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Philip L. Reichel CHAPTER 1 JUSTICE SYSTEMS IN SELECTED COUNTRIES Copyright © 2015 Sesha Kethineni. All rights reserved.

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Presentation on theme: "Philip L. Reichel CHAPTER 1 JUSTICE SYSTEMS IN SELECTED COUNTRIES Copyright © 2015 Sesha Kethineni. All rights reserved."— Presentation transcript:

1 Philip L. Reichel CHAPTER 1 JUSTICE SYSTEMS IN SELECTED COUNTRIES Copyright © 2015 Sesha Kethineni. All rights reserved.

2  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.

3  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.

4  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.

5  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.

6  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.

7  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.

8  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.

9  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.

10  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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