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: 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.

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.

Socialist Law Tradition 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 Civil Law Roman law Canon law Codification Socialist Law Russian law Law as artificial Marxism-Leninism Islamic Law Shari’a Witnesses and oaths Extensions

and unwritten law distinguished? Question How are written law and unwritten law distinguished?

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

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 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 Shari’a

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

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

Which of the four legal traditions would be easiest to compare? 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-by-case 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 and petit juries play a strong role There is a presumption of innocence

Name a few other examples 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?