Comparative Criminal Justice Systems

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Comparative Criminal Justice Systems

• SUBSTANTIVE LAW and PROCEDURAL LAW
• IN THE FOUR LEGAL TRADITIONS
• CHAPTER FIVE
• Reichel

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Questions

• Historically, we know that in common law
  countries judge-made law, based on custom, was
  the foundation of (unwritten) criminal law.
• How has the concepts of
• content, context, and time
• affected this premise in Scotland and the U.S.?
• Have expanding populations and increased
  heterogeneity had an effect? If so, how?

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Substantive Law

• Common Law
• Rely on statutes (codes), enacted by the
  legislature, to express substantive law. The
  Supreme Court is the final arbiter.
• Civil Law
• Every crime and every penalty must be embodied in
  a statute enacted by the legislature.

• Socialist Law
• Codes reflect Imprecision over specificity.
• Islamic Law
• Codes reflect three categories 1) crimes
  against God (hudud) 2) crimes which require
  retaliation by the victim or victims family
  and, 3) acts condemned by Sharia or Sunna.

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Question

• How are public law
• and private law distinguished?

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Adjudicatory Process

• The Adversarial system
• versus
• The Inquisitorial system
• The fundamental aim of both is to find the truth.

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Legal Traditions and the Adjudicatory Process

• Common Law
• Adversarial
• (Accusatorial)
• Civil Law
• Inquisitorial

• Socialist law
• Inquisitorial
• Islamic Law
• Mixed

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The Adversarial System

• The adversarial system is characterized by a set
  of legal procedures used in Common Law countries
  to determine the truth during adjudication
  whereby the prosecution and defense counsel
  compete against each other while the judge
  insures fairness
• and adherence to the rules.

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The Inquisitorial System

• The Inquisitorial system found in both Civil Law
  and Socialist Law countries is characterized by
  extensive pretrial investigation and
  interrogations that are designed to ensure that
  no innocent person is brought to trial i.e., an
  official inquiry. A trial continues the
  investigative process with a procedurally active
  judiciary and passive lawyers.
• Under Socialist Law, an agent of the police or
  prosecution takes the investigative role.

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Adversarial and Inquisitorial Systems

• Inquisitorial
• Inquiry
• Judge as inquisitor
• Emphasis on screening phase and factual guilt.
• Judiciary directly involved
• Defendant is expected (although not required) to
  cooperate during investigations and at trial.
• Judge has the power to investigate and to decide
  outcome of the case.

• Adversarial
• Accusation
• Judge as referee
• Emphasis on trial stage and rules of procedure to
  ensure a fair trial.
• Judiciary restricted in investigatory and
  adjudicatory process
• Defendant is neither required nor expected to
  cooperate. Prosecutor is responsible for burden
  of proof.
• Checks and balances among courtroom participants
  shared power.

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Questions

• Does the adversarial system emphasize procedure
  over substance?
• Is there greater diversity among nations in terms
  of procedural criminal law than on issues of
  substantive law?

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Judicial Review

• The process by which governments are held
  accountable to the law and the fundamental values
  of a nation.
• As a result of judicial review, the rule of law
  can be achieved because the government, like its
  citizens, is made accountable.

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Models of Judicial Review
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Questions

• Does either the diffuse model or the concentrated
  model belong to any one legal tradition?
  Explain.
• Are there countries without judicial review?
• If so, which legal traditions do they represent?