Comparative Criminal Justice Systems LEGAL TRADITIONS CHAPTER FOUR

Comparative Criminal Justice Systems LEGAL TRADITIONS CHAPTER FOUR Reichel

Question How have the concepts of content, context, and time affected other nations and legal traditions?

Legal Traditions: A Cultural Perspective The cultural perspective reflects historical attitudes about the following issues: q Nature of the law. q The role of law in society. q How a legal system should be organized and operated. q The way law is or should be made, applied, or perfected.

Indigenous Laws Native laws of persons who originate from or live in a particular area – independent of outside influences, i. e. , aboriginal or native populations. Indigenous laws have influenced legal systems throughout the world.

Four Legal Traditions Common Law Tradition Civil Law Tradition Socialist Law Tradition Islamic Law Tradition

Key Characteristics of Four Legal Traditions Common Law § § § Feudal practices Custom Equity Socialist Law § § § Civil Law § § § Roman law Canon law Codification Russian law Law as artificial Marxism-Leninism Islamic Law § § § Shari’a Witnesses and oaths Extensions

Question How are written law and unwritten law distinguished?

Sample Countries in the Four Families of Law n Civil Law Family: Belgium, France, Germany, Luxembourg, and Spain n Common Law Family: Canada (except Quebec), England, India, Australia, and the U. S. n Socialist Law Family: China, Cuba, North Korea, Vietnam, the former Soviet Union n Sacred Law Family: Iran, Pakistan, Saudi Arabia, Sudan, Nigeria

Question Although the United States has its legal tradition in Common Law, the statutes that are created by the legislature resemble Civil Law. How do the statutory provisions passed by the U. S. differ from the French or German Civil code systems?

Courts and Legal Tradition Common Law Socialist Law Courts share in balancing power Courts are subordinate to the legislature Civil Law Islamic Law Courts have equal but separate power Courts and other government branches are subordinate to the Shari’a

A Substantive Perspective (The Primary Source of Law) Common Law Socialist Law Custom Principles of the socialist revolution Civil Law Written code (provided by rulers or legislators) Islamic Law Divine revelation

A Procedural Perspective (Flexibility) Common Law Socialist Law Judge-made law and particularization Principles of analogy and directions from higher-level courts Civil Law Variation in reasoning and definition, and identification of issues as either questions of law or fact. Islamic Law Mazalim courts and the process of ijtihad

Question Which of the four legal traditions would be easiest to compare?

Civil and Common Law Systems CIVIL LAW • Law and procedure governed by codes • Forward looking • • Codes based on scholarly analysis and conceptualizations Supreme Court interprets nuances of the law COMMON LAW • Law and procedure governed by laws and precedents • Focus on past experiences • Laws reflect the experiences of pratitioners, on a case-bycase basis • Supreme Courts develop law

Civil and Common Law Systems (Cont’d) CIVIL LAW • Legal proceedings must establish the entire truth • Judges are free to find and interpret facts • Little lay participation • No presumption of guilt or innocence. COMMON LAW • Truth-finding is strictly limited by pleadings and rules of evidence • Rules of evidence limit the fact-finding process • Grand petit juries play a strong role • There is a presumption of innocence

Summary Statement None of these types of law is practiced in its “pure, ” or ideal form in today’s world. Example: Nigeria Name a few other examples and explain why?