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Unit 1 Introduction to Law.

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1 Unit 1 Introduction to Law

2 Unit 1 Introduction to Law
Text I What Is Law -To practice reading for different approaches to defining law Text II Functions of Law -To understand the functions of law Text III How to Read Case Reports -To learn about the structural components of an opinion

3 Unit 1 Introduction to Law
Terms: law, custom, convention jurisprudence, litigation, adjudication, restitution, sanction

4 Text I What Is Law Outline (para. 1-2) Introduction
(para. 3-7) Different approaches to defining “law” (para. 8) Conclusion: overall comments on these definitions

5 Text I What Is Law I. (para. 1-2) Introduction
1. (para. 1) Various reflections on the term “law” 2. (para. 2) Difficulties involved in defining the term II. (para. 3-7) Different approaches to defining “law” 1. (para. 3) Pragmatic approach 2. (para. 4-6) Sociological approach 3. (para. 7) From the perspective of social control III. (para. 8) Conclusion: overall comments on these definitions

6 Questions based on Part I
1. Why is it so difficult to define the term “law”? 2. What is the possible way to define the term?

7 Difficulties in Part I In everyday speech, the term law conjures up a variety of images. For some, law may mean getting a parking ticket, not being able to get a beer legally if under age, or complaining about the local “pooper-scooper” ordinance. For others, law is paying income tax, being evicted, or going to prison for growing marijuana. For still others, law is concerned with what legislators enact or judges declare.

8 Difficulties in Part I conjure up: "撒哈拉"这个名字使人想起干旱的沙漠情景。
1. to create an image in the mind e.g. The name Sahara conjures up images of a desert of aridity. "撒哈拉"这个名字使人想起干旱的沙漠情景。 Can you conjure up a picture of the imperial life in ancient Egypt? 你能想象出一幅古埃及宫廷生活的图画吗? The name Versailles conjures up a past of sumptuous grandeur. 2. to produce as if from nowhere: E.g. He conjured up a fabulous opening goal; Mary can conjure up a good meal in half an hour. 玛丽能在半小时内变戏法似的做出一顿美味的饭菜。 3. The act of conjuring up a spirit by incantation conjure up - summon into action or bring into existence, often as if by magic; "raise the specter of unemployment"; "he conjured wild birds in the air"; "call down the spirits from the mountain" bring up, call down, invoke, call forth, put forward, arouse, evoke, stir, raise, evoke, provoke

9 For some, … For others, … For still others, ...
Difficulties in Part I For some, … For others, … For still others, ...

10 Difficulties in Part I Law may mean doing sth. -- Grammar
not able to get a beer legally if under age (不到法定年龄 ,未成年)-- Understanding complain about He complained to the manager about the poor services. 他向经理抱怨服务态度太差。 Jean is always complaining about something. 琼总是满腹牢骚. The old lady seemed to complain about everything. 老妇人似乎对每件事抱怨。 Some workers complain about this way of management. 一些工人对这种管理方法怨声载道。 Rail travelers are complaining about rising fare. 铁路乘客抱怨车票涨价。

11 Difficulties in Part I pooper-scooper: A pooper-scooper, or poop scoop is a device commonly used by dog owners to pick up their pet's fecal matter, so that it is not left in public or inappropriate places. Pooper-scooper devices often have a bag or bag attachment. Poop bags are alternatives to pooper scoopers. A bag used by dog owners to transport the feces of their dog so that it can be disposed properly. The person performing the cleanup is also known as the pooper-scooper. New York City’s Dog Poop Scoop Law: § Dogs to be restrained. A person who owns, possesses or controls a dog shall not permit it to be in any public place or in any open or unfenced area abutting on a public place unless the dog is effectively restrained by a leash or chain not more than six feet long. Authorized employees of New York City Departments of Health (including Animal Care & Control), of Sanitation, or of Parks and Recreation can issue tickets.

12 Difficulties in Part I Marijuana: cannabis; narcotic/drug: acid; acid trip; acid head; LSD (迷幻药,俗称摇脚丸); ice; amphetamine (=amp) be concerned with (p. 5) Legislator: One that creates or enacts laws, especially a member of a legislative body Enact: To make into law E.g. Congress enacted a tax reform bill. 第一条 为了保护合同当事人的合法权益,维护社会经济秩序,促进社会主义现代化建设,特制定本法。 Article 1. This Law is enacted in order to protect the lawful rights and interests of the parties to a contract, to safeguard social and economic order, and to promote socialist modernization.

13 Difficulties in Part I Law means all of the above and more. Even among scholars, there is no agreement on the term. The purpose here is to introduce some of the classic and contemporary conceptualizations of law to illustrate the diverse ways of defining it. illustrate: to clarify, as by use of examples or comparisons举例说明 The speaker said he would endeavor to illustrate. 演讲人说他将设法举例说明。 His story illustrates her true generosity very clearly. 他所说的事很清楚地说明了她确实慷慨大方。

14 Difficulties in Part I The question “What is law?” haunts legal thought, and probably more scholarship has gone into defining and explaining the concept of law than into any other concept still in use in sociology and jurisprudence. Comprehensive reviews of the law literature by some scholars indicate that there are almost as many definitions of law as there are theorists. Haunt: To come to mind continually; obsess 时常萦绕心头;使困窘 I was haunted by his last words to me. 他向我说的最后的话萦绕在我的心头。 a riddle that haunted me all morning.一个困扰我整个上午的谜语

15 Difficulties in Part I jurisprudence 法理学or 法哲学or 法学?
the law literature 法律文学? … there are almost as many definitions of law as there are theorists: How do you understand and translate it?

16 Difficulties in Part I Hoebel (1954:18) comments that “to seek a definition of the legal is like the quest for the Holy Grail.” He cites Max Radin’s warning: “Those of us who have learned humility have given over the attempt to define law.” In spite of these warnings, law can be defined. In any definition of law, however, we must keep Julius Stone’s admonition in mind that “law is necessarily an abstract term, and the definer is free to choose a level of abstraction; but by the same token, in these as in other choices, the choice must be such as to make sense and be significant in terms of the experience and present interest of those who are addressed.”

17 Difficulties in Part I Hoebel (1954:18): Note 3 Holy Grail: Note 4
give over: to surrender (oneself) completely; abandon: 完全放纵(自己);中/停止(做);放弃 I finally gave myself over to grief. 最后让自己完全陷入痛苦中 I hope the rain will soon give over. 我希望雨不久即停。 Give over that crying! 别再叫喊啦! Julius Stone:国际著名法学家,综合法学的代表人物。他认为,三大法学派割裂了法理学不可分割的三个部分,法理学应包括逻辑、正义和社会事实。为适应这个变动的世界,要超越三大学派的偏狭,建立一个将三者包涉其中的一体化的法理学。

18 Difficulties in Part I by the same token: in like manner; similarly 以相同的方式;同样,同理,而且;出于同样原因 … but by the same token, in these as in other choices, the choice must be such as to make sense and be significant in terms of the experience and present interest of those who are addressed. 如何理解这句话?

19 Questions based on part II
What are the pragmatic definitions of “law” and what are their limitations? What are the basic features of the sociological definition of “law” given by Max Weber? How is law distinguished from custom and convention respectively? What are the limitations of the definition given by Max Weber according to some scholars? 5. What are the four styles of social control represented in law according to Donald Black?

20 Difficulties in Part II
In our illustrative review of the diverse conceptualizations of law, let us first turn to two great American jurists, Cardozo and Holmes. Cardozo defines law as “a principle or rule of conduct so established as to justify a prediction with reasonable certainty that it will be enforced by the courts if its authority is challenged.” Holmes declares that “the prophecies of what the courts will do in fact, and nothing more pretentious, are what I mean by the law.” For Holmes, judges make the law on the basis of past experience. In both of these definitions, the courts play an important role. These are pragmatic approaches to law as revealed by court-rendered decisions. Although implicit in these definitions is the notion of courts being backed by the authoritative force of a political state, these definitions of law seem to have a temporal character: What is the law at this time?

21 Difficulties in Part II
From a sociological perspective (Note 5), one of the most influential conceptualizations (=definitions) of law is that of Max Weber. Starting with the idea of an order characterized by legitimacy, he suggests: “An order will be called law if it is externally guaranteed by the probability that coercion (physical or psychological), to bring about conformity or avenge violation, will be applied by a staff of people holding themselves specially ready for that purpose”. Weber argues that law has three basic features that, taken together, distinguish it from other normative orders, such as custom or convention. First, pressures to comply with the law must come externally in the form of actions or threats of action by others regardless of whether a person wants to obey the law or does so out of habit. Second, these external actions or threats always involve coercion or force. Third, those who implement the coercive threats are individuals whose official role is to enforce the law. Weber refers to “state” law when the persons who are charged to enforce the law are part of an agency of political authority.

22 Max Weber Max Weber (21 April 1864 – 14 June 1920) was a German political economist and sociologist who was considered one of the founders of the modern study of sociology and public administration.

23 Max Weber Weber's major works deal with rationalization in sociology of religion and government. His most famous work is his essay The Protestant Ethic and the Spirit of Capitalism, which began his work in the sociology of religion. In this work, Weber argued that religion was one of the non-exclusive reasons for the different ways the cultures of the Occident and the Orient have developed, and stressed importance of particular characteristics of ascetic Protestantism which led to the development of capitalism, bureaucracy and the rational-legal state in the West. In another major work, Politics as a Vocation, Weber defined the state as an entity which claims a monopoly on the legitimate use of physical force, a definition that became pivotal to the study of modern Western political science. His analysis of bureaucracy in his Economy and Society is still central to the modern study of organizations. His most known contributions are often referred to as the 'Weber Thesis'.

24 Difficulties in Part II
Coercion: the act or practice of coercing; power or ability to coerce. 强迫;强制;强制的权力或能力 He paid the money under coercion. 他被迫付钱。 Avenge: To inflict a punishment or penalty in return for; revenge 惩罚;报复 avenge a murder 惩罚谋杀者 Normative = prescriptive Of, relating to, or prescribing a norm or standard

25 Difficulties in Part II
An order will be called law if it is externally guaranteed by the probability that coercion (physical or psychological), to bring about conformity or avenge violation, will be applied by a staff of people holding themselves specially ready for that purpose. 如何理解这句话? First, pressures to comply with the law must come externally in the form of actions or threats of action by others regardless of whether a person wants to obey the law or does so out of habit. 如何理解这句话?特别是其中的actions? Charge (vt) to impose a duty, responsibility, or obligation on使承担(任务、责任或义务) He was charged with the task of watching the young swimmers. 使他承担起看护年轻游泳者的任务

26 Difficulties in Part II
Weber contends that customs and convention can be distinguished from law because they do not entail one or more of these features. Customs are rules of conduct in defined situations that are of relatively long duration and are generally observed(遵守) without deliberation and “without thinking.” Customary rules of conduct are called usages, and there is no sense of duty or obligation to follow them. Conventions, by contrast, are rules for conduct, and they involve a sense of duty and obligation. Pressures, which usually include expressions of disapproval, are exerted on individuals who do not conform to conventions. Weber points out that unlike law, a conventional order “lacks specialized personnel for the implementation of coercive power.”

27 Difficulties in Part II
Contend (vt) to strive in controversy or debate; dispute 争论,据理力争,辩论 The defense contended that the evidence was inadmissible. 被告方声称证据不可接受。 Entail (vt) To include, have, impose, or require as a necessary accompaniment or consequence 具有,承担,伴随,蕴涵 an investment that entailed high risk 一项需承担高风险的投资

28 Difficulties in Part II
Although a number of scholars accept the essentials of Weber’s definition of law, they question two important points. First, some contend that Weber places too much emphasis on coercion and ignores other considerations that may induce individuals to obey the law. For example, Selznick argues that the authoritative nature of legal rules brings about a special kind of obligation that is not dependent on the use or threat of coercion or force. Many laws are obeyed because people feel it is their duty to obey. The second point concerns Weber’s use of a special staff. Some scholars claim that Weber’s definition limits the use of the term law in cross-cultural and historical contexts. They argue that the word staff implies an organized administrative apparatus that may not exist in certain illiterate societies. Hoebel, for instance, proposes a less restrictive term by referring to individuals possessing “a socially recognized privilege,” and Ronald Akers suggests a “socially authorized third party.” Of course, in modern societies, law provides for a specific administrative apparatus. Still, these suggestions should be kept in mind while studying the historical developments of law or primitive societies.

29 Difficulties in Part II
Induce (vt) persuade; to lead or move, as to a course of action, by influence or persuasion劝诱;劝导;诱导; to bring about or stimulate the occurrence of; cause 引起,引发,激发;导致 What induced you to do such a foolish thing? 是什么引诱你做这样的傻事? Nothing shall induce me to join their club. 我怎么都不会去加入他们的俱乐部。 Too much food induces sleepiness. 吃得过饱会产生睡意。 provide for 提供生活费,养活,供养;(法律)规定(for/against) It is provided for in the contract.这是合同中所规 定的。 provide for old age 防老 provide against flood 防洪 Provide for one's children抚养子女 The children are provided for.孩子们有人抚养。 She provides for her family by working in a hospital. 她靠在医院工作来养家 She stretched herself to provide for the family. 她拼命工作来养家糊口。

30 Difficulties in Part II
From a different perspective, Donald Black, a leading figure in law and society studies, contends that law is essentially governmental social control. In this sense, law is “the normative life of a state and its citizens, such as legislation, litigation, and adjudication”. He maintains that several styles of law may be observed in a society, each corresponding to a style of social control. Four styles of social control are represented in law: penal, compensatory, therapeutic, and conciliatory. In the penal style, the deviant is viewed as a violator of a prohibition and an offender to be subjected to condemnation and punishment (for example, a drug pusher).

31 Difficulties in Part II
be subjected to (subject sb to sth) to cause someone or something to experience something. Usage notes: often said about experiencing something unpleasant How do you feel about subjecting people to random drug testing? My daughter's only three, but I've already subjected her to all sorts of music, from bebop to hip-hop. The company's accounts were subjected to close investigation. Condemnation = conviction 定罪,判决/宣告有罪 (criminal law) a final judgment of guilty in a criminal case and the punishment that is imposed an expression of strong disapproval; pronouncing as wrong or morally culpable conditional condemnation 缓刑 social condemnation 社会谴责 his uncompromising condemnation of racism

32 Difficulties in Part II
In the compensatory style, a person is considered to have a contractual obligation and, therefore, owes the victim restitution (for example, a debtor failing to pay the creditor). Both of these styles are accusatory where there is a complainant and a defendant, a winner and a loser. According to the therapeutic style, the deviant’s conduct is defined as abnormal; the person needs help, such as treatment by a psychiatrist. In the conciliatory style, deviant behavior represents one side of a social conflict in need of resolution without consideration as to who is right or who is wrong (for example, marital disputes). These last two styles are remedial, designed to help people in trouble and improve a bad social situation.

33 Difficulties in Part II
restitution The act of making good or compensating for loss, damage, or injury; indemnification 赔偿;The act of restoring to the rightful owner something that has been taken away, lost, or surrendered归还; A return to or restoration of a previous state or position恢复原状 make restitution 赔偿损失 It is only fair that those who do the damage should make restitution.损害者应给予赔偿是公正的。

34 Questions based on part III
How is law different from other types of social control?

35 Difficulties in Part III
The foregoing definitions illustrate some of the alternative ways of looking at law. It is the law’s specificity in substance, its universality of applicability, and the formality of its enactment and enforcement that set it apart from other devices for social control. Implicit in these definitions of law is the notion that law can be analytically separated from other normative systems in societies with developed political institutions and specialized lawmaking and law enforcement agencies. The principal function of law is to regulate and constrain the behavior of individuals in their relationships with one another. Ideally, law is to be employed only when other formal and informal methods of social control fail to operate or are inadequate for the job.

36 Difficulties in Part III
注意此段大量使用名词化形式,文体好正式啊! Implicit in these definitions of law is the notion that law can be analytically separated from other normative systems in societies with developed political institutions and specialized lawmaking and law enforcement agencies. 注意本句的倒装结构

37 Difficulties in Part III
Finally, law can be distinguished from other forms of social control primarily in that it is a formal system embodying explicit rules of conduct, the planned use of sanctions to ensure compliance with the rules, and a group of authorized officials designated to interpret the rules and apply sanctions to violators. From a sociological perspective, the rules of law are simply a guide for action. Without interpretation and enforcement, law would remain meaningless. As Hart points out, law can be analyzed sociologically as a “method” of doing something. In this context, law can be studied as a social process, implemented by individuals during social interaction. Sociologically, law consists of the behaviors, situations, and conditions for making, interpreting, and applying legal rules that are backed by the state’s legitimate coercive apparatus for enforcement.

38 Difficulties in Part III
in that … Criticism and self-criticism is necessary in that it helps us correct our mistakes. Men differ from brutes in that they can think and speak. Christine Holm believes paternity leave provides a new kind of training for men in that it can help them cope with stress.

39 C. Partial translation 1. annulled the economic sanctions
2.      make restitution 3.      the shopkeeper was innocent 4.      conjure up a picture 5.      Lu Xun couldn’t help conjuring up 6.      Stop complaining about him 7.      she decided to make a complaint in the court 8.      regardless of past setbacks and failures 9.     by contrast with Harry’s 10.    as it helps us to rectify our mistakes

40 Translation 1.  双方或多方之间存在争议,或者当事人为各自已实施的行为或打算实施的行为的后果寻求指导时,就有必要把法律应用到各种具体的事实情形之中。 2.  在美国,行使立法和执法功能的是联邦和州政府的立法、行政、司法三个权力分支以及政府领导下的各级行政机构。 3.  人们对法律这一概念的理解也许包含了诸如法官、警察、法警和律师等法律从业人员,包含了诸如法庭、监狱等从业场所,也包含了诸如《布莱克法律词典》、刑法典和《美国统一商法典》等法学巨著。

41 Translation 4. As a rule of conduct, both customs and laws are forms of social ideology, inseparable from people’s practical experience. Law is not only a set of rules of conduct, but also a means to specify duties and promote social justice. 5. Law is a set of norms enacted or acknowledged by the state, enforced by state coercion, specifying rights and duties, and thus universally applicable in society.

42 Text II Functions of Law
Words: anarchist (anarchy, anarchism), chaos (chaotic), totalitarianism, strangulate, altercation, thug, ailing, lottery, avert, lacerate, confiscate, libertarian, outlaw (n.), sheriff, jail (gaol), prevalent (prevail) Phrases: impinge on / upon, strike a balance, tamper with, within an inch of one’s life, take revenge on, inflict (harm) on sb., sue for, provide for, require sth. of sb. Terms: rule of law (rule of men)

43 Text II Functions of Law
Outline I. (para.1) Introduction: posing the question II. (para. 2-4) Anarchism and totalitarianism: a comparison between the two extremes III. (para. 5-11) Four major functions of law

44 Text III How to Read Case Reports
Terms: judicial precedent 司法先例 an earlier judicial decision which influences or binds courts in similar later cases stare decisis 遵循先例的原则 Similar cases should be decided in the same way unless there is good reason for a court to do otherwise. jurisdiction 司法管辖权、司法管辖区 the power of a court to hear and decide a case; an area where a court has such power

45 Text III How to Read Case Reports
trial court / court of first instance 一审法院 the court where the case is first heard case of (the) first impression 无先例可循的案件 a case which cannot follow any precedent appellate court 上诉法院 = court of appeals the court which hears cases on appeal

46 Text III How to Read Case Reports
*判决书的结构要素 *案号:Cashen v. Spann, 66 N.J. 541, 334 A.2d 8 (1975) Watts v Morrow [1991] 4 All ER 937 *案例分析:案情摘要11要素 (in the example P26) demurrer 抗诉,抗辩 in a civil action, a plea that although the facts of the case are correct, they are not sufficient to warrant the action


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