This document provides an overview of comparative law and different legal traditions around the world. It discusses the legal systems of preliterate bands and tribes, and the four main modern legal traditions: common law, civil law, socialist law, and Islamic law. It also addresses the rule of law and convergence of legal systems as globalization increases interactions between cultures.

1. Law, Justice, and Society:
A Sociolegal Introduction
Chapter 14
Comparative Law:
Law in Other Cultures

2. Comparative Law
Importance of Comparative Law
s knowledge of legal systems other than our
own
s provides us with a new understanding
s and appreciation of our own
s and will better equip us to identify its
strengths and weaknesses

3. Comparative Law
Law in Preliterate Bands and Tribes
s band: small groups of hunters and gatherers
s tribe: larger groups who augment hunting
and gathering with agriculture

4. Comparative Law
Law in Preliterate Bands and Tribes
(cont.)
s what is crime?
– a violation of a criminal statute
s must be written
– can preliterate people commit crimes?
s homicide and theft

5. Comparative Law
Law in Preliterate Bands and Tribes
(cont.)
s no formal agents of social control
s exposure to informal pressures to
conformity
s Inuits and self-redress
– ultimate result of most extreme form of self-
redress?
– song duel

6. Comparative Law
Law in Preliterate Bands and Tribes
(cont.)
s group response to offender
– ostracism and banishment
s tribal social control:
– Hurons and fines paid by the clan
– witchcraft and treason were crimes against
society; punishable by death

7. Comparative Law
Law in the Modern World: Four Traditions
s civil law
s common law
s Islamic law
s socialist law

8. Comparative Law
Law in the Modern World: Four Traditions
(cont.)
Source: Adapted from percentages provided by Reichel (2005).

9. Comparative Law
Common Law
s originated in England--Normal conquest, 1066
s means of unifying England, increasing royal
power at the expense of feudal lords
s fashioned from local customs
s judge-made law
s spread throughout world via colonization and war

10. Comparative Law
Common Law (cont.)
s unwritten
s respects precedent
s adversarial
s uses grand and petit juries
s uses judicial review

11. Comparative Law
Civil Law
s ancient Rome and nineteenth-century France and
Germany
s Twelve Tables in 450 BCE
s Code of Justinian, 533 CE
s Napoleonic Code, 1804 CE
s typically developed after a major social upheaval
as a result of distrust of previous status quo

12. Comparative Law
Civil 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 Law
Civil Law (cont.)
s precedent is not officially recognized
– not binding and considered a tool of last resort
s 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 Law
Civil Law (cont.)
– common law civil rights viewed as unnecessary
– right to remain silent is a formality with little force
s 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 Law
Civil Law (cont.)
– penalty phase takes place soon after conviction
phase
s 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 Law
Civil Law (cont.)
s types of crime
– crimes
– delicts
– contraventions
s no bail

17. Comparative Law
Socialist Law
s originated in 1917 with the Russian Revolution
and USSR
s based on codified Marxist/Leninist ideology
s it is the only system of law considering itself to
be a temporary anachronism devoted to its own
demise
s emphasizes communal values over individual
rights; low-tolerance crime control

18. Comparative Law
Socialist Law (cont.)
s Chinese socialist law
– socialist law combined with aspects of Confucius
s written; precedent is not recognized
s 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 Law
Socialist Law (cont.)
– advocates see that procedural law is observed and
lenient sentences received
s 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 Law
Socialist Law (cont.)
s death sentence
– immediate
– delayed
s judicial review is severely limited
s Supreme People’s Court
– answerable to Standing Committee of Chinese Communist
Party
– advisory opinions
– does not hear cases from lower courts

21. Comparative Law
Socialist Law (cont.)
s Higher People’s Court
– analogous to U.S. state supreme court
s Intermediate People’s Court
– prefecture level
– original jurisdiction
s Basic People’s Court
– U.S. district (felony) court
s appeals from both prosecutor and defendant

22. Comparative Law
Islamic Law
s 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 Law
Islamic 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 Law
Islamic Law (cont.)
s hybrid inquisitorial/adversarial
s precedent is absent
s no use of juries

25. Comparative Law
Islamic Law (cont.)
s crime and punishment
– Hadd
– Quesas
– Ta’azir
s those crimes with punishments delineated by
Qur’an are more serious than other crimes
s higher standards of evidence for Hadd crimes

26. Comparative Law
Islamic Law (cont.)
s court
– no representation
– oath swearing
s judicial review is limited to certain cases
– appeals apply only to sentences imposed by lower
courts

27. Comparative Law
The Rule of Law
s recognition that there are fundamental principles and
values stressing human dignity and value
s these values and principles are articulated and
formalized in writing and contained in revered
documents
s substantive laws and administrative procedures are
implemented to hold the state and its agents to those
values and principles

28. Comparative Law
The Rule of Law (cont.)
s France
s Saudi Arabia
s China

29. Comparative Law
Convergence of Systems
s as world becomes more complex and interdependent,
cultures will converge
s this results in systems of law coming into contact and
becoming more similar
s this is resulting in recognition of the rule of law and
individual rights
s examples:
– International Court of Justice (World Court)
– European Court of Human Rights

30. Comparative Law
Convergence of Systems (cont.)
s does this apply to socialist and Islamic
systems?