Law, Justice, and Society:A Sociolegal Introduction

Chapter 14

Comparative Law:

Law in Other Cultures

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

Importance of Comparative Law

Comparative Law

band: small groups of hunters and gatherers tribe: larger groups who augment hunting

and gathering with agriculture

Law in Preliterate Bands and Tribes

Comparative Law

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 (cont.)

Comparative Law

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

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

civil law common law Islamic law socialist law

Law in the Modern World: Four Traditions

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

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

Comparative 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

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 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

Civil Law (cont.)

Comparative Law

– 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

Civil Law (cont.)

Comparative Law

– 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

Civil Law (cont.)

Comparative Law

types of crime– crimes– delicts– contraventions

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– 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

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

appeals from both prosecutor and defendant

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

Islamic Law (cont.)

Comparative Law

hybrid inquisitorial/adversarial precedent is absent no use of juries

Islamic Law (cont.)

Comparative Law

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

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 Rule of Law

Comparative Law

France

Saudi Arabia

China

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

Convergence of Systems

Comparative Law

does this apply to socialist and Islamic systems?

Convergence of Systems (cont.)