Дополнительные тексты

В результате изучения материалов данного приложения учащиеся должны:

знать

• кроме совершенствования знаний, полученных при изучении предыдущих глав и разделов, в данном приложении студентам предоставляется возможность приобрести следующие дополнительные знания:

• содержание, функции и историю американского уголовного права и правосудия в целом, историю гражданского процесса, особенности юридической профессии, мнения о смертной казни, исламское право и его историю, а также возникновение и становления нотариата как одной из ветвей правовой системы в некоторых англоговорящих странах

• определения основных понятий, существенных для изучаемой сферы права, на английском языке

• лексические, грамматические, стилистические способы выражения на английском языке вышеназванных проблем в устной и письменной речи

• необходимую терминологию и характерные для данной группы текстов грамматические и синтаксические структуры

• особенности построения текстов соответствующего правового жанра

уметь

• при необходимости использовать данный материал для расширения знаний по соответствующим проблемам при изучении основного курса, либо использовать этот материал в качестве основного

• использовать данный материал в презентациях на английском языке по изученным вопросам

владеть

• приёмами компиляции иноязычных текстов

• приемами редактирования компилированных текстов

• приемами оформления ссылок на используемую литературу и тексты

• приёмами построения устных и письменных текстов на основе изученных

После изучения этой главы учащийся получит представление о: содержании и особенностях рассмотренных в приложении направлений права, в частности, американскому и исламскому праву, о спорах в отношении применения смертной казни, роли и месте нотариата в правовых системах Англии и США; с точки зрения английского языка студенты имеют возможность на новом материале закрепить ранее приобретённые навыки и умения, а также практиковаться в области употребления сослагательного наклонения

Проблема: основными проблемами в области содержания в данном приложении, которые вызывают международный интерес и дают студентам основания для рассуждений, являются проблемы соотношения права и религии, правил материальной и духовной жизни, преемственности поколений в области правопорядка и традиции, а также проблемы законного фиксирования и соблюдения различного рода социальных, материальных и духовных отношений; в области иноязычного оформления данных отношений, возникает проблема несовпадения понятий, средств выражения и узуса.

Unit 1. HISTORY OF AMERICAN LAW

Task 1. Study the text below, making sure you fully comprehend it. Where appropriate, consult English-Russian dictionaries and/or other reference & source books on law.

HISTORY OF AMERICAN CRIMINAL LAW (FROM THE BEGINNING TILL THE NINETEENTH CENTURY)

The earliest criminal codes mirrored the nasty life of pioneer settlements. Criminal justice in the colonies was on the whole less formal and more direct than English law; though here too, as time went on, there was a certain amount of conformity to the English practice. There was a simple penal philosophy: no one should be punished for crimes not clearly and openly labeled. In a just society, the rules of the criminal law had to be written down and known to one and all.

Punishment was open and public: whipping in the town square, the pillory and the stocks. Public opinion and the shame were important instruments of punishment. For community punishment to work, it had to be visible and public; and punishment often left physical marks on the condemned. So, burglars, for the first offense, were to be branded on the forehead with the letter B, for the second offense, whipped in public and only for the third offense were to be put to death, as being incorrigible.

Neither in theory nor in practice was the colonial law very bloodthirsty. There were fewer capital crimes on the books than in England. In England death was a possible punishment for many thieves; in Massachusetts, only for repeaters. The Quaker laws of New Jersey substituted restitution of property or hard labor for hanging. The death penalty was not carried out very frequently in the colonies.

A crime is, in theory, a public wrong: a wrong against some victim, to be sure, but also something that hurts society — which is why society takes over the job of punishing it. This was the case, at any rate in the colonies. In England, there was no such thing as a district attorney — no public prosecutor. People were supposed to do their own prosecuting — and pay for it themselves. Very early this system was rejected in the colonies; crime was too serious and important business to leave to individuals.

The late eighteenth century was a period in which the intellectuals began to rethink the premises on which criminal law rested. Great reformers — like Cesare Beccaria — suggested that at least some of the premises were wrong and argued for a more enlightened criminal law. Reform ideas left an imprint on the early state constitutions. Section 38 of the liberal Pennsylvania Constitution of 1776 imposed on the future legislature a duty to reform the penal laws. Punishment must be made in some cases less sanguinary and in general more proportionate to the crimes.

Of course, real penal reform was never easy to achieve. The legislature of Pennsylvania did not match action to words for ten full years. In 1786, the death penalty was abolished for robbery, burglary and sodomy. In 1794 Pennsylvania enacted an important, innovative law about murder. The statute stated that the several offenses, which are included under the general denomination of murder, differ greatly from each other in the degree of their atrociousness. The statute then proceeded to distinguish between 2 different degrees of murder. Murder in the first degree was murder of poison or by any other kind of willful, deliberate or premeditated killing, or which shall be committed in the perpetration, or attempt to perpetrate, any arson, rape, robbery or burglary. All other murder was murder in the second degree. Only murder in the first degree was punishable by death.

A system of criminal justice is more than rules on paper. As a working system, it had to distribute power among judges, jurors, legislators. In American legal theory, the jury had enormous power, and was subject to very few controls. There was a maxim of law that the jury was judge both of law and of fact in criminal cases. It is not entirely clear what this meant — except as an expression of almost unlimited power. By the end of the period, many states, by statute or decision, had repudiated the doctrine.

The criminal justice was, on the whole, much less professional than it is today. Almost nobody involved in criminal justice was a full-time specialist. There were no detectives, probation officers, public defenders, or forensic scientists; even the district attorney worked at his job part-time. The jurors were of course total amateurs. In 1800 or 1870 no part of the system was particularly organized or bureaucratic. This even applied to what happened after conviction; the only way to get out of prison early was to appeal to the governor for a pardon. The governor in some states pardoned with a lavish hand. In any event, nothing formally guided his decisions.

Today the system is highly professionalized; this means, among other things, that the police and prosecutors can filter out the weakest cases, and toss them aside early in the process.

ANSWER THE FOLLOWING QUESTIONS:

1. What was a penal philosophy in the colonies?

2. What do you know about punishment in the colonies?

3. What does «murder in the first degree» mean?

4. What power did the jury have?

Find in the text above the English equivalents for the following words and expressions:

карательный, штрафной уголовное судопроизводство состав присяжных присяжный заседатель поджог изнасилование ограбление

кража со взломом наказание убийство первой степени государственный обвинитель уголовное обвинение наказуемый государственный защитник

Task 2. Fill in the gaps with the appropriate words from the box.

penal philosophy prosecuting criminal codes probation officers

punishable by death public defenders conviction criminal justice

(1) This even applied to what happened after ___________; the only way to get out of prison early was to appeal to the governor for a pardon.

(2) The ___________ was, on the whole, much less professional than it is today.

(3) The earliest ___________ mirrored the nasty life of pioneer settlements.

(4) There were no detectives, _________, _________, or forensic scientists.

(5) Only murder in the first degree was ____________.

(6) There was a simple _________: no one should be punished for crimes not clearly and openly labeled.

(7) People were supposed to do their own __________ — and pay for it themselves.

Task 3. Study the text below, making sure you fully comprehend it. Where appropriate, consult English-Russian dictionaries and/or other references & source books on law.

SHORT HISTORY OF US CIVIL PROCEDURE

Common-law pleading and procedure constituted a dismal and exceptionally intricate art. Colonial process never attained the heights, or the depths, of English common law procedure, a minefield of technicalities that only sappers trained in the law could navigate. Procedurally speaking, there were wide differences between colonies — between the loose, informal justice of early Massachusetts and the more conservative, more formal process in the middle Atlantic and southern colonies.

Seventeenth-century procedure was loose, boneless, easy-going. When judges are laymen, and not fussy about the separation of powers, a court is bound to be run informally. Nobody even knew the arcane rules of English procedure. And county court government was government at the point where men apply rules to ordinary life. Justice of that sort has an unstructured look; but if one compares colonial process, not with England's high courts but with English local courts, with the justice dispensed by the local gentry — the justices of the peace — the differences may not be quite so striking.

The fundamentals — jury, grand jury, writ, summons, written pleadings and oral testimony — were as fundamental in the colonies as in England, though never exactly the same as in the mother country. In detail, colonial procedure was a curious mixture.

Conciliation and arbitration were widely used in colonial law. Such methods of course avoid technical courtroom procedure. The courts themselves sometimes referred matters out for arbitration. Procedure was simplified so as to render justice inexpensive and easily accessible, and yet formal enough to provide adequate safeguards for litigants. Process was speedy and cheap, compared to English process; costs were measured in pennies, not in pounds; judgment was generally given on the day of the trial. The Massachusetts summons, unlike the English writ, was stripped of jargon, translated from Latin to English, and greatly streamlined in form. Forms of action were reduced to a few simple headings.

Eighteenth-century civil process, on the whole, was an uneasy mixture of several strands: lawyer's law, the needs of the merchants, the will of the sovereigns, and local tradition.

There was no chance that classical English pleading would be established after Independence. English procedure was too medieval for the modern world. Reform of civil procedure, at any rate, found fertile soil in the United States. Pleading reform was one of the changes the explosions in legal consumers made necessary.

Reform did not come in one great burst. Georgia, in the eighteenth century, passed a series of laws that went a long way toward rationalizing its civil procedure. The climax was the Judiciary Act of 1799. Georgia's law was, among other things, a courageous attempt to join together equity and common-law pleading.

Equity boasted a flexible collection of remedies; it had often prodded and pushed more lethargic common law in more rational (and just) directions. But equity had itself become hidebound; by 1800, it needed procedural reform even more desperately than the common law; it was equity, not law. In the United States many states simply handed over the powers and tools of equity to ordinary courts of common law. The same judges decided both kinds of case. Some states had no equity or equity courts at all. Louisiana was one of these, because of its civil-law heritage. Massachusetts and Pennsylvania were outstanding common-law examples.

In general, «law» was bent to suit «equity»; but not all the change was in one direction. The common law courts loved the spoken word — testimony, cross-examination — all in open court. Equity loved documents, papers, written evidence, and classically tolerated nothing else. But the Judiciary Act of 1789 provided for oral testimony in federal equity cases. Georgia allowed trial by jury in some kinds of lawsuit which, traditionally, belonged on the equity side of the bench. North Carolina, in a statute of 1872, did the same.

There is not enough systematic information on what the average trial was like. What we do know is that the average trial was simple, short and relatively informal. And even major trials — trials with political overtones — were by later standards unfair.

ANSWER THE FOLLOWING QUESTIONS:

1. What was the seventeenth-century procedure like?

2. What methods were widely used in colonial law?

3. Why did the reform of the civil procedure find fertile soil in the United States?

4. What was the difference between common law and equity?

5. What do we know about the average trial?

Task 4. Fill in the gaps with the appropriate words from the box:

average trial lawsuit equity courts common-law pleading

conciliation and arbitration cross-examination oral testimony summons

(1) The _________ was simple, short and relatively informal.

(2) __________and procedure constituted a dismal and exceptionally intricate art.

(3) Georgia allowed trial by jury in some kinds of ___________ which, traditionally, belonged on the equity side of the bench.

(4) __________ were widely used in colonial law.

(5) But the Judiciary Act of 1789 provided for ____________ in federal equity cases.

(6) ____________, written pleadings and oral testimony — were as fundamental in the colonies as in England.

(7) The common law courts loved the spoken word — testimony, _____________.

(8) Some states had no equity or _______________ at all.

Task 5. Match the following English expressions with their Russian equivalents. Use the expressions in the table to make sentences of your own.

equity lawsuit summons writ testimony pleading common law conciliation civil procedure cross-examination

гражданское судопроизводство примирение судебный приказ судебное дело, иск право справедливости вызов в суд, судебная повестка свидетельское показание пледирование, заявление оснований иска перекрестный допрос общее право

Task 6. Study the text below, making sure you fully comprehend it. Where appropriate, consult English-Russian dictionaries and/or other references & source books on law.

THE LEGAL PROFESSION

The early colonial years were not friendly years for lawyers. There were few lawyers among the settlers. In some colonies lawyers were distinctly 336uail336come. In Massachusetts Bay the Body of Liberties (1641) prohibited pleading for hire. The «attorneys» in the early Virginia records were not trained lawyers, but attorneys-in-fact, laymen helping out their friends in court.

But the lawyers were, in the end, a necessary evil. When all is said and done, no colony could even try to make do without lawyers. As soon as a settled society posed problems for which lawyers had an answer or at least a skill, lawyers began to make their way and to thrive, despite any hostility. Courts were in session; merchants were involved in litigation; documents about land and other matters had to be drawn up; and the skill of the lawyer had a definite market value. Men trained in law in England, who came over, found their services in demand. By the eighteenth century, professional lawyers dominated the practice. A competent, professional bar existed in all major communities by 1750. Many of these men were deeply learned in the law. Yet there was no such thing as a law school in the colonies. Particularly in the South, where there were no colleges at all, some young men went to England for training.

For all lawyers the road to the bar went through some form of clerkship or apprenticeship. A young man who wanted to be a lawyer usually entered into a contract with already in practice. From the seventeenth century on, the British exported some lawyers to help them govern their colonies. This was another fountainhead of the American bar. Nicholas Trott, an English lawyer, arrived in Charleston in 1699 as attorney general.

Each colony had its own standards for admission to the bar. In Virginia a law of 1748 gave its high court control over licensing and admission to the bar. In 1762 the chief justice of the Superior Court Thomas Hutchinson instituted the rank of barrister; 25 lawyers were called to this rank.

In the eighteenth century the demand for lawyers' skilled services increased; the bar became much more professional; yet in many colonies the bar was extremely small.

In England there were distinctions between different grades and types of lawyer: between attorneys, counselors, barristers and sergeants. The idea did not catch on in the United States. A few colonies had recognized a graded bar. By the early nineteenth century, the bar was an undifferentiated mass. There were rich and poor lawyers, high ones and low; but all were members of one vast sprawling profession. The few primitive bar clubs, associations did nothing to provide real self-control. Nobody controlled it at the top, or from within. The lawyers themselves had a great deal of power over admission to the bar. But then courts took over; they prescribed qualifications and handled applications.

How did a young man get himself recognized as an actual lawyer? In Massachusetts each county court admitted its own attorneys. A lawyer admitted to any local court was a fully licensed member of the state bar and could practice before any court.

A few states were strict. In New Hampshire between 1805 and 1833 the federal county bars required five years of preparation for admission to the lower courts. Three years was the term for college graduates. Two years further practice was required for the admission to the superior court. In 1800 fourteen out of the nineteen states prescribed a definite period of preparation for the bar. In 1840 only eleven out of thirty jurisdictions did so. In 1840s a few states eliminated all requirements for the admission to the bar, except good moral character.

Women and blacks were truly outsiders. No woman practiced law before the 1870s. At the turn of the century about fifty women practiced in Massachusetts.

The transformation of the American economy after the Civil War profoundly affected the demand for the lawyers. The growth of law firms was one of the most striking developments of the late nineteen century. Firms of more than three partners were rare before the Civil War.

For many lawyers politics became on the biggest businesses. For them county, state, territorial and federal jobs were sources of income and, in addition, advertisements for themselves. Politics, law-making and law administration were as much a part of the practice as collection work and lawsuits over land. Many presidents after 1850 were lawyers. Two-thirds of the senators were also lawyers.

ANSWER THE FOLLOWING QUESTIONS:

1. What was the attitude to lawyers in the early colonial years? Why?

2. When did lawyers overcome public hostility?

3. What was the bar in the United States in the eighteenth century like? Compare it with the English bar.

4. How did a young man get himself recognized as an actual lawyer?

5. How often did women and blacks become lawyers?

6. Why did lawyers often become politicians after the Civil Law?

Task 7. Find in the text above the English equivalents for the following words and expressions:

юридические фирмы юрисдикция, судебный округ законотворчество заниматься юридической практикой коллегия адвокатов суды низшей инстанции

вышестоящий суд поверенный, юрист, прокурор советник адвокат высшей категории тяжба, судебный процесс

Task 8. Fill in the gaps with the appropriate words from the box:

Law firms counselors practiced law admitted to any local court

sergeants superior court admission to the bar litigation

(1) In 1840s a few states eliminated all requirements for the ____________, except good moral character.

(2) The growth of _______________ was one of the most striking developments of the late nineteen century.

(3) In England there were distinctions between different grades and types of lawyer: between attorneys, __________, barristers and _____________.

(4) Courts were in session; merchants were involved in ____________.

(5) A lawyer ______________ was a fully licensed member of the state bar and could practice before any court.

(6) Two years further practice was required for the admission to the _________.

(7) No woman ______________ before the 1870s.

Task 9. Complete the following table:

Crime	Criminal	Criminal Act
	bootlegger
		to kidnap
tax evasion
		to violate
	fraudster
smuggling
assault

Task 10. Study the text below, making sure you fully comprehend it. Where appropriate, consult English-Russian dictionaries and/or other references & source books on law.

THE DEATH PENALTY

Nothing the Supreme Court did was more dramatic than its actions with regard to capital punishment. In the early twentieth century, the rate of executions had gone into a long and fairly sharp decline. Then the numbers rose again, until, in 1935, there were 199 executions. Afterward, executions began to drop off again. Nine states abolished the death penalty between 1907 and 1917 (although seven of these had second thoughts and brought it back). Civil liberties organizations worked and argued and lobbied to get rid of capital punishment. They also took their fight to the courts. Then, in 1972, in Furman v. Georgia, the Supreme Court decided that the death penalty, in every version, in every state, was unconstitutional — was, in fact, cruel and unusual punishment forbidden by the Eighth Amendment. Every statute on the subject was wiped off the books. The life of every man and woman on death row was spared.

Furman lasted exactly four years. It was, to begin with, a highly fractured opinion. Four of the nine Justices were in dissent; and each of the five in the so-called majority wrote his own opinion. Some Justices thought the death penalty was unconstitutional. Any form of capital punishment. But they were a minority. Others, who joined them, did not condemn the death penalty absolutely — only the death penalty as it then existed. Most of the states began to comb the text of the Furman opinions for clues, looking for the ways to salvage the death penalty. They passed new statutes, hoping for better luck. The Supreme Court had said the death penalty was just too random, too arbitrary. Very well, thought North Carolina; we will take away the guesswork and the randomness: all first-degree murderers, and aggravated rapists, will get the death penalty. Other states took a different tack: they set up a two-stage process. The first stage would be the «guilt» stage. Once is defendant guilty, a second «trial» occurs — the trial of life or death. To impose the death penalty, the jury (or, in some cases, the judge) would have to find one or more aggravating circumstances. Both type of statute came before the Supreme Court. The Court in 1876 struck down the North Carolina type of statute. But it approved of the other type, which was the Georgia version. The death penalty was in business again.

At the end of the century, the situation remained quite complex. About a dozen states had no death penalty at all. The rest of them did: but in some, it was rarely or never used. New Jersey, for example, had not executed anybody since the death penalty was reinstated in 1976. Most executions were in the South, in Florida, in Virginia. Texas was in a class by itself. It alone accounted for about a third of the executions in the country.

In most states, the death penalty was not only rare, it was painfully slow. In the late twentieth century, speedy execution had become completely impossible. There were too many procedures, appeals, hearings, and writs, federal and state. Men grew on death row. Ten years was no time at all for the condemned. Some convicts were put to death only after fifteen or even twenty years of waiting, and after a long and torturous procedural path.

At the very end of the century people began to ask themselves: how many innocent men have actually gone to their death? The governor of Illinois called for a moratorium. So did the American Bar Association. But the machinery of death, slow and creaky it was, ground on.

ANSWER THE FOLLOWING QUESTIONS:

1. Why did the rate of executions go into a long and fairly sharp decline in the early twentieth century?

2. When did nine states abolish the death penalty? Why did seven states bring it back?

3. What does a two-stage process mean?

4. Where do most executions take place? Why?

Task 11. Fill in the gaps with the appropriate words from the box.

capital punishment innocent put to death executions

convicts aggravating circumstances defendant first-degree murderers

(1) All ___________, and aggravated rapists, got the death penalty in North Carolina.

(2) Once is _________ guilty, a second «trial» occurs — the trial of life or death.

(3) Some __________ were ___________ only after fifteen or even twenty years of waiting, and after a long and torturous procedural path.

(4) Nothing the Supreme Court did was more dramatic than its actions with regard to _____________.

(5) People began to ask themselves: how many _________ men have actually gone to their death?

(6) Texas alone accounted for about a third of the _________ in the country.

(7) To impose the death penalty, the jury (or, in some cases, the judge) would have to find one or more ___________.

Task 12. Find in the text the words that mean the following:

• the punishment of being executed for a crime

• a group of prison cells for criminals condemned to death

• not guilty of wrongdoing

• a person who has been found guilty of a crime or crimes in a lawcourt and is in prison

• to end the existence of a law, a practice, an institution

• the killing of somebody as a legal punishment

• a group of people in a lawcourt who have been chosen to listen to the facts in a case and to decide whether the accused person is guilty or not guilty

• a formal examination of evidence in a lawcourt, by a judge and often a jury, to decide if smb accused of a crime is guilty or not

Unit 2. HISTORY OF ISLAMIC LAW

Task 1. (a) Study the text below, making sure you fully comprehend it. Where appropriate, consult English-Russian dictionaries and/or other references & source books on law.

HISTORY OF ISLAMIC LAW QUR'ANIC LEGISLATION

«Obey God and His Prophet». In this Qur'anic command lies the establishment of a novel political authority possessing legislative power. The year 622 saw the establishment of the Muslim community in Medina. The Arab tribes accepted Muhammad as the Prophet or spokesman of the God, and regarded themselves and his Meccan followers as constituting a group of a new kind wherein the bond of a common religious faith transcended tribal ties. While Muhammad's position gradually developed into one of political and legal sovereignty, the will of God transmitted to the community by him in the Qur'anic revelations came to supersede tribal custom in various respects.

Most of the basic notions underlying civilized society find such a mode of expression in the Qur'an. Compassion for the weaker members of society, fairness and good faith in commercial dealings, incorruptibility in the administration of justice are all enjoined as desirable norms of behaviour without being translated into any legal structure of rights and duties. The same applies to many precepts which are more particular, and more peculiarly Islamic, in their terms. Drinking of wine and usury are both simply declared to be forbidden. But no indication of the legal incidents of the practices is contained in the Qur'an. In fact wine-drinking later became a criminal offence punishable by flogging while usury was a purely civil matter, the transaction being a type of invalid or unenforceable contract. This clearly demonstrates the distinct attitudes of the religious prophet and the political legislator. The primary purpose of the Qur'an is to regulate not the relationship of man with his fellows but his relationship with his Creator.

The vast majority of the Qur'an verses are concerned with the religious duties and ritual practices of prayer, fasting. Approximately eighty verses deal with legal topics in the strict sense of the term. They cover a great variety of subjects, ranging from women's dress to the division of the spoils of war, and from the prohibition of the flesh of swine to the penalty of flogging for fornication.

There is much information about the position of women, married women in particular. Rules on marriage and divorce are numerous and varied, and, with their general objective of the improvement of the woman's status, represent some of the most radical reforms of the Arabian customary law effected in the Qur'an. As regards marriage the Qur'an commands that the wife alone shall receive the dower payable by her husband. The effect of this simple Qur'anic rule is to transfer the wife from the position of a sale-object to that a contracting party who, in return for her granting the right of sexual union with herself, is entitled to receive the due consideration of the dower. She is now endowed with a legal competence she did not possess before.

There are many regulations concerning inheritance. The first Qur'anic reference to this subject is a typically ethical injunction which urges a person who is on the point of death to bequeath equitably to his parents and kindred. This provision qualifies the system of exclusive inheritance by the male agnate relatives and recognizes the capacity of women relatives to succeed. Following the death of many Muslims in the battles fought against the unbelievers, a series of Qur'anic revelations allotted specific fractions of the deceased's estate to individual relatives. Of the nine relatives so entitled six are women — the wife, the mother, the daughter, the germane, consanguine and uterine sisters — and the remaining three are male relatives who would either never have inherited at all under the old system (the husband and the uterine brother) or would have been excluded by a nearer agnate (the father, who would not have inherited in competition with a son of the deceased).

The principle that God was the only lawgiver and that is command was to have supreme control over all aspects of life was clearly established. But that command was not expressed in the form complete charter for the Muslim community. Later events were to show that the Qur'anic precepts form little more than the preamble to an Islamic code of behaviour.

(b) Fill in the gaps with the appropriate words from the box:

capacity of women relatives to succeed to bequeath equitably a criminal offence punishable by flogging dower payable by her husband

incorruptibility in the administration of justice usury lawgiver the germane

(1) As regards marriage the Qur'an commands that the wife alone shall receive the _____________.

(2) The principle that God was the only ____________ and that is command was to have supreme control over all aspects of life was clearly established.

(3) Drinking of wine and ___________ are both simply declared to be forbidden.

(4) Fairness and good faith in commercial dealings, ______________ are all enjoined as desirable norms of behaviour without being translated into any legal structure of rights and duties.

(5) Wine-drinking later became _____________.

(6) This provision qualifies the system of exclusive inheritance by the male agnate relatives and recognizes the _____________.

(7) The first Qur'anic reference to this subject is a typically ethical injunction which urges a person who is on the point of death _____________ to his parents and kindred.

(8) Of the nine relatives so entitled six are women — the wife, the mother, the daughter, ___________, consanguine and uterine sisters

(c) Find in the text the words that mean the following:

• the practice of lending money at excessively high rates of interest

• a punishment for breaking a law, rule or contract

• a person who decides the laws of a country or society

• a person who has died, especially recently

• to gain the right to a title, property, etc when somebody dies

• to arrange, by making a will, to give property, money, etc to somebody when one dies

• to order somebody not to do something

(d) ANSWER THE FOLLOWING QUESTIONS:

1. What basic notions underlying civilized society can we find in the Qur'an?

2. What do you know about the position of women in the Qur'an?

3. What regulations concerning inheritance are contained in the Qur'an?

Task 2. Study the text below, making sure you fully comprehend it. Where appropriate, consult English-Russian dictionaries and/or other references & source books on law.

LEGAL PRACTICE IN THE FIRST CENTURY OF ISLAM

The period up to the year A.D. 750 witnessed the transformation of Islam from a small religious community in Arabia to a vast military empire.

As long as Muhammad was alive he was naturally regarded as the ideal person to settle disputes. Later generations ascribed to Muhammad a great corpus of legal decisions. For some thirty years after the death of Muhammad in 632 Medina remained the focal point of Muslim activity. Here the vital issue was that of succession to the political authority of Muhammad. At first it was natural that the influence of those most closely associated with him should prevail, and the office of Caliph — «successor» to the Prophet — was held in succession by four of Muhammad's most intimate companions: Abu-Bakr, Umar, Uthman and Ali.

Upon the Caliphs and their advisers fell the duty of further implementing the Qur'anic provisions in the same spirit as their former leader.

Naturally enough the Caliphs alone had the power of positive legislation.

In 661 A.D. the Umayyad dynasty was founded. From their seat of government at Damascus the Empire builders wielded their political power in the name of Islam; but while the Medinan Caliphs had been the servants of the religion the Umayyads were its masters.

The basic policy of the Umayyads was the preservation of the existing administrative structure in the provinces. Umayyad practice absorbed many concepts and institutions of foreign origin. The legal status of non-Muslim subjects in Islam was modeled on the position of the non-citizen groups in the Eastern Roman Empire. The Jewish and Christian communities paid a poll tax in return for the guarantee of protection and the preservation of their rights under their own personal law administered by their rabbinical and ecclesiastical tribunals.

Among the army of officials created by the Umayyad administration was the qadi, a judge of a special kind. Like all other officials he was the delegate of the local governor and had the particular task of settling disputes. In the early days we find the chief police and the Master of the Treasury acting as judges. Not until towards the end of the Umayyad period, it would appear, were judges exclusively concerned with judicial business. By the end of the Umayyad period the judges had advanced far from their original position as official arbitrators. They had become an integral and important part of administrative machine, no longer controlled, by themselves controlling, the customary law and by their decisions adapting it to meet the changing circumstances of society.

Under the Umayyads the basic material of the local customary law had been modified by the elaboration of the Qur'anic rules, overlaid by a corpus of administrative regulations and infiltrated by elements of foreign legal systems.

(a) ANSWER THE FOLLOWING QUESTIONS:

1. What was the basic policy of the Umayyads like?

2. What were the duties of the judges?

(b) Match the following English expressions with their Russian equivalents. Make sentences of your own using the word combinations in the table.

customary law a poll tax false accusation uterine brothers residue a share a deceased Treasury

ложное обвинение братья по материнской линии подушный налог казначейство наследство, очищенное от долгов и завещательных отказов доля, акция скончавшийся обычное право

Task 3. Study the text below, making sure you fully comprehend it. Where appropriate, consult English-Russian dictionaries and/or other references & source books on law.

LEGAL PRACTICE IN MEDIEVAL ISLAM

The organization of the Islamic state under the Umayyads was not based upon any firm separation of the executive and judicial functions. Settlement of disputes of a private nature was a specific duty delegated to a judge. The judges came to have a general judicial competence, and by the end of the Umayyad period they had become the central organ for the administration of law.

With the accession to power of the Abbasid dynasty and its declared policy of implementing the system of religious law currently being worked out by the scholar-jurists, the status of the judiciary was greatly enhanced. Henceforth the judges became inseparably linked with Shari'a law which it was their bounden duty to apply. Organized as a profession under the authority of a chief judge, they were no longer the spokesmen of a law which represented the command of the district governor but now owed allegiance exclusively to God's law. But the Shari'a courts never attained that position of supreme judicial authority independent of political control. Although judges may have been appointed by the chief judge, the judiciary held office only during the pleasure of the political authority, as indeed did the chief justice himself, and their character of political subordinates was responsible for a serious limitation on their powers of jurisdiction which existed from the outset.

The factor which seriously impaired the efficiency of the Shari'a courts was the system of procedure and evidence by which they were bound. On the basis of the initial presumption attached by the law to the facts (e.g. the presumption of innocence in a criminal case or the presumption of freedom from debt in a civil suit) the parties of litigation were allotted to the roles of plaintiff and defendant respectively, the former being the party whose assertion ran counter to this presumption, the latter the party whose assertion was supported by it. Upon the plaintiff fell the burden of proof, and this burden could shift many times in the course of the same suit. Whether on an intermediate or the ultimate issue the burden of proof was always the same; the plaintiff had to produce two male adult Muslims to testify orally to their direct knowledge of the truth of his claim. Written evidence was not acceptable and any form of circumstantial evidence was totally inadmissible. Some limited exceptions were recognized — in certain cases one witness might be sufficient if the plaintiff also took an oath confirming his claim and the testimony of women might be acceptable (though two women were usually required to take the place of one man) — but in all cases the witness had to possess the highest quality of moral and religious probity. Where the plaintiff failed to discharge this rigid burden of proof, the defendant was offered the oath of denial. Properly sworn on the Qur'an such an oath secured judgment in his favour; if he failed to take it, judgment would be given for the plaintiff provided, in some circumstances, he himself took an oath. The rigidly formalistic and mechanical nature of Shari'a procedure left little or no scope for the exercise of any discretion by the judge in controlling proceedings before him.

Criminal law was the obvious sphere where political interests could not tolerate the cumbersome nature of Shari'a procedure. Jurisdiction here mainly belonged to the police, the delegate who exercised it being alternatively called the official in charge of crimes. These courts considered circumstantial evidence, heard the testimony of witnesses of dubious character, put them on oath and cross-examined them; they imprisoned suspects, convicted them on the basis of known character and previous offences, might make the accused swear the oath by a local saint instead of on the Qur'an, and in general could take such measures to discover guilt, including the extortion of confessions, as they saw fit.

Enough has now been said to indicate that Shari'a law, however strong its religious force as providing an ideal and comprehensive code of conduct for the individual, can form only a part of the Islamic legal system. Islamic legal practice was based on a dual system of courts. Islamic government has never meant, in theory or in practice, the exclusive jurisdiction of Shari'a tribunals.

(a) ANSWER THE FOLLOWING QUESTIONS:

1. What was the system of procedure in the Shari'a courts like?

2. What was the system of procedure in the police courts like?

(b) Explain the meaning of the following words and expressions:

• official in charge of crimes

• circumstantial evidence

• the oath of denial

• burden of proof

• written evidence

• supreme judicial authority

• judiciary

• spokesmen of a law

• judicial competence

Task 4. Study the text below, making sure you fully comprehend it. Where appropriate, consult English-Russian dictionaries and/or other references & source books on law.

CONTEMPORARY ISLAM. 20-th century tendencies in islamic states

Western law was directly adopted in the field of crime and civil transactions generally, while traditional Shari'a doctrine continued to govern the sphere of personal status. Recent trends, however, have tended to break down this firm division. In the civil law a growing emphasis has been placed on religious principles. A merger of foreign and Islamic elements is the outstanding feature of the Iraqi Civil Code promulgated in 1953. Family law, on its side, has been increasingly permeated with Western standards and values, and its here that the juristic basis of the law, viewed as a whole, appears most complex.

Economic grounds alone were thus held to justify the total abolition of family settlements under the traditional waaf system (a settlement of property under which ownership of the property is «immobilized» and the usufruct thereof is devoted to a purpose which is deemed charitable by the law) in Syria in 1949 and in Egypt three years later, while social necessity has been the declared basis of certain recent reforms in that traditional most invulnerable sphere of Shari'a — the law of succession. In 1945 a judicial circular in Sudan allowed bequests to be male, within the established limit of one-third of the net estate, in favour of legal heirs, and expressly stated the reason for this reform to be the need felt by testators to make additional provision for the less fortunate of these heirs.

An even more radical departure from the traditional law of succession is contained in the Tunisian law of 1959 which provides that any lineal descendant of the deceased, male or female, excludes the deceased's collateral relatives from intestate succession; for under the agnatic system of traditional law the brothers of the deceased, in the absence of any surviving male ascendant or descendant, are the primary residuary heirs. It is obviously the concept of the family, as consisting of the husband, wife, and their issue, which inspired the Tunisian reform.

The second feature of modern Islamic law which is relevant to the question of potential future development is the fact that many of the substantive reforms must appear, on a long-term view, as temporary expedients and piecemeal accommodations. But certain provisions, such as the partial restrictions placed upon polygamy and repudiation, point inevitably towards the direction which future progress must follow and can represent only the intermediate stage in the advancement of a society along this road.

In other cases reforms, far-reaching in themselves, disclose a root problem which has still to be solved. The restriction of polygamy and repudiation is obviously aimed at the ultimate goal of equality between the sexes.

Though radical might the break with past tradition be, it is nevertheless a break with a particular construction of the religious law and not with its essence. This, at any rate, would seem to be the only realistic basis for future development and the only alternative to a complete abandonment of the notion of a law based on religion. Law, to be a living force, must reflect the soul of a society; and the soul of present Muslim society is reflected neither in any form of outright secularism nor in the doctrine of the medieval text books.

ANSWER THE FOLLOWING QUESTIONS:

1. What is the first feature of modern Islamic law?

2. What is the second feature of modern Islamic law?

Task 5. Translate from Russian into English:

1. В шариатских судах истец должен был предоставить двух взрослых мужчин-мусульман, чтобы они подтвердили справедливость его требований.

2. Письменные показания в этих судах не принимались.

3. Суды шариата никогда не достигали позиции органа высшей судебной власти.

4. Иудейские и христианские общины платили подушный налог в обмен на защиту властей.

5. В Коране содержится много положений, касающихся порядка наследования.

6. Коран запрещает ростовщичество.

7. Коран содержит много правил о разводе и браке.

T ask 6. Trace the development of the following laws and institutions in Islamic countries during the centuries? You can rely on all the four texts:

• Inheritance Law

• Family Law

• Judgment system

• Rules of Succession