Comparative Criminal Justice Systems

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Comparative Criminal Justice Systems

• LEGAL TRADITIONS
• CHAPTER FOUR
• Reichel

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Question

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

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Legal TraditionsA Cultural Perspective

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

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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.

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Four Legal Traditions

• Common Law Tradition
• Civil Law Tradition
• Socialist Law Tradition
• Islamic Law Tradition

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Key Characteristics of Four Legal Traditions

• Common Law
• Feudal practices
• Custom
• Equity
• Civil Law
• Roman law
• Canon law
• Codification

• Socialist Law
• Russian law
• Law as artificial
• Marxism-Leninism
• Islamic Law
• Sharia
• Witnesses and oaths
• Extensions

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Question

• How are written law
• and unwritten law distinguished?

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Sample Countries in the Four Families of Law

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

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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?

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Courts and Legal Tradition

• Common Law
• Courts share in
• balancing power
• Civil Law
• Courts have equal
• but separate power

• Socialist Law
• Courts are subordinate
• to the legislature
• Islamic Law
• Courts and other government branches are
  subordinate to the Sharia

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A Substantive Perspective(The Primary Source of
Law)

• Common Law
• Custom
• Civil Law
• Written code
• (provided by rulers
• or legislators)

• Socialist Law
• Principles of the
• socialist revolution
• Islamic Law
• Divine revelation

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A Procedural Perspective(Flexibility)

• Common Law
• Judge-made law and particularization
• Civil Law
• Variation in reasoning
• and definition,
• and identification of issues
• as either questions
• of law or fact.

• Socialist Law
• Principles of analogy and directions from
• higher-level courts
• Islamic Law
• Mazalim courts and the process of ijtihad

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Question

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

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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-by-case basis
• Supreme Courts develop law

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Civil and Common Law Systems(Contd)

• 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 and petit juries play a strong role
• There is a presumption of innocence

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Summary Statement

• None of these types of law is practiced in its
  pure, or ideal form in todays world.
• Example Nigeria
• Name a few other examples
• and explain why?