COMPARATIVE LAW: LAW IN

OTHER CULTURES

Chapter 14

Importance of Comparative Law•All societies develop rules for assuring peace, order, predictability, and cultural survival

•May differ enormously from society to society•Important to have knowledge of legal systems other than our own

•Provides us with new understanding and appreciation of our own

•Will better equip us to identify its strengths and weaknesses

Law in Preliterate Bands and Tribes•Preliterate societies

•Have no written language•What is a crime?

•A violation of a criminal statute•Must be written

•Can preliterate people commit crime?•Homicide and theft

•Social control concern central concern to all organized groups•These cultures ruled by customs as rigid and inviolable as law

Law in Preliterate Bands and Tribes•Bands

•Small groups of hunters and gatherers•Tribe

•Larger groups who augment hunting and gathering with agriculture

•No formal agents of social control•Exposure to informal pressures to conformity

Law in Preliterate Bands and Tribes•Inuits and self-redress

•Ultimate form• Aggrieved party would kill offender

•Alternate for: Song duel• Participants hurl sung insults at one another• Witnessed by crowd, which declares winner• Decision concludes matter

•Group response to offender•Ostracism and banishment

Law in Preliterate Bands and Tribes•Modern Inuits have lost effective traditional social control mechanisms•Been replaced by formalized laws

•Tribal social control•Hurons and fines paid by claim•Witchcraft and treason were crimes against society

•Huron have also been modernized•Now live under laws of jurisdiction in which they reside•Some have own systems within reservations

Law in the Modern World: The Four Traditions•Four main traditions of law in the world:

•Common law•Civil law•Socialist law• Islamic law

•Numerous systems exist:•Each unique• Just about all related in some degree to main four•Some voluntarily or involuntarily borrow elements•Some are hybrids of one or more•Even among members of same, differences exist

Comparative Law

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

Percent

Common Law•Originated in England and influence spread throughout world

•India is world’s most populous common la country•Not fully common law

•No system is imported whole•Still remains major source of modern criminal law in most English speaking countries

•Limited influence outside English speaking countries

Historical Aspects of Common Law•Traced to Norman Conquest of England (1066)•Means of unifying England

• Increasing royal power at expense of feudal lords•Fashioned from local customs and practices•Judge-made law•Evolved over centuries in response to problems of common person

Basic Features of Common Law•Common law distinguished from other systems in five important ways:• It is unwritten• Its respect for precedent• Its adversarial procedures• Its use of grand and petit juries• Its extensive use of judicial review

Basic Features of Common Law: Unwritten•Does not mean it is not literally written down or lacks precision of meaning

•Common law has long history of producing revered documents stressing rule of law

•Term used to distinguish its origin in customs of people•United States judges retain modicum of old common law lawmaking role

Basic Features of Common Law: Respects Precedent•Flows from its origin as case law•Reflects accumulated wisdom of generations of judicial decisions

•Operates in vertical and horizontal dimensions•Allows for predictability, consistency, and rationality

Basic Features of Common Law: Adversarial•Nature stems from “trial by combat” method of settling disputes

•Both prosecution and defense expected to vigorously pursue self-interest

•Judges function as disinterested referees•Judges do not play as active a role as in other legal traditions

Basic Features of Common Law: Uses Grand and Petit Juries•Indictment by grand jury and trial by jury are cherished procedures

•Traditionally viewed as bodies of citizens interposing themselves between power of state and accused

•Expense of grand juries led to abolition in England and Canada•Criticized as well

•Practical consideration have led to less use of trial juries than previous

Basic Features of Common Law: Uses Judicial Review•Refers to judiciary’s examination of legality of actions and decisions of executive and administrative officers of government•As well as appellate review of lower court decisions

•Scope limited to various degrees in different countries•Process follows roughly similar lines in all common law countries

Civil Law•Most pervasive legal tradition in world

•Used in over half of world’s nations•Sometimes called continental law or code law

•Avoids confusion with civil branch of common law countries•Former Warsaw Pact nations have reverted to civil law systems

•Encompasses variety of systems that differ due to unique developmental history in each country

Historical Origins of Civil Law•Has longer history of development than common law

•Not so centered on one country•Ancient Rome and nineteenth-century France and Germany•Twelve Tables (450 BCE)•Code of Justinian (533 CE)

•Modern civil law owes most to Napoleonic Code (1804 CE)

Basic Features of Civil Law•Typically developed after major social upheaval as result of distrust of previous status quo

•French civil law•Emphasizes communitarian values rather than individualistic

•Crime control system used• Rights of victimized community

Basic Features of Civil Law: Written•Codes create civil law rather than revealing existent laws

•Laws replace, rather than supplement, previous law•Emphasizes revolutionary nature

•Legal prescriptions and proscriptions outlined are mostly consistent with norms and customs that prevailed at time of publication

Basic Features of Civil Law: Precedent Is Not Officially Recognized•Codes laid down are complete the day they are enacted•Not subject to judicial review

•No need to refer to past cases for guidance•Code is guidance needed

•In practice, no code is complete•Civil law judges often refer to and rely on case law and thus to precedent

•If used, is not binding and is tool of last resort

Basic Features of Civil Law: Inquisitorial Rather Than Adversarial•Primary distinguishing feature of civil law•Term inquisitorial conjures up negative images•Truth-seeking investigations and interviews•Many procedural protections found in common law systems not found •Do provide some rights

•Process led by judge•All parties expected to cooperate

Basic Features of Civil Law: Inquisitorial Rather Than Adversarial•Strong presumption of guilt if case goes to trial

• Investigation takes place under presumption of innocence•Common law civil rights viewed as unnecessary

•Right to remain silent is formality with little force•Doing so at trial may be legally considered as evidence of guilt

Basic Features of Civil Law: Has Traditionally Made Little Use of Juries•Used only for very serious crimes•Do not have same role as in common law countries•Juries consist of three judges and nine laypersons•Jurors can question all other parties•Trial judges are not investigating judge

Basic Features of Civil Law: Has Traditionally Made Little Use of Juries•Judges are active participants in trials

•Play all roles in common law systems•Verdicts require agreement of at least eight of twelve•If verdict is guilty

•Voting on penalty begins immediately

Basic Features of Civil Law: Judicial Review Is Used Sparingly•Three Supreme Courts in France

•Cour de Cassation• Supreme in criminal and civil matters

•Conseil d’Etat• Supreme in administrative matters

•Conseil Constitutionell• Supreme in constitutional matters• Equivalent to United States Supreme Court

•No judicial review of legislative statutes in most instances up until 2010

Basic Features of Civil Law: Conseil Constitutionell•Constitutional Council•Used to be unique among national supreme courts•Main function was to rule on constitutionality of proposed legislation•Has gradually become fully functional court since reforms of 2008

•Now possible for any citizen to raise issue of unconstitutionality before lower court• If decided constitutionally relevant, submitted to Constitutional Council

•Has drastically increased Council’s workload

Basic Features of Civil Law: Cour de Cassation•“To break” or “to smash”•Courts of last resort•Decisions involving criminal matters and private commercial disputes are appealable

•Court sits in six chambers•Each has fifteen judges

•Smashes erroneous decisions•Decisions not binding on lower courts•Only rule on points of law

Basic Features of Civil Law:Types of Crime•Three offense categories recognized•Crimes

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

•Tried in assize court• Only court that uses juries

•Delicts•Less serious offenses for which penalty can be up to five years

•Tried in correctional court

Basic Features of Civil Law:Types of Crime•Contraventions

•Minor offenses with maximum penalty of two months in jail•Tried in police court

•Can be potential for abuse•Bail infrequently granted due to operation based on crime control model

•Trial more of forum for known facts•System is one of professional bureaucracy

Socialist Law•Originated in 1917 with Russian Revolution and USSR•Based on codified Marxist/Leninist ideology•Only system of law considering itself to be temporary anachronism devoted to own demise

•Emphasizes communal values over individual rights•Low-tolerance crime control

Chinese Socialist Law•Scholars maintain Imperial China never developed sound rational-formal legal system• Influenced by Confucius

•Some point to Ch’ing Code (1646) as evidence of being at least substantively rational•436 statutes and four thousand offenses for which punishment was prescribed

Chinese Socialist Law: Is Written and Precedent Not Recognized•Chinese legal system borrowed heavily from Soviet legal codes

•Present system established in 1954•First code of criminal law and procedure adopted in 1979

•Under new code judiciary began to exercise small measure of independent power

•Precedent has no place in Chinese system•Law has always had high degree of flexibility in both substance and procedure

Chinese Socialist Law: Is Inquisitorial and Adversarial•Mostly inquisitorial•Emphasis on confessions

•Evidence never presented to defendants prior to trial•Defendants can defend themselves in court, hire lawyer or advocate

•Advocates see procedural law is observed and lenient sentences received

Chinese Socialist Law: Uses a Quasi-Jury System•Collegial bench

•One to three professional judges•Two to four lay people’s assessors

•No right to remain silent•Defendant can argue with other actors•Very punitive

Chinese Socialist Law: Death Sentence•Delayed

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

• If rehabilitated• Sentence usually charged 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, more recently, lethal injection

Chinese Socialist Law: Judicial Review is Limited•Severely limited•Supreme People’s Court

•Answerable to Standing Committee of Chinese Communist Party

•Advisory opinions•Does not hear cases from lower courts

Chinese Socialist Law: Hierarchy of Chinese Courts•Higher People’s Court

•Analogous to U.S. Supreme Court•Intermediate People’s Court

•Prefecture level•Original jurisdiction

•Basic People’s Court•Analogous to U.S. District (felony) court

•Higher judicial review of outcome•Appeals from both prosecutor and defendant•Right to one appeal

Islamic Law•Each country is different

•Vary in level of adherence to strict Qur’anic interpretations•Fundamentalists insist on strict adherence

•Saudi Arabia•Qur’an has served as constitution since birth of nation

• Lays out general principles that must be interpreted and applied to variety of specific cases

Islamic Law: Is Written•Origins of law is Qur’an•Shari’a

•“Path to follow”•Three distinctions

•Based on direct revelation from God•Attempts to regulate behavior and thought processes•Does not require uniformity of law

Islamic Law: Hybrid Inquisitorial/Adversarial System; Precedent Absent; No Use of Juries•Hybrid of inquisitorial and adversarial systems

•Strong emphasis on inquisitorial system•System contains few procedural rules

•Have right to confront accusers and are assumed innocent until proven guilty

•Court proceedings very informal by Western standards• Judge hears cases and makes decisions based on own distillation of facts and testimony• Not bound by precedent

•Do not use juries

Islamic Law: Crime and Punishment•Hudud crimes

•Fixed penalty crimes considered God prescribed•No judge or legislative body can alter penalty for them•Heard by panel of three judges•Variations allowed according to circumstances•Conviction requires confession or eyewitness testimony of at least two adult males• Muslims of impeccable character

Islamic Law: Crime and Punishment•Quesas crimes

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

•Penalties based on “eye for eye” philosophy•Serious crimes, but not ones for which Qu’ran specifies a penalty

•Penalties can be negotiated or forgiven

Islamic Law: Crime and Punishment•Ta’azir crimes

•“discretion” or “deterrence” crimes• Imposition of punishment is discretionary•Penalties range from dressing down to some form of light corporal punishment

•Purpose of punishment is discretionary

Islamic Law: Crime and Punishment•Hudud crimes least likely to result in death penalty

•Acts similar may be tried as quesas or ta’zir crime to assure conviction and punishment

•Differentiation depends on circumstances•Law does not normally allow legal representation in a trial

•Oath swearing•Whoever swears oath, wins the case

Islamic Law: Judicial Review Limited to Certain Crimes Only•Appeals process may come into play after judgment is rendered

•Death sentences appealable only for ta’zir crime•Must be filed up to thirty days after conviction

•Hudud crimes cannot be appealed•Pardons and stays can be granted by king, just not for hudud crimes

•Death sentence for quesas murder may be appealed to victim’s family only

The Four Traditions and the Rule of Law•Useful way of making comparisons is degree to which rule of law is present

•Rule of Law has three important elements:•Recognition that there are fundamental principles and values stressing human dignity and value

•Values and principles are articulated and formalized in writing and contained in revered documents

•Substantive laws and administrative procedures implemented to hold state and its agents to those values and principles

The Four Traditions and the Rule of Law•Freedom House (Puddington, 2014)

•Ranks countries on scale of one through seven• One is highest level of civil liberty

•Economist Intelligence Unit (2014)•Ranks countries zero through ten

• Ten indicates highest civil liberty score•United States rating

•1 by Freedom House•8.11 by Economist Intelligence Unit

• Norway ranked highest; North Korea ranked lowest

The Four Traditions and the Rule of Law: Civil Law (France)•Exhibits first two elements of rule of law•Addressing third requires care of legal ethnocentrism•Does not lack due process procedures

•Simply have different ones intended to do different things than U.S.

•Rated same as United States on both scales•1 by Freedom House•8.11 by Economist Intelligence Unit

The Four Traditions and the Rule of Law: Islamic Law•Conforms to first two requirements of rule of law•Provisions for procedures of implementation has not been major concern

•Only some Islamic countries have secularized laws to provide moderate due process rights

•Saudi Arabia rating•7 by Freedom House (worst possible score)•1.82 by Economist Intelligence Unit (very low)

The Four Traditions and the Rule of Law: Socialist Law•Fails to meet any of the criteria for operating under rule of law•Absent by design

•Subordinates itself to social policy•Existing procedural rules are followed or not followed according to needs of state at moment

•China rating•6 by Freedom House•3.0 by Economist Intelligence Unit

The Convergence of Systems•As world becomes more complex and interdependent, cultures will converge•Results in systems of law coming into contact and becoming more similar

•Resulting in recognition of 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?