Walsh power point_chapter 14

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Transcript

  • 1. Law, Justice, and Society:A Sociolegal Introduction Chapter 14 Comparative Law: Law in Other Cultures
  • 2. Comparative LawImportance of Comparative Laws knowledge of legal systems other than our owns provides us with a new understandings and appreciation of our owns and will better equip us to identify its strengths and weaknesses
  • 3. Comparative LawLaw in Preliterate Bands and Tribess band: small groups of hunters and gathererss tribe: larger groups who augment hunting and gathering with agriculture
  • 4. Comparative LawLaw in Preliterate Bands and Tribes(cont.)s what is crime? – a violation of a criminal statutes must be written – can preliterate people commit crimes?s homicide and theft
  • 5. Comparative LawLaw in Preliterate Bands and Tribes(cont.)s no formal agents of social controls exposure to informal pressures to conformitys Inuits and self-redress – ultimate result of most extreme form of self- redress? – song duel
  • 6. Comparative LawLaw in Preliterate Bands and Tribes(cont.)s group response to offender – ostracism and banishments tribal social control: – Hurons and fines paid by the clan – witchcraft and treason were crimes against society; punishable by death
  • 7. Comparative LawLaw in the Modern World: Four Traditionss civil laws common laws Islamic laws socialist law
  • 8. Comparative LawLaw in the Modern World: Four Traditions(cont.) Source: Adapted from percentages provided by Reichel (2005).
  • 9. Comparative LawCommon Laws originated in England--Normal conquest, 1066s means of unifying England, increasing royal power at the expense of feudal lordss fashioned from local customss judge-made laws spread throughout world via colonization and war
  • 10. Comparative LawCommon Law (cont.)s unwrittens respects precedents adversarials uses grand and petit juriess uses judicial review
  • 11. Comparative LawCivil Laws ancient Rome and nineteenth-century France and Germanys Twelve Tables in 450 BCEs Code of Justinian, 533 CEs Napoleonic Code, 1804 CEs typically developed after a major social upheaval as a result of distrust of previous status quo
  • 12. Comparative LawCivil Law (cont.)s French civil law – emphasizes communitarian values rather than individualistic – crime control system, as opposed to due process (American)s written – codes create the civil law rather than revealing existent laws – laws replace, rather than supplement, previous law
  • 13. Comparative LawCivil Law (cont.)s precedent is not officially recognized – not binding and considered a tool of last resorts inquisitorial rather than adversarial – truth-seeking investigation and interviews – led 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
  • 14. Comparative LawCivil Law (cont.) – common law civil rights viewed as unnecessary – right to remain silent is a formality with little forces traditionally made little use of juries – used only for very serious crimes – juries consist of three judges and nine laypersons – jurors can question all other parties
  • 15. Comparative LawCivil Law (cont.) – penalty phase takes place soon after conviction phases 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
  • 16. Comparative LawCivil Law (cont.)s types of crime – crimes – delicts – contraventionss no bail
  • 17. Comparative LawSocialist Laws originated in 1917 with the Russian Revolution and USSRs based on codified Marxist/Leninist ideologys it is the only system of law considering itself to be a temporary anachronism devoted to its own demises emphasizes communal values over individual rights; low-tolerance crime control
  • 18. Comparative LawSocialist Law (cont.)s Chinese socialist law – socialist law combined with aspects of Confuciuss written; precedent is not recognizeds 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
  • 19. Comparative LawSocialist Law (cont.) – advocates see that procedural law is observed and lenient sentences receiveds quasi-jury system – collegial bench; one to three professional judges and two to four lay people’s assessors – no right to remain silent – defendant can argue with other actors – very punitive
  • 20. Comparative LawSocialist Law (cont.)s death sentence – immediate – delayeds judicial review is severely limiteds Supreme People’s Court – answerable to Standing Committee of Chinese Communist Party – advisory opinions – does not hear cases from lower courts
  • 21. Comparative LawSocialist Law (cont.)s Higher People’s Court – analogous to U.S. state supreme courts Intermediate People’s Court – prefecture level – original jurisdictions Basic People’s Court – U.S. district (felony) courts appeals from both prosecutor and defendant
  • 22. Comparative LawIslamic Laws written – Qur’anic precepts, interpretations, and commentary – constitution – Shari’a: path to follow s consists of Qur’an, commentary, and case laws s Saudi Arabia
  • 23. Comparative LawIslamic Law (cont.)s four 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
  • 24. Comparative LawIslamic Law (cont.)s hybrid inquisitorial/adversarials precedent is absents no use of juries
  • 25. Comparative LawIslamic Law (cont.)s crime and punishment – Hadd – Quesas – Ta’azirs those crimes with punishments delineated by Qur’an are more serious than other crimess higher standards of evidence for Hadd crimes
  • 26. Comparative LawIslamic Law (cont.)s court – no representation – oath swearings judicial review is limited to certain cases – appeals apply only to sentences imposed by lower courts
  • 27. Comparative LawThe Rule of Laws recognition that there are fundamental principles and values stressing human dignity and values these values and principles are articulated and formalized in writing and contained in revered documentss substantive laws and administrative procedures are implemented to hold the state and its agents to those values and principles
  • 28. Comparative LawThe Rule of Law (cont.)s Frances Saudi Arabias China
  • 29. Comparative LawConvergence of Systemss as world becomes more complex and interdependent, cultures will converges this results in systems of law coming into contact and becoming more similars this is resulting in recognition of the rule of law and individual rightss examples: – International Court of Justice (World Court) – European Court of Human Rights
  • 30. Comparative LawConvergence of Systems (cont.)s does this apply to socialist and Islamic systems?