CL4 English Language
and Culture for Business
                Module III B2
   Comparative Judicial Cultures

            ...
A Comparative Approach to
      Understanding Law
Why is a comparative approach useful?

   to offer other models of law, ...
The Sources of Law and the
          Comparative Approach
    Law is created in tradition – it is a social accord
    The ...
Legal Sources
  Why is Law created?
  How is Law created?

Law is created in society to establish, obviate and
enforce con...
The Rule of Law
Aristotle: “The Rule of Law is better than the rule of any
            individual”

                 Law s...
The Creation of Law
Law may be created by perpetuated social behaviour
and enforced according to custom

i.e. Reciprocity,...
Law and Legitimacy
Rules of social conduct require social legitimacy

Legitmacy takes many forms:
                     rec...
The Social Origins of Law


                   SOCIETY
                                           Conscious
 Conflicts
   ...
Codification of Law
The Constitution of the Roman Republic Mos Maiorum was a
body of customs perpetuated oraly in the Foru...
Canon Law and Scripture
Collection of texts (Canons) left by the Apostles after
the Council of Jerusalem (50 AD) including...
Motivating Forces in Western Legal
                 Tradition




533 – 554 Justinian re-conquered the Ostragoth and
Vanda...
Law vs. Right
  Analysis of codified law became the principal subject of
  medieval universities – Bologna formed in 1088 ...
Modern European Civil Codes
Napoleon’s conquest of Europe established this tradition in
modern terms – The Napoleonic Code...
The Modern Italian Legal System
Problem – how to create law for a fragmented group of
independent regions

The Napoleonic ...
Roman Law, Ecclesiastical Law,
          Common Law
Today: Romano-Germanic countries base the
application of justice on th...
The Law and State Formation
Today’s legal and legislative systems have been
formed over time

Western Europe: Application ...
The Law and State Formation
What is a state?
How have they been formed?

States are formed by when the social accord is le...
The Law and State Formation
States are, and create, instruments designed to guarantee
  consenus

Authority           Obli...
The Formation of British Law
     1066 = disaggregate Saxon territorial tribes +
  Danelaw

1066 -1215 = Norman/Angevin ru...
The Formation of British Law
Royal Courts: developed in early XII century

Exchequer = revision of accounts (from demesne ...
The Formation of British Law
The basic tenets of the Bill of Rights 1689 are:
Englishmen, as embodied by Parliament, posse...
The Formation of British Law
Certain acts of James II were specifically named and declared
  illegal on this basis. He bel...
The Formation of British Law
British law focuses on procedure

Common Law (hundreds courts, JPs and law of the land
  thro...
Equity
Equity maxims:

“He who comes to Equity must come with
  clean hands”

 the claimant must be beyond reproach



“De...
The Formation of British Law
Equity and Common Law balance the King’s justice – by the
  end of the XVIII century – equity...
The Formation of British Law
The Judicature Acts 1873-1875
       In terms of procedure, it had become possible and
      ...
Open and Closed Systems of Law
Romano-Germanic tradition is a “closed system” =
each type of problem, at least in theory, ...
The Rule of Precedent
Since medieval times legal arguments in important cases were
   recorded and subsequently used by ju...
The Hierarchy of Precedents
European Court of Justice
                                          House of Lords
Art. 177, T...
Principles Identifying Binding
                  Precedent
Higher court decisions are binding on lower courts.
           ...
Judgment
Judgments contain:

A statement of the material facts of the case
(questions of fact)

A statement of the legal i...
Law Reporting
The system of law reporting in Britain is fundamental to
    the documentation of legal precedent.

Law repo...
Cases Referred to by the Courts
Judges use specific terms to refer to case judgments, often
  indicating the effect of tho...
Cases Referred to by the Courts
Affirmed – higher court confirms decision of a lower
  court in a case

Applied – court co...
Islamic Legal Tradition
Founding document – the
revelations of the prophet
Mohammed (Mecca 570 – 632 AD)
 written by him i...
Islamic Legal Tradition
Successors to the first 4 Caliphs split into two groups:

supporters of Ali (shi’at ‘Ali) – Caliph...
Islamic Legal Tradition
The belief in unity inclusive of differences in legal opinion and
  the importance of both the Qur...
Islamic Legal Tradition
The Shari’a: the nature of human authority.

In the mid-8° century – questions arose around the na...
Islamic Legal Tradition
Basic principles = The Pillars of Islam

The Mu’tazilis: The Qur’an is not only a text, but also a...
Islamic Legal Tradition
Abbasids (mid-eighth century): the centralised, bureaucratic
  state necessitated agreement on way...
Shari’a Law
Shafi’i: Ordinary Muslims must defer judgement to people
  learned in religion to use their reason to explain ...
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Comparative Legal Culture

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B2 slides on comp. jud. culture. NOTE: the part on Islamic law is incomplete. Please feel free to suggest further points/development.

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Comparative Legal Culture

  1. 1. CL4 English Language and Culture for Business Module III B2 Comparative Judicial Cultures Dr. Peter Cullen www.cl4englishlistening.wordpress.com
  2. 2. A Comparative Approach to Understanding Law Why is a comparative approach useful? to offer other models of law, challenging our own to understand the structural contexts in which our and other societies function it is in our nature and tradition to investigate each others’ legal traditions Canon vs Common Law Roman vs Germanic Law A comparative approach allows better understanding of differences between LAW and RIGHT – fundamental to national unification
  3. 3. The Sources of Law and the Comparative Approach Law is created in tradition – it is a social accord The structures applied to express this accord generate differences in law from one society to another. The needs Law must meet are different from society to society The languages used to express these needs are contextually defined A comparative approach must consider the sources that create law.
  4. 4. Legal Sources Why is Law created? How is Law created? Law is created in society to establish, obviate and enforce conditions and limits on human behaviour, sanctioning violence and coercion to maintain social respect for the law. Law IS a social accord. The Rule of Law
  5. 5. The Rule of Law Aristotle: “The Rule of Law is better than the rule of any individual” Law should be universal BUT People don’t need to understand the rule in order to follow it Rules are not necessarily designed by Plato (left) and Aristotle (right) conscious intelligence debate the nature of reason (Raffaello)
  6. 6. The Creation of Law Law may be created by perpetuated social behaviour and enforced according to custom i.e. Reciprocity, vendetta, feud = oral tradition The top of the stele of Hammurabi’s Law may be created through Code applied reason – necessitating its (Babylon 1792 BC) dissemination in public knowledge i.e. Constitutions, modern law = written tradition
  7. 7. Law and Legitimacy Rules of social conduct require social legitimacy Legitmacy takes many forms: reciprocity accord divine legitimacy constitutional legitimacy Law based on reciprocity is flexible and changes as social needs change Constitutional Law replaces the need Moses with the 10 for divine legitimacy Commandments
  8. 8. The Social Origins of Law SOCIETY Conscious Conflicts desires STATE enforces makes Common Legislation Law LAW Public Private
  9. 9. Codification of Law The Constitution of the Roman Republic Mos Maiorum was a body of customs perpetuated oraly in the Forum Complex political structures require a universal understanding of their legitimacy. Empire – extension of political control beyond cultural boundaries – consolidation of power Writing gives a permanent or semi-permanent quality to Law – it reinforces memory and proof. Justinian I collected and standardised centuries of Roman Law in the Corpus juris civilis. Justinian I – Codified Civil Law in the Western Roman Empire 529-534 AD
  10. 10. Canon Law and Scripture Collection of texts (Canons) left by the Apostles after the Council of Jerusalem (50 AD) including: Acts of the Apostles which separated Christians (gentiles) from Jewish Law (on circumcision and food) and organised: Office and duties of bishops The qualifications and conduct of the Clergy The religious life of Christians External administration (excomunication, synods, relations with pagans and Jews) The Sacraments Gospels – recount the lives of the Apostles 367-419: Synod of Hippo, Councils of Carthage – creating the works included in the New Testament. St. Augustine presided over the later councils and considered the Canon closed
  11. 11. Motivating Forces in Western Legal Tradition 533 – 554 Justinian re-conquered the Ostragoth and Vandal Kingdoms
  12. 12. Law vs. Right Analysis of codified law became the principal subject of medieval universities – Bologna formed in 1088 around a group of masters in grammar, rhetoric and logic began teaching points of the Corpus juris civilis 10° - 18° centuries – codified law is legitimated by divine right of kings = bureaucratic centralisation of princely power English Civil war contrasts this. Thomas Hobbes (1588-1679) Leviathan, De Cive, law is rational. Social contract – legitimating factor in the English Civil War John Locke (1632-1704) – Two Treatises on Government, government must have the consent of the governed
  13. 13. Modern European Civil Codes Napoleon’s conquest of Europe established this tradition in modern terms – The Napoleonic Code (March 21° 1804 The Code is based on French Revolution principles and aimed at rationalising old aristocratic law = pan-regional application Applies the Declaration of the Rights of Man (1789) to subjects but did not apply to the Emperor Napoleon’s Empire: France in dark blue (self-crowned Dec. 2 1804) and sattelite states in light blue
  14. 14. The Modern Italian Legal System Problem – how to create law for a fragmented group of independent regions The Napoleonic Civil Code offered a tradition and formula for super-regional administration – allowing for the unifying presence of a king (house of Savoy) The 1948 Constitution draws on Civil Code tradition. Therefore – it creates rules through legislation that judges must apply But It also reflected Christian ideals (DCs) and Communist Socialist ideals (PCI) and contains a Bill of Rights – based on natural law
  15. 15. Roman Law, Ecclesiastical Law, Common Law Today: Romano-Germanic countries base the application of justice on the disposition of existing law. Question: the formalisation of tradition. Western Europe and North American legal and legislative systems are based on Roman, Ecclesiastical, and Common law systems. These systems represent traditions in themselves. Roman law and Ecclesiastical Law share a tradition British Common Law diverges from that tradition
  16. 16. The Law and State Formation Today’s legal and legislative systems have been formed over time Western Europe: Application of the Civil Code (adaptation of Roman and Ecclesiastical legal tradition) Britain, English speaking British Colonies, USA – Common law tradition based on historical compromises between ruler and subjects, since 1215 also affecting legislation as well as justice.
  17. 17. The Law and State Formation What is a state? How have they been formed? States are formed by when the social accord is legitimately applied in a territory or region and is recognised by other combinations of social accord/territory How to legitimate the application of the social accord? force of arms – armies, garrisons, fortresses = high competition (war, civil war) force of custom – traditional affinities – low competition force of law – communications-based appeal to internal and external consensus requiring demonstrable experience = moderate or possible competition
  18. 18. The Law and State Formation States are, and create, instruments designed to guarantee consenus Authority Obligation Legitimacy How do these systems Oligarchy create consensus? Monarchy Parliament Republicanism Traditional authority Dictatorship Legal authority Communisim Charismatic authority
  19. 19. The Formation of British Law 1066 = disaggregate Saxon territorial tribes + Danelaw 1066 -1215 = Norman/Angevin rulers at war – interested in ensuring tax authority – Domesday book (10,000 Normans governing 3,000,000 Britons 1166 Henry II uses royal writ to reign in control of his Barons – writs are royal orders to come to a decision or pass the case to the Royal Courts 1179 Magna Assisa – instead of trial by ordeal (duel) the defendant and plaintiff could plea before judge and jury 1215 – Magna Carta = Barons impose council on King John I This is intermittently applied in the following 400 years, but becomes popular concept under the Stuarts
  20. 20. The Formation of British Law Royal Courts: developed in early XII century Exchequer = revision of accounts (from demesne to debt) Court of Common Pleas = 1178 – 1215 at Westminster, high caseload producing more Royal justice Court of King’s Bench = decided on cases not covered in other courts and particulalry upsetting the King’s Peace (public order) The Stuarts: Catholic, Absolutist tendencies James I was Religiously moderate (married a Protestant) Charles I was less so – and always at odds with Parliament, dissolving it 1629-1640 1642-1651 = Puritan faction in parliament arms, defeats royalist supporters, executes Charles I and rules until restoration of the Stuarts in 1661 under Charles II – creating the constitutional monarchy system 1688 – the Glorious Revolution. William of Orange becomes king – formalises the English Bill of Rights in 1689
  21. 21. The Formation of British Law The basic tenets of the Bill of Rights 1689 are: Englishmen, as embodied by Parliament, possessed certain immutable civil and political rights. These included: • freedom from royal interference with the law (the Sovereign was forbidden to establish his own courts or to act as a judge himself) • freedom from taxation by royal prerogative, without agreement by Parliament • freedom to petition the Monarch • freedom from a peace-time standing army, without agreement by Parliament • freedom [for Protestants] to have arms for defence, as allowed by law • freedom to elect members of Parliament without interference from the Sovereign • the freedom of speech in Parliament, in that proceedings in Parliament were not to be questioned in the courts or in any body outside Parliament itself (the basis of modern parliamentary privilege) • freedom from cruel and unusual punishments, and excessive bail • freedom from fines and forfeitures without trial
  22. 22. The Formation of British Law Certain acts of James II were specifically named and declared illegal on this basis. He believed in Absolutist monarchy. The flight of James from England in the wake of the Glorious Revolution amounted to abdication of the throne in 1688. He attempted to retake England by invading Ireland, but was roundly defeated by at the battle of the Boyne Roman Catholics could not be king or queen of England since quot;it hath been found by experience that it is inconsistent with the safety and welfare of this protestant kingdom to be governed by a papist princequot;. The Sovereign was required to swear a coronation oath to maintain the Protestant religion. William and Mary were the successors of James. Succession should pass to the heirs of Mary, then to Mary's sister Princess Anne of Denmark and her heirs, then to any heirs of William by a later marriage. The Sovereign was required to summon Parliament frequently
  23. 23. The Formation of British Law British law focuses on procedure Common Law (hundreds courts, JPs and law of the land through the appellate court system) Equity (remedies or corrections to Common Law where common law is too rigidly procedural. Perogative of the Chancellor of the Exchequer) Equity = application of justice (moral law) when the Common Law is not able to reach an adequate decision regarding the trial. Equity court may not innovate or create law. It derives from Canon Law Common Law provides remedies as of right (guaranteed by statute or precedent. Equity court decisions are discretionary – the right
  24. 24. Equity Equity maxims: “He who comes to Equity must come with clean hands” the claimant must be beyond reproach “Delay defeats Equity” claimants must not wait too long before making a claim
  25. 25. The Formation of British Law Equity and Common Law balance the King’s justice – by the end of the XVIII century – equity law had become a true body of law Common Law by the XVIII century looks increasingly to precedent decisions to inform its justice. Year Books dated back to approx. 1290. 1600-1615 Edward Coke compiles his “Reports” – constituting a model for collection, explication, and use of court decisions. Parliament balances the King’s public policy by controlling the purse and guaranteeing the Common Law against absolutist centralisation Constitutional Monarchy after 1688 avoided absolutism in Britain By the beginning of the XIX century, precedent tradition was formalised as the “rule of precedent”
  26. 26. The Formation of British Law The Judicature Acts 1873-1875 In terms of procedure, it had become possible and desireable to register two “actions” – one in Common Law court and one at Chancery After 1875 – there is no real division between equity and common law – but the question for the High Courts is to decide which procedure best acts in competence The Acts suppressed all previous High Courts, creating the Supreme Court of Judicature Equity court today – tends to preside over cases involving written procedure: Real property, trusts, companies, bankruptcy, interpretation of hereditary right and wills Common Law court today – tends to preside over cases involving oral procedure = judge and jury Penal law, contract law and civil responsibility
  27. 27. Open and Closed Systems of Law Romano-Germanic tradition is a “closed system” = each type of problem, at least in theory, can and must be resolved through “interpretation” of existing laws The British or Common Law tradition is an “open system” = it possesses a “method” that allows the resolution of any type of problem without necessarily possessing existing law to apply indifferently in all cases The British judge is responsible for adjudicating the case in front of him or her – not for creating rules that may be applied beyond that controversy. The judge is obliged to respect prior decisions until overturned by the Supreme Court.
  28. 28. The Rule of Precedent Since medieval times legal arguments in important cases were recorded and subsequently used by judges to provide authority for specific rules of law. 1833 – the principle of binding precedent is articulated in the case Mirehouse v Rennel Application of precedent depends on the explication of the ratio decidendi – and only if eminating from higher courts and from the same court in a previous case. Binding precedent is based on: the hierarchy of courts principles of identification a system of law reporting
  29. 29. The Hierarchy of Precedents European Court of Justice House of Lords Art. 177, Treaty of Rome 1957 Appeals – binding lower courts but not itself High Court Court of Appeal Different disputes + appeals, new cases Appeals -Binding lower courts AND itself = Family, Chancery, Queen’s Bench Binding lower courts but not itself Crown Court County Court Criminal – binding no one Civil – binding no one Magistrate’s Court Ciminal, licensing – binding no one
  30. 30. Principles Identifying Binding Precedent Higher court decisions are binding on lower courts. BUT Only some parts of the judgement are relevant. Ratio Decidendi Judgements have two parts: Obiter Dicta Ratio Decidendi = material reason for the judgement (these are binding) Obiter Dicta = statements in the judgement that are NOT essential to the decision (these may MAY be binding if applied in superior courts)
  31. 31. Judgment Judgments contain: A statement of the material facts of the case (questions of fact) A statement of the legal issues and principles applied to the decision (questions of law - Ratio) A discussion of the legal principles reaised in argument but not material to the decision (Obiter) The final decision disposing of the case
  32. 32. Law Reporting The system of law reporting in Britain is fundamental to the documentation of legal precedent. Law reporting falls into three periods: the year books published between 1270 – 1530 1. Private reporters such as E. Coke, Dyer, etc., 1535 – 2. 1865 The modern semi-official report series established by the 3. Council on Law Reporting in 1865 – becoming the Incorporated Council of Law Reporting for England and Wales in 1870. There are 4 series: Appeal Cases Chancery Division Queen’s Bench Family Division
  33. 33. Cases Referred to by the Courts Judges use specific terms to refer to case judgments, often indicating the effect of those judgments on the case before them: Overruling - higher court decides lower court decision wrong Reversing – higher court reaches an opposite decision Disapproving – higher court doubts lower court decision Distinguishing – lower court not bound as cases are different Departing (from) – court not bound as prior decision per incuriam
  34. 34. Cases Referred to by the Courts Affirmed – higher court confirms decision of a lower court in a case Applied – court considers itself bound by an earlier decision Approved – higher court states lower court decsion was correct in a different case Considered – court discusses a case (part. of = status in hierarchy) but reaches no substantial conclusion as to application
  35. 35. Islamic Legal Tradition Founding document – the revelations of the prophet Mohammed (Mecca 570 – 632 AD) written by him in The Qu’ran – expressing the word of God (orthodox) His teachings are Expansion under the Prophet Muhammad, 622-632 universal and written. Expansion during the Patriarchal Caliphate, 632-661 Expansion during the Umayyad Caliphate, 661-750 Mohammed’s successors are called Caliphs (Kalifa) but they are not considered prophets Mohammed had made many alliances with tribal chiefs. When he died – these threatened to dissolve as the chiefs disputed the concentration of power in Medina. After the death of Ali in 661, the decendents of Umayya (the Umayids) came to power and moved the capital to Damascus
  36. 36. Islamic Legal Tradition Successors to the first 4 Caliphs split into two groups: supporters of Ali (shi’at ‘Ali) – Caliph of Kufa and husband to Mohammed’s daughter Fatima – the Shi’is moved moved east into Iraq then Iran (680-740 AD) and resisted the centralisation of Umayyad authority. Supporters of his uncle Abbas (becoming Abbasids) – who attempted to consolidate a single interpretation of the faith by the power of the ruler. Beginning in Kufa – they defeated the Umayyads (750 AD) and centred their power in the new city of Baghdad. Abbasid legitimacy was founded in it’s adherence to the Qur’an and the right rules of conduct established by the Prophet’s behaviour – the sunna Religious specialists, therefore, were elevated to the post of quadi (judge) – to decide conflicts based on emerging Islamic law
  37. 37. Islamic Legal Tradition The belief in unity inclusive of differences in legal opinion and the importance of both the Qur’an and the practice of the Prophet created a mode of thought known as Sunnism. Different areas supported different religious community leaders – the imams – who were people deemed worthy under Qur’an scripture and the body of practice. The Caliph was an imam – but others were recognised. Particularly important in Shi’a communities that did not recognise the central power of the Abbasids. Extension of Islam promoted linguistic adoption of Arabic among local populations – particularly through poetry and the art of caligraphy. By the 9° or 10° centuries AD (3° and 4° in Islamic calendars) the Muslim world had taken shape – adopting recongnisable features – the mosque, surrounded by hostels and the seat of the Qadi
  38. 38. Islamic Legal Tradition The Shari’a: the nature of human authority. In the mid-8° century – questions arose around the nature of the Prophet’s teaching. What is the Qur’an? How does God interact with mankind? Problem – the Qur’an states that God is all-powerful and all- knowing, but also that man was responsible for his own actions and would be judged by God. How is it that God permits evil, and then judges men’s evil?
  39. 39. Islamic Legal Tradition Basic principles = The Pillars of Islam The Mu’tazilis: The Qur’an is not only a text, but also a methodology of approach. Truth may be found by reason based on what is given in the Qur’an The Sunnis: the Qur’an is divine and it and the practice of the Prophet are the only basis for finding truth. The Qur’an is the only basis for interpreting the Prophet’s actions. 995 AD. Al-Ash’ari – the Qur’an must be interpreted literally, but can be partly justified by reason. Problem: from the beginning – the Islam had both spiritual and temporal duties. Umayyads – Caliphs and Qadi’s dispensed justice and administration while Muslim thinkers tried to unify human acts under the judgement of their religion – creating a body of thought called the hadiths on how the Prophet behaved
  40. 40. Islamic Legal Tradition Abbasids (mid-eighth century): the centralised, bureaucratic state necessitated agreement on ways in which disputes should be settled. Al-Shafi’i (767 – 820 AD) stated that the Qur’an was the literal word of God expressing commandments on: Prayer Alms Fasting Pilgrimage No adultery No wine BUT No pork – the Hadiths were equally important and informed unclear areas in the Qur’an. Neither could exclude the other and both were infallible
  41. 41. Shari’a Law Shafi’i: Ordinary Muslims must defer judgement to people learned in religion to use their reason to explain what was contained in the Qur’an and Hadiths – within strict limits. Muslim scholars should procede by analogy (qiyas), finding some element in the case that was similar to an element found in a previous case. This disciplined exercise was called ijtihad - and justifications could be found in the hadith. When general agreement was found as a result of this reason, the consensus (ijma) held the status of unquestionable truth. Shafi’i held that this perpetuated general truth found in the sunna – his successors held that the only valid ijma were those of the scholars. All interpretation (so all Law) was to be performed in Arabic. Shi’is held that consensus was only valid if the Imam was included.
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