Preface

Purpose
English for Law 2022 – A toolkit for discourse and genre-based approaches to ESP language is the
revised edition of the earlier textbook English for Law 2021. This book provides a useful tool for the
study of the theoretical and practical topic areas of law that constitute the traditional core of Anglo-American
Law studies. It also provides a practical tool for the study of texts of legal language as they originate from
theory-informed perspectives on discourse and genre analysis. Handy, bulleted, templated text and flow
charts with fully integrated references provide students with a readable exposition of the theoretical and
practical topics through the medium of English. Theory-informed perspectives on discourse and genre
analysis, although written about in greater detail elsewhere, are explained in straightforward, easy-to-read
language in an attempt to help law students find the best ways to use them for their own academic and
professional development and skills. The book is an intermediate (B1/2) to advanced (C1/2) level
English legal language source reference for non-native under/postgraduate students of Law, International
Relations, Economics and Political Science as well as legal practitioners who need to be able to use
English in academic or professional legal contexts.

Structure and content

This book is divided into two Parts, Part One and Part Two, which cover seven Units.
Part One provides a practical approach to selected topic areas in law, with Units 1, 2, and 3
synthesising and applying knowledge within the chosen areas which constitute the traditional core of Anglo-
American Law studies. Reinforced by Review and Spot-Check sections, these Units are complemented with
practical exercises in Worksheets 1 and 2, which give students useful ‘hands on’ experience of tackling the
traditional form-dominated approach to legal English skills combined with genre-based English legal
language learning. These skills are firmly set in their wider academic and professional contexts of use to
encourage an integrated appreciation of legal language skills. Legal English skills covered in the Worksheets
include Student Presentations (to measure student’s understanding and knowledge in oral presentational
skills in guided format), legal letter writing (to help students practise legal advice in guided format),
Legal Problem Question writing (to base student’s answer on a set of facts by ‘thinking like a lawyer’),
and Legal Essay writing (to measure student’s understanding and their ability to synthesise and evaluative
skills in topic areas.
Part Two brings together the vast area of discourse and genre analysis relevant to English for Specific
Purposes and English for Legal Purposes and guides students in gradually putting theory into practice. To
this end, Units 4, 5, 6, and 7 provide only a brief orientation to the analytical approaches to and
methodological tools used in discourse and genre analysis, and how the academic and professional goals
of English for Legal Purposes may be defined in theory and practice. These Units engage students with
theoretical and descriptive topics in discourse analysis applied to legal texts and reinforce their
understanding by Reviews and Self-assessment questions placed at the end. Likewise, the Units
encourage students to consider the linguistic forms and discourse structures within the context of specific
genres, such as the research article, relate those forms and structures to the legal discourse or disciplinary
community and practice, and present students with reading and writing Tasks of genre materials, offering
the chance to try out their ideas in practical contexts using their acquired knowledge.

How to use
Students are advised to use the Worksheets immediately after studying the relative Units. The book can
be used either for self-study, as comprehensive answers are given, or in the classroom, and can be
completed in any order.
The Author – 2022

English for Law XIII

XIV Contents
 Unit 1
The law: sources, classifications,
systems, and personnel

1. Understanding law
law The word law does not have a universally accepted definition
UK /lɔː/ US /lɑː/ because of several different theories succeeding over time.
However, law is very often defined by the customs, practices, and rules of conduct
developed by the government or society over a certain territory.
Regarded as law, rules of conduct are meant to enforce justice and prescribe duty or obligation. In
the United Kingdom, rules or laws resulting in statutes or legislation prescribe certain actions that are
imperative, prohibitive, or permissive by law, and their enforcement is through the power and authority
of Parliament and a system of penalties for failure or refusal to obey. For example, if John
steals a car from Mark, John may be prosecuted before the court and may be punished.
The court may then order the restitution of the car to its rightful owner (Mark). The penalty used is
known as a sanction which the State administers to enforce obedience to its rules or laws. In Common
Law countries, state-enforced laws can also be made by judges through judicial precedent, or they may
be influenced by a constitution and the rights encoded therein, such as the uncodified Constitution of the
United Kingdom.
However, rules of conduct are also regarded as law when they regulate behaviours in a human
community and are generally based on the moral principles of society. These rules describe how people
are expected to behave in accordance with what a society has defined as right or wrong.
For example, they tell the individual that it is immoral and unlawful to steal (committing
theft), or to obtain money dishonestly (committing fraud), referred to as moral and legal
rules. Because law and morality are intimately related to each other, the observance of rules, principles,
and values defines the normative system that controls and regulates social and civil relations among
people and maintains public order in society.

1.1 Law simply defined

Under these terms, one simple way of defining the law is to say that law is concerned with the whole
body of customs, practices, and rules of conduct of a community that are formally recognised as binding
by a controlling authority and used for the guidance of human conduct.

imperative rule-making verbs for conduct shall, must

shall not,
prohibitive rule-making verbs for conduct must not,
may not

permissive rule-making verbs for conduct can, could,

may, might

English for Law 1

Environment Act 2021

(1) The Secretary of State must prepare an environmental improvement plan.

(2) The OEP may give advice to a Minister of the Crown about any changes to environmental law
proposed by a Minister of the Crown.

(3) The regulations may not provide for an offence to be punishable —

(a) on summary conviction, by imprisonment, or
(b) on conviction on indictment, by a term of imprisonment exceeding two years.

law / RULE (countable noun) ►a rule that is used to order the way in which a society behaves
There are laws against illicit drugs
►the body of rules of a particular country, community, or area of activity
law / THE LAW (uncountable noun) Courts exist to uphold the law
We have to provide a contract by law
A study of international human rights law
law (uncountable noun) ►the area of knowledge or work that involves studying or working with the
law
to study for a career in law
a law firm in London
law / THE POLICE ►the agency of established law
When he saw the man robbing, he called in the law
Law in Fixed Phrases Meaning
above the law allowed to not obey the law
against the law contrary to law, act in disregard of law
at law / by law / under law according to law, under or within the provisions of law
break the law fail to observe a law, regulation, agreement
enforce the law comply with a law, rule, or obligation
go to law resort to legal action in order to settle a matter
→ litigate: to sue or prosecute at law
→ litigate a claim: to decide and settle in a court of law
obey the law abide by the law
be a law unto yourself to behave in a way that does not follow the usual rules for a situation
law and order a situation characterized by obedience to the rules of a society
lay down the law make a strong statement about what people are or are not allowed to do
rule of law a situation in which the people in a society obey its laws and enable it to
function properly
take someone to law initiate legal proceedings against someone
take the law into your own hands to do something illegal in order to punish someone because you know the law
will not punish that person

2. The political and legal system of the United Kingdom

All legal systems worldwide deal with the same basic issues of law, but distinct legal jurisdictions have
their own legal and political systems.

2 The law: sources, classifications, systems, and personnel

The political system and structure
The United Kingdom is a parliamentary democracy and constitutional monarchy. This means that
government is voted into power by the people to act in the interests of the people, known as
parliamentary democracy, and the head of state is the monarch who remains politically impartial and
with limited powers, known as constitutional monarchy.
There are two directly elected chambers of Parliament, the House of Commons and the House of
Lords, and the Crown is an integral part of the institution of Parliament. The Monarch plays a
constitutional role in opening and dissolving Parliament and approving Bills before they become law.

The legal system

The United Kingdom has three separate legal systems which reflect its historical origin:

• English law operating in England and Wales,

• Northern Ireland law operating in Northern Ireland, and
• Scots law operating in Scotland.

English and Northern Ireland law are based on common law principles, while Scots law is a hybrid
system based on Civil Law and Common Law traditions – for example in property law where Scots law
resembles civil systems more than English law.

Common Law meaning

English Common Law is so called because it was the ancient law applied uniformly throughout the
kingdom of England following the Norman Conquest in 1066. As such, Common Law is derived from
the broad and comprehensive principles included in the unwritten laws of England Note
and applied in most English-speaking countries across the centuries, including the Case law is
distinguished from
United States, where it is also called Anglo-American law. These principles are jurisprudence,
created and modified by judicial decisions, passed on through custom, and which means the
precedent. Because common law principles are made by judges through the system study or
of judicial precedent, they are also known as case law or judge-made law. philosophy of law.

Linguistic traditions
Following the Norman invasion, English Common Law was characterized by three languages: French
was the language of legal proceedings and many legal words in current legal use such as lease, estate, or
property originate from this period, Latin was the language of formal records and statutes, and English
was the spoken language of the majority of ordinary people.

2.1 The UK Constitution

What is common to all UK legal systems is the absence of a complete code. This
is because the United Kingdom does not have a single written document in the
same way as the United States does. The foundational constitutional text for what
is now the UK is the Magna Carta 1215, or Great Charter.
The Constitution of the United Kingdom contains principles that have emerged over the centuries
from a variety of sources. Some of these sources are written, such as statutes passed by Parliament, while
others such as common law rules and political conventions, are unwritten and govern how the country is
run and where power lies. An example of a political convention is that the monarch always gives Royal
Assent to a Bill, if advised to do so by the Prime Minister. For these reasons, the British Constitution is
often described as an unwritten or uncodified constitution.

Institutional powers under the UK constitution

The UK Constitution defines both a horizontal relationship between the various institutional powers of
state and a vertical relationship between the state and the individual:

English for Law 3

 The state
The Monarch The Legislature (Parliament) The Executive (Government) The Judiciary

The individual

This results in three of the most important principles of the UK Constitution:

• the separation of powers: this means that a division of power between the three branches of the
state, the Legislature, the Executive and the Judiciary, prevents the accumulation of too much power
in the hands of one person or body and provides a system of checks and balances;
• the sovereignty of Parliament: this means that Parliament is the supreme law-making body in the
UK; and
• the rule of law: this means that there are factors necessary for a well-functioning state and limiting
the exercise of arbitrary power.

2.2 The defining logics of Common Law in the UK

The Common Law system in the UK influences the decision-making process and the trial procedure.
The defining logic of Common Law is that it arises from judicial precedent set by judges as they
make rulings on cases, as opposed to rules and laws made by Parliament through statutes. In a precedent-
setting case, the process of decision making involves judges reasoning from the facts of the case in hand
and then subsuming the facts under the law (precedent) they have found in order to provide common-
sense solutions to the case in hand. This kind of reasoning is realistic and pragmatic in character and
always emphasises context because English judges habitually situate their method of decision making
within their common-sense context of case solving. This way of legal reasoning contrasts with the logic
of Civil law judges who reason from abstract principles embodied in codified law.
The defining logic of Common Law trial procedure is the adversarial system. This means that there
are two opposing parties, called adversaries, who present their case before a neutral judge who
moderates. So, the case is decided by a judge, or a jury, who does not investigate the facts but acts as a
neutral umpire. This logic contrasts with the inquisitorial system of adjudication in Civil law
jurisdictions, where one or more judges try criminal cases alone, without juries; they inquire into the case,
direct investigations and question witnesses.

3. Classifications of law
In the United Kingdom, law is classified as either Private law or Public law, although in practice a
distinction is made between Civil law and Criminal law.

3.1 Public law

Public law is concerned with the relations between the state and its citizens and aims at the promotion of
social objectives by protecting collective interests. Public law comprises several branches such as:

● Constitutional Law – This law regulates the institutions of government within the UK and
encompasses the internal governance of supranational legal orders such as the European Union. In
regulating the institutions of state, this branch of law is concerned with the relationships between the
three institutional powers of state in the British constitution:

▪ the Legislature: this is the UK Parliament which is composed of the Monarch, House of Lords
and House of Commons and is responsible for the enactment of new law;

4 The law: sources, classifications, systems, and personnel

 ▪ the Executive: this branch consists of the Government elected from the Members of Parliament
who hold responsibility for the governance of the state, the Crown and the Civil Service;
▪ the Judiciary: this branch consists of judges and magistrates who interpret and determine legal
disputes.

Unlike the United States, where there is a rigid separation of powers between the organs of the state,
the UK has only a soft separation of powers in the constitution because persons and bodies within
these branches must communicate with each other to run the state effectively according to the system
of checks and balances – each branch has an eye on the others and protects against interference by
others. The United States Constitution adheres closely to the separation of powers. The Constitutional
Reform Act 2005 creates a complete separation of powers between the UK’s Executive and the
Judiciary with the establishment of a new Supreme Court of the UK separate from the previous
judicial function of the House of Lords and an independent Lord Chief Justice responsible for the
Judiciary.
● Administrative Law – This law deals with the relationships between government bodies and
individuals and allows the courts to rule on the legality of decisions made by such bodies under the
procedure called judicial review. Under this procedure, a person who has been affected by an
unlawful decision, or a failure to make a decision by such bodies, can appeal against this decision if
they have a sufficient interest in the disputed case, known as prima facie case (there appears to be a
case to answer), and have the right to bring the case, known as locus standi. These two elements must
be satisfied before leave (permission) is given by the court to commence an action for judicial
review. For these reasons, judicial review is a significant mechanism by which the judiciary can have
control over the executive power – courts ensure that public bodies act within their powers and do not
exceed or abuse their powers, and is part of the separation of powers within the British constitution.
Note
● Criminal Law or Penal Law – This law deals with crimes against the A criminal wrong is
State or society at large, and regulates the apprehension, charging, and one in which the state
prosecution of suspected criminals by fixing penalties. Criminal offences and the public have a
are regarded as public wrongs because they infringe the values and shared interest. By
contrast, a civil wrong is
interests for which the society has a shared and mutual concern and are a private wrong, such as
therefore punishable by the state. a tort or contract
Five major objectives are usually attributed to criminal law by violation, done to a
punishments: person or property. Civil
and criminal wrongs are
collectively known as
▪ incapacitation / incarceration: this is the most extreme form of legal wrongs.
restricting a person’s freedom for their criminal offence. Offenders
restrained in prison and removed from society cannot cause further wrong or harm to the general
public during the length of their sentence;

▪ retribution: this is punishment imposed on a convicted offender for purposes of repayment and
revenge of the wrong committed. The severity of punishment is proportionate to the seriousness of
the crime;

▪ deterrence: this aims to impose a sufficient penalty to discourage individual criminals from
becoming repeat offenders (individual deterrence) and to discourage others in society from
engaging in similar criminal activity (general deterrence);

▪ rehabilitation: this aims to prevent criminals from committing other crimes by forcing them to
undergo training or some form of psychological or social education and transforming offenders
into valuable members of society;

English for Law 5

 ▪ restoration: this aims to repair any injury inflicted upon the victim by the offender by restoring
the victim’s emotional and material losses.

3.2 Private law

Private law is concerned with the rights and duties of private individuals towards each other, and aims at
the protection of individual interests. Private law includes several areas, such as:

● Contract Law – This law deals with the interpretation and enforcement of legally binding
agreements, the nature of the obligations undertaken by the parties, and the legal consequences of
breaking contractual promises. Agreements relate to an exchange of goods, services, properties, or
money.
● Tort Law – This law deals with civil wrongs or wrongful acts, whether intentional or negligent,
done by one party against another, and includes cases of negligence, trespass, nuisance, and
defamation from which injury occurs to another. Some intentional torts may also be criminal wrongs,
such as the trespass of assault and battery, or defamation.

 If you shake your fist at someone, this will be assault (trespass to person); if the blow
is struck on someone (that is, you punch someone in the face and run off), this will be
battery (trespass to person)
 If you take hostages during a robbery, or medicate someone without their consent, this will be
imprisonment (trespass to person)
 If you remove a bicycle from a shed, this will be trespass to goods

Because torts involve a civil action between private parties, punishment does not include a fine or
imprisonment. The punishment for tortious acts is usually by damages (financial compensation).

● Property Law – This law deals with the rights which may arise in relation to the various forms of
ownership in real property (land and the things that go along with land) and personal property
(what people possess that is moveable).

English public and private law are part of national or municipal law, which is the law operative
within a country. National law is distinguished from international law, which is the law operative
outside a country, and is also recently called supranational law. International law is usually subdivided
into public international law, which is the law regulating relationships between states, and private
international law, which is the law regulating relationships between individuals outside a country where
there is a foreign element.

A sues B, an Italian citizen, in England because B broke a contract about a business to be run in
Egypt. In this case the judge will refer to the rules of Private International Law.

International law is created in two main ways: by treaty and by custom. Treaties are political
agreements between two or more states, and are binding on the nation states involved (called contracting
states) if they have given their consent to be bound under international law. Customary law describes the
situation whereby states have adopted consistent practices towards a specific matter and have acted in this
way outside of legal obligation.
Substantive law and procedural law are two main categories within an area of law. Substantive law
deals with the rules which govern individual rights and duties under the law, such as substantive
criminal law which defines conduct that is unacceptable and punishable, or criminology which provides
the sociological and psychological study of the causes, development, and control of crime. Procedural
law (or adjective law) defines the practice and procedure by which those rules are to be enforced when
bringing a civil or criminal case to court. For example, criminal procedure consists of the steps that are
followed from the criminal event through to punishment or release of the offender.

6 The law: sources, classifications, systems, and personnel

4. Sources of law in the United Kingdom
United Kingdom law originates from legislative sources and judicial sources. Legislative sources
consist of domestic law, which includes primary legislation, known as Acts of Parliament or statutes;
secondary or delegated legislation; and European Union legislation and the European Convention on
Human Rights. Judicial sources consist of common law and equity precedents, known as case law. In
addition, there are a number of minor sources, such as textbooks and commentaries by legal writers.
Domestic law also includes important statutes enacted by Parliament over the centuries, such as the
Magna Carta 1215, which embodies the principle that government must be conducted according to the
law and with the consent of the governed, the Bill of Rights 1689, which impose limitations on the
powers of the monarch, and the Act of Settlement 1701, which establish the constitutional independence
of the judiciary.

4.1 Parliamentary sovereignty in the United Kingdom

In the United Kingdom, authority of parliament is a fundamental principle of the Note
British democratic constitution and is significant for two reasons. BrE: Act, piece
of legislation
Firstly, Parliament is the originator of the most important source of law, Acts or
AmE: Bill
statutes, emanating from the parliamentary chambers of the House of Commons and
the House of Lords. Secondly, Parliament may delegate power to a government minister and the law that
is enacted is referred to as secondary or delegated legislation, which is published as Statutory
Instruments (SIs), By-laws, and Orders in Council. Judicial sources derived from common law and
equity precedents are both subordinate to legislation, which means that Acts of Parliament take priority
in case of conflict between primary legislation and judicial sources, that is, judge-made law as developed
through cases. The reason for this is constitutional because under the UK’s unwritten constitution
Parliament is the supreme legal authority to make laws without restriction. In other words, Parliament can
enact or repeal any law that it likes on any topic and courts cannot declare that Acts of Parliament are
invalid. This results in the doctrine of parliamentary sovereignty or parliamentary supremacy –
sovereignty itself being a derived form of Latin super (‘over’) meaning ‘chief ’, ‘ruler’.
Unlike Acts of Parliament, delegated legislation can be challenged in the courts via the doctrine of
ultra vires – Latin term meaning ‘outside one’s legal power or authority. Ultra vires is when the law goes
beyond the powers which were granted by Parliament in the Enabling Act, so that any delegated
legislation can be declared void by the court.

5. Sources of law in the United States of America

The primary sources of law in the United States are:

• United States constitution

• state constitutions
• federal and state legislation also known as statutory law
• case law, and
• administrative regulations.

The US Constitution is the ‘supreme Law of the Land’, meaning that federal statutes, state statutes,
judicial opinions and administrative laws must all comply with the Constitution’s rules. So, the
Constitution is the foundation of the federal government of the United States and establishes the
fundamental freedoms and rights of people contained in the Bill of Rights.
The United States Congress, the federal legislative body consisting of the House of Representatives
and the Senate, enacts federal statutes and these statutes apply in all 50 states. State statutes are
enacted by the 50 state legislatures which are separate sovereigns with their own state constitutions, state
governments, and state courts, and therefore apply only within the state. Courts then must apply statutes
to the facts of a case. If no statute exists, courts defer to case law, consisting of judicial interpretations of

English for Law 7

the Constitution, a statute or common law. Federal law is superior to state law, which means that federal
law must be applied in case of conflict between federal and state law.

6. Sources of law in the European Union

The sources of European Union law originate from:

• primary legislation, consisting of several treaties which contain broad statements of principles and
policies pursued by the Union, and
• secondary legislation, consisting of law made by the Council, Parliament and Commission under
the authority of the various treaty articles.

Secondary legislation comprises:

• Regulations, Directives and Decisions, referred to as binding legal acts, and
• Recommendations and Opinions, referred to as non-binding acts.

Like primary legislation, secondary legislation constitutes hard law and differs from non-binding
instruments, which constitute soft law.
In EU constitutional law, a distinction is made between direct applicability and direct effect. Direct
applicability is the principle that a provision of EU law immediately becomes part of the law of a
member state without the need for the member state to enact its own law on the matter. This provision is
said to be self-executing. Direct effect is the principle that Union law may confer rights on individuals or
institutions which the courts of EU member states must recognise and enforce.
So, the Union can adopt:

• Regulations – these have general, binding and direct applicability in all member states, meaning that
they cannot be varied or amended by national legislation.
• Directives – these are binding on the member states as to the results to be achieved, but leave open
to each member state the form and method of implementation (or transposition).
• Decisions – these are binding in their entirety upon those to whom they are addressed. As an
individual measure ruling on a particular matter, a Decision must specify the person to whom it is
addressed. This feature distinguishes a Decision from a Regulation.

There are, in addition, advisory recommendations and opinions which do not confer any rights or
obligations on those to whom they are addressed, but may provide guidance as to the interpretation and
content of Union law.
Together with the primary law (treaties) and the case law of the European Court of Justice, these
secondary instruments comprise the Community acquis – the body of EU law.

7. Legislative process in the United Kingdom: how a Bill becomes an Act

Before an item of legislation becomes law in the UK, it is known as a Bill. A Bill normally comes from
the government, called government-sponsored Bill, or from an ordinary member of parliament (MP),
called private member’s Bill, and is preceded by a White Paper or a Green Paper during a
consultative process. White Papers set out definite government proposals on topics of current concern
and signify the government’s intention to enact new legislation. Green Papers, on the other hand, are
introductory reports on a particular area and are tentative proposals for discussion issued by a government
minister without any guarantee of legislative action.
After the consultation process is completed, the drafting process follows. This is when the Bill is set
out in a draft legislation by Parliamentary draftsmen, officially the Parliamentary Counsel to the
Treasury. The Bill then goes through a number of parliamentary readings which are the formal stages

8 The law: sources, classifications, systems, and personnel

of enactment (the passing of legislation) by both Houses of Parliament (Commons and Lords). In their
simplified form, these stages are:

• First reading: the Bill is introduced in either House such as the Commons and no debate or vote
takes place at this stage.
• Second reading: this is the first general debate on the main principles and purpose of the Bill in the
House. A government minister opens the debate by setting out the case for the Bill and explaining its
provisions. The opposition responds and then other members are free to discuss it. At the end of the
debate the House votes on the Bill.
• Committee stage: the Bill is debated in detail by a small group of MPs in a Standing Committee and
may be amended in each clause.
• Report (or Consideration) stage: MPs who were not part of the Committee debating the Bill may
consider any of the amendments made by the Committee. Any amendments may be accepted or
reversed.
• Third reading: this is the final debate on the Bill in the House. No amendments are possible.
• Moving to the other House: once the Bill has passed the third reading in the House of Commons, it
is referred to the House of Lords, known as passage through the Lords. The process in the House of
Lords is very similar to the process in the House of Commons, and the Bill may move backwards and
forwards between the two Houses a number of times before agreement is reached, a process called
‘ping pong’.
• Royal Assent: when both Houses have formally agreed on the content of the Bill it is then presented
to the reigning monarch for approval, known as Royal Assent. Once Royal assent is given, the Bill
becomes an Act of Parliament and is law.

House of Commons House of Lords

proposed Bill starts in the Royal Act
1st Reading – 2nd Reading – Committee 1st Reading – 2nd Reading – Committee
House of Commons Assent
Stage – Report Stage – 3rd Reading Stage – Report Stage – 3rd Reading

House of Lords House of Commons

proposed Bill starts in the Royal Act
1st Reading – 2nd Reading – Committee 1st Reading – 2nd Reading – Committee
House of Lords Assent
Stage – Report Stage – 3rd Reading Stage – Report Stage – 3rd Reading

8. Legislative process in the United States of America: how a Bill becomes a

Law
In the United States, the federal legislative powers – the ability to consider Bills and enact laws – reside
with Congress, which is made up of the US Senate and the House of Representatives.
In order to become a federal or state law in the United States, a Bill must go through a number of
stages by both Houses of Congress. In their simplified form, these stages are:

• Introduction: a representative sponsor or a senator introduces the Bill to Congress by placing it in a

wooden box called ‘the hopper’ (if introduced on the House Floor), or by submitting it to clerks (if
introduced on the Senate Floor).
• Committee consideration: once a Bill is introduced, it is assigned to the appropriate committee for
study. At this stage, the formal committee action on a Bill is a hearing (committee members and the
public can hear about the strengths and weaknesses of a proposal for law), and a markup (the
proposal may be accepted, amended, or rejected by members of the committee).
• Congressional debate and vote: members of the House debate the Bill and propose amendments
before voting. If the Bill is passed by majority voting, it moves to the Senate and goes through a
similar process of committee consideration and voting. At this stage, both Houses must agree on the
same version of the Bill.

English for Law 9

 • Enrollment: once both chambers of Congress have each agreed to the Bill, the Government Printing
Office prints the final text in a process called enrolling – it is now prepared in its final official form
and then presented to the President.
• Presidential options: when receiving the Bill from Congress:
a) the President may approve and sign the Bill into law, which is then printed in the Statutes at
Large – the law is now codified and published in the United States Code. Alternatively:
b) the President may veto the Bill by refusing to sign it and return it to Congress with the reasons for
veto, but Congress can override the veto by successful voting and the Bill becomes law,
c) the President may take no action on the Bill while Congress is in session, and the Bill
automatically becomes law; or
d) the President may take no action on the Bill while Congress adjourns its session, and the Bill dies,
a process known as ‘pocket veto’.

9. Statutory interpretation
Statutory interpretation is the process by which judges interpret and apply legislation in common law
countries. The meaning of law in a statute should be clear and explicit, but this is not always achieved
because there is often some ambiguity and vagueness in the words of the statute that must be resolved by
the judge. Examples of vague expressions in statutes include reasonable conduct, substantial damages, or
so far as applicable, which give a choice to the interpreter of the provision as to their specific meaning.
This is also to say that many of the cases which come before the courts concern a dispute over the
meaning of an expression used in a statute.
In order to solve an issue of statutory interpretation, judges use three different rules of interpretation.
They are:

• Literal rule (or literalism) – this provides that words in a statute must be given their ordinary and
literal meaning and must be interpreted according to the intention of Parliament which passed the Act.
• Golden rule – this provides that words in a statute must be given their ordinary and literal meaning
as far as they do not produce inconsistency with the rest of the document.
• Mischief rule – this involves an examination of the former law and determines the defect (mischief)
that the statute in question has set out to remedy. The application of this rule is more discretionary
than the literal and the golden rule because it allows judges to deduce Parliament’s intention –
ascertaining the meaning that the legislature intended to give to the statute known as intentionalism.

In addition to these rules, the purposive approach allows the judges to look beyond the wording of the
legislation to find an interpretation which gives effect to its general purpose, and the teleological
approach which allows the judges to consider the general spirit of the legislation, rather than merely its
purpose. While the purposive approach is based upon the mischief rule, the teleological approach is much
broader than the purposive approach and is particularly important when interpreting European law. This
law is often drafted in terms of wide general principles and not in the detailed manner found in UK
domestic legislation.

There are also rules of language which the judges may apply. They are:

• ejusdem generis: general words only apply to things of the same type,
• noscitur a sociis: words derive meaning from others surrounding them, and
• expressio unius est exclusio alterious: when one or more things of a class are expressly mentioned
others of the same class are excluded.

10 The law: sources, classifications, systems, and personnel

 In addition to the rules of interpretation and rules of language, judges can Note
make presumptions about the law, such as a presumption that mens rea (guilty A legal presumption is
an inference established
mind) is required in criminal cases, known as presumption against criminal by the law as universally
liability without mens rea, or a presumption that a statute does not operate applicable to certain
retrospectively, known as presumption against retrospective operation of circumstances.
statute. Or, they can make use of internal aids, such as the long title of the Act, and external aids to
statutory interpretation, such as legal dictionaries and case law.
Finally, other tools of statutory interpretation include:

• statutory definitions: many statutes contain a definitions section that defines the key terms used in
the statute. These definitions are important because they suggest that legislatures intended for a term
to have a specific meaning that might differ from its common usage.

In this Act—
“officer”, in relation to a body corporate, means—
(a) a director, manager, secretary or other similar officer of the body corporate, and ….

• commonly used terms: these are commonly found in statutes and often used purposely to define the
scope and function of the statute.

Term Function
And v. Or ‘and’ typically signifies a conjunctive list that must be satisfied, while ‘or’
signifies a disjunctive list
Except / Unless signify an exception to the statute
For the purposes of … / Subject to … limit the scope of the statute, or may indicate that a certain part of the statute
/ Within the meaning of … is controlled by another section or statute
If … then … / Provided that … indicate that for one part of a statute to take effect, a requirement must be
satisfied
Notwithstanding signifies that a certain term or provision is not controlled by other parts of
the statute, or by other statutes – ‘in spite of’
Shall v. May ‘shall’ signifies that certain (obligatory) behavior is mandated by the statute,
while ‘may’ grants the agent some discretion

9.1 Components of statutory provisions

Statutory provisions impose duties or obligations, or confer rights, privileges or powers on the recipient
of the rule. Because of this, the expression of legislative provisions consists of various components. They
are:

• the legal subject: this is the person on whom a right, privilege or power is conferred, or a
duty/obligation imposed;
• the legal action: this is the statement of the right, privilege, or power, or the duty/obligation
conferred or imposed on the legal subject;
• the conditions and exceptions: these are the special cases that must be satisfied before the legal
subject may perform the legal action.

For example, in the legislative provision:

Where an application is made by the prosecutor, the prosecutor –

must (unless the court directs otherwise) inform the court of the identity of the witness.

English for Law 11

 The components of legislative expression are:

• legal subject: the prosecutor (identified in relation to the duty he is to perform)

• legal action: must inform the court of the identity of the witness (a statement of such a duty)
• condition: Where an application is made by the prosecutor (the case in which the provision is to operate)
• exception: unless the court directs otherwise (the case to be satisfied before the legal subject performs the
legal action

Describing conditions and exceptions in legislative sentences is essential because the law is not of universal
application, so they must be added to the description of the legal subject and the statement of the legal
action.

10. Judicial precedent

English and American judges decide the law applicable to a case not only by Note
interpreting statutes but also by applying judicial precedent \joo-dish-uh lpres- In the US, federal case
i-duh nt\. In doing so, they decide cases along the lines of previous decisions law comes from federal
(precedents) where the material facts are of sufficient similarity, that is, facts courts, while state case
law comes from state
which are legally relevant should be decided in a similar manner. In this way, courts.
judges are said to be bound by precedent in the process of creating case law.
More precisely, precedent describes the specific part of a judgment which establishes a legal principle
to be followed in later cases, known as the Latin phrase ratio decidendi \rA-shE-“O-“de-s&-‘den-“dI\ –
‘the reason for the decision’. Typically, this ratio is referred to by the Latin
Note
phrase stare decisis \stɛəridɨsaɪsɨs\ – ‘stand by what has already been decided’,
BrE: binding precedent
and is used to set forth a binding precedent in the instant case – the decision AmE:
of the case before the court. Sometimes a precedent-setting case is called mandatory/binding
reasoning by analogy because the facts of a case are analogous with those of authority
an earlier decision.

The ratio decidendi is the ‘holding’ of the judicial decision and applies the law to the facts of the case. A procedural
holding (what the court did procedurally with the case) usually follows the substantive holding.

For the reasons set out in this judgment [substantive holding], in my view, the Appellant’s appeal must be
dismissed [procedural holding].

Not only this, but judicial decisions often contain incidental statements that are not directly relevant
to the issue in the instant case, known by the Latin phrase obiter dicta – ‘things said in passing’. Such
remarks made in passing may only be cited as persuasive authority. Because these statements create no
binding precedent in the case before the court, they are called persuasive precedent.

Precedent and hierarchy of courts

However, legal precedent works in the context of hierarchy of courts. This is to say that the ratio and
obiter depend on the relationship between the court in which the original decision was made and the case
in which the precedent is to be applied. In this hierarchical context, the general rule is that each court is
bound by the decisions made in a higher or equivalent court, such as the Court of Appeal being bound by
decisions of the Supreme Court (higher in the hierarchy of courts) and other Court of Appeal decisions
(equivalent in the court hierarchy).

10.1 Avoiding precedents

There are three main methods used by judges to deviate from a binding precedent that is difficult in the
case being decided. They are:

12 The law: sources, classifications, systems, and personnel

 • Overruling: a court higher in the hierarchy overturns the decision of a lower court in a different
case, creating a different decision on the same material facts in later cases.
• Reversing: a court higher in the hierarchy overturns the decision of a lower court in the same case.
• Distinguishing: the judge finds that the facts or the law of the case for decision are sufficiently
different from the previous precedent, and so departs from the precedent.

10.2 Legal cases: structure

Through precedent, legal cases (also known as legal decisions, legal judgments, or judicial opinions)
provide a statement of reasons explaining why and how the decision is reached and are openly recognized
as authoritative. This means that cases often have a traditional structure that follows a particular order:

• Case identification. This section identifies the case by including the court’s name, the parties’
names, the judge’s name, and the title of the document, such as Opinion or Judgment.
• Facts of the case. This section provides a summary of the material facts and legal points raised in
case: what the case is about, who the parties are (called by their legal names such as appellant,
appellee, petitioner, respondent, plaintiff, defendant), and how the case came before the court. The
summary is based on the procedural history of the case consisting of various hearings and
proceedings and presented through a chronological and impartial narration of the issues or questions
of fact in the case, showing the nature of litigation.
• Applicable law. This section states explicitly the issues or questions of law raised by the facts
peculiar to the case. These issues will be used by the judge to decide the case and reach a particular
outcome.
• Legal reasoning. This section involves the judge applying the law to the facts in the case and
explaining why the decision is justified in a detailed analysis of each issue. This is because every legal
case raises issues of fact and issues of law which require an answer by the judge solving the case, so
the case relies on a series of reasoned arguments leading to the decision. Usually, judges include a
closing paragraph after each issue has been analysed where they summarise the holding of the case
(with the words I/We hold that …), as well as any dicta the opinion may contain.
• Decision or disposition. This section concludes the Opinion or Judgment by stating the final
decision the judge reached - the judge’s holding or ruling disposing of the case as to procedural law.
The decision, or holding, is the result of applying reasoning to the case facts based on substantive law
and is the new rule of the case. The decision disposing of the case as to procedural law may run along
different lines, such as I my judgment, I would therefore dismiss/allow the appeal, or appear as case
reversed, case remanded, or case affirmed, and tells what action the court is taking with the case.

10.3 Cases: types

In providing reasoned arguments for the decision, cases are not always supported by a unanimous ruling.
If a judge agrees with the opinion, the judge writes a concurring opinion, which explains why the judge
agrees, with the words ‘I agree’ appearing at the conclusion of the judgment. If more than one judge
disagrees with the judicial opinion, there will be a dissenting opinion explaining why the judges
disagrees. A per curiam opinion is written by all the judges in a relatively unimportant case and usually
with no one individual judge responsible for authoring the decision.

10.4 Cases: functions

In this way, legal cases can be said to serve two main functions. They communicate a court’s conclusions
and the reasons for them to the parties and their lawyers. When published, cases announce the law to
judges, academics, other lawyers, and the interested public.

English for Law 13

11. The UK system of courts and their jurisdictions
In the UK, the court system consists of Magistrates Courts, County Courts, Note
Tribunals, the Crown Court, the High Court, the Court of Appeal, and the The court systems in
both the UK and the US
Supreme Court. Some courts are classified as inferior courts, such as the are very similar to one
Magistrates’ Courts and County Courts, while others are classified as superior another but terminology
courts, such as the High Court, Crown Court, Court of Appeal and Supreme differs. So, UK trial
Court. courts are called district
courts in the US while
UK appellate courts to
Inferior courts vs. superior courts which trial court
In this system, inferior courts decide the majority of cases at first instance and decisions can be
make an appropriate ruling on points of fact and law before any appeals, and appealed are known as
circuit courts of appeal
are known as trial courts or first-instance courts. By contrast, superior courts in the US.
review decisions of a first-instance court on important points of law and public
interest and are known as appellate courts.

Court jurisdiction
The County Courts only hear civil cases while Crown Courts only hear criminal ones. The others exercise
both types of jurisdiction – they handle both civil and criminal cases.

Types of court
The Magistrates’ Courts are set up to deliver justice in a speedy manner without jury trial. Although
magistrates’ courts can hear a limited number of civil cases relating to family law and licenses, they are
the lower courts where most criminal cases start and finish. The less serious cases (such as, traffic
offences, vandalism, being drunk and disorderly), called summary offences, start and finish in these
courts. Other cases of median seriousness (such as, deception, burglary, drugs offences), called ‘triable
either way’ offences, are heard either summarily in the magistrates’ court or on indictment at the Crown
Court. The most serious cases (such as, murder, rape, robbery), called indictable offences, are heard only
in the Crown Court by judge and jury.1 Although civil cases are sometimes dealt with by magistrates,
most of them are heard in the County Courts or the High Court.
The Court of Appeal hears criminal and civil appeals from the Crown Court and the High Court, and
deals with permissions to appeal to the Supreme Court, known as applications for leave. The Supreme
Court is the court of last resort, meaning that it is the final court of appeal in both civil and
criminal cases where points of law of public general importance are considered. It refers some cases
to the European Court of Justice for a ruling on the interpretation of a point of European law.
There are also specialist ombudsmen who deal with complaints about an organisation. Using an
ombudsman is a way of trying to resolve a complaint without going to court.

1 For more details, see Unit 3.

14 The law: sources, classifications, systems, and personnel

 UK Court System and Jurisdiction
Adapted from HMCS
European Court of Justice
preliminary ruling procedure

Supreme Court of the United Kingdom

appeals only, on points of law, from the Court of Appeal and the High Court

Court of Appeal
Criminal Division Civil Division
appeals on points of law of public general importance

High Court
appeals from inferior courts
Queen’s Bench Division Family Division Chancery Division
(contract & tort, etc.) Equity & trusts, tax, etc.
Commercial Court
Admiralty Court
Divisional Court
Appeals from the magistrates’ Divisional Court
Administrative Court Appeals from the County Courts
Supervisory and appellate courts
on land and bankruptcy
jurisdiction over the legality
of decisions of inferior courts

Crown Court County Courts Majority of civil

Jury trials for all indictable and some litigation depending on the nature
either-way offences and of claim
appeals against conviction

Tribunals Service
Appeals from decisions on immigration,
Magistrates’ Courts child support, land, pensions, and social
Trials (without jury) of summary and security
‘either-way’ offences
Committals to the Crown Court
Some (civil) family proceedings and
youth cases

12. The EU institutional system

European institutions are the heart of the EU legal system. They include:

○ The European Union Council

○ The European Commission
○ The European Parliament
○ The European Court of Justice
○ The European Court of First Instance

The Council of the European Union (formerly known as the Council of

Ministers) is the main legislative arm of the Union. The Council is the body
which, in co-operation with the Parliament, enacts the vast majority of Union
legislation (Regulations and Directives) following proposals put to it by the
Commission, and is therefore the Community’s legislature.

The European Commission is the main executive body to promote the common
interest of the Union. The European Commission has three main roles:

• Initiating legislation. While the Council has the final say on nearly all matters
of legislation, the Commission has the right of initiative. This means that the

English for Law 15

 Commission is responsible for drafting proposals for new European laws after consultation with national
governments. These proposals are then sent to the European Parliament and the Council for adoption.

• Guardian (or watchdog) of the treaties. Once the new laws have been adopted jointly by the
Parliament and Council, it is the responsibility of the Commission to ensure that the EU legal
provisions are correctly applied.

• Representing the Community and implementing the EU budget. As well as proposing legislation
and enforcing European law (jointly with the Court of Justice), the Commission represents the Union
on the international stage.

The European Parliament is mainly a consultative and advisory body. Members of

the European Parliament – MEPs – sit in political groupings. The powers of the
European Parliament include:

• Legislative power. Parliament passes European laws jointly with the Council in many fields. It can
deliver non-binding opinions (as in consultation procedure) or binding opinions (as in assent
procedure) depending on the degree to which it interacts with the Council in the enactment of
legislation.
• Power over the budget (or power of the purse). Parliament shares joint responsibility with the Council
for approving the EU’s annual budget, and debates the budget in two successive readings.

Parliamentary questions are a method to supervise the activities of the Commission and the Council.
Each MP can address to the Commission and the Council written questions, oral questions, and
questions during Question Time. Parliament can also make recommendations.

The European Court of Justice is the judicial institution of

the European Union. Article 220 provides:

The Court of Justice shall ensure that in the interpretation and application of this Treaty the law is
observed.

This provision ensures that the rule of law is applied throughout the Union. The Court hands down
judgments on cases brought before it which are binding on the parties to whom they are addressed,
whether member states or individuals. The Court of Justice:

• Hears appeals from the European Court of First Instance on points of law.

• Hears direct actions against member states for failure to meet Treaty obligations. These actions are
known as actions for failure to fulfil obligations (infringement procedures), actions for
annulment, and actions for failure to act.

• Gives preliminary rulings. These are determinations of the European Court of Justice on the
interpretation of European Union law, given in response to a request made from a national court or
tribunal, with no scope for appeal. They are in the form of a binding Opinion or Decision. This
procedure is known as reference (or question) for a preliminary ruling.

The European Court of First Instance hears a wide variety of European cases at first instance brought
by individuals against decisions of EU institutions rather than by member states and delivers judgments.

16 The law: sources, classifications, systems, and personnel