Law, Justice, and Society: A Sociolegal Introduction

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

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

3. 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

4. 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

5. 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

6. 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

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

8. Comparative Law Law in the Modern World: Four Traditions (cont.)

9. Comparative Law Common Law • originated in England--Normal 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

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

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

12. 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 existent laws • laws replace, rather than supplement, previous law

13. 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 • 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 • 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 • 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.) • types of crime • crimes • delicts • contraventions • no bail

17. 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

18. Comparative Law Socialist Law (cont.) • Chinese socialist law • socialist law combined with aspects of Confucius • written; precedent is not recognized • 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 • 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.) • 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

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

22. 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

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

25. 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

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

27. 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

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

29. 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

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