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					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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posted:9/5/2012
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