Law, Justice, and Society: A Sociolegal Introduction Chapter 13 Comparative Law: Law in Other Cultures Comparative Law Importance of Comparative Law Knowledge of legal systems other than our own Provides us with a new understanding – an appreciation of our own system – better equip us to identify its strengths and weaknesses Comparative Law Law in Preliterate Bands and Tribes Band = small groups of hunters and gatherers Tribe = larger groups who augment hunting and gathering with agriculture Comparative Law Law in Preliterate Bands and Tribes (cont.) What is crime? – a violation of a criminal statute – must be written – can preliterate people commit crimes? Homicide and theft Comparative Law Law in Preliterate Bands and Tribes (cont.) No formal agents of social control Exposure to informal pressures to conformity Inuits and self-redress – ultimate result of most extreme form of self- redress? – song duel Comparative Law Law in Preliterate Bands and Tribes (cont.) Group response to offender – ostracism and banishment Tribal social control: – Hurons and fines paid by the clan – witchcraft and treason were crimes against society; punishable by death Comparative Law Law in the Modern World: Four Traditions Common law Civil law Islamic law Socialist law Comparative Law Law in the Modern World: Four Traditions Source: Adapted from percentages provided by Reichel (2005). Comparative Law Common Law Originated in England—Norman conquest 1066 Means of unifying England, increasing royal power at the expense of feudal lords Fashioned from local customs Judge-made law Spread throughout world via colonization and war Comparative Law Common Law (cont.) Unwritten Respects precedent Adversarial Uses grand and petit juries Uses judicial review Comparative Law Civil Law Ancient Rome and nineteenth-century France and Germany Twelve Tables in 450 BCE Code of Justinian 533 AD Napoleonic Code 1804 AD Typically developed after a major social upheaval as a result of distrust of previous status quo Comparative Law Civil Law (cont.) French civil law – emphasizes communitarian values, rather than individualistic – crime control system, as opposed to due process (American) Written – codes create the civil law rather than revealing already existent laws – laws replace, rather than supplement, previous law Comparative Law Civil Law (cont.) Precedent is not officially recognized – not binding and considered a tool of last resort Inquisitorial rather than adversarial – truth-seeking investigation and interviews – lead by judge; all parties (including accused) expected to cooperate – strong presumption of guilt if case goes to trial – presumption of innocence necessary in common law because investigation is not as thorough Comparative Law Civil Law (cont.) – common law civil rights viewed as unnecessary – right to remain silent is a formality with little force Traditionally made little use of juries – only used for very serious crimes – consists of 3 judges and 9 laypersons – jurors can question all other parties Comparative Law Civil Law (cont.) – penalty phase takes place soon after conviction phase Judicial review is used sparingly – reflection of democracy – appeals can take place; however, authoritative but not binding – can rule on points of law and fact – Conseil Constitutionnel in France Comparative Law Civil Law (cont.) Types of crime – crimes – delicts – contraventions No bail Comparative Law Socialist Law Originated in 1917 with the Russian Revolution and USSR Based on codified Marxist/Leninist ideology It is the only system of law considering itself to be a temporary anachronism devoted to its own demise Emphasizes communal values over individual rights; low tolerance crime control Comparative Law Socialist Law (cont.) Chinese socialist law – socialist law combined with aspects of Confucius – Ch'ing Code of 1646 Written and precedent is not recognized – Principle of analogy Inquisitorial and adversarial – mostly inquisitorial – emphasis on confessions, such that evidence is never presented to defendants prior to trial – can defend themselves in court, hire lawyer or advocate Comparative Law Socialist Law (cont.) – Advocates see that procedural law is observed and lenient sentences received Quasi-jury system – collegial bench; 1-3 professional judges and 2-4 lay people’s assessors – no right to remain silent – defendant can argue with other actors – very punitive Comparative Law China initiated new jury system in 2005, seen as step forward by civil rights activists – Differs from the traditional American concept of a jury trial, however (jurors serve for 5-year terms) Comparative Law Socialist Law (cont.) Death sentence – immediate – delayed Judicial review is severely limited Supreme People’s court – answerable to Standing Committee of Chinese Communist Party – advisory opinions – does not hear cases from lower courts Comparative Law Socialist Law (cont.) Higher People’s Court – analogous to American state supreme court Intermediate People’s Court – prefecture level – original jurisdiction Basic People’s Court – American district (felony) court Appeals from both prosecutor and defendant Comparative Law Islamic Law Written – Qur’anic precepts, interpretations, and commentary – Constitution – Shari’a = path to follow. Consists of Qur’an, commentary, and case laws Saudi Arabia Comparative Law Islamic Law (cont.) 4 distinctions – based on direct revelation from God – attempts to regulate behavior and thought processes – does not require uniformity of law – taxonomy of crime and punishment Comparative Law Islamic Law (cont.) Hybrid inquisitorial/adversarial Precedent is absent No use of juries (use of “qadi” or judge) Comparative Law Islamic Law (cont.) Crime and punishment – Hadd – Quesas – Ta’azir Those crimes with punishments delineated by Qur’an are more serious than other crimes Higher standards of evidence for Hadd crimes Comparative Law Islamic Law (cont.) Court – no representation – oath swearing Judicial review is limited to certain cases – appeals only apply to sentences imposed by lower courts – Musta'galah (ordinary courts) or Kubra (high courts Comparative Law The Rule of Law Recognition that there are fundamental principles and values stressing human dignity and value These values and principles are articulated and formalized in writing and contained in revered documents Substantive laws and administrative procedures are implemented to hold the state and its agents to those values and principles Comparative Law The Rule of Law (cont.) France Saudi Arabia China Comparative Law Convergence of Systems As world becomes more complex and interdependent, cultures will converge This results in systems of law coming into contact and becoming more similar This is resulting in recognition of the rule of law and individual rights Examples: – International Court of Justice (World Court) – European Court of Human Rights Comparative Law Convergence of Systems (cont.) Does this apply to socialist and Islamic systems?
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