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

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

Comparative Law n band: small groups of hunters and gatherers n tribe: larger groups who augment hunting and gathering with agriculture Law in Preliterate Bands and Tribes

Comparative Law n what is crime? – a violation of a criminal statute n must be written – can preliterate people commit crimes? n homicide and theft Law in Preliterate Bands and Tribes (cont.)

Comparative Law n no formal agents of social control n exposure to informal pressures to conformity n Inuits and self-redress – ultimate result of most extreme form of self- redress? – song duel Law in Preliterate Bands and Tribes (cont.)

Comparative Law n group response to offender – ostracism and banishment n 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 n civil law n common law n Islamic law n socialist law Law in the Modern World: Four Traditions

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

Comparative Law n originated in England--Normal conquest, 1066 n means of unifying England, increasing royal power at the expense of feudal lords n fashioned from local customs n judge-made law n spread throughout world via colonization and war Common Law

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

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

Comparative Law n French civil law – emphasizes communitarian values rather than individualistic – crime control system, as opposed to due process (American) n written – codes create the civil law rather than revealing existent laws – laws replace, rather than supplement, previous law Civil Law (cont.)

Comparative Law n precedent is not officially recognized – not binding and considered a tool of last resort n 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 Civil Law (cont.)

Comparative Law – common law civil rights viewed as unnecessary – right to remain silent is a formality with little force n 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 Civil Law (cont.)

Comparative Law – penalty phase takes place soon after conviction phase n 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 Civil Law (cont.)

Comparative Law n types of crime – crimes – delicts – contraventions n no bail Civil Law (cont.)

Comparative Law n originated in 1917 with the Russian Revolution and USSR n based on codified Marxist/Leninist ideology n it is the only system of law considering itself to be a temporary anachronism devoted to its own demise n emphasizes communal values over individual rights; low-tolerance crime control Socialist Law

Comparative Law n Chinese socialist law – socialist law combined with aspects of Confucius n written; precedent is not recognized n 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 n 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 n death sentence – immediate – delayed n judicial review is severely limited n 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 n Higher People’s Court – analogous to U.S. state supreme court n Intermediate People’s Court – prefecture level – original jurisdiction n Basic People’s Court – U.S. district (felony) court n appeals from both prosecutor and defendant Socialist Law (cont.)

Comparative Law n written – Qur’anic precepts, interpretations, and commentary – constitution – Shari’a: path to follow n consists of Qur’an, commentary, and case laws n Saudi Arabia Islamic Law

Comparative Law n 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 Islamic Law (cont.)

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

Comparative Law n crime and punishment – Hadd – Quesas – Ta’azir n those crimes with punishments delineated by Qur’an are more serious than other crimes n higher standards of evidence for Hadd crimes Islamic Law (cont.)

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

Comparative Law n recognition that there are fundamental principles and values stressing human dignity and value n these values and principles are articulated and formalized in writing and contained in revered documents n substantive laws and administrative procedures are implemented to hold the state and its agents to those values and principles The Rule of Law

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

Comparative Law n as world becomes more complex and interdependent, cultures will converge n this results in systems of law coming into contact and becoming more similar n this is resulting in recognition of the rule of law and individual rights n examples: – International Court of Justice (World Court) – European Court of Human Rights Convergence of Systems

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