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Chapter 14 power point
- 1. COMPARATIVE LAW: LAW INOTHER CULTURES Chapter 14
- 2. Importance of ComparativeLaw • All societies develop rules for assuring peace, order, predictability, and cultural survival • May differ enormously from society to society • Important to have knowledge of legal systems other than our own • Provides us with new understanding and appreciation of our own • Will better equip us to identify its strengths and weaknesses
- 3. Law in PreliterateBands and Tribes • Preliterate societies • Have no written language • What is a crime? • A violation of a criminal statute • Must be written • Can preliterate people commit crime? • Homicide and theft • Social control concern central concern to all organized groups • These cultures ruled by customs as rigid and inviolable as law
- 4. Law in PreliterateBands and Tribes • Bands • Small groups of hunters and gatherers • Tribe • Larger groups who augment hunting and gathering with agriculture • No formal agents of social control • Exposure to informal pressures to conformity
- 5. Law in PreliterateBands and Tribes • Inuits and self-redress • Ultimate form • Aggrieved party would kill offender • Alternate for: Song duel • Participants hurl sung insults at one another • Witnessed by crowd, which declares winner • Decision concludes matter • Group response to offender • Ostracism and banishment
- 6. Law in PreliterateBands and Tribes • Modern Inuits have lost effective traditional social control mechanisms • Been replaced by formalized laws • Tribal social control • Hurons and fines paid by claim • Witchcraft and treason were crimes against society • Huron have also been modernized • Now live under laws of jurisdiction in which they reside • Some have own systems within reservations
- 7. Law in theModernWorld:The FourTraditions • Four main traditions of law in the world: • Common law • Civil law • Socialist law • Islamic law • Numerous systems exist: • Each unique • Just about all related in some degree to main four • Some voluntarily or involuntarily borrow elements • Some are hybrids of one or more • Even among members of same, differences exist
- 8. Comparative Law Source: Adaptedfrom percentages provided by Reichel (2005). Percent
- 9. Common Law • Originatedin England and influence spread throughout world • India is world’s most populous common la country • Not fully common law • No system is imported whole • Still remains major source of modern criminal law in most English speaking countries • Limited influence outside English speaking countries
- 10. Historical Aspects ofCommon Law • Traced to Norman Conquest of England (1066) • Means of unifying England • Increasing royal power at expense of feudal lords • Fashioned from local customs and practices • Judge-made law • Evolved over centuries in response to problems of common person
- 11. Basic Features ofCommon Law • Common law distinguished from other systems in five important ways: • It is unwritten • Its respect for precedent • Its adversarial procedures • Its use of grand and petit juries • Its extensive use of judicial review
- 12. Basic Features ofCommon Law: Unwritten • Does not mean it is not literally written down or lacks precision of meaning • Common law has long history of producing revered documents stressing rule of law • Term used to distinguish its origin in customs of people • United States judges retain modicum of old common law lawmaking role
- 13. Basic Features ofCommon Law: Respects Precedent • Flows from its origin as case law • Reflects accumulated wisdom of generations of judicial decisions • Operates in vertical and horizontal dimensions • Allows for predictability, consistency, and rationality
- 14. Basic Features ofCommon Law: Adversarial • Nature stems from “trial by combat” method of settling disputes • Both prosecution and defense expected to vigorously pursue self- interest • Judges function as disinterested referees • Judges do not play as active a role as in other legal traditions
- 15. Basic Features ofCommon Law: Uses Grand and Petit Juries • Indictment by grand jury and trial by jury are cherished procedures • Traditionally viewed as bodies of citizens interposing themselves between power of state and accused • Expense of grand juries led to abolition in England and Canada • Criticized as well • Practical consideration have led to less use of trial juries than previous
- 16. Basic Features ofCommon Law: Uses Judicial Review • Refers to judiciary’s examination of legality of actions and decisions of executive and administrative officers of government • As well as appellate review of lower court decisions • Scope limited to various degrees in different countries • Process follows roughly similar lines in all common law countries
- 17. Civil Law • Mostpervasive legal tradition in world • Used in over half of world’s nations • Sometimes called continental law or code law • Avoids confusion with civil branch of common law countries • Former Warsaw Pact nations have reverted to civil law systems • Encompasses variety of systems that differ due to unique developmental history in each country
- 18. Historical Origins ofCivil Law • Has longer history of development than common law • Not so centered on one country • Ancient Rome and nineteenth-century France and Germany • TwelveTables (450 BCE) • Code of Justinian (533 CE) • Modern civil law owes most to NapoleonicCode (1804 CE)
- 19. Basic Features ofCivil Law • Typically developed after major social upheaval as result of distrust of previous status quo • French civil law • Emphasizes communitarian values rather than individualistic • Crime control system used • Rights of victimized community
- 20. Basic Features ofCivil Law: Written • Codes create civil law rather than revealing existent laws • Laws replace, rather than supplement, previous law • Emphasizes revolutionary nature • Legal prescriptions and proscriptions outlined are mostly consistent with norms and customs that prevailed at time of publication
- 21. Basic Features ofCivil Law: Precedent Is Not Officially Recognized • Codes laid down are complete the day they are enacted • Not subject to judicial review • No need to refer to past cases for guidance • Code is guidance needed • In practice, no code is complete • Civil law judges often refer to and rely on case law and thus to precedent • If used, is not binding and is tool of last resort
- 22. Basic Features ofCivil Law: Inquisitorial RatherThan Adversarial • Primary distinguishing feature of civil law • Term inquisitorial conjures up negative images • Truth-seeking investigations and interviews • Many procedural protections found in common law systems not found • Do provide some rights • Process led by judge • All parties expected to cooperate
- 23. Basic Features ofCivil Law: Inquisitorial RatherThan Adversarial • Strong presumption of guilt if case goes to trial • Investigation takes place under presumption of innocence • Common law civil rights viewed as unnecessary • Right to remain silent is formality with little force • Doing so at trial may be legally considered as evidence of guilt
- 24. Basic Features ofCivil Law: Has Traditionally Made Little Use of Juries • Used only for very serious crimes • Do not have same role as in common law countries • Juries consist of three judges and nine laypersons • Jurors can question all other parties • Trial judges are not investigating judge
- 25. Basic Features ofCivil Law: Has Traditionally Made Little Use of Juries • Judges are active participants in trials • Play all roles in common law systems • Verdicts require agreement of at least eight of twelve • If verdict is guilty • Voting on penalty begins immediately
- 26. Basic Features ofCivil Law: Judicial Review Is Used Sparingly • Three Supreme Courts in France • Cour de Cassation • Supreme in criminal and civil matters • Conseil d’Etat • Supreme in administrative matters • Conseil Constitutionell • Supreme in constitutional matters • Equivalent to United States Supreme Court • No judicial review of legislative statutes in most instances up until 2010
- 27. Basic Features ofCivil Law: Conseil Constitutionell • ConstitutionalCouncil • Used to be unique among national supreme courts • Main function was to rule on constitutionality of proposed legislation • Has gradually become fully functional court since reforms of 2008 • Now possible for any citizen to raise issue of unconstitutionality before lower court • If decided constitutionally relevant, submitted to Constitutional Council • Has drastically increased Council’s workload
- 28. Basic Features ofCivil Law: Cour de Cassation • “To break” or “to smash” • Courts of last resort • Decisions involving criminal matters and private commercial disputes are appealable • Court sits in six chambers • Each has fifteen judges • Smashes erroneous decisions • Decisions not binding on lower courts • Only rule on points of law
- 29. Basic Features ofCivil Law: Types of Crime • Three offense categories recognized • Crimes • Major offenses for which penalty can be from five years to life imprisonment • Tried in assize court • Only court that uses juries • Delicts • Less serious offenses for which penalty can be up to five years • Tried in correctional court
- 30. Basic Features ofCivil Law: Types of Crime • Contraventions • Minor offenses with maximum penalty of two months in jail • Tried in police court • Can be potential for abuse • Bail infrequently granted due to operation based on crime control model • Trial more of forum for known facts • System is one of professional bureaucracy
- 31. Socialist Law • Originatedin 1917 with Russian Revolution and USSR • Based on codified Marxist/Leninist ideology • Only system of law considering itself to be temporary anachronism devoted to own demise • Emphasizes communal values over individual rights • Low-tolerance crime control
- 32. Chinese Socialist Law •Scholars maintain Imperial China never developed sound rational- formal legal system • Influenced by Confucius • Some point to Ch’ingCode (1646) as evidence of being at least substantively rational • 436 statutes and four thousand offenses for which punishment was prescribed
- 33. Chinese Socialist Law:IsWritten and Precedent Not Recognized • Chinese legal system borrowed heavily from Soviet legal codes • Present system established in 1954 • First code of criminal law and procedure adopted in 1979 • Under new code judiciary began to exercise small measure of independent power • Precedent has no place in Chinese system • Law has always had high degree of flexibility in both substance and procedure
- 34. Chinese Socialist Law:Is Inquisitorial and Adversarial • Mostly inquisitorial • Emphasis on confessions • Evidence never presented to defendants prior to trial • Defendants can defend themselves in court, hire lawyer or advocate • Advocates see procedural law is observed and lenient sentences received
- 35. Chinese Socialist Law:Uses a Quasi-Jury System • Collegial bench • One to three professional judges • Two to four lay people’s assessors • No right to remain silent • Defendant can argue with other actors • Very punitive
- 36. Chinese Socialist Law:Death Sentence • Delayed • Two-year suspension of sentence during which defendant must show reformation • If rehabilitated • Sentence usually charged to long period of incarceration • If not, they are executed • Immediate • Carried out within seven days of imposition of sentence • Imposed when court deems defendant is beyond rehabilitation • Execution is single shot at base of skull or, more recently, lethal injection
- 37. Chinese Socialist Law:Judicial Review is Limited • Severely limited • Supreme People’s Court • Answerable to Standing Committee of Chinese Communist Party • Advisory opinions • Does not hear cases from lower courts
- 38. Chinese Socialist Law:Hierarchy of Chinese Courts • Higher People’s Court • Analogous to U.S. Supreme Court • Intermediate People’s Court • Prefecture level • Original jurisdiction • Basic People’s Court • Analogous to U.S. District (felony) court • Higher judicial review of outcome • Appeals from both prosecutor and defendant • Right to one appeal
- 39. Islamic Law • Eachcountry is different • Vary in level of adherence to strict Qur’anic interpretations • Fundamentalists insist on strict adherence • Saudi Arabia • Qur’an has served as constitution since birth of nation • Lays out general principles that must be interpreted and applied to variety of specific cases
- 40. Islamic Law: IsWritten •Origins of law is Qur’an • Shari’a • “Path to follow” • Three distinctions • Based on direct revelation from God • Attempts to regulate behavior and thought processes • Does not require uniformity of law
- 41. Islamic Law: Hybrid Inquisitorial/AdversarialSystem; Precedent Absent; No Use of Juries • Hybrid of inquisitorial and adversarial systems • Strong emphasis on inquisitorial system • System contains few procedural rules • Have right to confront accusers and are assumed innocent until proven guilty • Court proceedings very informal byWestern standards • Judge hears cases and makes decisions based on own distillation of facts and testimony • Not bound by precedent • Do not use juries
- 42. Islamic Law: Crimeand Punishment • Hudud crimes • Fixed penalty crimes considered God prescribed • No judge or legislative body can alter penalty for them • Heard by panel of three judges • Variations allowed according to circumstances • Conviction requires confession or eyewitness testimony of at least two adult males • Muslims of impeccable character
- 43. Islamic Law: Crimeand Punishment • Quesas crimes • Means “equal harm” or “retaliation” • Crimes committed against individuals rather than against God • Penalties based on “eye for eye” philosophy • Serious crimes, but not ones for which Qu’ran specifies a penalty • Penalties can be negotiated or forgiven
- 44. Islamic Law: Crimeand Punishment • Ta’azir crimes • “discretion” or “deterrence” crimes • Imposition of punishment is discretionary • Penalties range from dressing down to some form of light corporal punishment • Purpose of punishment is discretionary
- 45. Islamic Law: Crimeand Punishment • Hudud crimes least likely to result in death penalty • Acts similar may be tried as quesas or ta’zir crime to assure conviction and punishment • Differentiation depends on circumstances • Law does not normally allow legal representation in a trial • Oath swearing • Whoever swears oath, wins the case
- 46. Islamic Law: JudicialReview Limited to Certain Crimes Only • Appeals process may come into play after judgment is rendered • Death sentences appealable only for ta’zir crime • Must be filed up to thirty days after conviction • Hudud crimes cannot be appealed • Pardons and stays can be granted by king, just not for hudud crimes • Death sentence for quesas murder may be appealed to victim’s family only
- 47. The FourTraditions andthe Rule of Law • Useful way of making comparisons is degree to which rule of law is present • Rule of Law has three important elements: • Recognition that there are fundamental principles and values stressing human dignity and value • Values and principles are articulated and formalized in writing and contained in revered documents • Substantive laws and administrative procedures implemented to hold state and its agents to those values and principles
- 48. The FourTraditions andthe Rule of Law • Freedom House (Puddington, 2014) • Ranks countries on scale of one through seven • One is highest level of civil liberty • Economist Intelligence Unit (2014) • Ranks countries zero through ten • Ten indicates highest civil liberty score • United States rating • 1 by Freedom House • 8.11 by Economist Intelligence Unit • Norway ranked highest; North Korea ranked lowest
- 49. The FourTraditions andthe Rule of Law: Civil Law (France) • Exhibits first two elements of rule of law • Addressing third requires care of legal ethnocentrism • Does not lack due process procedures • Simply have different ones intended to do different things than U.S. • Rated same as United States on both scales • 1 by Freedom House • 8.11 by Economist Intelligence Unit
- 50. The FourTraditions andthe Rule of Law: Islamic Law • Conforms to first two requirements of rule of law • Provisions for procedures of implementation has not been major concern • Only some Islamic countries have secularized laws to provide moderate due process rights • Saudi Arabia rating • 7 by Freedom House (worst possible score) • 1.82 by Economist IntelligenceUnit (very low)
- 51. The FourTraditions andthe Rule of Law: Socialist Law • Fails to meet any of the criteria for operating under rule of law • Absent by design • Subordinates itself to social policy • Existing procedural rules are followed or not followed according to needs of state at moment • China rating • 6 by Freedom House • 3.0 by Economist Intelligence Unit
- 52. The Convergence ofSystems • As world becomes more complex and interdependent, cultures will converge • Results in systems of law coming into contact and becoming more similar • Resulting in recognition of rule of law and individual rights • Examples: • International Court of Justice (World Court) • European Court of Human Rights • Does this apply to socialist and Islamic systems?