Law, Justice, and Society:A Sociolegal Introduction

Chapter 14

Comparative Law

Comparative Law

- Knowledge of legal systems other than our own

- Provides us with a new understanding and appreciation of our own

- Will better equip us to identify its strengths and weaknesses

Importance of Comparative Law

Comparative Law

- Preliterate societies– Have no written language

- What is crime?– A violation of a criminal statute

- Must be written– Can preliterate people commit crimes?

- Homicide and theft

Law in Preliterate Bands and Tribes

Comparative Law

- Band– Small groups of hunters and gatherers

- Tribe– Larger groups who augment hunting and

gathering with agriculture

- No formal agents of social control

Law in Preliterate Bands and Tribes (cont.)

Comparative Law

- Exposure to informal pressures to conformity

- Inuits and self-redress– Ultimate result of most extreme form of self-

redress?– Song duel: participants hurl sung insults at one

another– Witnessed by crowd, which declares a winner. Decision

concludes the matter.

Law in Preliterate Bands and Tribes (cont.)

Comparative Law

- 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.

Law in Preliterate Bands and Tribes (cont.)

Comparative Law

- Four main traditions of law in the world today:– Civil law– Common law– Islamic law– Socialist law

Law in the Modern World: Four Traditions

Comparative Law

- Numerous systems exist.– Each is unique.– Just about all are related in some degree to the

main four.- Some voluntarily or involuntarily borrow elements.

- Some are hybrids of one or more.

- Even among members of same, differences exist.

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

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

Source: Adapted from percentages provided by Reichel (2005).

Comparative Law

- Originated in England--Norman 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

Common Law

Comparative Law

- Unwritten

- Respects precedent

- Adversarial

- Uses grand and petit juries

- Uses judicial review

Common Law (cont.)

Comparative Law

- Ancient Rome and nineteenth-century France and Germany

– Twelve Tables in 450 BCE– Code of Justinian, 533 CE

- Modern civil law owes most to the Napoleonic Code, 1804 CE

- Typically developed after a major social upheaval as a result of distrust of previous status quo

Civil Law

Comparative Law

- 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.

Civil Law (cont.)

Comparative Law

- 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 – Common law civil rights viewed as unnecessary– Right to remain silent is a formality with little force.

Civil Law (cont.)

Comparative Law

- 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.– Penalty phase takes place soon after conviction

phase. Judicial review is used sparingly.

– Reflection of democracy

Civil Law (cont.)

Comparative Law

– Appeals can take place; however, authoritative but not binding

– Can rule on points of law and fact

- Types of crime– Crimes

- Major offenses for which the penalty can be from five years to life imprisonment

- Tried in assize court– Only court that uses juries

Civil Law (cont.)

Comparative Law

– Delicts- Less serious offenses for which the penalty can be

up to five years

- Tried in correctional court

– Contraventions- Minor offenses with a maximum penalty of two

months in jail– Tried in police court

- No bail

Civil Law (cont.)

Comparative 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

Socialist Law

Comparative Law

- 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

Socialist Law (cont.)

Comparative Law

– 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

Socialist Law (cont.)

Comparative Law

- Death sentence– Delayed

- Two-year suspension of sentence during which defendant must show reformation

- If rehabilitated– Sentence usually changed 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 lethal injection

(more recent)

Socialist Law (cont.)

Comparative Law

- 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

Socialist Law (cont.)

Comparative Law

- 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

- Higher judicial review of outcome– Appeals from both prosecutor and defendant

- Have right to one appeal

Socialist Law (cont.)

Comparative Law

- Written– Qur’anic precepts, interpretations, and commentary– Constitution– Shari’a: path to follow

Consists of Qur’an, commentary, and case laws Saudi Arabia

Islamic Law

Comparative Law

- 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

- Hybrid inquisitorial/adversarial

- Precedent is absent

- No use of juries

Islamic Law (cont.)

Comparative Law

- Crime and punishment– Hadd

- Crimes and penalties attached to them are considered God prescribed.

- No judge or legislative body can alter the penalty for them.

- Heard by a panel of three judges- Variations allowed according to circumstances- Conviction requires confession or eyewitness testimony

of at least two adult males.

Islamic Law (cont.)

Comparative Law

- Crime and punishment– Quesas

Means “equal harm” or “retaliation” Crimes committed against individuals rather than against

God Penalties based on “eye for an eye” principle Serious crimes, but not ones for which the Qu’ran

specifies a penalty Penalties can be negotiated or forgiven

Islamic Law (cont.)

Comparative Law

- Crime and punishment– Ta’azir

- (Rehabilitation) crimes - Imposition of punishment is discretionary.- Penalties range from dressing down to some light form of

corporal punishment.– Exception is sodomy (considered same thing as adultery).

- Those crimes with punishments delineated by Qur’an are more serious than other crimes.

- Higher standards of evidence for Hadd crimes

Islamic Law (cont.)

Comparative Law

- Court– No representation– Oath swearing

- Judicial review is limited to certain cases.– Appeals apply only to sentences imposed by lower

courts.

Islamic Law (cont.)

Comparative 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.

The Four Traditions and the Rule of Law

Comparative Law

- France

- Saudi Arabia

- China

The Four Traditions and the Rule of Law (cont.)

Comparative Law

- 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

- Does this apply to socialist and Islamic systems?

The Convergence of Systems