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Philip L. Reichel CHAPTER 1 JUSTICE SYSTEMS IN SELECTED COUNTRIES Copyright © 2015 Sesha Kethineni. All rights reserved.
Common Developed in England Custom provides the primary source of law. Determining whether something was “customary” was historically left to members of the community Stare decisis: principle of precedent Civil Oldest and most widespread of traditions Originated in the codes of Roman Law (e.g., the corpus juris civilis) Laws are a result of written codes provided by a political authority Courts enforce the law rather than interpret or make new laws FOUR LEGAL TRADITIONS Copyright © 2015 Sesha Kethineni. All rights reserved.
Islamic Sacred not secular; completely reliant on religion Shari’a Qur’an (Islam’s holy book) & Sunna (the statements and deeds of Muhammad) Some Muslims use a strict interpretation on how to apply Allah’s law, and believe every rule of law must be derived from the Qur’an or the Sunna Mixed Incorporate elements from several traditions Typically includes basic elements of two traditions Each predominates separate fields (private & criminal) FOUR LEGAL TRADITIONS Copyright © 2015 Sesha Kethineni. All rights reserved.
Substantive What the laws are Penal/Criminal code Procedural How laws are enforced Used to determine guilt Adversarial Process Prosecution and defense act as opponents Truth and justice will unfold from a free and open competition Inquisitorial Process Investigation by the government with a common goal of truth and justice through corroboration Mixed Process SUBSTANTIVE & PROCEDURAL CRIMINAL LAW Copyright © 2015 Sesha Kethineni. All rights reserved.
England & Wales Home of the common law legal system Law has been derived from statutes, case law, and constitutional conventions Significant constitutional reforms since 1997 Substantive Law: Insanity 13th century: “wild beast test” 1843: M’Naghten Rules for sanity Standard of diminished responsibility in cases of murder Procedural Law: Adjudication Follow the adversarial model of adjudication Do not follow the practice of voir dire in juror selection JUSTICE SYSTEMS IN COMMON-LAW COUNTRIES Copyright © 2015 Sesha Kethineni. All rights reserved.
India Retains the common law tradition established during British colonialization Indian Penal Code provides substantive law Code of Criminal Procedure (1861) and the Indian Evidence Act (1872) form procedural law Substantive Law: Insanity Recognizes insanity as a valid defense Dictates that “unsoundness of mind” rather than “insane” 1959 case Lakshmi v. State: Not every type of “unsoundness of mind” Procedural Law: Adjudication Mixed adjudication process Jury trials are no longer utilized Many minor issues in rural areas are handled by panchayats (village courts) JUSTICE SYSTEMS IN COMMON-LAW COUNTRIES Copyright © 2015 Sesha Kethineni. All rights reserved.
France Home to the civil law Divides various laws into public and private law Two primary documents of substantive law are the Code of Criminal Procedure and the Penal Code. Substantive Law: Insanity Individuals are rational decision makers Criminal act (actus reus) & intent (mens rea) Without this intent, insanity could be argued Insanity: a psychological or neurological impairment that destroys the offender’s discernment or their ability to control actions. Procedural Law: Adjudication Relies heavily upon the inquisitorial process The king’s prosecutor is a part to the suit in every criminal case Two magistrates also used during the investigation and the trial. JUSTICE SYSTEMS IN CIVIL-LAW COUNTRIES Copyright © 2015 Sesha Kethineni. All rights reserved.
Germany Development of the civil legal code shaped by the German Civil Code and the French Napoleonic Code Substantive law remained relatively stable for 100 years Major changes beginning in 1969 (e.g., the Criminal Law Reform Acts) Emphasized the restructuring of sanctions to make them more conducive to rehabilitation. Substantive Law: Insanity Stipulates that only intentional conduct is punishable Persons with “diminished capacity” excused from criminal prosecution Procedural Law: Adjudication Inquisitorial process German citizens serve as lay judges rather than jurors JUSTICE SYSTEMS IN CIVIL-LAW COUNTRIES Copyright © 2015 Sesha Kethineni. All rights reserved.
Saudi Arabia One of few countries that follow the Islamic legal tradition No penal code, nor a code of criminal procedure The Qur’an and Sunna provide the basic standards of adjudication Substantive Law: Insanity Two aspects of criminal intent: general criminal intent and specific criminal intent Possible to commit an act with general intent, but without specific intent Under Islamic law, criminal capacity increases with age Procedural Law: Adjudication The Shari’a does not specify procedures of adjudication Developed at the discretion of the state Both adversarial and inquisitorial procedures Single judge in deciding official court matters JUSTICE SYSTEMS IN AN ISLAMIC LAW COUNTRY Copyright © 2015 Sesha Kethineni. All rights reserved.
People’s Republic of China Prime example of the mixed legal tradition Comprehensive codes of substantive and procedural laws generated in 1979 Reflect the influence of the USSR Substantive Law: Insanity Recognizes the need for both act and intent Law lists persons who are still considered to have mens rea (e.g., intoxicated persons, deaf-mute or blind persons) Considered with persons who are “mental patients” Procedural Law: Adjudication More inquisitorial than adversarial Trial a continuation of the investigation, which is begun by the prosecutor before the trial Adjudicators consist of a collegial panel of judges and people’s assessors JUSTICE SYSTEMS IN A MIXED-LAW COUNTRY Copyright © 2015 Sesha Kethineni. All rights reserved.
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