England had earned riches from Latin America in gold and tobacco, Queen Elizabeth had resolved all international conflicts, and England was one of the most advanced countries in world exploration.Additionally, the arts were thriving, with â€Å"Shakespeare's masterpieces of the stage, Marlowe's Doctor Faustus, Edmund Spenser's Faerie Queen, and Sir Philip Sidney's Defence of Poesie† being written and performed on stage all in this period. Most everyone was financially stable, and London was the hub for fine arts. Who was Queen Elizabeth and what kind of influence did she have on English culture of the time? Queen Elizabeth I, her reign extending from 1558 to 1603, was one of the most prominent powers of the world and her legacy is still remembered today.â€Å"London became a cultural and commercial center where learning and literature thrived† while she was in power, as she believed the arts should remain intact and was even a fan of theatres being built everywhere in London. At the beginning of her reign, â€Å"there were violent clashes throughout Europe between Protestant and Catholic leaders and their followers†. She was able to resolve these issues and England rose from these conflicts to world supremacy. What was the political climate of Elizabethan England?How was this climate different than the age immediately preceding Elizabethan times? As mentioned before, there was much conflict between Protestants and Catholics, but when Queen Elizabeth came into power, she mades sure that England and all areas within control were made peaceful once more. This allowed for political tensions to ease, and thus the Golden Age began. During this time, â€Å"England was firmly established as a leading military and commercial power in the Western world†.What was the role of women in Elizabethan England, and how did it compare to the role of men? Women married quite young, the youngest average being around 17 and the oldest being around 24. They wore floor-length dresses (often times with corsets or the like), and very rarely worked. If they did, it was mostly domestic duties like sewing and tailoring. Men, on the other hand, enjoyed all areas of life: working, going to the theatre, traveling around London as they pleased, with their wives (their property) waiting for them at home  most often.However, the degree of their leisure depended on what family a man had been born into, whether it be rich or poor. Still, men were still considered above women and the social and political climates reflected as much. What were the major social classes of the time, and about what percentage of the population did these classes comprise? Within royalty, the highest in the rankings were dukes, the second highest were marquises, and then descending from there, there were earls, viscounts and barons.In normal society, however, there were the highest rankings in the social sphere: nobility, knights, esquires and clergy, the medium ranking in the social sphere: landholding commoners (freeholders, leaseholders, and copyholders), and the lower ranking: townsfolk, laborers, servants, and the lowest of lows: the unemployed or â€Å"beggars†. What forms of entertainment were most popular? Theatre was above all the most popular entertainment (even Queen Elizabeth enjoyed it). Other forms of entertainment included tennis, and bowling on the lawn, also known as just â€Å"bowls†. And of course, gossip was one of the preferred pastimes. Life in Elizabethan England during the Renaissance Elizabethan England (in the mid 1500’s to early 1600’s) was dubbed the â€Å"Golden Age† because England was thriving, culturally, socially, and economically. England had earned riches from Latin America in gold and tobacco, Queen Elizabeth had resolved all international conflicts, and England was one of the most advanced countries in world exploration.Additionally, the arts were thriving, with â€Å"Shakespeare's masterpieces of the stage, Marlowe's Doctor Faustus, Edmund Spenser's Faerie Queen, and Sir Philip Sidney's Defence of Poesie† being written and performed on stage all in this period. Most everyone was financially stable, and London was the hub for fine arts. Who was Queen Elizabeth and what kind of influence did she have on English culture of the time? Queen Elizabeth I, her reign extending from 1558 to 1603, was one of the most prominent powers of the world and her legacy is still remembered today.â€Å"London became a cultural and commercial center where learning and literature thrived† while she was in power, as she believed the arts should remain intact and was even a fan of theatres being built everywhere in London. At the beginning of her reign, â€Å"there were violent clashes throughout Europe between Protestant and Catholic leaders and their followers†. She was able to resolve these issues and England rose from these conflicts to world supremacy. What was the political climate of Elizabethan England?How was this climate different than the age immediately preceding Elizabethan times? As mentioned before, there was much conflict between Protestants and Catholics, but when Queen Elizabeth came into power, she mades sure that England and all areas within control were made peaceful once more. This allowed for political tensions to ease, and thus the Golden Age began. During this time, â€Å"England was firmly established as a leading military and commercial power in the Western world†.What was the role of women in Elizabethan England, and how did it compare to the role of men? Women married quite young, the youngest average being around 17 and the oldest being around 24. They wore floor-length dresses (often times with corsets or the like), and very rarely worked. If they did, it was mostly domestic duties like sewing and tailoring. Men, on the other hand, enjoyed all areas of life: working, going to the theatre, traveling around London as they pleased, with their wives (their property) waiting for them at home  most often.However, the degree of their leisure depended on what family a man had been born into, whether it be rich or poor. Still, men were still considered above women and the social and political climates reflected as much. What were the major social classes of the time, and about what percentage of the population did these classes comprise? Within royalty, the highest in the rankings were dukes, the second highest were marquises, and then descending from there, there were earls, viscounts and barons.In normal society, however, there were the highest rankings in the social sphere: nobility, knights, esquires and clergy, the medium ranking in the social sphere: landholding commoners (freeholders, leaseholders, and copyholders), and the lower ranking: townsfolk, laborers, servants, and the lowest of lows: the unemployed or â€Å"beggars†. What forms of entertainment were most popular? Theatre was above all the most popular entertainment (even Queen Elizabeth enjoyed it). Other forms of entertainment included tennis, and bowling on the lawn, also known as just â€Å"bowls†. And of course, gossip was one of the preferred pastimes.

Philosophy of Sex and Gender - Natural or Conventional

It is customary to divide human beings among male and female, men and women; yet, this dimorphism proves to be also ill-taken, for instance when it comes to intersex (e.g., hermaphrodite) or transgendered individuals. It becomes hence legitimate to wonder whether sexual categories are real or rather conventional kinds, how gender categories get established and what their metaphysical status is. The Five Sexes In a 1993 article titled â€Å"The Five Sexes: Why Male and Female Are Not Enough,† professor Anne Fausto-Sterling argued that the twofold distinction between male and female rested on wrong foundations. As data collected over the past few decades show, anywhere between 1.5% and 2.5% of humans are intersex, that is they present sexual traits that are typically associated with both male and female. That number is equal to or greater than some of the groups that are recognized as minorities. This means that, if society allows for only male and female sexual categories, what arguably is an important minority of citizens will not be represented in the distinction. To overcome this difficulty, Fausto-Sterling fancied having five categories: male, female, hermaphrodite, mermaphrodite (a person who has mostly traits typically associated with males, and some traits related to female), and fermaphrodite (a person who has traits usually associated with females, and some traits associated with males.) The suggestion was intended as somewhat provocative, an encouragement for civic leaders and citizens to think about different ways to classify individuals according to their sex. Sexual Traits Different traits are factored in to determine a person’s sex. Chromosomal sex is revealed through a specific DNA test; the primary sexual traits are the gonads, that is (in humans) the ovaries and testes; the secondary sexual traits include all those that are directly related to chromosomal sex and gonads, such as Adam’s apple, menstruation, mammary glands, specific hormones that are produced. It is important to point out that most of those sexual traits are not revealed at birth; thus, it is only once a person has grown adult that sexual classification can be more reliably made. This is in clear conflict with extant practices, where individuals are assigned a sex at birth, typically by a doctor. Although in some sub-cultures it is common to designate the sex of an individual based on the sexual orientation, the two seem to be quite distinct. People who clearly fit into the male category or the female category may be attracted to people of the same sex; in no way this fact, by itself, affects their sexual categorization; of course, if the person involved decides to undertake special medical treatments to change its sexual traits, then the two aspects – sexual categorization and sexual orientation – come to be entrenched. Michel Foucault has explored some of those issues in his History of Sexuality, a three-volume work first published in 1976. Sex and Gender   What is the relationship between sex and gender? This is one of the most difficult and debated questions on the subject. For several authors, there is no substantive distinction: both sexual and gender categories are construed by society, often confused within each other. On the other hand, because gender differences tend not to pertain to biological traits some believe that sex and gender establish two different ways of classifying human beings. Gender traits include things such as hairstyle, dress codes, body postures, voice, and – more generally – anything that within a community tends to be recognized as typical of men or women. For instance, in the 1850s in Western societies women did not use to wear pants so that wearing pants was a gender-specific characteristic of men; at the same time, men did not use to wear ear-rings, whose trait was gender-specific of women. Further Online Readings: The entry on Feminist Perspectives on Sex and Gender at the Stanford Encyclopedia of Philosophy.The website of the Intersex Society of North America, containing many useful information and resources on the topic.Anne Fausto-Sterling Interview at Philosophy Talk.The entry on Michel Foucault at the Stanford Encyclopedia of Philosophy.