1、全英外国法制史复习资料全WESTERN LEGAL HISTORY: FINAL EXAMINATION STUDY GUIDESHORT ANSWERS: (5 questions for each, 20 marks in all)Socrates was a classical Greek Athenian philosopher. Credited as one of the founders of Western philosophy, he is an enigmatic figure known chiefly through the accounts of later clas
2、sical writers, especially the writings of .his students Plato and Xenophon, and the plays of his contemporary Aristophanes.Justice is the interest of the peoplePeople have the benefit of laws, so agree to respect themDisobedience of the law destroys the law and the stateJustice is a compromise: doin
3、g wrong or being wrongedPlato was a Classical Greek philosopher, mathematician, writer of philosophical dialogues, and founder of the Academy in Athens, the first institution of higher learning in the Western world. He used to advocate that the king of a country should be a philosopher, but later ch
4、anges his mind.Human nature commits injustice whenever it is possibleDominant class makes law for selfProper role of law is ensuring the general benefitAristotle was a Greek philosopher, a student of Plato and teacher of Alexander the Great. His writings cover many subjects, including physics, metap
5、hysics, poetry, theater, music, logic , rhetoric, politics, government, ethics, biology, and zoology. Aristotle believes in the function of the law and insists that rule of law is better than rule of men.Public officials must critically study different cities lawsThe laws must be adapted to differen
6、t circumstances of peopleThe character of law is a kind of order, and the law also has a compulsive force Man has a natural instinct to live in orderly communitiesMans nature desires the best life he can getMan is a “political animal”Cicero was a Roman philosopher, statesman, lawyer, political theor
7、ist, and Roman constitutionalist. He is widely considered one of Romes greatest orators and prose stylists. He is also considered as the ancient pioneer of the separation of powers into three separate branches of governmentLaw is the bond, agreement and partnership of men.The law is inseparable from
8、 the reason given of natureLaw is right reason in commanding and prohibitingThe natural social instinct is the source of law itselfEvil law is illegal自然法效力高于实在法自然法是与自然即事物的本质相适应的法人人平等恶法非法 ST. THOMAS AQUINAS Aquinas is an Italian priest of the Catholic Church and an influential philosopher and theolog
9、ian in the tradition of scholasticism. He advocates that the purpose of church is to pursue the supernatural good, that is, to know the god. Supernatural good is higher than the public good that the government pursues, so the church should be in command.托马斯的政治思想是神权政治论，其核心是上帝高于一切，一切服务于上帝。他主政治隶属于，世俗服从
10、于教会，皇帝受命于教皇，其实质是维护封建神学和教会的利益。God is the highest good and the cause of all things.Human law is the effort of reasoning from the eternal laws.The order of nature is the result of one god.SHORT DEFINITIONS: (5 questions, 4 marks for each, 20 marks in all)THE STATE (GOVERNMENT & RULERS) The state is an
11、organized community living under a government.NATURAL LAW Natural law refers to the use of reason to analyze human nature and deduce binding rules of moral behavior.(Principles which are “naturally” right and proper)POSITIVE LAWPositive law is the term generally used to describe man-made laws that i
12、s set by political superiors to political inferiors LAW (RULES) AND EQUITY (JUSTICE)普通法和衡平法Aristotle on Law and Equity.Equity: what is equitable is in fact just, not according to law; rather it is a correction of legal justiceLaw: law is a set of rules enacted by the authorities or developed from th
13、e custom which is recognized by the community as binding to all members.RULE OF LAW Rule of law is the legal principle that law should govern a nation, as opposed to arbitrary decisions by individual government officials. That means RULE of LAW is the principle that every person and organization, in
14、cluding the government, is subject to the same laws.RULE OF MEN Rule of men is a society in which one person, or a group of persons, rules arbitrarily.LEGISLATION (STATUTES) Legislation is law which has been enacted by a legislature or other governing body, or the process of making it. A statute is
15、a formal written enactment of a legislative authority that governs a state, city, or county.CUSTOM (ANCIENT LAWS)Custom is a rule of conduct in society, established by long use and binding those under it, and it derives its force from the tacit consent of the legislature and the people, and supposes
16、 an original, actual deed or agreement.TRUE AND FALSE: (15 questions, 2 marks for each, 30 marks in all)Greek political systemPolitical Structure of Ancient GreeceCity-States: Greece then not a single nation-statecollection of city-states in the Mediterranean (Hellenic)Athens: greatest city-state wh
17、ich dominated regionsmaller cities still independent political entities (alliance)Autonomy: each city-state could make own lawsdecided their own policies, paid tribute ships or moneyGreek Politics: cities varied in the political systemskingships, tyrannies, oligarchies, democracies (Athens)Greek law
18、s and writings古希腊奴隶制社会、特别是雅典城邦的法律思想。古希腊并没有出现象罗马帝国那样发达的法律制度和专业的法学家集团。但在古希腊的哲学、伦理、政治思想以至文学中，包含了许多有关法律基本问题的探讨。例如，法是神授还是人定的，法代表正义、自然还是代表强权，法与国家、自由、平等的关系，法的作用，法治还是贤人政治，自然法代表什么及其与实在法的关系，这些在西方中世纪以至近代、现代法学界中争论过的问题，在古希腊时都曾涉及，并对后世西方法律思想的发展发生了重大影响。古希腊文学是整个西方文学的源头，也是欧洲文学的第一个高峰。古希腊文学反映了欧洲从氏族社会向奴隶制社会过渡时期的现实生活，特别体
19、现了古代世界的人们对战争与和平、人与自然之间的关系的思考。古希腊时代显赫的英雄行为和社会历史的重大变迁都在文学作品中得以深刻的体现。这些文学作品不仅为整个西方文学的发展奠定了基调，也为人们研究古希腊世界的历史与社会提供了丰富的文献资料。Greek Law: various codes/rules of city-states-Romeunified Greek legal system never existed (no Greek state)Legal Science: Greeks never produced legal textsRoman jurists were the firs
20、t to give code to the worldLegal Treatises: was never written by the Greeksno school of legal instruction was operated in GreeceLaw Codes: never written down and distributedsome statutes found engraved on stone or on bronze Literature: law of Athens found in ancient writing historians, philosophers,
21、 dramatists, poets, and orators Legal Theory: not distinct from the actual lawsno recognized and distinct branch of philosophy of lawEarly European statutesLaw: the earliest European appearance of statutesDracon: a famous lawgiver of the 7th Century BCSolon: a famous lawgiver of the 6th Century BCTa
22、blets: first efforts to inscribe in permanent formRules in a public form which could not be changedLegislation: original Greek laws were from Kingslater legislative process from majority vote of the peopleCodes: laws became not only customs but statutesstatutes later became only source of law (not c
23、ustoms)Early Western customsCustom: formerly the rules were only principlesarbitrarily interpreted/enforced by self-interested kingRule of Law The Rule of Law: The Greek MindLaw: the Ruler of city should also be governed by lawsAuthorities act in accordance with known laws (not arbitrarily)Ruler: ru
24、le of the law not arbitrary decisions by rulerGeneral sovereignty of the law governs, not arbitrary rule of kingSpecific sovereignty over rulers is essential to a good governmentSocial Contract用契约关系解释社会和国家起源的政治哲学理论Social Contract: agreement of citizen & governmentsubmission to government & law is ci
25、vic duty of citizenRulers Obeying Laws“an emperor (in rule by law)must behave as if he were answerable to his own laws”-Seneca“an emperor (in absolutism) released from the laws, free from following the laws”-CassiusTheory of Equality in the LawEquality Before the LawPersonal Merit: proud feature of
26、Athenian system which leads to honor and preferment in a societyAristotle (Rhetoric)Hierarchy: regardless of rank and office of men, as regards the law, all men are on an equal footing Thucydides (Pericles)Individuals: Dracon forbade any laws aimed just at individuals, for as everyone shared in the
27、rest of the state, so all should share equally in its laws Demosthenes (Dracon)Nature: our equality of birth by nature impels us to seek equality under the law Plato (Menexenus)Theory of Criminal Law IntentIntent: relation of punishment to a persons state of mindgreater/lesser guilt related to subje
28、ctive mind and circumstancesDegrees: Homicide was divided by Dracon into degreespremeditated killing, provocation, unintentional, self-defenseSeverity: voluntary and involuntary wrongs are distinctact of greater evil=greater punishment; an act of lesser evil=lessRulers: useful to consider when givin
29、g reward/punishmentwillful =resentment/punishment; unintentional deserves pardonBehavior: the intent cannot be lessened by own behaviordrunkenness or culpable ignorance of the law is no excuse (less)Punishment: depends on the seriousness of the offensesdistinguish between trivial or major crimes, sc
30、ale of punishmentTheory of Due Process of LawDue Process: right to notice, be heard in an orderly proceedingStrongly favored regular, impartial, judicial proceedings Kelly (The Greeks)Canon Law (Church Law)Canon Law I: non-resistance to even wicked rulerKings may even exceed the limits of customary
31、lawCanon Law II: conflict - Middle Ages legal theoryKings had moral obligation to people and to the lawsCanon Law (Church): legislation must be just: “a law will be honorable, just, capable of being obeyed, in accordance with nature and in accord also with ancestral practice, adapted both to its time and to its place; necessary, useful and clear so theres no misunderstanding, not framed for the advantage of any individual, but for the common benefit of the citizens.”Roman Law (Justinians Code)History of Law: Justinians Digest (Roman law)Roman law of 1000
