250 words and two scholarly references

from 48 percent to 50 percent; the ability of the police to address local concerns increased from 56 percent to 58 percent; and the overall confidence in the local police was up from 69 percent to 72 percent. Finally, 38 percent of the victims of crime in the previous year, who had contact with the police, were very satisfied with how the police handled the incident, 32 percent were fairly satisfied, and 30 percent were unsatisfied.

JUDICIARY Scholars of English legal and constitutional history are generally in agreement that King Henry II (1133–1189) was the principal facilitator in the development of English common law and the judicial machinery used to administer it. When Henry became king in 1154, he wanted to strengthen both his political and economic positions. To assist in achieving these ends, he synthesized both old and new ideas with regard to centralizing the administration of justice.

Prior to Henry’s reign, the administration of justice was essentially carried out at the grassroots level. While there were a number of local courts with varying degrees of jurisdiction, the shire or county courts were the most significant before the Norman invasion of 1066. The principal officers of the shire courts were wealthy landowners, the bishop, and the reeve of the shire (who later would be referred to as the sheriff). Social rank, rather than knowledge of law, was the criterion used to determine who judged cases.

Feudalism was firmly established after the Norman invasion. As noted earlier, feudalism provided social and economic security for people who worked the land for a lord of the manor. One of the responsibilities of a lord was to administer justice; this was carried out in the manor court. Lords of the manor were a powerful political force for the king to consider. It was from this group that Henry II enhanced his political power by wrestling from them the authority to administer justice. He accomplished this by utilizing several different strategies.

First, some people had become dissatisfied with the administration of justice at the manorial level. They wanted the king, who in theory was the source of justice, to decide their cases. Kings of England had for years relied upon their Curia Regis, or Great Council, for advice. The Curia Regis counseled the king on domestic, foreign, and military affairs, and served as a court to settle disputes among powerful lords of the kingdom. It was from the Curia Regis that Henry created and permanently established three courts at the city of Westminster. The Court of Exchequer decided questions between the Crown and the taxpayer. The Court of Common Pleas had original jurisdiction in both civil and criminal cases between subjects of the king. The Court of King’s Bench had original jurisdiction in cases between the lords of the realm, as well as appellate jurisdiction for certain cases from Common Pleas and other local courts.

Second, if subjects could not come to the courts that permanently sat at Westminster, royal justice would come to them in the form of a circuit judge. Henry II borrowed this idea from his grandfather, King Henry I (1068–1135), but expanded its use to a considerable degree. By the fourteenth century, royal justice was expanded further at the grassroots level with the introduction of the office of justice of the peace. The principal responsibilities of

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the justices of the peace included making arrests, receiving indictments, and hearing and determining minor cases.

From the fifteenth century through the nineteenth century, other specialized courts were added, and the court hierarchy was occasionally reorganized. While some of these specialized courts have been abolished, others remain as modern administrative courts. Thus, a highly centralized court hierarchy with specialized jurisdiction was established quite early in England, as compared to other European countries.

Third, while Henry II strengthened his political position among the lords through the centralization of his royal courts, he also enhanced his financial status. Royal justice was indeed becoming available to more people—but for a price. In order to gain entry into a royal court, a person had to purchase a writ. Although many of the early writs dealt with property rights, a series of important writs designed to address civil and criminal procedure was developed during the medieval period. Quo warranto considered how much legal and political power a lord could exercise. Certiorari enabled proceedings in an inferior court to be brought to King’s Bench or some other superior court. Habeas corpus was designed to assure the presence of a person before the proper court. Prohibition forbade proceed- ings in inferior courts, and mandamus ordered inferior courts to perform their legal functions in a manner that would correct a previous error. Like the centralization of the courts, the writ system has remained an integral part of the legal system in countries tracing their origins to English common law.

Fourth, the jury is a legal institution that has been synonymous with the evolution of the common law. Although the jury was utilized before his reign, Henry II is credited with extending and formalizing its use. Originally, the jury was conceived as an administrative mechanism calling together a group of men who presumably knew certain facts and were sworn to reveal information requested by the king. Although Henry II continued this administrative practice, he expanded the jury’s use in other ways. Through the Assize of Clarendon (1166), a grand jury in each county was established for criminal cases. Grand juries were originally composed of 12 people; later, the number increased to 24. Its responsibility was to identify people suspected of committing serious crimes. Until the fifteenth century, grand jury members were presumed to have personal knowledge of the case. By the end of the century, however, grand juries were no longer composed of people conversant with a case; rather, they were a group mandated to examine evidence presented to them. With the abolition of trials by ordeal in 1215, resulting from the pronouncement of the Fourth Lateran Council, the petty or trial jury was created. (Trials by ordeal will be explained in the next section on the law.) A trial jury was composed of 12 people who were to determine the guilt or innocence of a person.

The centralization of the royal courts, the establishment of circuit courts, the utilization of legal writs, and the creation of the grand and petty juries were largely the work of Henry II. Each became a significant feature in the administration of justice by the end of the thirteenth century.

It was also during the medieval period that a distinct legal profession emerged. For some time, English kings had appointed to the Curia Regis men who were learned in law, and this tradition increased after the Norman invasion. These men were essentially clergy who had studied either Roman law or the canon law of the Roman Catholic Church.

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As legal servants of the Crown, they were the precursors of the English legal profession. They served as judges who adjudicated cases brought to the king’s courts. These judges were assisted in their work by clerks. Clerks were younger clerics who often possessed a formal education as well as the practical experience of aiding judges. As a result, they were frequently appointed to fill judicial vacancies. Thus, the notion that a practical apprenticeship in a courtroom was a criterion for judicial appointment was adopted quite early in England and remains an important factor to this day.

By the late thirteenth century, legal work had been taken over by laypersons, and two distinct professional classes were emerging. As early as Henry I’s reign, litigants who were accused of a crime other than a felony were permitted the assistance of a friend in court to help plead their case. By the thirteenth century, a professional class of pleaders who performed this task had been developed. The demise of the use of clerics as legal advisors and judges led to the tradition of appointing pleaders (because of their extensive courtroom experience) to judicial vacancies.

Attorneys were the other emerging class of legal specialists. They were individuals appointed (or “attorned”) to represent a person. English kings had frequently given power of attorney to men who represented them in their absence. The performance of this service was gradually popularized to the extent that people began to represent clients in court. Thus, a new occupation was created: A professional class of attorneys was firmly established by the late thirteenth century.

By the fourteenth century, then, two professional classes learned in the common law were established: pleaders and attorneys. It was also in that century that significant steps were taken to establish a specific form of legal education. Originally, legal training had been largely an informal matter. Members of the legal profession, however, were in the habit of frequenting certain inns or taverns when they were in the city of Westminster practicing before the royal courts. Young men who aspired to a career in the law would go to these inns and listen to lawyers discussing cases. They also would attend court and observe the proceedings.

It was during the fourteenth century that Gray’s Inn, Lincoln’s Inn, the Inner Temple, and the Middle Temple were taken over by the legal profession and transformed into a collegiate type of training center for young men who wanted to become pleaders. These legal societies established rules and regulations by which each student was required to abide. After a period of approximately seven years of study, a student was called to the Bar. Thus, pleaders became known as barristers.

By the sixteenth century, those men who were not interested in a career at the Bar but who wanted to represent and advise clients as attorneys became known as solicitors. England’s legal profession consisted of two separate branches quite early in its development, and the divisions have been retained to this day. Just as pleaders were selected to become judges during the Middle Ages, barristers—the direct descendants of pleaders—are the branch of the legal profession generally selected to serve as judges today.

Finally, the kind of legal education offered in England differed significantly from that of countries on the continent of Europe, where the course of study for law students was presented at a university and was essentially theoretical in content. England’s common law students received what one might call a vocational-style training, for they were required

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to attend and to observe proceedings in royal courts. This was supplemented by a loosely structured academic component of lectures and readings at the inn with which they were associated. During the seventeenth and eighteenth centuries, the inns were closed, and law students were totally dependent on studying the law independently with a barrister. Although William Blackstone did lecture on English law at Oxford University during the late eighteenth century, it was not until the nineteenth century that English universities began to offer courses on English common law, which eventually led to a university degree.

Organization and Administration of the Courts

Before the English court hierarchy can be understood, it is important to explain the responsibilities of several officer holders.

Lord Chancellor

The role of Lord Chancellor has changed significantly over the years. Until 2006, the Lord Chancellor was the head of the judiciary of England and Wales and also charged with making all judicial appointments to the courts. This changed with the passage of the Constitutional Reform Act (2005). For a considerable period of time, criticism had been raised about the independence of the judiciary. In reference to the Lord Chancellor, how can a member of the prime minister’s cabinet (executive branch) and a member of the House of Lords (legislative branch) be the head of the judiciary and make all judicial appointments? By making two significant changes, the statute is designed to correct the perception that the process is flawed and lacks transparency (Woolf and Campbell-Holt, 2008).

First, the Lord Chancellor is no longer the head of the judiciary of England and Wales. That title passed to the Lord Chief Justice, who is the presiding judge of the criminal division of the Court of Appeal. According to Section 7 of the statute, the Lord Chief Justice will hold the office of President of the Courts of England and Wales and is thus head of the judiciary. The president is responsible:

(a) for representing the views of the judiciary of England and Wales to Parliament, to the Lord Chancellor and to Ministers of the Crown generally; (b) for the maintenance of appropriate arrangements for the welfare, training and guidance of the judiciary of England and Wales within the resources made available by the Lord Chancellor; (c) for the maintenance of appropriate arrangements for the deployment of the judiciary of England and Wales.

Second, the Lord Chancellor is no longer responsible for judicial appointments. The Constitutional Reform Act (2005) also created the Judicial Appointments Commission. This Commission is composed of 15 commissioners who are appointed by the monarch on the recommendation of the Lord Chancellor. The chair of the Commission must be a layperson. Among the other commissioners, five are members of the judiciary, two lawyers (one barrister and one solicitor), five laypersons, one lay magistrate, and one tribunal member (such as a member of the Immigration Appeal Tribunal).

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The selection of people to the judiciary will continue to be based on merit. The goal, however, is to encourage a wider pool of well-qualified candidates to apply. To illustrate, in 2000, 12.7 percent of the judges were women, and 2.1 percent were ethnic minorities. By 2011, those figures had improved, with 22.3 percent of the judges being women and 5.1 percent from minority backgrounds. The goal remains to continue the diversification of the judiciary. Of particular note, there is only one woman on the Supreme Court, along with 11 men. The justices of appeal include 33 men and four women (House of Lords, 2012). It was further reported that at the lower level of the court hierarchy, the magistrates’ courts, there are slightly more women than men, and ethnic minorities represent 8 percent of these justices of the peace. There are approximately 28,000 people who serve as part- time justices. They, along with 500 full-time district judges, handle 96 percent of the criminal cases.

In 2007, the Lord Chancellor was named to head a new cabinet-level department, the Ministry of Justice. The head of this ministry has two titles, Lord Chancellor and Secretary of State for Justice (or minister of justice). Moreover, in the past, the Lord Chancellor was a member of the House of Lords and presided over that House as its speaker. The new arrangement calls for the Lord Chancellor to no longer be the speaker of the House of Lords, and he or she can be a member of either house of Parliament. Finally, the Lord Chancellor is no longer required to be a lawyer.

The Ministry of Justice has an enormously broad and complex range of responsibilities. These are divided into four major categories. The first are issues pertaining to democracy and law. This encompasses constitutional reform, democracy and human rights, and law reform. Second are matters concerned with access to justice. They include courts service, legal aid, legal services, civil justice, regulating the legal profession, and the Parole Board. Third is the National Offender Management Service, which involves both public and private prison services and probation boards. A fourth and final category involves criminal justice. This includes criminal law, sentencing policy, criminal justice reform, and the Youth Justice Board.

Attorney General

Although each cabinet minister has a legal branch within the department, the Attorney General, as legal advisor to the Crown and the Houses of Parliament, usually handles the government’s controversial issues. The Attorney General and subordinate, the Solicitor General, are referred to as the law officers of the Crown. They are appointed by the prime minister. They possess distinguished legal careers and are notable politicians.

The Attorney General has four major responsibilities: (1) The Attorney General is the guardian of the public interest and accountable to the House of Commons for the criminal process in the courts. This area is somewhat limited, however, because administering the national prosecutorial system is the responsibility of the Director of Public Prosecutions, and initiating criminal law reform is the responsibility of the minister of justice. (2) As the guardian of the public interest, the Attorney General may bring civil actions and intervene in civil issues as amicus curiae when the government is not a party. (3) The Attorney General is also responsible for answering law reform questions in the House of Commons and is

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charged with rejecting or accepting bills dealing with such reform. (4) As titular head of the Bar of England and Wales, the Attorney General takes an active interest in the maintenance and enhancement of its professional status.

Director of Public Prosecutions

The Director of Public Prosecutions is a professional barrister or solicitor, appointed by the home secretary but supervised by the Attorney General. The director administers a large staff of lawyers specializing in criminal law and procedure. Prior to 1986, the principal task of this office was the prosecution of a few specific cases required by statute law, such as murders and cases against police officers. They also were mandated to advise police on their prosecutorial proceedings upon request. In this context, the office was to secure uniformity and consistency in prosecutions. Because police initiated most prosecutions, however, this goal was not achieved. Moreover, police often only consulted the office on borderline cases, so the office did not have a significant role in deciding to prosecute most cases.

Various interest groups and government commissions had expressed concern that police were both investigating and determining whether to prosecute in most cases. One of the specific criticisms directed at this arrangement was that too many cases presented by the police for prosecution were being dismissed by the courts. Critics felt that an independent assessment of the evidence in a case might then lead to greater consistency in the prosecution of cases. Although police hired local solicitors’ offices to work for them at the actual prosecution stage, those solicitors were not accountable to any government office.

It was suggested that an independent prosecutor service be established, and this occurred with the passage of the Prosecution of Offences Act (1985), creating the Crown Prosecution Service. Thus, the power to prosecute was removed from the police. Throughout its brief history, the Service had been confronted with various administrative problems. For example, criticism was directed at the management of the organization, suggesting that it was too centralized and that this fact had contributed to inefficiencies in the Service. At the time, the administration of the Service was divided into 13 areas that covered England and Wales. In a 1998 study of the Crown Prosecution Service, it was recommended, among other things, to decentralize the Service. This reorganization has been accomplished with the establishment of 42 local areas. These areas correspond with the boundaries of the 43 police forces of the country, with one exception: the Metropolitan Police of London and the City of London Police represent a single area of the Crown Prosecution Service. Each area is headed by a Chief Crown Prosecutor who is appointed by the Director of Public Prosecutions.

The goals of the Crown Prosecutor Service are to assure independence and uniformity in the prosecution of cases, to enhance the quality of prosecutions with the public interest in mind, and to improve efficiency and effectiveness in prosecuting cases. It is the respons - ibility of the area Crown prosecutors to review police evidence and to determine if a case should be prosecuted. If the decision is in the affirmative, the Crown prosecutors must also decide whether a case should be presented in a Crown court or a magistrates’ court.

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The decision to prosecute is guided by two tests found in the Code for Crown Prosecutors. The evidential test is concerned with the prospect of convicting the accused based upon the quality and quantity of evidence collected. Within this context, the Crown prosecutor is obviously concerned with the reliability of the evidence and the likelihood of it being admitted or excluded at trial. Assuming a case meets the requirements of the first test, the second test is then considered. The second test is referred to as the public interest test. At issue here, as the name of the test suggests, is whether it is in the public interest to prosecute or possibly decline prosecution. Factors that favor a prosecution include the seriousness of the offense, the use of a weapon or violence, evidence of premeditation, the vulnerability of the victim, and the defendant’s previous convictions. Factors that might determine that a prosecution is not necessary include the nature of the offense (a genuine misunderstanding or misjudgment), the likelihood of a small penalty, a long delay in reaching a trial date, the age or health of the defendant at the time of the offense, and the victim’s physical and mental health. Although the decision in this test involves weighing the public interest, the victim’s interests have a significant role to play in ultimately determining what the public interest is. According to the Code for Crown Prosecutors, the “Crown Prosecution Service will only start or continue a prosecution when the case has passed both tests.”

The creation of the Crown Prosecution Service has reduced considerably the types of cases that are directly handled by the Office of the Director of Public Prosecutions, which now includes terrorist cases, Official Secrets Act violations, and local cases that are considered too sensitive for handling by the local Crown prosecutor because of a possible conflict of interest.

It should also be noted that the Crown Prosecution Service has long employed caseworkers who assist prosecutors in preparing cases for trial. In 1998, some caseworkers, who were not trained as lawyers, were selected to review and present a select group of cases in magistrates’ courts that involved guilty pleas. These specially trained caseworkers are under the supervision of a Crown prosecutor. The caseworkers essentially review cases at police stations that involve such offenses as shoplifting, cannabis possession, and noncontentious traffic offenses; they then represent the Crown in the magistrates’ court. This is another example of the justice system attempting to utilize its resources in a more cost-effective manner.

Following this brief explanation of the role of the government’s principal court personnel is a description of the English court hierarchy, with emphasis placed on those courts that are involved in the criminal process (see Figure 1.3). Therefore, all the English courts and legal tribunals are not examined here.

Supreme Court of the United Kingdom

Until 2009, the oldest common law court was Parliament. The judicial functions of Parliament were exercised by the House of Lords. In theory, the judicial proceedings were the responsibility of the entire House. In fact, however, they were handled by a small group in the House who were specifically selected for this purpose and known as the Appellate

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Committee of the House of Lords. This group consisted of the Lord Chancellor, the lords of appeal in ordinary (usually referred to as law lords), and any member of the House who had held high judicial office in the past (such as former Lord Chancellors from previous governments).

In practice, the law lords heard most of the judicial business of the House. There were usually nine, but the number could not exceed 11. Most law lords were selected from members of the Court of Appeal. Thus, they easily met the criteria for appointment—either holding high judicial office for two years or being a practicing barrister for 15 years. Although law lords retired at age 75, they remained members of the House of Lords and could continue to participate in the nonjudicial work of the House.

The House of Lords’ jurisdiction was almost entirely limited to civil and criminal appeals from the Court of Appeal and, in exceptional cases, from the High Court. The House heard only a limited number of appeals—approximately 50 a year. The amount was largely controlled by the House and the Court of Appeal. Generally, a dissatisfied litigant in the Court of Appeal sought permission from that court to appeal to the House of Lords. If the court granted approval, the litigant could proceed. If the court denied the request, the litigant could still petition the House through a procedure that is similar to the certiorari proceedings utilized with the Supreme Court of the United States. Because the House entertained only those cases that were of significant public interest, the latter approach was rare.

These aforementioned duties were assumed by a new court, the Supreme Court of the United Kingdom, which was created by the Constitutional Reform Act (2005). The first justices to serve on this 12-member court were law lords, and they remained members of the House of Lords. Thereafter, all new appointments to the court are called justices of the Supreme Court and are no longer members of the House of Lords. When needed, a commission is formed to fill vacancies on the court, and membership on the commission includes the President and Deputy President of the Supreme Court.

Supreme Court of the United Kingdom

Court of Appeal

High Court

Chancery Division

County Courts Crown Courts

Magistrates’ Courts

Queen’s Bench Division Family Division

FIGURE 1.3 | Organization of the English Courts

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The Court of Appeal

The Court of Appeal is the intermediate appellate court for the entire English system. It consists of a civil and a criminal division. The presiding judge of the civil division is the Master of the Rolls. (This unusual title is a remnant from England’s medieval past.) The presiding judge of the criminal division is the Lord Chief Justice. There are approximately 20 lord justices of appeal who constitute the rest of the court. In order to qualify for a position on the court, the candidate must be a judge from the High Court or have had the right of audience in the High Court for 10 years. They are required to retire from the court at age 75. The Lord Chancellor can supplement this group by assigning judges from the High Court to sit and hear specific cases; this frequently is done when an appeal involves a criminal case.

The High Court

The High Court is a single court with both original and appellate jurisdiction. It is divided into three divisions: (1) Chancery, (2) Queen’s Bench, and (3) Family. The Chancery Division has original jurisdiction in matters dealing with property, trusts, wills, and estates. Although their jurisdiction is primarily original, they also hear appeals involving income tax and bankruptcy.

The Queen’s Bench Division is the largest division of the three because its jurisdictional scope is broader. It is concerned with civil and criminal matters and has both original and appellate jurisdiction. Its original jurisdiction consists of actions in torts, contracts, commercial, and admiralty cases. Its appellate jurisdiction is solely concerned with criminal appeals from Crown courts and magistrates’ courts.

The Family Division is the third component of the High Court, and it has both original and appellate jurisdiction. Its original jurisdiction includes matters involving matrimony, guardianship and wardship, and adoption. Guardianship and adoption are also the principal sources of its appellate jurisdiction.

High Court judges may sit in any division of the court, but the tendency is to assign judges to the division in which they have the greatest legal expertise. While all cases involving original jurisdiction are handled by a single judge, appeals are usually heard by two—but not more than three—judges. About half of the court’s business is conducted at the Royal Courts of Justice in London. The other half is handled by judges, particularly from the Queen’s Bench and Family divisions, while on circuit. For this purpose, the country is divided into six judicial circuits outside the metropolitan area of London.

The High Court consists of about 80 judges. In order to qualify for appointment to this court, a person must be a circuit judge for two years or have the right of audience in the High Court for 10 years. Members of the court are subject to mandatory retirement at age 75.

Crown Courts

The Crown courts have exclusive jurisdiction over all major criminal cases; they also handle appeals from people convicted summarily in a magistrates’ court. Crown courts exist in

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approximately 78 cities, but the Lord Chancellor has the power to order a court to sit anywhere.

Three kinds of judges preside over Crown court trials. Justices from the Queen’s Bench Division of the High Court are assigned to handle the most serious cases. Approximately 400 circuit judges preside over the less serious cases, while about 500 recorders (part-time judges) assist the circuit judges with their caseloads. Circuit court judges are selected from barristers of 10 years standing; they may serve until they reach the age of 72. Circuit judges generally sit in a single Crown court. Recorders are part-time judges who are either barristers or solicitors of at least 10 years’ standing. Appointment is contingent upon an applicant’s willingness to serve four weeks out of the year as a recorder over a three-year term. Serving as a recorder frequently results in financial loss to their private practice. The benefit to this scheme, however, is that a recorder can consider a career on the bench without making a total commitment to a career change. Trials in the Crown courts are heard by a judge and a jury.

County Courts

Although they are not involved with the criminal justice system, brief mention should be made of the county courts. The jurisdiction of these courts is limited to civil matters. They are primarily concerned with small claims arising from cases in contract or tort. Their jurisdiction has been expanded to include estates and trusts when the value is small. The judges assigned to county courts are the circuit judges who also sit in Crown courts.

Magistrates’ Courts

The workhorse of the English court system is the magistrates’ courts. There are more than 500 of these distributed among local government areas, and they handle about 96 percent of the criminal cases. Commonly referred to as the inferior criminal courts of the system, magistrates’ courts also have some civil jurisdiction, including revocation and renewal of licenses, enforcement of marital separation decrees, orders involving child custody, and some adoption proceedings.

The criminal jurisdiction consists of two types. Minor crimes are tried summarily in these courts; that is, magistrates determine the outcome of these cases without a jury. Traffic offenses constitute a significant portion of the summary offenses. Moreover, all persons charged with a criminal offense are initially brought before a magistrate to determine if the case should be handled by the magistrates’ court or transferred to a Crown court. The magistrates’ court also serves as the juvenile court in the English system, handling both criminal prosecutions involving juveniles and child protection cases of a noncriminal nature.

There are two types of magistrates who sit in these courts. District judges, who were known as stipendiary magistrates until 2000, are people trained in the law and have been either a barrister or solicitor for at least seven years. There are approximately 130 district judges serving throughout England; more than half of these work in the greater London area. District judges sit alone when hearing cases. The age of retirement from the court is 70.

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The other approximately 23,000 magistrates are laypersons who are referred to as justices of the peace. Local advisory commissions recommend to the Lord Chancellor people who are willing to serve on these courts without financial remuneration. Justices of the peace are expected to serve at least one day biweekly, and the position is considered a status symbol in the community. Their term of service is six years, which can be renewed for an additional term that is supposed to be the maximum. Lay magistrates sit in panels of three to hear cases. Although lay magistrates go through a short period of training following their appointment, their knowledge of the law remains inadequate. As a result, each court has a clerk who answers questions of substantive or procedural law for justices of the peace (Astor, 1986). The clerks do not rule on cases brought before the court, for that is the responsibility of the justices of the peace.

The Legal Profession

The most striking feature of the English legal profession is its bifurcated form. The division of the legal profession into two branches (barristers and solicitors) is a long-standing tradition dating back to medieval times. In examining differences between these two professions, the medical analogy of the general practitioner and the specialist surgeon is frequently utilized. The role of a solicitor is that of the legal generalist, while a barrister is the specialist.

Solicitors

There are approximately 116,000 solicitors in England and Wales. They are the office lawyers—the legal advisors to the public. They draft wills and contracts, handle commercial and land transactions, and deal with probate and divorce issues. They are not completely isolated from the courtroom, however. They have the right of audience in magistrates’ and county courts and a limited audience in Crown courts. With the passage of the Courts and Legal Services Act (1990), the right of audience for some solicitors has been expanded even further.

Although some solicitors practice alone, most form partnerships. This enables the legal generalist in larger firms to specialize in a particular branch of law, such as probate, real estate, or criminal law. When a member of the public needs legal advice, he or she turns to a solicitor for guidance; in most cases, that is the extent to which the public has contact with the legal profession.

The Law Society is the solicitor’s professional organization, mandated by statutory law to assure professional conduct among solicitors and to safeguard the public interest. The Society administers a compensation fund used to indemnify a client against a solicitor’s default in the handling of a client’s money. The Society, however, does not discipline its members. An independent disciplinary committee has been empowered by statute to handle such matters. Statute law also regulates the fees that solicitors may charge clients.

For those seeking a career as a solicitor, the most common approach is to complete a university undergraduate law degree. If the person has a degree in another field of study, they must pass the Common Professional Examination. All candidates then participate in

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a one-year Legal Practice Course, which is designed to train the candidate in various skills, such as interviewing clients and advocacy techniques. Upon completion of this course, the candidate secures a two-year training contract. The training contract can be with a firm of solicitors in private practice or with a government department, such as the Crown Prosecution Service. Obviously, the contract provides the candidate with a good deal of practical experience. During this period, the candidate also completes a short Professional Skills Course. Once the person has completed all of these aforementioned requirements, they are admitted to the Law Society as a solicitor.

Barristers

In most countries, judges decide issues at trial based on the written evidence submitted. Although this kind of evidence is important in English trials, the tradition of presenting oral arguments is central to British legal procedure. This practice calls for the specialized talents of a barrister. Although solicitors are consulted for legal advice, barristers present the cases in court. When a litigant is faced with a trial in the High Court (and in many Crown court cases) or is appealing a case to the Court of Appeal or the Supreme Court, the litigant’s solicitor must seek the services of a barrister.

A purported expertise at oral advocacy is one reason for the selection of a barrister, but equally important is the fact that solicitors have not had the right of audience in the aforementioned courts. As was indicated earlier, however, the Courts and Legal Services Act (1990) has changed this rule to a limited degree. In all likelihood, some solicitors will have a right of audience extended to Crown courts as it relates to specific cases. The solicitor generally prepares the case by interviewing the client and the witnesses, but has the barrister argue the case before the court. Thus, the solicitor becomes a client of the barrister.

There are approximately 14,600 barristers in England and Wales, some of whom specialize in a particular branch of law. Barristers are subject to a strict code of professional conduct. For example, they cannot advertise their services, and they are dependent on solicitors coming to them with legal briefs. In addition, barristers cannot form a contract with a solicitor and be paid a salary. Their fees are negotiated with the solicitor based upon each case. Although barristers are forbidden by their code to form partnerships, the bar is organized into chambers or offices from which they practice. More than half of these are found in the greater London area.

In each chamber, barristers are divided into two groups: Queen’s Counsel (QC) and juniors. Junior barristers are those who have been practicing law for less than 10 years. Once a junior barrister has accrued 10 years’ experience, he or she may apply to the Lord Chancellor for appointment as Queen’s Counsel. This process is known as “taking silk” because, if accepted, the barrister wears a silk gown in court rather than a cotton one. Acceptance also means that the barrister is permitted to add the letters “QC” after his or her name and may sit in the front-row seats in the courtroom. (Junior barristers must sit behind Queen’s Counsel.) More importantly, the practice of a QC is limited because most of his or her time is spent handling cases on appeal. About 10 percent of barristers are QCs, and it is from the ranks of the QCs that most judges are selected.

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Anyone seeking a career as a barrister must obtain an undergraduate law degree from a university. If the person has a degree in another field of study, he or she must pass the Common Professional Examination. The candidate then takes the Bar Vocational Course, which is designed to prepare the person for a career as an advocate. All persons seeking a career as a barrister must join one of the four ancient Inns of Court: Gray’s Inn, Lincoln’s Inn, the Inner Temple, or the Middle Temple. The candidate is required to dine at the selected inn on certain occasions, and the inn provides additional courses of instruction focusing on some of the more practical aspects of the law not covered in university courses. These courses supplement a candidate’s preparation for the bar examination required for entrance to the profession.

Once a candidate has successfully completed these requirements, he or she is called to the Bar, officially becoming a barrister. The training does not end, however, with a candidate being called to the Bar. A young barrister must arrange a pupilage; that is, the new barrister must find a junior barrister who is willing to take him or her on as a pupil for a period of one year. This period of apprenticeship introduces the young barrister to the practical work of the barrister in chambers and in the courtroom. When a junior barrister (referred to as the master) is satisfied with a candidate’s pupilage, the candidate seeks admittance to a chamber. Ideally, the young barrister will attempt to join the chamber of the master, if a seat is available. In more recent years, young barristers have found it increasingly difficult to secure a pupilage. This is largely the result of an overabundance of people entering the profession and a shortage of junior barristers having the time to serve as masters. The inns are attempting to resolve this problem by taking a more active role in the placement process.

Judges

English judges do not constitute a separate tier in the legal profession as is the case in many countries. Judges are selected from either practicing barristers or (to a lesser extent) trained solicitors. Until 2006, judicial appointments were made by the Lord Chancellor, but the Judicial Appointments Commission has assumed that responsibility. It should be further noted that the bar of England and Wales does not evaluate a candidate’s suitability, which is a method frequently employed in the United States. Nor is a candidate subject to a confirmation hearing before Parliament, a device used in the United States when appointing people to the federal judiciary. Once the candidate is nominated, the monarch signs the person’s commission. Thereafter, the person is a judge with permanent tenure in office (based on good behavior) until attainment of the age of retirement.

Over the course of the last few decades, criticism has been leveled at English judges for their lack of judicial activism. This criticism frequently cites the American judiciary and its activist role in civil rights and criminal procedure as a model that should be emulated. If one examines the backgrounds of English judges and their perception of their role, it becomes clear why they have not taken an activist stance. Various studies have confirmed that English judges, excluding to some extent the magistrates, are selected from a fairly narrow segment of the population. Most judges have come from the upper or upper-middle

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classes. Generally, they attended exclusive boarding schools and continued their education at either Oxford or Cambridge, the country’s two ancient and prestigious universities.

Because Britain is a unitary country rather than a federated state, the future judge studies a unitary application of the law rather than a multijurisdictional approach. This political fact lends itself to a system of legal education that is based on learning a specific approach for resolving each legal problem confronted. This method has a tendency to foster among students a more certain and assured view of their legal system. Moreover, membership in the ancient inns perpetuates this rather narrow educational experience in the law.

Another factor that contributes to the lack of judicial activism is that most judges are selected when they are in their late forties or early fifties. Thus, their years of training and extensive experience as a practicing advocate have further enhanced their assurance in the virtues of the legal system, as well as their desire to maintain the status quo. The system of judicial promotion also assures that justices at the appellate level will be older than their counterparts in the United States. Moreover, there is a notable degree of judicial restraint among appellate justices with regard to developing new rules. It has been suggested that, as former trial judges, appellate justices appreciate the problems of the trial judge. Thus, they are unwilling to devise new rules to overturn lower-court judgments based on sound precedent, regardless of how dated the precedent might be.

English judges have had a narrower view of their role in the judicial system than their American counterparts. English judges have perceived their role to be that of applying existing law rather than creating new law. Historically, English judges helped formalize the common law, but this changed in time as most law is created in the form of a statute passed in Parliament, the supreme legal authority in England. The supremacy of Parliament assures the system that no English court will declare an act unconstitutional. English judges have interpreted and applied the law; they have not made it. That latter role has been the responsibility of legislators (Griffith, 1991).

With the passage of the Human Rights Act (1998), the criticism directed at the lack of judicial activism will inevitably change. The principal question is the degree to which the judiciary will assert itself. Admittedly, the Human Rights Act (1998) does not authorize courts to declare legislation unconstitutional. It does authorize courts to declare that an English law is not compatible with the fundamental principles represented in the European Convention on Human Rights. Issuing such a declaration of noncompliance enables judges to indicate to the government and Parliament that remedial action should be taken to correct the inconsistency. This kind of judicial activism enhances the role of the judiciary considerably.

Juries

Juries have long been synonymous with the evolution of the common law. They are often considered one of the cornerstones of the administration of justice. Today, only the petty or trial jury is used in England—and even this jury is employed rather sparingly. The grand jury became obsolete as the jury of presentment when justices of the peace gradually took over that responsibility. In 1948, the grand jury was officially abolished. At this point, the modern system of preliminary investigations became the sole responsibility of magistrates.

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Although the right to trial by jury has not been eliminated, it has been severely restricted. The use of a jury in civil cases has declined considerably since 1933. Statutory law has limited its use to only a few actions, such as libel and slander. In all other civil suits, a jury is granted only through the court’s direction. The reasons usually cited for the decline are the proliferation of civil suits and the loss of faith in the jurors’ ability to grapple with highly complex and technical civil trials. The belief that the interests of justice would be better served by a professional judge individually deciding civil cases has gained considerable support over several decades.

The use of a jury in a criminal trial is determined by statute. People accused of an indictable offense have the right to a jury trial in Crown courts, while summary offenses are heard in magistrates’ courts without a jury. Because the number of indictable offenses is rather small compared to the summary offenses, the use of the jury is reduced. Moreover, only one in every 20 eligible defendants elects a jury trial.

Eligibility to serve as a juror is based on three criteria: One must be between the ages of 18 and 70, be a registered voter, and have resided in the United Kingdom for five years since his or her thirteenth birthday. There are various ways to elude jury duty. People can be disqualified if they have been convicted of a crime and served a sentence of more than a specific period of time. Anyone sentenced to more than five years’ imprisonment is disqualified for life. People are declared ineligible if they are employed in the administration of justice. People can be excused from service if they are a member of Parliament, a healthcare professional, or military personnel. In addition, anyone between the ages of 65 and 70 has an automatic right to be excused from jury duty.

During the process of selecting people to serve on a jury, both the defense and prosecution can challenge for cause the seating of a specific juror. The English eliminated the use of peremptory challenges, which had been reserved exclusively for the defense and limited to three challenges. English juries are composed of 12 people, but a verdict does not have to be unanimous. Verdicts with a majority of at least 10 are permitted.

Critical Issues

Legal Profession

Two concerns are paramount regarding the state of the legal profession: (1) its bifurcated organization, and (2) gender and racial issues. Concerning its bifurcated form, some criticism has questioned the need for two distinct classes of lawyers: barristers and solicitors. Although the issue has been debated intermittently for almost 100 years, there has been a renewed and intense discussion in recent decades. Until recently, the Law Society was reluctant to support the idea of merging these classes, and the Bar has been downright hostile toward it.

The belief that the bifurcated legal system fosters monopolistic and inefficient practices precipitated the notion of merging the two professions. Despite the fact that solicitors’ fees are regulated by statute, it is alleged that the schedule and rules permit solicitors to charge exorbitant fees when handling certain types of legal transactions. The criticism of barristers centers on issues of effectiveness and efficiency. It is not unusual for a barrister to receive

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the brief that he or she will plead only a week before the hearing. As a result, not enough time and care may be given to a case because of a lack of preparation.

In addition, efficiency of cost in cases bound over to a Crown court is a considerable concern. A QC handling a case has a junior barrister assisting. When the role of the solicitor is added to this system, a client may end up with as many as three attorneys handling the case. Critics note that yet another concern is that more than half of all cases sent to Crown courts could be tried in a magistrates’ court. They are heard in a Crown court because the defendant had a choice as to where the case would be heard. Even though many of the defendants plead guilty when the case reaches the Crown court, the attorneys must still be paid (at a considerable expense to the government).

The Courts and Legal Services Act (1990) may resolve some of these concerns, but it will probably be years before the total impact of this legislation takes effect. Because the legislation did not resolve all the concerns of the critics, arguments for merging the two professions will probably continue. Proponents of the merger scheme have maintained that it would not lead to the demise of the general practitioner and the specialist, which is what the Bar fears. Proponents cite the fact that in countries with a single legal profession, there have emerged both specialists and generalists within the ranks. There is no reason to doubt that this would happen in England, especially considering that the practice is already in place (Hazell, 1978; Marre, 1988).

The other concern confronting the legal profession is the issue of gender and racial bias. From its inception, the study of law has been dominated by white males. In 1991, there was only one black judge in England. Part of this is explained by the limited number of blacks in the legal profession. On the other hand, in recent years, women have been making considerable strides within the profession. However, men continue to dominate positions on the judiciary. Part of the reason for this is that women have been underrepresented as QCs, which is the source for judicial selection. It has been suggested that charges of gender discrimination will really be tested in the coming years. By then, a significant number of women who entered the legal profession will be in a position to apply for the status of QC and will thus be eligible for appointment to the judiciary (Pearson and Sachs, 1980; Zander, 1989).

Unfortunately, there has been a limited number of women and minorities who have been appointed QCs, in light of the significant increase of both entering the legal profession in the 1990s. To address this problem, an Independent Selection Panel that includes both lay members and people from the legal profession was created in 2005. The Panel submits its recommendations to the Lord Chancellor, who has neither the power to reject nor to add candidates to the list. The entire application process is designed to establish a selection procedure that is merit-based. When this process was implemented for the first time in 2006, 49 percent of the women and 42 percent of the minority applicants were approved (Malleson, 2007).

The Queen’s Counsel Selection Panel released its report for 2013–2014. There were 225 applicants and 100 new appointments. Males dominated the number of applicants at 183, of which 82 were appointed. Of the 42 female applicants, 18 were appointed. During the 2012–2013 period, 26 women had applied and 14 were appointed. Of those indicating

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membership in an ethnic minority for 2013–2014, there were 32 applicants and 13 appointments. During the 2012–2013 period, 21 had applied and three were appointed. Of those who claimed a disability for the 2013–2014 period, there were eight applicants and five appointments. During the 2012–2013 period, there was just one applicant and no appointments.

LAW One of the basic distinctions made in law is the difference between civil justice and criminal justice. Civil litigation involves a resolution of private wrongs between two individuals. Criminal litigation is concerned with a public wrong, a crime in which someone has transgressed the public order of the state by inflicting some kind of harm, usually on a private individual. In criminal litigation, it is the state rather than the individual harmed that seeks a just treatment for the offender. This is to assure that public order is maintained and that the wronged individual’s desire for revenge or retribution is satisfied.

The distinction between these two forms of justice has been present for so long that there is a tendency to assume that they have always existed. That assumption is false, however. In order for criminal law to exist in the aforementioned format, the state must be a strong and viable instrument of authority. The Norman Conquest in 1066 has often been identified as an important date in the history of England, and reference has already been made to it. The period after the conquest is often attributed with initiating the gradual merger of local legal customs into a law that was common throughout England. It was from this development that the term “common law” emerged.

Before the arrival of the Normans, the Anglo-Saxons had developed an extensive body of written law called dooms. Early dooms identified many of the more obvious forms of criminal conduct, such as murder, rape, robbery, and theft. Dooms also explained the procedures utilized to determine guilt or innocence and methods for sanctioning offenders.

Outlawry was one of the early methods for punishing those who repeatedly refused to observe the community’s laws. Limited to the more serious offenders, under this system a person simply was placed outside the law. The individual was ordered to leave the community and was threatened with death upon return. Once the authority of the king increased, outlawry ceased as a method of punishment and instead became a form of assuring that a person would submit to a hearing in a judicial tribunal.

The blood feud was another primitive procedural approach that was explicitly based on a desire for revenge. A victim was often dependent on their kindred to seek retribution, and kindreds were based on blood relationships. Regulated by a system of rules, a blood feud sought an exact compensation that often followed literally the principle of “an eye for an eye and a tooth for a tooth.”

Gradually, a monetary compensation plan was introduced to replace the blood feud. By the ninth century, a schedule of tariffs was established and recorded. With the creation of this scheme, the king was not only beginning to assert his authority in judicial matters but was also recognized in theory as a victim of crime. When a crime was committed, the victim was compensated by a monetary payment called a wer. The wer was the value placed

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Public and Police Perceptions of Law Enforcement

The most common view expressed about the relationship between the police and the people of France is that it is one of strained tolerance. It has been suggested that the reason for citizen dislike of the police is partly political in nature. The French police perceive themselves as the guardians of French liberty and the protectors of the Fifth Republic. At times, there have been large groups of citizens who have wished to retain their freedom, but in a communist or socialist form, and they have been quite vocal in their opposition to the Fifth Republic and the kind of political, social, and economic principles it represents. Such convictions are bound to lead to antagonistic incidents between those segments of the public and the police. Some officers admit sensing a dislike and distrust on the part of the public; nevertheless, they have a responsibility to protect the nation. Public image building is considered a secondary concern, and as was indicated earlier, this public attitude has not affected attempts to recruit candidates to the police service.

Indeed, the French police possess many of the powers that often are associated with a totalitarian regime. Although the powers may be available, the issue is whether they are utilized in a totalitarian manner to suppress individual freedoms. In his book, The Police of Paris, Philip John Stead concluded with the following statement:

[The bitterest enemies of the Paris police] must concede that the city’s frank, free enjoyment of the pleasures of the mind is still whole. Neither Lieutenants-General nor Prefects of Police, with whatever arbitrary powers they may have been invested, have stifled the spirit of liberty. The “police state” is still the land of Montaigne and Voltaire, of Moliere and Montesquieu, of Rabelais and Hugo. It is still the land of 1789, of 1830, of 1848, and 1870. It is the land of 1944. Those who have lived in real police states will hardly be disposed to regard France as one. (1957)

Although this comment was written more than 55 years ago, it appears to be applicable today. The present police system of France mirrors the country’s political culture. There is, on the one hand, a deep attachment to personal liberty. On the other hand, there is an abiding faith in authority. If it were possible to curtail the powers of the French police, one would think it would have happened with the victory of the socialist president, Mitterrand. Although he initially introduced plans to reform the police (including some of their tactics), such plans were quickly set aside in favor of making the police more efficient in their law enforcement and order maintenance tasks.

JUDICIARY It was pointed out in the chapter on England that King Henry II was largely responsible for developing the common law tradition by creating the necessary judicial machinery to administer it. Henry was able to accomplish this feat because he, along with the help of some of his predecessors, had undertaken the delicate process of consolidating royal political authority throughout the kingdom. As English monarchs claimed royal hegemony over the country, the common law and the royal administration of justice was firmly established during the medieval period.

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Throughout the medieval period, France was politically decentralized. The French king’s political power was limited to the area around Paris known as the Ile de France, while the rest of the country was controlled by the grand seigneurs (nobility). The absence of a centralized political authority in France had important implications for the legal system and the administration of justice.

There were basically four kinds of authorities that administered justice in medieval France. The ecclesiastical courts had jurisdiction over matters pertaining to the church, crimes committed by the clergy, and crimes that fell within its jurisdiction, irrespective of who might commit them (for example, adultery and heresy). Because the Fourth Lateran Council (1215) forbade the clergy from participating in trials that shed blood, some defendants who were found guilty in ecclesiastical courts had to be bound over to a secular court in order to have their sentences imposed and executed.

Another judicial authority was the communal court. Communal courts were found in the free cities. Although they were primarily concerned with commercial matters, they also handled civil and criminal matters within their territorial jurisdiction.

It was assumed throughout the medieval period that large landowners had a right to administer justice in their territory. This right was a characteristic of feudalism, which was the dominant economic and social system of the time. Thus, the principal source of justice was found in the seignorial courts of the great landowners. The law that was administered in these courts was essentially the local custom of the region. Because there were notable differences between regions, there was a lack of uniformity in the law.

The king of France also had the right to exercise judicial authority, for like the grand seigneurs, he was a feudal lord. Royal justice, however, was essentially limited to the king’s land holdings around Paris. By the twelfth century, the legal position of the king began to change. There appeared at that time a popular theory arguing that the king was the source of all justice. This idea had its roots in Roman law, but the study of this law was abandoned following the collapse of the Roman Empire. It was not until the twelfth century that Roman law was rediscovered and introduced as one of the principal sources in the study of law on the continent of Europe.

As the French kings began to assume greater political control over their kingdom, their legal position was gradually enhanced to such an extent that they were sought out to administer justice in their Parlement (which consisted of a group of royal advisors who sat as the king’s judicial tribunal). Appeals to the Parlement improved the king’s political position further and gradually reduced the judicial position of the seigneurial courts. Toward the end of the thirteenth century, Parlement was divided into four courts in order to handle the increased caseload. The Court of Requests was responsible for petitions to the Parlement and to determine which court was appropriate to hear a case. The Chamber of Pleas heard most crown cases. The Court of Inquests entertained cases that were largely determined by written documents. Finally, the Tournelle was responsible for most criminal cases.

It was initially viewed as an honor to have one’s case heard in a royal court. By the sixteenth century, however, all important cases were entertained in royal courts. This was deemed appropriate because of the king’s enhanced position throughout the kingdom. With the increase in cases, provincial parlements were established to assist in the administration

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of royal justice. These parlements were equal to but independent from the Paris Parlement. Because of the variations in local legal custom, the provincial parlements were in a better position to consider the unique legal characteristics of a region when administering royal justice. Unfortunately, the provincial parlements were to prove divisive in the monarchy’s attempt to unify the country. Ordinances that were applicable in one province might not have the same weight in another. As a result, chaos resulted that was not resolved until after the French Revolution. Thus, a royal court system was established throughout France by the eighteenth century. The central problem facing these courts was that they were not administering the same law.

As was the case in England, the clergy served as the first legal advisers to the kings and grand seigneurs of France. At a time when most of the population, including the nobility, was largely illiterate, many of the clergy could read and write. Some of them were trained in (or at least familiar with) canon law. Canon law represented the legislation and legal opinions of the Roman Catholic Church. It was a complete legal system that was utilized at times by the various medieval kingdoms of Europe when they lacked a coherent unified legal system.

Dependence on the clergy for legal advice began to wane on the continent of Europe with the rediscovery of Roman law. What was actually being rediscovered and revived were the law books of Justinian (483–565), the Byzantine emperor from 527 to 565. Compiled during the sixth century, these books or codes had been lost for 500 years. They were brought to the University of Bologna, the premier center for the study of law on the continent, in the early twelfth century.

Justinian’s Code, or the Corpus Juris Civilis, offered students a systematic view of law that was devoid of church doctrine; it was a secular codified system. Students from across Europe were attracted to Bologna to study this secular law. Once they had completed their studies, they either served as legal counsel to their family or gained employment with the king or a grand seigneur. The introduction of laypersons who were knowledgeable in law ended the dominant position of the clergy as judges and legal counsel.

By the thirteenth century, an occupational distinction was being made among French lawyers. The avoue served as a client’s legal agent, while an avocat specialized in presenting oral arguments before a court. In comparison to the English, the avoue offered the kinds of services that were performed by a solicitor, whereas the avocat offered the skills associated with a barrister.

Another point of comparison between England and France was the tradition each brought to the study of law. It was explained in Chapter 1 that early English law students spent most of their time learning the law in the courtroom. Because the common law had no definitive text that could be studied, the English law student studied the law in action by observing courtroom procedure. This was supplemented by reading the decisions of previous cases. It was not until the nineteenth century that the common law was studied in a university setting, and this method was not popularized until the twentieth century.

In France, as well as other continental countries, the study of law was undertaken in a university. This tradition had its origins in twelfth-century Bologna and differed significantly from the study of law in England. The law that was studied on the continent was considered a science, and the principles of that legal science were found in authoritative

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texts, the first of these being Justinian’s Code. Moreover, like the study of philosophy and theology, the study of law emphasized the analysis of the text. The purpose of this exercise was to discover general truths that had universal and transnational application. Thus, the law studied on the continent of Europe was more philosophical in content. The student learned to understand how law might become the model for social organization and intercourse and to grasp the essence of justice. The student was not trained in legal techniques or the practical aspects of law. The law professors considered their responsibility to be one of imparting an understanding of the law as a Sollen (what ought to be) rather than a Sein (what is done in fact). Therefore, an understanding of legal principles prevailed over the training of courtroom techniques. This approach to legal studies continues to this day and illustrates one of the marked differences in legal education between the common law system in England and the civil law system in France.

Organization and Administration of the Courts

There are two main branches or kinds of courts within the French legal system. The administrative courts are responsible for supervising the government. They entertain citizen complaints and attempt to balance the delicate relationship that exists when the state’s general interests and the citizen’s individual rights come into conflict. The other branch, known as the ordinary courts, handles the civil and criminal litigation. Both branches of the system have a separate court hierarchy. For our purposes, the five-tiered hierarchy of the ordinary courts is of particular interest. Before this court system is described, however, it may prove beneficial to explain the role of two additional judicial offices, which are not a part of the ordinary court hierarchy but have a significant responsibility to the administration of justice.

Ministry of Justice

The Ministry of Justice is headed by the minister of justice, a member of the Council of Ministers. The minister’s interest in the criminal justice system focuses on three areas: the correctional system, the selection and appointment of magistrates, and the general administration of the law. The last two responsibilities are of interest here.

The term “magistrate” is used to describe judges, procurators, and officials of the central administration of justice. According to the constitution, French judges are guaranteed independence in the performance of their judicial functions and are assured permanence in office. The minister of justice plays a role in the selection and appointment of judges. The minister, however, does not control or dominate the process, for judges are part of the French civil service. According to Article 65 of the constitution, the High Council of the Judiciary is mandated to make specific judicial appointments, including that of judges to the Court of Cassation, first presidents to the courts of appeal, and presidents of the courts of major jurisdiction. The High Council of the Judiciary includes the president of France, the minister of justice, five judges from the civil courts, five judges from the criminal courts, one judge from the administrative courts, one member of the Public Ministry, and three people who are not judges or members of Parliament. The selection of candidates to

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other courts is made by the minister of justice on the advice of the High Council of the Judiciary.

Like judges, procurators are part of the civil service. Although procurators do not represent the interests of the state at a trial, they are responsible to the Ministry of Justice. The minister of justice appoints people to the Public Ministry and has the ultimate authority to discipline procurators. It should be pointed out that the High Council of the Judiciary plays a consultative role to the ministry in the appointment of procurators. When the High Council of the Judiciary meets for this purpose, its composition is different from when it offers advice on the appointment of judges. For the selection of procurators, the High Council consists of the president of France, the minister of justice, five members of the Public Ministry, one judge of the civil and criminal courts, and three independent people.

The members of the central administration of justice, the Chancellery (a part of the Ministry of Justice), is responsible for the general administration of the law. This is the other administrative issue with which the Ministry of Justice is concerned, and it is of particular interest to us at this time. Chancellery members draft statutes, publish reports on judicial decisions, develop statistical studies on the administration of justice, maintain personnel files on all magistrates, and prepare the budget for the administration of justice. They also are responsible for the administration and supervision of the prisons.

Finally, it should be pointed out that the Ministry has an Inspector General. This Office is responsible for inspecting the various departments or units within the Ministry of Justice and all of the courts, with the exception of the Court of Cassation. The minister of justice can also assign specific tasks that involve an assessment of any aspect of the judiciary. In 1988, the Modernization Commission was established under the direction of the Inspector General. The Commission is responsible for encouraging the introduction of modern administrative techniques throughout the judicial system.

The Constitutional Council

In the United States, the Supreme Court has the principal responsibility of ruling on the constitutionality of all laws. This kind of judicial review is not practiced in France. The ordinary courts, in addition to the administrative courts, have refused to entertain this kind of legislative review. This decision was established in 1789, and with the exception of two incidents in 1851, French judges have not deviated from that position. Two kinds of arguments have been offered to explain this situation. One points out that courts are essentially administrative organs of the state and not considered a separate branch of government, as that concept is used when discussing the idea of governmental separation of powers. In light of this, it has been suggested that the absence of judicial review is based on the belief that “no judicial body be ‘this keeper of the nation’s conscience’” (Tallon, 1979). Another rationale is based on history. Prior to the French Revolution, French judges wielded a good deal of power and independent discretion. The judges were essentially on the losing side of the Revolution. Since that time, the legislative branch has avoided granting the judiciary a role in the development of policy, which is clearly a feature of judicial review (Jacob, Blankenburg, Kritzer, Provine, and Sanders, 1996).

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The French have a Constitutional Council composed of nine members. Council members serve a nine-year term that is not renewable; one-third of the membership is appointed every three years. The president of France appoints three people, and the presidents of the Senate and the National Assembly are each responsible for selecting three members. In addition, all former presidents of the Republic serve as ex officio members.

The council has two responsibilities. One is handling election complaints in cases of irregularities or disagreements in the outcome. Another (more important for our purposes) is determining the constitutionality of legislation passed in parliament. Access to the council is quite limited; neither citizens nor members of the legal profession can request that a piece of legislation be reviewed on the grounds that they consider it unconstitutional. Constitutional issues are brought before the council from one of five sources: (1) from the council’s inception, (2) from the President of the Republic, (3) from the premier, (4) from the president of the Senate, and (5) from the president of the National Assembly. Since 1974, an action can also be introduced by 60 members of parliament. The council’s role is limited to acts passed in parliament, and the issue must be brought to their attention before it is signed into law by the president. Having explained the role of the Ministry of Justice and the Constitutional Council, a description of the hierarchy of France’s ordinary courts follows (see Figure 2.4).

Court of Cassation

The Court of Cassation is the highest court for civil and criminal appeals in France. The word “cassation” comes from the French casser, meaning “to shatter.” In the context of judicial proceedings, this is figuratively what the court does, for it is responsible for ruling on appeals that involve a point of law. The Court of Cassation either can agree with the lower courts’ original interpretation of the law, or it can quash (or shatter) the opinion of the lower court and have the case retried. Because, as a rule, the court entertains only issues involving a point of law, the entire case is not heard by the court. Usually, the court is interested only in determining if the lower court interpreted the law correctly. Thus, the principal role of the court is to assure that the law is interpreted uniformly throughout France.

The court is composed of six chambers. Three handle civil cases, while the others entertain social, commercial, and criminal matters, respectively. Each chamber has a judge who is called the president, and there is a first president who serves as the chief justice for the entire court. There are slightly more than 120 judges serving this court, and they are divided into two categories. The number of senior permanent appeals judges (or conseillers) is about 85. There are also approximately 40 career judges who are appointed to the court for a period of up to 10 years. They assist the senior judges of the court and are referred to as advisers. Following their term, they return to positions on a court of appeal. Each case heard in the court is handled by a minimum of seven judges and two advisers.

Courts of Appeal

There are 35 courts of appeal that handle civil and criminal appeals from the lower courts. Each court is responsible for an area that usually encompasses between two and four

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departments. The issues brought before an appeals court can involve a point of law or some factual discrepancy in a case. Generally, for those cases in which the appeal is based solely on fact, this court will serve as the final arbiter. Issues involving law, however, can be appealed further to the Court of Cassation. Courts of appeal consist of four chambers that specialize in civil, social, correctional, and juvenile cases on appeal. Each case is handled by a three-judge panel (a presiding judge or president and two judges of appeal or conseillers).

Courts of Assize

In each of the 96 departments of France, a court of assize sits with appellate and original jurisdiction in criminal matters. When the court hears appeals from a lower court, three judges handle the matter. It is also the court of first instance for all major felonies, which are referred to as crimes. As a tribunal of first instance, the court includes a panel of three judges (a presiding judge or president and two associate judges or assesseurs) and nine lay jurors. There are a few exceptions to the aforementioned composition of a court of assize. Some cases involving terrorism or drug dealing are handled by a three-judge panel without lay jurors. Assize courts are staffed by judges from the courts of appeal. Judges from local courts also can serve on a court of assize, but the presiding judge is always a member of a court of appeal. Courts of assize are divided into two chambers. One handles adult cases, while the other is responsible for juvenile offenders, usually between the ages of 16 and 17, accused of committing a serious crime.

Courts of Major Jurisdiction

The next tier in the court hierarchy consists of the 181 courts of major jurisdiction. Each court is divided into three chambers. When judges sit to hear a civil matter, the court is called a civil court. Courts of major jurisdiction have unlimited jurisdiction in civil matters throughout the department in which they are located. When judges sit to hear a criminal matter, the court is called a correctional court. Courts of major jurisdiction handle serious misdemeanors, which are called délits. The court also sits as a juvenile court. Three-judge panels handle both the civil and criminal cases that come before the court. In 1995, the

The Court of Cassation

Courts of Appeal

Courts of Assize

Courts of Major Jurisdiction

Courts of Minor Jurisdiction

FIGURE 2.4 | Organization of the Ordinary French Courts F O S T E R , C E D R I C 1 6 9 2 T S

law was amended to permit a single judge to hear certain types of délits. These included some traffic offenses, the use of soft drugs, and the misuse of credit cards or checking accounts.

Courts of Minor Jurisdiction

Last in the hierarchy are the 473 courts of minor jurisdiction. Each court is divided into two tribunals. Civil matters are heard in the civil tribunal. Minor misdemeanors and violations, which are called contraventions, are handled in the police tribunal. Contraventions include minor assaults, breaches of the peace, and traffic violations. This is the only court in the hierarchy that has a single judge sitting to decide a case.

The Legal Profession

For many years, a definite hierarchy has been established among members of the French legal profession. Law professors, magistrates, and avocats are distinguished not only by their professional titles but also by training, professional relationship, and responsibilities to the law. The more visible members of the legal profession are further divided into three groups: judges, procurators, and avocats. Members of each group have been professionally trained in the law. The law professors are considered at the pinnacle of the profession; their responsibilities will be discussed in the section concerning the French method of legal education.

Judges

French judges are members of the tripartite judiciary. The other two groups are procurators and members of the central administration of justice, who work for the Ministry of Justice. As is the case in other civil law countries, the method of selecting and training judges in France is significantly different from that found in common law countries such as England and the United States.

To become a judge, one must first obtain a law degree (a license in law) from a university law school. Typically, one must then gain admission to the National School for the Judiciary at Bordeaux. This is the legal profession’s grande école. France has a number of grandes écoles, which are highly selective institutions that train the future professional elite of the country. The National School for the Judiciary is the special school designed to train people for careers as magistrates. This method of training is relatively new because the school has been in existence only since 1959. It complements the tradition long established in France of creating specialized professional schools; the school is modeled along the lines of the others. This method of instruction is a logical extension of the belief that French judges, as a part of the national civil service, need a specific kind of theoretical orientation and practical training before they are allowed to serve the state in this fashion. The school provides both scholarly and apprenticeship training components that take about three years to complete. Upon completing the program, the successful candidate joins the ranks of the judiciary as either a judge or a procurator.

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This system enables French judges to begin their professional careers at a fairly young age. They are usually in their late twenties, which is noticeably younger than their colleagues in common law countries, who are often in their forties or fifties before they begin a career on the bench. Moreover, unlike their colleagues of the common law, French judges, for the most part, begin and end their legal careers as magistrates. It also should be noted that the National School for the Judiciary has a branch office in Paris that is responsible for all of its continuing education courses.

In recent years, because of the need to increase the number of judges serving in the criminal courts, some people have been recruited to the judiciary. People who have a legal background and at least 10 years of professional experience compete to secure a position. To gain entry, they must pass a written and oral examination.

In addition to the selection and training process, the nature of the job and the responsibilities of a judge also attract a certain type of personality to the profession. It has been suggested that people attracted to a career on the bench in France have a tendency to be unambitious (David, 1972). What is being alluded to is the fact that the position of a judge offers a fairly tranquil life, especially early in a career, when a judge is most likely to be assigned to a provincial city. Because judges are part of the civil service, their salary and tenure in office is secure. With the exception of the courts of minor jurisdiction, a French judge never has to rule alone on a decision. Thus, there is a collegiality in rendering a judicial opinion. Because the decisions are made secretly and issued without identification, each judge retains anonymity regarding his or her thoughts on a particular decision. The avoidance of undue pressure and public notoriety is enhanced further by the fact that judges in the ordinary courts do not rule on constitutional or administrative issues (which are more apt to attract public attention).

As more women enrolled in higher education in recent decades, they have gained a considerable presence in the legal profession. They represent a majority in the number of entrants to the National School for the Judiciary and those recruited who have already had a professional career in the law. To illustrate, women made up 28.5 percent of the trial judges in 1982, but by 2003, they represented 52.2 percent (Bell, 2006). While some women pursue careers as procurators, it has been suggested that the vast majority prefer a career on the bench, because the work schedule is more beneficial for those raising a family.

The manner in which judges render a decision is also of interest. A central characteristic of the judicial method is a judge’s interest in and commitment to maintaining the theoretical purity and harmony of the legal system. Related to this kind of judicial posturing is the fact that a judge’s professional career commences after the completion of theoretical training at the university and the National School for the Judiciary. This process has a profound impact on the way a judge perceives the law. It has been suggested that, within the legal profession, a judge has a much closer affinity to a law professor (the disinterested scholar of the law) than with a practicing attorney whose approach to the law is more pragmatic (David, 1972).

The commitment to theoretical purity and harmony of the legal system is best exemplified by the form of judicial decisions. Unlike English and American decisions, the French render rather abstract and brief rulings. According to legal scholars, these characteristics are largely attributable to philosophical and historical differences between

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the civil law and common law systems (Goutal, 1976). Regarding the abstract nature of a French decision, the French employ deductive logic rather than the induction or analogy usually utilized in common law countries. Because the codes are the principal source of French law, a French opinion begins with a general principle found in a code or a statute. The decision is designed to show clearly how it is in complete accord with the law. This method reduces significantly the likelihood that a judge will rely upon unwritten principles and be accused of arbitrariness.

Although French judges rely upon precedent, they are not obliged to do so. The principle of stare decisis does not exist. Actually, stare decisis is unnecessary because of the approach taken in rendering decisions. For example, when the Court of Cassation adds a new interpretation to the law, it simply states the new ruling. Given their authoritative position, judges do not feel compelled to justify their ruling by searching for precedents. Their attitude implies that although the court had never handed down such a ruling before, the ruling, nevertheless, should have been obvious all along. Thus, the fact that the court had not addressed itself to the issue before does not really make the opinion new or unique.

Unlike judges in the United States and England, French judges are required by law to offer a written opinion in a case. However, the decisions are noticeably brief. Whereas judges in the United States and England are apt to write lengthy decisions explaining the legislative history of an issue and a rationale for their opinion, French judges often render an opinion in less than one page. In fact, there is a rule that the decision of the court with respect to a specific legal issue be phrased in a single sentence. If more than one issue is a central feature of the case, then each issue is accorded a separate sentence in the decision. This tradition dates back to 1790, when the new legal system was established. Before the Revolution, judges were abusive and arbitrary in the exercise of their authority. As civil servants, however, judges of the post-Revolutionary era thought it advisable to be cautious in the exercise of their judicial powers. This attitude is illustrated by the judges’ penchant for brief, impersonal opinions. Moreover, the fact that the decision is an anonymous ruling, which does not include dissenting opinions, further enhances the desire to maintain both judicial anonymity and collegiality. The absence of dissenting opinions also is designed to strengthen the authority of the decision (Wells, 1994).

According to Article 64 of the Constitution, “The President of the Republic shall be the guarantor of the independence of the judicial authority. . . . Judges shall be irremovable.” Thus, the basic principle of an independent judiciary is assured in the Constitution. A practical illustration of the manner in which judicial independence is carried out is with the selection of judges. As mentioned earlier, when the High Council of the Judiciary is selecting or promoting judges, it is composed of a number of judges. While there remain a significant number of political people on the Council, that number has decreased, and the number of judges has increased in recent years (Elliott and Vernon, 2000).

It should also be noted that while the Constitution suggests that a judge cannot be removed from office, this is not the case. If a judge is accused of serious malfeasance, the matter would be brought before the High Council of the Judiciary. In this context, the Council would sit as a court with the president of the Court of Cassation serving as the presiding judge. Neither the president of France nor the prime minister, both regular members of the High Council, serve when the Council is sitting as a court. This is another

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example of attempting to remove the appearance of politics in matters pertaining to the judiciary. While various sanctions exist, such as reprimand and demotion, the ultimate one is dismissal from office.

Procurators

The procurators are another important branch of the French judiciary. Whereas judges are the magistrats du siege (the sitting magistrates), the procurators are commonly referred to as magistrats debout or le parquet (standing magistrates or “of the floor” rather than the bench). They undergo the same kind of training as judges (that is, a university legal educa - tion and further study at the National School for the Judiciary), and they are civil servants who work for the Public Ministry. Although it is unusual for a judge to request a transfer to the Public Ministry, it is not uncommon for a procurator to become a judge. Because both have been trained as members of the judiciary, this is not considered unusual.

The purpose and functions of the procurator are sometimes misinterpreted, especially by students of the common law tradition. Members of the Public Ministry appear to be a part of the executive branch of government and, thus, the defenders of that branch. Through the Ministry of Justice, the executive appoints, promotes, disciplines, and discharges mem - bers of the Public Ministry. Procurators are organized in a hierarchy that corresponds to the court system. Procurators serving in lower courts are expected to comply with the orders that they receive from superiors who are assigned to appellate courts. The principal responsibility of procurators is to prosecute actions on behalf of the state.

These characteristics suggest that procurators are agents of the executive. This, however, is not the case, because procurators do not defend the interests of the state. Their responsibility is not to secure a conviction; it is to assure that justice is done and that society’s interests are served. Thus, a distinction is made between the interests of the state or executive and those of society. Procurators are the guardians of the latter. When participating in the administration of justice, procurators enjoy an autonomy that befits their status as members of the judiciary. This is illustrated by the fact that when the state is involved in litigation before a civil or an administrative court, it must retain a lawyer to represent its side in the suit. The state does not turn the matter over to the Public Ministry to defend the state’s specific interests.

There are two kinds of prosecutors in the French system. The state procurator acts on behalf of the public. If in the course of committing an offense, the accused has caused a person to suffer personal harm, which may be of either a physical or psychological nature, that person may bring a civil action against the accused. Counsel for the victim of this personal harm can appear in the criminal court and be considered a prosecutor for the civil party. Counsel for a victim is present primarily to argue for his or her client’s right to collect compensation for damages.

Thus, although it is a civil claim, it can be heard concurrently with the criminal case. The victim, therefore, is considered a separate prosecuting party in the proceedings. In light of the fact that the victim has become a party to the proceedings, that person is prohibited from serving as a witness. This can obviously be a drawback to a procurator, whose case may be dependent on the victim’s testimony. In the event the victim died, that person’s heirs

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can also bring civil action. It should also be pointed out that the civil action can not only be brought against the accused but also against his heirs and any person who might be responsible for the offender, such as the accused’s parents. Although it is less expensive and more efficient to attach a civil action to the criminal proceedings, because the victim benefits from the procurator’s investigation into the case, it is important to note that a victim has the option of bringing a separate action in a civil court. Once this decision is made, however, it cannot be withdrawn in favor of having the matter heard concurrently with the criminal case.

In most cases, a public procurator decides whether a suit should be initiated. The manner and extent to which procurators utilize discretion became a significant issue with the increase in crime and legislation creating additional offenses. Some critics have argued that this discretion should be eliminated by introducing the principle of mandatory prosecution that is found in other civil law countries. Mandatory prosecution requires the initiation of proceedings against the accused if guilt has been sufficiently established. If a procurator declines to prosecute, the victim can bring the matter before a trial court as a civil party complaint. Such an action thus forces the state procurator to initiate a public action. Victims are discouraged from bringing unjust claims or suits that lack sufficient grounds by a law permitting the accused individual, who is discharged following a trial, to initiate his or her own action against the civil party.

Another relatively new manner in which procurators can exercise discretion is in the mediation process of some criminal cases. Since 1993, this approach has been made available to victims and offenders who agree to this kind of procedure. In the event mediation fails, the procurator can still initiate a prosecution. Additional legislation was approved to expand the use of the mediation process. For example, all participants in the process have the right to a lawyer, and a legal aid scheme is provided for those who are indigent. The procurator has an important role to play in the mediation process, for he or she has the power to impose various kinds of sanctions that include compensation, fines, suspension of a driver’s license, and community service. It should be pointed out that any order issued by a procurator must be approved by the court that would have entertained the case if the victim and offender had not agreed to mediation (Elliott and Vernon, 2000). Granting this kind of discretion is not considered unusual in the French context, in part because procurators are members of the judiciary.

Defense Counsel

Until 1971, lawyers were divided into two groups: avocats and avoues. They were similar to English barristers and solicitors in terms of their specific legal duties. Following lengthy discussions and a good deal of pressure from the Ministry of Justice, however, the two professions merged in 1971. Today, the person who can represent a client in court and plead a case is called an avocat. Like other members of the legal profession, avocats must possess a license in law from a university law school. The law school graduate must also take a competency examination and then register with the local bar association, of which there are 180 throughout the country. Once a qualified individual is admitted to a local bar association, he or she can practice law throughout the country. There is one exception to

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this rule: there is a highly specialized group of senior avocats that are qualified to practice before the Court of Cassation. Finally, all certified law graduates serve as an apprentice avocat for a probationary period of at least three years. During the apprenticeship, an avocat must attend the special training center established by the court of appeal in his or her region.

Until relatively recently, there was no national bar association in France. Each local association was independent and autonomous and had the authority to discipline its members. Legislation that went into effect in 1992 created a National Bar Council. It has been accorded three responsibilities: (1) to represent the profession before government authorities, (2) to establish a degree of uniformity in the rules and regulations developed by the local bar associations, and (3) to supervise the regional training centers (West, 1991).

Many avocats practice alone, but a change in legislation in the early 1970s permitted the formation of partnerships. Such partnerships have become more popular, but the associations are small when compared with those established in the United States. To some extent, avocats specialize in a particular branch of law, and the partnerships facilitate the arrangement. Avocats have been criticized by both judges and clients. The criticisms are similar to those that have been leveled against their counterparts in the United States. Clients question the competence and the cost of legal service, whereas judges complain about the lack of preparation for trials and the level of professional competence.

It was suggested that the profession of avocat was not as financially lucrative as it was during the early part of this century (Olivier, 1979). Part of the reason for this was the fact that another group within the hierarchy of the legal profession, conseils juridiques, handled most of the commercial and corporate legal work. That situation changed, because the 1992 legislation that created the National Bar Council also merged the professions of avocat and conseil juridique. Prior to this change, avocats had exclusive rights of audience in courts and could provide legal advice, while conseils juridiques were limited to providing legal advice and preparing legal documents. The 1992 legislation created a single profession, in which members are known as avocats, and all have rights of audience in courts, to provide legal advice, and to prepare legal documents.

The Jury

Although the jury was utilized in certain regions of medieval France, it was totally abandoned by the fifteenth century. Following the French Revolution, the jury was reintroduced, but its use was limited to the courts of assize, which handle the serious criminal cases. Critics of the French jury allege that it is a contradiction in that it has little impact on the administration of justice. Scholars point out that the jury is not rooted in French legal tradition; rather, it was borrowed from the British during the nineteenth century when judicial and political reforms were quite prevalent. It has been argued that the introduction of the jury was more of a political achievement than a judicial reform (Dunbar, 1968). Moreover, it has been pointed out that the jury illustrates the acceptance of universal suffrage because jurors are selected from voting lists (David, 1972). In addition, it was originally viewed as a method of assuring that the public would share the burden of issuing capital punishment sanctions with the judges. Capital punishment, however, was abolished in France in 1981.

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To serve on a jury, a person must be a French citizen, at least 23 years of age, able to read and write in French, and not be considered incapacitated or incompatible. People who have a criminal record or have been condemned to confinement or arrest are considered incapacitated. Among those considered incompatible are members of parliament, the Council of Ministers, magistrates, police, and military personnel.

Selection occurs through an annual list that is established from the voting rolls for each court of assize. Before the opening of the court session, the names of 35 jurors and 10 alternates are selected from the list through a lottery presided over by the president of the court. On the day of a trial, the jurors’ names are drawn from an urn. The defense counsel can challenge five jurors, while the procurator can reject four. The reasons for the challenges need not be given. When nine names are selected, the jurors take their seats on either side of the three judges and are sworn in by the president of the court. A few alternate jurors are also selected in the event that they are needed.

Although jurors are mandated, along with the judges, to decide the ultimate fate of the defendant, they are considered an appendage of the judges. They are placed in this inferior position because they do not have access to the written record of the trial (which contains most of the evidence in a French trial), and they are not provided with a summing up of the law before deliberations commence. Thus, they are dependent on the judges for explanations of the law and many of the facts of the case on which they sit in judgment.

Legal Education

The French approach to legal education is strikingly different from that found in either England or the United States. This is largely attributed to the traditional approach that the French have taken toward higher education in general. The manner in which the current system of legal education is organized has been evolving since the post-Revolutionary period and is typical of the continental approach to higher education. France’s universities are public institutions that are ultimately administered by the national government through the Ministry of National Education.

Students enter a university when they are approximately 18 years of age, after they have completed their high school education with an award of the baccalaureate diploma. Legal studies have been a traditional part of the general curriculum in French universities, and a significant number of students select it as a course of instruction. Students who select the legal studies curriculum are not necessarily planning on a career in law. Many plan to enter the civil service and view the law as an excellent preparation for that career.

Because the students are fairly young and inexperienced, the law curriculum is tailored along the lines of a general liberal arts education with a concentration in law. In 1997, the curriculum was revised to enhance student retention. A central feature of the reforms was the introduction of a series of foundation courses that are taken during the first semester. The foundation courses pay particular attention to study skills, which include a familiarity with learning resources, an ability to take lecture notes, and working in a group on a class project.

The pursuit of a legal education takes approximately four years and is divided into two phases. During the initial two-year phase, in addition to the aforementioned foundation

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courses, a student will study history, economics, political science, sociology, and finance, along with specific areas of law. These include constitutional law, administrative law, criminal law, contracts, property, and torts. The system was so developed because many of the social sciences are organized within the law faculties. Moreover, the French believe that it is essential to present the law in a general context in order for these young students to broaden their educational background. During the second two-year phase, a student begins to concentrate almost exclusively on legal studies. The more advanced courses include business law, civil liberties, employment law, and tax law. At the end of the third year, a student is awarded the degree of license in law, which is equivalent to a bachelor of law degree. Upon the completion of the fourth year, a student is granted a master of law degree.

The method of instruction is largely interdisciplinary during the first two years and is always theoretical in nature. This has been the source of some criticism directed at French legal studies programs. On the one hand, some students contend that the program does not prepare them immediately for a specific career. The law professors, on the other hand, argue that the study of law in the context of the university should be limited to the realm of ideas. Their responsibility is to train people to think like jurists, not to produce legal practitioners. Thus, a formal introduction to legal principles is imperative at this stage in the students’ intellectual development. The professors expect that, following graduation, a student will learn the technical aspects of their craft through either apprenticeship programs or additional courses of study at a professional school.

The law professors appear to have won the argument to date. This is attributed in no small part to the fact that law professors traditionally have been considered to be at the apex of the entire legal profession. Law professors enjoy the status of the pure jurist. They are allowed to live in the realm of ideas and principles and are not relegated to the task of actually attempting to apply these principles to the practical problems confronting the rest of the legal profession.

Once a student is awarded a law degree, he or she must obtain professional qualifications to practice law. Students must first pass an entrance exam that will permit them to participate in a professional course of study that lasts one year. These professional programs are associated with the courts of appeal. It is in this program that the candidate learns about the rules of professional conduct and how to draft various documents. Students also participate in two internships of which one involves working with an avocat. At the end of the year, the candidate takes a test that consists of several practical exercises designed to certify the professional aptitude of the person. If the candidate successfully passes the examination, he or she begins a two-year apprenticeship with an avocat and must register with the local bar association.

Those who wish to pursue a career with the judiciary attend the National School for the Judiciary in Bordeaux. As alluded to earlier, this is the grande école of the legal profession, the professional school that prepares people to serve as judges, procurators, or members of the central administration of justice. Admission to the school is highly competitive and is based on a written and oral examination that focuses on a candidate’s general educational background as well as knowledge of the law. The school admits approximately 200 people a year.

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A successful candidate will spend 31 months in preparation to join the ranks of the judiciary. The first 11 months are spent in class at the school and participating in various public- and private-sector internships. These placements could include working with various correctional facilities, the National Police, the National Gendarmerie, or a psychiatric hospital. At the school, lectures and seminars are devoted to a wide range of legal topics and contemporary problems that are designed to prepare the candidates to function as members of the judiciary. The next 14 months are devoted to working with judges in various courts, in addition to time spent in the office of an avocat.

Candidates are graded on course work in the training classes and on the practical work out in the field. They must also pass a final series of oral and written examinations before a jury. The examining jury is composed of judges from various courts, a member of the Ministry of Justice, law professors, and a high-ranking government official. The jury can decide to pass, fail, or impose an additional year of study on the candidate. Those who fail usually enter the nonjudicial career of administration or research for the courts. Once the candidates successfully pass the examination, they spend the final six months of their training in their designated career field, either assisting a judge in a court of minor juris - diction or working in an office of a procurator. Upon the completion of this six-month period of training, the person would begin his or her career as either a judge or a procurator. Promotions would occur through the Ministry of Justice with the advice of the High Council of the Judiciary.

LAW A distinction was made between civil law and criminal law when discussing the origins of English criminal law and procedure. The use of the term “civil law” in the common law context relates to litigation between private parties, such as issues involving torts, property, and contracts. Criminal law is concerned with a public wrong, a crime in which the defendant has transgressed the public order of society.

In this chapter, the term “civil law” is used to describe a legal system that is dis - tinguishable from the common law system. The civil law system evolved on the continent of Europe and was influenced in its development initially by Roman law and the canon law of the Roman Catholic Church. It was influenced further by local custom. This civil law system is also referred to as the Romano-Germanic legal family.

France represents one of many European countries that adopted the civil law system. In fact, France was instrumental in establishing the Romano-Germanic family as a distinct legal system. Just as countries associated with the common law family have unique legal characteristics that distinguish them from other members of the family, so do nations within the Romano-Germanic family. Like the common law, Romano-Germanic law is found throughout the world in countries that were explored or colonized by Europeans. Until the advent of socialist law, the common law and the civil law were the most influential legal systems in the world, for they dominated the method of legal analysis.

Within its legal system, France has divided law into two general categories: public law and private law. The criminal law is part of public law, along with administrative law and

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civilians who assist the officers with social service requests, which in turn enable the officers to handle law enforcement issues.

Because juveniles commit 70 percent of the street crime, particular attention is focused on them. Community policing efforts focus on counseling juveniles about issues often associated with them, such as drug abuse and other circumstances that could lead to them becoming a crime victim. Community police officers also volunteer their time to teach young people about various sports, such as judo and kendo. They assist in educating juveniles about cultural activities such as, for example, painting and calligraphy. Finally, officers are present at community events to supplement their agency efforts at crime- prevention education.

Efforts are also being initiated to improve the manner in which major crimes are investigated. A greater emphasis is being placed on the collection of forensic evidence rather than securing a confession from a suspect. Both Japanese gangs and foreign gangs are being targeted, and information is being shared among government agencies, such as the Immigration Bureau, and with other governments, such as the Ministry of Public Security of the People’s Republic of China (Police Policy Research Center, 2006).

In addition to these initiatives, police focus a good deal of attention on traffic-safety education for children and senior citizens, as well as motorcyclists, who have been a particular concern for some time now in Japan. The police also have a significant presence in most schools for purposes of providing crime-prevention and drug-education lessons and in offering guidance to juveniles. Finally, the police have targeted fraud and other business offenses, child abuse, and stalking in both the pre-cyber form and when these offenses are facilitated by the Internet.

As a result of the efforts at recruitment and training and the strategies directed at crime prevention, polls have indicated some improvement in the public’s confidence in the police. When compared to other public-sector organizations, the police have enhanced their stand - ing in the community. Although improvements in public safety are welcome, it has been suggested that the most critical factor in improving the public’s confidence is for further reform and change within the police organization (Kanayama, 2010).

JUDICIARY When compared to the traditions of Western countries, the histories of both the Japanese court system and legal profession are fairly brief. The reason for this is that until the Meiji Restoration, the Japanese had neither a court hierarchy nor a legal profession, at least not in the sense that those terms had been utilized for centuries in other countries. Prior to the Restoration, the Japanese followed the Chinese tradition of including judicial matters within the purview of government administrators. In fact, attempts were first made to conciliate disputes privately before turning the matter over to a court. When a case could not be resolved informally, it was usually handled by a local administrator of the shogunate, who also served as a magistrate. Serious matters were resolved at the headquarters of the shogunate. Because the parties in both civil and criminal cases were not permitted legal representation, there had been no need for a legal profession.

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With the demise of the Tokugawa Era and the advent of Meiji, a significant change occurred that was based upon the introduction of the principle of the separation of powers. Japan’s first judicial code was introduced in 1872. It not only established a court hierarchy, but also created the legal offices of judge and procurator, which, in theory, were not a part of the executive branch of government. The application of the separation of powers in the Western tradition was incomplete, however. This was to be expected in a country that was embracing Western legal concepts, yet lacked the historic traditions and understanding essential to making the new system work. As a result, the minister of justice (a member of the executive branch) sat as the chief judge in the Ministry of Justice Court, the highest court in the land. The minister of justice also had the authority to appoint and dismiss judges and procurators. Because the country did not have a trained judiciary, the minister usually appointed government administrators to serve as judges in the local courts. Thus, the old ways had not been totally abandoned.

Nevertheless, changes in the courts and legal profession were in the offing during the two decades that preceded the adoption of the Meiji Constitution of 1889. For example, the minister of justice ceased taking an active role in the Ministry of Justice Court by 1875. In fact, the name of the highest court was changed to the Great Council of the Judicature. However, the minister continued to control the appointment and dismissal of judges and procurators. In 1884, a regulation mandated that judges pass an examination prior to their appointment to a court. Procurators were subject to the same regulation by 1886. In that same year, judges were assured a greater degree of independence, because they could no longer be removed without just cause.

For centuries, the Japanese had not recognized the need to have legal counsel representing clients in court. With the acceptance of Western legal ideas, this attitude was to change, albeit rather slowly. Litigants in civil matters could employ the services of counsel by 1872, and this was extended to criminal cases in 1880. Scholars who have examined the history of the Japanese bar have pointed out that the advocates were not accorded special standing in the courts; they were more or less treated like the litigants. Moreover, little was done to regulate the profession. It was not until 1876 that the Ministry of Justice required the passing of an examination to practice law. In 1880, advocates were organized into associations that were responsible to the district procurator. Finally, people began to attend universities to acquire formal legal training.

From the Meiji Restoration until the adoption of Japan’s first Constitution in 1889, the Japanese modeled their legal reforms along the lines of the French system. This tradition ended, however, with the drafting of a constitution. Because the Japanese found the Prussian system of an absolute monarchy more fitting to their needs, the Meiji Constitution and the subsequent reforms in the legal system were modeled after the German system. In terms of the manner in which the legal system would operate, the changes were not all that significant. Both the German and the French systems were part of the Romano-Germanic legal tradition that dominated the continent of Europe.

Between the adoption of the Meiji Constitution and the end of World War II, the Japanese judiciary matured into a highly professional body. Part of this success was attributed to the constitutional guarantee of judicial tenure. Another was the marked improvement with which the credentials of judges and procurators were scrutinized.

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The Attorneys Law of 1893 enhanced the professional status of the Japanese bar and established new admissions standards. Finally, the minister of justice took an active role in regulating the profession.

With the creation of a new constitution during the Occupation, the judiciary was subject to considerable reform. These changes largely reflected the Anglo-American legal background of the occupation forces. Most experts identify three salient reforms that are attributed to the Showa Constitution. The courts were assured complete independence and autonomy; they would have the power of judicial review over legislative acts, which had been prohibited under the old constitution; and they would adjudicate all litigation, including administrative matters, between the state and a citizen. Special administrative courts handled such cases under the Meiji Constitution, as is the tradition in Romano-Germanic law countries, but these courts were abandoned with the passage of the Showa Constitution.

Although the Japanese established a modern judicial system, there remained deeply rooted in the social context of the country some reluctance to use the system as it was intended (or at least as perceived by people from the West). Central to understanding this attitude is the influence of Confucian natural law on Japanese culture. Two beliefs from this doctrine help to illustrate the basis for the Japanese attitudes to the judiciary: (1) the belief that people do not possess rights but rather have a duty to be loyal to their superiors, and (2) the belief that one should strive to attain individual and collective harmony in society.

In an attempt to follow the Confucian philosophy, procedural rules were devised throughout the Tokugawa Shogunate and the Meiji Era so that conciliation and mediation might resolve a dispute before it was brought to a court of law. The notion of going to court to litigate was considered anathema. Litigation implied that a person had a claim of recourse as a right and threatened to disrupt the social harmony by eventually declaring a winner and a loser in the suit. The loser would feel a sense of shame that would disrupt his or her personal social harmony. Both of these notions were at cross-purposes with the Confucian natural-law doctrine.

The idea of social class, as defined by Japanese law, has been abolished, and people have acquired several rights with the Showa Constitution. Nevertheless, social status remains important in Japan, and people still prefer to have disputes mediated rather than litigated. This helps to justify the amount of time courts spend functioning as conciliators in disputes. It also explains the large number of cases from the lower courts (approximately 50 percent) that are either withdrawn or end in a compromise (See, 1982). It has been suggested, however, that the apparent lack of litigiousness among the Japanese is more a product of institutional constraints (the limited number of people who are permitted to pursue a career as a judge, procurator, or attorney) than of deference to Confucian philosophical principles (Berat, 1992).

More recently, those institutional constraints have led to a good deal of comment and study on the state of the judiciary. As mentioned earlier in the section on police, throughout the 1990s the Japanese people were becoming highly critical of their government and other institutions in their modern society. Both the extended period in which the country had been in recession and the move toward a more global economy had placed a significant strain on the country’s rather small legal profession. As a result, the Japanese business community joined the disgruntled citizenry in demanding reform of the judicial system.

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To illustrate the issue of the size of the profession for such an advanced industrialized and urbanized society and by way of comparison, Japan had 20,730 legal professionals in 1999. In that same year, the United States had about 941,000; England and Wales had approximately 83,000; and France had around 36,000 (Justice System Reform Council, 2001).

Even before the recession, critics of the status quo, which included a number of the local bar associations, had suggested that there was a need for comprehensive judicial reform. They pointed out that before the end of World War II the judiciary was viewed as part of the bureaucracy designed to control the people. With the introduction of democracy following the war, one of the goals was to introduce the principle of separation of powers in government and, with it, the establishment of an independent judiciary. Critics maintained that the judiciary remained too bureaucratic. Because of the limited number of judges, procurators, and attorneys, people were restricted in their access to the justice system. As such, the judiciary was considered remote and not terribly user-friendly. Suggestions to improve the judiciary and the justice system had been far-ranging. They included appointing practicing attorneys to serve as judges and procurators, reforming the bar examination, and protecting human rights. Concerns that had been directed specifically at the criminal justice system focused on providing a better criminal defense, protecting the rights of the detained, and abolishing the death penalty.

The Justice System Reform Council was created in 1999 with a mandate to consider measures for judicial reform in the context of defining the role of the judiciary for the twenty-first century. The council was composed of 13 people who were appointed by the government with the approval of the Diet. According to the enabling legislation that created the council, six of the members had experience either practicing law or as legal scholars. The other seven members were expected to come from other fields. The objective of this was to enhance the likelihood that the public’s views were expressed and considered during the deliberations of the council.

After its creation, the council collected information from a variety of sources about the state of the judiciary and the administration of justice. In an initial report, they concluded that “the administration of justice is hard to understand and difficult for the people to utilize.” Obviously, a central goal of the council was to make the justice system more open to the public. Among the issues raised in this initial report were a recognition not only of the shortage of lawyers but also their uneven distribution throughout the country; the need to reexamine the system of legal education and training; the necessity to improve the legal aid system; a review of criminal procedures to assure that they are in compliance with human rights guarantees; the value of providing information to the public about the administration of justice and also the use and role of alternative dispute resolution programs; and finally, in terms of making the public more knowledgeable about the administration of justice, whether the use of lay judges or the jury should be utilized as in civil and common law countries (The Justice System Reform Council, 1999).

The council issued its final report, Recommendations of the Justice System Reform Council for a Justice System to Support Japan in the 21st Century (hereafter RC21), in June 2001. The report explains the reasons for the government creating the council, which were:

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[for] clarifying the role to be played by justice in Japanese society in the 21st century and examining and deliberating fundamental measures necessary for the realization of a justice system that is easy for the people to utilize, participation by the people in the justice system, achievement of a legal profession as it should be and strengthening the functions thereof, and other reforms of the justice system, as well as improvements in the infrastructure of that system.

The report went on to state that there were three pillars or basic policies to this effort at reforming the justice system and contributing to a more free and just society. The first of these addressed the need to meet the public’s expectations by which “the justice system shall be made easier to use, easier to understand, and more reliable.” The second pillar focused on the legal profession and its support of the justice system through improving both the quality and quantity of the profession. The third pillar cited the need to improve the public trust in the justice system. This could be achieved by permitting the public to participate in legal proceedings and provide their views in other forums. The report contained a very comprehensive plan for revising the country’s judicial system. Proposals were put forward that would change both the civil and criminal justice systems. All the suggestions alluded to in its initial 1999 report were included and expanded upon in the final report. What has been somewhat surprising is the speed with which the government accepted the recommendations and introduced enabling legislation to move ahead with a plan.

Organization and Administration of the Courts

Japan has a four-tiered hierarchy with five courts responsible for all litigation (see Figure 3.3). The family courts deal with juvenile delinquency cases and will be examined in the section devoted to juvenile justice. Before the court system is described, brief mention should be made of the responsibilities of the Ministry of Justice.

Ministry of Justice

The Ministry of Justice is a cabinet-level department headed by the minister of justice, who is appointed by the prime minister. Before the adoption of the Showa Constitution, the ministry was afforded a good deal of authority over the courts, judiciary, and other members of the legal profession. The adoption of the new constitution altered the ministry’s authority considerably. The principal reason for this change was the inclusion of the principle of the separation of powers in the Showa Constitution. Modeled after the American system, the Japanese made a clear distinction between the duties and responsibilities of the executive, legislative, and judicial branches of government.

The ministry is divided into seven bureaus: the criminal affairs and civil affairs bureaus are responsible respectively for the research and preparation of bills involving the criminal and civil law; the correction bureau coordinates the prison system and issues involving prisoners; the rehabilitation bureau handles matters pertaining to released inmates and offenders on probation; the litigation bureau serves as the legal department for government

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agencies and represents the government in court; the immigration bureau processes people entering and leaving the country; and the civil liberties bureau is ultimately responsible for the investigation of allegations of civil rights violations. Most staff members within the ministry are public procurators.

Also under the organizational control of the ministry is the Public Security Intelligence Agency. This agency was created in 1952 with the passage of the Subversive Activities Prevention Law. The purpose of the legislation was to assure the protection and further development of democratic principles in the country by controlling organizations that might attempt violent subversive activities. As such, the agency conducts investigations into groups that are suspected of threatening public security. Because such circumstances are not always limited to internal threats, the agency collects information on international matters that might influence subversive groups within the country. In addition to its headquarters, the Public Security Intelligence Agency is divided into eight regional bureaus throughout the country. There are also field offices in each of the 47 prefectures.

The Supreme Court

The Supreme Court has judicial and administrative responsibilities. These are explained in both the Showa Constitution and the Court Organization Law. The court’s judicial responsibilities are limited to issues involving constitutional interpretation. The court, which consists of a chief justice and 14 associate justices, hears cases as either a grand bench or a petty bench. A grand bench includes all 15 members of the court and must sit when an issue involves a new constitutional ruling or a new precedent is set. According to Supreme Court rules, nine justices constitute a quorum, and eight justices must concur for a law to be declared unconstitutional.

The court is also divided into three petty benches, which deal with all other cases brought to its attention. A petty bench includes five justices. A minimum of three must be present to hear a case. The court usually reaches its decision by examining only documentary evidence when hearing a case; however, it does permit oral arguments. Opinions of the court are written, and each justice is afforded the opportunity to express personal views on the case.

It should be noted that the Japanese Supreme Court has ruled only six times on the unconstitutionality of statutes (Bolz, 1980; Itoh, 1990). A number of scholars have

The Supreme Court

High Courts

District Courts

Summary Courts

Family Courts

FIGURE 3.3 | Organization of the Japanese Courts F O S T E R , C E D R I C 1 6 9 2 T S

mentioned various reasons for the court’s reluctance to utilize its review powers in this manner. Among the factors frequently mentioned are the court’s conservative outlook, the political system’s emphasis on the Diet’s supremacy as lawmaker, and the inexperience of the legal profession in dealing with constitutional matters because of its long association with the Romano-Germanic legal tradition.

The court has tended to declare unconstitutional only those cases in which the govern - ment’s discretionary authority points to an extremely unreasonable or arbitrary action. Of the six cases that declared a law unconstitutional, the court considered all of them violations of civil liberties. Two involved equality issues, two addressed property rights, one dealt with due process, and one focused on a freedom of occupation issue. It is also interesting to note that after the court declared a law unconstitutional, it did not provide a policy remedy to rectify the situation. It assumed that politicians and government bureaucrats would correct the wrong by amending the statute and providing appropriate policy guidelines (Itoh, 1990). This is in keeping with the Romano-Germanic tradition that it is the responsibility of the legislature to make or rescind a law and not that of the courts.

The administrative responsibilities of the Supreme Court include the regulation of attorneys (through rule making), the public procurators (by the same method), the internal discipline of the courts, and the administration of all other judicial issues. When the court exercises its administrative responsibilities, it sits in a grand bench session. Finally, the Supreme Court is responsible for three research and training institutes: one specializes in the training of members for the legal profession, another prepares people to work as court clerks, and the third trains family court investigators.

High Courts

There are eight high courts that serve as the intermediate courts of appeal. Each court has a president and a number of other judges who entertain appeals from district, family, and summary courts. When hearing an appeal, three judges sit to decide the case, and one is designated to be the presiding judge. On occasion, judges from either district or family courts may be called upon to supplement the judges of a high court.

As a rule, a case on appeal does not have to be heard in its entirety, because the judges are interested only in the issue that is being questioned. Because of the nature of the issues contested, however, the court often reviews the entire case. The written opinion of the court contains only the majority view, which is signed by all the judges. Unlike the Supreme Court, high courts do not record dissenting opinions. A high court decision can be appealed further to the Supreme Court if the matter involves a constitutional issue. High courts also act as courts of first instance when a person is charged with insurrection or sedition. In such cases, five judges sit to hear the case.

District Courts

There are 50 district courts, and these are the principal courts of first instance. Each of the 47 prefectures has one district court, with the exception of Hokkaido. (Hokkaido’s size has warranted the establishment of three additional district courts.) District courts handle

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both civil and criminal cases. If the matter is relatively simple, a single judge sits to hear the case. In more complex cases, a three-judge panel handles the issue. Criminal cases that must be heard in this collegial format include offenses for which the defendant could receive a sentence of death, life imprisonment, or imprisonment for one year or more. There are some exceptions to this rule, and they tend to involve robbery cases. District court judges also sit in panels of three to hear civil cases on appeal from summary courts.

Family Courts

As it pertains to criminal justice, the role of the family courts is limited to juvenile delinquency cases. As such, family courts will be highlighted in the section on juvenile justice. Brief mention is made here because of its unique position and history in the judicial hierarchy of Japan. Family courts are the only courts in the system that specialize in particular kinds of cases, namely juvenile and family matters. There are 50 family courts that are equal to but independent of the district courts.

The family courts were created in 1949 as a result of the new Constitution. Article 24 established the idea of “equal rights of husband and wife” in marriage. It also states that “laws shall be enacted from the standpoint of individual dignity and the essential equality of the sexes.” In both tradition and law, Japanese family life had been dominated by the male head of the household. The introduction of equality in family law through the Constitution necessitated a change in existing laws. This resulted in a new court—the family court—being authorized to handle domestic and juvenile matters.

Summary Courts

There are 438 summary courts. These courts handle minor matters that do not warrant a formal trial. Summary court judges hear civil issues in which the value of the action is less than 1,400,000 yen. They also offer conciliation proceedings if the issue is a civil law matter. In such instances, a conciliation committee handles the issue. The committee consists of a summary court judge and two conciliation commissioners who assist the parties in resolving their dispute.

The criminal jurisdiction of the summary courts involves cases in which the sanction is either a fine or a lighter penalty, or involves a minor offense, such as theft. If the court concludes that the sanction should be greater than that which it has the power to impose, the court must transfer the case to a district court. Approximately one-half of the judges serving in the summary courts are not trained lawyers but have held legal positions such as court clerks for a number of years.

The Legal Profession

As it relates to the criminal justice system, Japan’s legal profession is divided principally into three groups: judges, public procurators, and attorneys. Members of each group have been professionally trained in the law. Most have received a law degree from a university. All have passed the national bar examination and have continued their studies at the Legal

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Training and Research Institute for an additional 18 months. It is the legal profession and how they are educated that received a good deal of attention in the RC21 report. A number of these recommendations are noted in this section of the chapter.

As mentioned earlier, the size of the Japanese legal profession is small compared to that in other industrial countries with similar populations. At least three reasons are frequently cited for the small size of the Japanese legal profession. First, the Japanese have never been a highly litigious people. Since the medieval period, they have preferred to resolve disputes through private conciliation. As was pointed out earlier, however, this attitude appears to be changing. It also has been suggested that after a civil case reaches the trial stage, the process is often continuously drawn out in the hope that the litigants will settle the issue out of court (Thompson, 1985).

Second, there has been a failure rate of more than 98 percent for applicants who take the national bar examination. One should not conclude from this figure that the educational system is inferior, however. The high failure rate on the bar examination was planned for several reasons. The Legal Training and Research Institute could only accommodate between 450 to 500 new candidates each year. All the students at the institute receive a subsistence stipend for the two years during which they are in attendance. For years, the government claimed that extra funding was not available to support more students. As was discussed earlier, critics of this system have maintained that this policy discouraged litigation indirectly by controlling the number of people who were authorized to assist litigants. The Ministry of Justice changed its policy as a result of this criticism. It admitted 600 new candidates in 1992 and planned to raise that to 700 in 1993. Critics maintain that while it is a step in the right direction, this figure remains inadequate. Some have even questioned the extent to which the government controls the training of the legal community (Berat, 1992; Leonard, 1992).

Finally, Japanese attorneys do not have a monopoly in what Westerners generally consider the practice of law. For example, they are not widely employed as corporate counsel. That elite position is reserved for people who have studied law at a university and have entered the business world. Generally, they have neither passed the bar examination nor studied at the Legal Training and Research Institute. Tax and patent work are also handled by specialists who have studied law but not passed the bar examination.

The size of the legal profession is about to change considerably as a result of the recommendations of RC21. First, the system and methods of legal education are undergoing significant changes that will be explained shortly. Second, the RC21 recommended, and the government accepted, the goal of having 1,500 applicants pass the existing national bar examination in 2004 and set a higher goal of 3,000 applicants passing a new national bar examination by around 2010. These changes are being made as a result of the basic policies in the RC21 report that were alluded to earlier: the need to increase the size of the legal profession in order for it to support the justice system more effectively and to provide the public with greater access to the legal profession. There is already some improvement in this regard: in 1999, there were 20,730 legal professionals; by 2007, there were 24,302 attorneys, of which 3,423 were women (Japan Federation of Bar Associations). A goal of the government is to increase the number of legal professionals to 50,000 by 2018.

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Judges

For the most part, Japanese judges represent a separate tier in the legal profession. Once a student has passed the national bar examination, he or she spends the next 18 months in training at the Legal Training and Research Institute. When a person graduates from the institute, he or she can apply for a career as either a judge or public procurator. Individuals selecting a career as a judge are appointed to a court and classified as assistant judges. After 10 years, the assistant judge is raised to the status of judge.

The appointment procedures and requirements for serving on different courts vary according to the Court Organization Law. The justices of the Supreme Court, for example, are formally appointed by the cabinet, with the exception of the chief justice, who is appointed by the emperor on the recommendation of the cabinet. Justices of the Supreme Court must be at least 40 years of age and can serve the court until their seventieth birthday. Most justices, however, are not appointed until they are about 60 years old.

One notable provision in the law is the manner in which the composition of the court is decided. Before the end of World War II, the Japanese adhered to the Romano-Germanic tradition of a career judiciary. Following the war and as a result of the Anglo-American influence, it was decided that this tradition fostered a narrow legal background that was not conducive to handling the significant changes in the constitutional status of the judiciary—especially the responsibility for judicial review. The goal, therefore, was to assure that the court’s members would possess both breadth and depth of vision when interpreting the law. This call for a more balanced background from members on the court led to a change in the criteria for selection. Though the Supreme Court judges must meet the previously mentioned requirements, at least 10 members are chosen from among high court and district court judges who have 10 or more years of experience. Judges from the summary courts, public procurators, attorneys, or law professors who have 20 or more years of experience also can be selected to serve on the Supreme Court. Candidates for the remaining five positions must be at least 40 years of age and possess some knowledge of law.

Judges for all the lower courts are formally appointed by the cabinet upon the recommendation of the Supreme Court. Specifically, it is the personnel bureau of the court that prepares the list of names. As such, it is the judiciary that makes judicial appointments through consultation with senior judges and the careful screening of candidates. It has been suggested that Japan’s judiciary is an autonomous bureaucracy that has the trust of both the politicians and the public in how it selects and promotes its members (Haley, 1998).

High court and district court judges can serve until their sixty-fifth birthday. Many started their careers as assistant judges and then were elevated to regular status after 10 years. Summary court judges do not have the same status as high or district court judges. Many had careers earlier in life either as clerks or administrative assistants to a court, or they were career judges or procurators who had reached mandatory retirement age but had an interest to continue to work. Unlike regular judges and procurators, the retirement age for a summary court judge extends to their seventieth birthday.

According to article 76 of the Showa Constitution, “judges shall be independent in the exercise of their conscience and shall be bound only by this Constitution and the Laws.” Judges can be removed, however, if they are declared incompetent because of a mental or

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physical disorder. They also can be removed by public impeachment, a process handled by members from both houses of the Diet.

The approach taken by Japanese judges toward interpreting the law reflects both their Romano-Germanic tradition and their more recent association with Anglo-American principles. From the Meiji Restoration to the end of World War II, the influence was almost completely that of the Romano-Germanic tradition. That tradition viewed judges as enforcers of the law that had been passed by legislators, who, in turn, were elected by the people. Thus, there was no room for judicial creativity in establishing precedents. The court decision was to be arrived at deductively through either a literal or logical interpretation of a code or statute. The intent of the legislative mandate reigned supreme.

By the turn of the century, two factors altered this perspective of the role of the judge. It was discovered that the codes were not always capable of resolving legal issues. This was especially true of the complex civil and commercial cases that became more prevalent as Japan increased its industrialization efforts. In addition, after World War I, some Japanese legal scholars were exposed to free-law theories from France and Germany. The free-law movement attacked the narrow deductive reasoning of civil law jurisprudence; its scholars were influenced by American legal realism. Increased attention was drawn to the need to decide cases based upon the facts of the individual case. It was argued that this would lead to a more equitable interpretation of the law. The adoption of an American form of constitutionalism after World War II enhanced this movement further. Although the principle of stare decisis does not exist in Japan, Japanese judges have adopted the practice of following judicial precedent when rendering a decision.

The impact of the RC21 report on judges is somewhat limited and subtle. The report suggests that more lawyers should be appointed judges and that assistant judges should have a more diversified experience as a legal professional beyond that of serving as a judge. As such, a system has been established that enables assistant judges to work as practicing lawyers for a temporary period of time.

Public Procurators

The position of public procurator represents another career path in the legal profession. Public procurators have long displayed a great affinity to the judges in the court system. Several things account for this attitude. One is the fact that, before the war, procurators and judges were both considered components of the judiciary. Reflecting the long-standing influence of the Romano-Germanic tradition in Japan, this relationship is displayed in a number of ways. For example, procurators are trained, like judges, at the Legal Training and Research Institute. They practice a good deal of discretion in their work, as do judges. They are members of the civil service bureaucracy, and they hold offices that correspond to the court hierarchy.

At the top of the procuratorial bureaucracy is the Supreme Public Procurator’s Office. This office supervises all the other procurator offices. There is one procurator office located in each of the courts. The procurator general administers the entire system and is, along with the other members of the upper echelons of the procurator service, appointed by the cabinet. The other procurators are selected by the procurator general.

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The purpose of the procurator is to prosecute criminal cases and to determine how a case will be disposed. Although the police conduct most of the criminal investigations, the procurator has the authority to investigate, arrest, and detain suspects. This is similar to the role of prosecutors in other countries that have a criminal justice system modeled after the Romano-Germanic tradition. Although the procurator’s office is afforded much independence and is perceived as a part of the judiciary, it is nonetheless part of the executive branch of government. The minister of justice has a certain amount of control over procurators but does not control the actual investigation and disposition of cases. There is one exception to this rule: the minister can control the procurator’s investigation through the procurator general. Although this authority is rarely utilized, it has become a contro - versial political issue when actually employed by the minister.

Because he or she has been afforded a good deal of discretionary authority, a procurator determines how a case will be disposed. Even when the evidence establishes guilt, the procurator may suspend the prosecution. For example, approximately 35 percent of the nontraffic offenses for 1985 in which the evidence established guilt were suspended from prosecution. This included about 5 percent of the homicide and robbery cases and approx - imately 50 percent of theft charges. The rationale offered for this policy of suspension is that it contributes to the rehabilitation of the offender. The Japanese government views this as an important feature of their criminal policy (Ito, 1986). Ten years later, the percentages had not shifted significantly. Almost 38 percent of the nontraffic offenses for 1995 were suspended from prosecution. The suspension rate for homicide was 4.3 percent, and for robbery it was 6.5 percent. Finally, more than 41 percent of the larceny cases were sus - pended (Kurata and Hamai, 1998).

It is important to point out that this discretionary authority is associated more with the office of procurator than with an individual procurator. To illustrate, there are published guidelines and standards for charging offenders, decisions are often reached by consulting with superiors within the office, there is an annual audit of case dispositions, and the annual personnel review of a procurator’s work will undoubtedly influence the manner in which a person exercises his or her discretionary authority. Ultimately, the objectives of the procuratorial bureaucracy are to be consistent and to prevent mistakes (Haley, 1998).

Procurators are expected to be impartial in determining how a case will be disposed; to promote this, they are protected from arbitrary dismissal. Procurators can be removed from office if they are either physically or mentally disabled, or removal can be used as a form of disciplinary action. When needed, a special committee is assigned the task of implementing dismissal. Under the direct authority of the prime minister, the committee is composed of 11 members: six selected from the Diet and five chosen from various walks of life. With the exception of the procurator general, who retires at 65, procurators must retire at 63.

It should be noted that like judges, the RC21 report recommended that procurators have a more diversified legal background. The objective is to afford the procurator an opportunity to have a greater understanding of the public’s views and in turn improve the public’s trust in the office of the procurator. The government has created a system that allows procurators to work temporarily with public-interest groups, with private enterprises, or as a practicing lawyer.

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Attorneys

Attorneys represent the third branch of the legal profession. Like judges and procurators, attorneys must pass the national bar examination and participate in two years of additional study at the Legal Training and Research Institute. All attorneys are registered with the Federation of Bar Associations and one of the 52 local bar associations. Each prefecture has at least one bar association. The profession is assured its independence under the Lawyer Law, which also empowers the Federation of Bar Associations with the ultimate authority in the regulation and discipline of the profession’s membership.

In Japan, an accused can either hire a private attorney or utilize the services of a court- appointed lawyer. As has been mentioned, the number of practicing Japanese attorneys is small compared to that found in other industrialized societies. Most attorneys practice alone, and they tend to specialize in representing people in court rather than working as office lawyers. For years, attorneys were considered second-class citizens within the legal pro - fession. Although these prejudicial barriers have decreased since the end of World War II, they continue to exist to some extent.

In light of the RC21 report, the work of defense attorneys has been impacted con - siderably. Two criticisms have been directed at Japan’s criminal procedure. First, a suspect does not receive the services of a court-appointed lawyer until after he or she is indicted. Second, trials are not conducted in a cohesive fashion. It is not uncommon for a trial to go on for years, because the court calendar is not set up to hear a case over consecutive days. As such, there is no attempt to assure the defendant a speedy trial, although article 37 of the Showa Constitution provides them with that right.

To help rectify these and other problems, a legal support center will be established across the country in at least each of the 50 district courts. The centers will essentially provide five services. The first three are not directly related to criminal justice. They include: providing general legal aid to people who are unable to pay for the services of an attorney, providing legal services in general to areas of the country that have a shortage of lawyers, and providing consulting services that are designed to mediate disputes.

The two services that directly relate to criminal justice are the establishment of a court- appointed defense attorney system for both suspects and defendants, and the provision of assistance to crime victims in the form of lawyers and organizations that specialize in victim support. The court-appointed defense attorney system is designed to permit a suspect to seek the advice of a lawyer before an indictment is handed down. It is also designed, along with other changes, to facilitate the ability to proceed with the trial process.

Saiban-In

The jury was introduced into the Japanese justice system in 1923 with the Jury Law. Juries were required in cases in which the defendant could receive the death sentence or life imprisonment. Defendants could also demand a jury trial if the sanction would lead to a term of at least three years in prison. At the time, jurors were selected from male taxpayers who were at least 30 years of age. For a number of reasons, among them the fact that a court was not bound by a jury’s decision, the jury gradually fell into disuse. The Jury Law

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was suspended officially in 1943, and for some time there was no movement to reintroduce its use. Some scholars reexamined the prospects for using juries, in light of the growth in both product liability cases as well as the acquittals of some death row inmates after they had been granted new trials (Foote, 1992; Lempert, 1992).

Once again, the RC21 report rejuvenated a serious discussion regarding increasing citizen involvement in the justice system. One of the three pillars shaping the reform effort was to enhance the public’s trust in the justice system by having citizens participate in a meaningful way in legal proceedings. While the Japanese are not reintroducing the jury, the Diet passed the Lay Assessors Act (2001), which called for the implementation of the saiban-in system by May 2009. The saiban-in system is designed to accomplish three objectives: (1) to improve the public’s understanding of and support for the justice system by having them participate in the trial process; (2) to facilitate the objective of assuring speedy trials because of the citizens’ involvement; and (3) to make the proceedings and rulings more intelligible through the public’s participation in the process.

Presently, the plan calls for utilizing saiban-in (lay assessors) for serious cases in which there is a considerable public interest. This would obviously include trials in which the defendant is accused of murder. The Ministry of Justice has outlined how the system will work. Once a year in December, the names of people above the age of 20 within the jurisdiction of a district court and who are eligible to vote would be selected randomly. These people are notified that they might be called upon to serve as a lay assessor in the coming year.

When a serious case arises in the district, another random selection would occur from the pool of candidates. The people selected would complete a questionnaire. Each candidate would then be interviewed privately by the judge, procurator, and defense lawyer(s). Once all the interviews are completed, the aforementioned legal professionals would meet privately to determine which candidates should serve as a lay assessor for the case in question. Both the procurator and defense can eliminate four candidates from serving, and they do not have to offer a reason for their decision. If the trial court consists of three judges, six saiban-in will be selected, whereas if the trial court consists of one judge, only four saiban-in will be selected. The judges and the saiban-in are considered a panel. As a panel, they hear witnesses and examine evidence as a group. They will also decide if the defendant is guilty or not guilty and determine the nature of the sentence if the defendant is found guilty. Finally, a lay assessor will serve for only one case.

Like other systems that include citizen participation in the trial process, there are ways in which a person can be excused from serving in the saiban-in system. They include people who are at least 70 years of age or older, suffering from illness or injury, raising or caring for a family member, or would suffer financial difficulty by serving. People can also be disqualified if they are in some way connected to the case or are unlikely to consider the case objectively. In addition, some people cannot serve because of their occupation. This includes members of the legal profession, law professors, police and military officers, members of the Diet, and governors and mayors.

The Ministry of Justice and the Supreme Court have spent a good deal of time preparing for this innovation. There was a need to orient the legal profession to the changes, in part because it impacts procedures in a criminal trial. Courtrooms had to be reconfigured

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to accommodate the lay assessors, who will sit alongside the judges. Even more important was the need to educate the public about the saiban-in system, for one of the original reasons for this innovation was to improve the public’s understanding of the justice system and to have them participate in the process.

To illustrate how the public has been informed about the innovation, in addition to several newspaper articles, the Ministry of Justice has made mock trials available in which citizens can receive a hands-on practical orientation to the new process. Some mock trials have even taken place in high schools to enable young people to become aware of the change. Among those who have either participated or observed a mock trial, most have found it an educational experience. In spite of these efforts, it is uncertain if the people will embrace this change with any degree of enthusiasm. The Asahi newspaper sent a questionnaire on the saiban-in system to 3,000 people in December 2008. It received responses from 1,830. When asked whether they support the saiban-in system, 34 percent said yes and 52 percent said no. When asked if they would like to participate in a criminal trial as a lay assessor, 22 percent responded positively and 76 percent did not wish to participate. When asked if the public’s confidence in the criminal trial process would increase with the introduction of the saiban-in, 20 percent thought it would increase, 52 percent did not anticipate a change, and 10 percent thought confidence would decrease. Finally, when asked if the new system would be accepted widely in the country, only 26 percent responded in the affirmative, while 50 percent did not think it would be accepted (Asahi Shinbun, 2009).

Legal Education

The most significant recommendation of the RC21 report was the dramatic suggestion to reform the country’s system and method of legal education. These reforms began to be introduced in 2004. In order to appreciate the new system, it is useful first to understand the one being abandoned. The Japanese approach to legal education closely resembled that found on the continent of Europe. Although it was not required, most aspiring legal practi - tioners first entered a university and completed the undergraduate degree requirements in about four years. The future legal practitioner usually specialized in a law curriculum while at the university, but this was not required. In fact, many who studied law as an under - graduate had no intention of practicing law. The study of law had long been the academic discipline of choice for people pursuing careers in government and business. The candidate for a university law degree spent the first two years taking general liberal arts courses and devoted the final two years to legal studies. This involved instruction in the basic legal principles found in the Constitution, the Civil Code, the Code of Civil Procedure, the Commercial Law, the Penal Code, and the Code of Criminal Procedure. The method of instruction was lecture, in which little effort was made to introduce the student to how the law was applied in practice. Thus, as was the case in France, the exposure of the university student to the law was limited to a theoretical orientation of the subject.

Those who aspired to a career in the legal profession (judges, public procurators, or attorneys) had to pass the national bar examination. A passing grade on this test enabled a candidate to enter the Legal Training and Research Institute, which offered the clinical

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training necessary to begin a career in the legal profession. For a long time, the bar examination had been characterized as “something of an endurance contest” (McMahon, 1974). To illustrate, less than 2 percent passed the test between 1974 and 1984. From 1985 through 1997, the percentage who passed was more than 2 percent, with the exception of one year. During this period, the percentage went above 3 percent for three consecutive years (1993 to 1995).

Changes had been introduced to the examination, the most recent having been adopted in 2000. The first part of the examination tested general knowledge and academic skills. If a candidate had obtained a liberal arts degree from a university, he or she was exempt from taking that part of the examination. The second part of the examination consisted of three components. It included a multiple-choice test on the Constitution of Japan and the Civil and Penal Codes. There was also an essay component that covered six areas: the Constitution of Japan, the Civil Code, the Code of Civil Procedure, the Commercial Law, the Code of Criminal Procedure, and the Penal Code. The third component of the examination, the oral test, covered the aforementioned branches of the law, with the excep - tion of the Commercial Law. A person who passed the examination entered the institute as an apprentice.

The Legal Training and Research Institute offered the apprentice clinical training in law. The teaching staff was selected by the Supreme Court and was composed of judges, procurators, and attorneys. The candidates spent 18 months in training: three months of classroom instruction, 12 months of field training, and an additional three months of final training. Irrespective of career aspirations to either judge, procurator, or attorney, each apprentice received the same training at the institute. Fifty sites had been identified nationally for the field training; they included courts, offices of public procurators, and various bar associations. It has been suggested that this method of training fostered a sense of unity and mutual understanding within the legal profession, for each candidate was oriented to the work and responsibilities of all the principal members of the courtroom group. Therefore, all apprentices were given a systems view of the court process. It was argued that this led to greater cooperation and coordination of policies among the courtroom work group, which in turn enhanced the goal of achieving a more efficient and effective administration of criminal justice (Shikita, 1981).

Although the method of legal instruction was usually praised, the high failure rate among people who took the national bar examination was a principal point of concern among critics. As mentioned earlier, the high failure rate was planned. All who participated in the process knew that only roughly 2 percent would pass. While there had not been any attempt to radically change the system, efforts had been successful at introducing some incremental amendments to the process. The Japanese preferred to maintain a highly elite group of legal professionals, and they believed that a rigorous bar examination ensured that goal.

The RC21 report recommended the development of a new method of legal training through the creation of law schools. The reason for this recommendation was that the law faculties at the universities were not in the business of training students to become legal practitioners; rather, they were introducing students to the law through their lectures. Students were being prepared with a certain level of knowledge about law that would enable

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them to find employment in a variety of occupations. Moreover, the focus of that education was not designed to prepare a person for the national bar examination.

Law schools will provide a professional graduate training for people planning a career in law. This training will bridge the gap between the theoretical education received from law faculties at universities and the practical knowledge needed to function as a legal professional. In law schools the objective is to train people to think critically about the law. The Socratic method, rather than lectures, will be employed to enhance the students acquiring the appropriate method of legal analysis for a legal professional. In addition, law school training will in part be directed at the national bar examination, which should facilitate the government’s goal of increasing the number of people who pass the test. Finally, although the RC21 report did not specifically refer to clinical legal education, a number of law schools recognize that this should be a component of their curriculum if they are indeed going to train people as legal professionals.

By 2005, 74 new law schools had been approved. Some are found at public and private universities that already had a faculty of law. Faculty at these universities had been accustomed to teaching law primarily to undergraduate students. Other law schools are new ventures at both public and private educational institutions.

Presently, people who wish to pursue a career in law can still seek an undergraduate degree from a faculty of law at a university. Upon graduation, they must secure a position in a law school. When they complete this three-year program, they take the national bar examination. This examination was revised and is based on the curriculum of the law schools. In 2006, 48 percent (1,009) of the 2,091 applicants passed. In 2007, however, just 40 percent (1,851) of the 4,607 applicants were successful. Since 2007, the pass rate has declined each year. Of the 8,163 people who took the bar examination in 2010, only 2,074, or 25 percent, were successful. It has been suggested that the recent proliferation of law schools has contributed to lowering the quality of law school students.

It should be noted that the Legal Training and Research Institute will continue to exist for the practical training of people planning on careers as judges, procurators, and attorneys. With the advent of the law schools, the institute’s program has changed somewhat. Candidates to the institute must first pass the national bar examination. Once admitted to the program, the candidates are referred to as legal apprentices. The title is reflective of the practical training offered that is designed to provide both knowledge and skills for practice in one of the three legal professions of concentration: judge, procurator, and attorney. Much of the training involves participation in internships where the apprentice receives practical skills training.

The program at the Legal Training and Research Institute consists of three segments and takes a year to complete. The first segment, and the longest at eight months, consists of field training at each of the principal components of the judiciary, that is, civil trial and criminal trial with a district court, district public procurator, and time with both civil and criminal attorneys. The second phase consists of a two-month period of field training in the area that the candidate plans to specialize: judge, procurator, or attorney. The third segment of the program takes place at the institute and lasts two months. Here the focus is on standards associated with judicial practice. The training encompasses civil trial, criminal trial, public procurator, civil advocacy practice, and criminal advocacy practice.

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Once this phase of the program is complete, the candidates must pass a national examination before commencing careers as either assistant judges, public procurators, or practicing attorneys.

LAW Japan’s criminal law and procedure has evolved through four fairly distinct periods. The first phase existed from ancient times until approximately the twelfth century. This phase was marked by early attempts at the codification of law, specifically the Code of 702 (Taiho) and the Code of 718 (Yo-ro). Both were modeled after Sui and T’ang Codes of China. These early codes required that the injured party in a criminal case level a complaint against the accused. The person’s guilt was then determined by either a confession or the testimony of witnesses. Torture was permissible for securing a confession, and there was also a system of appeals (Dando, 1965). Although these procedural nuances were similar to those emerging in the West, historians have concluded that these developments were separate, indigenous creations.

The second phase occurred during what is characterized as the medieval period of Japanese history. It started before the twelfth century and ended with the Meiji Restoration in 1868 and was marked by the emergence of Japanese feudalism. Feudalism destroyed the notion of centralization and, with it, the early legal codes. Feudal codes that emphasized an inquisitorial method for determining fault and encouraged the frequent use of torture were introduced. While physical evidence is of value at a trial, torture was employed principally to elicit a confession. Once again, there were similarities with procedural developments in the West, but these were also indigenous creations.

The restoration of the Meiji in 1868 is usually cited as the beginning of the third phase in the evolution of Japanese law. The restoration was noted for its extensive borrowing from Western continental legal thought. At first, the restoration led to a revival in the use of the old Chinese-style codes, with the abandonment of the feudal codes. It was quickly discovered, however, that these codes were too dated to meet the needs of a society that was entering the modern era. The Japanese began to borrow heavily from the French, largely because the Napoleonic Code had received worldwide attention. However, toward the end of the nineteenth century, a more absolute and militaristic attitude emerged in Japan. This led to yet another shift in the search for a Western model to emulate. Japan turned to German legal scholarship for inspiration in adopting its Meiji Constitution of 1889 and assistance with implementing other reforms in their codified legal system. This association with German legal thought lasted until the end of World War II.

The fourth phase began with the American occupation following the war. As has already been indicated, the adoption of the Showa Constitution in 1946 led to some significant changes in criminal law and criminal procedure. The largest number of changes was in the Penal Code, which had been in force since 1908. The Penal Code was only partially revised with regard to the sanctioning and treatment of offenders. New classifications of crime were added as more sophisticated kinds of deviant behavior associated with modern society emerged. A total revision of the Code has been considered, and a draft for a new penal code has been written, but as yet, it has not been approved by the Diet. According to Yoshio

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about the level of crime, especially violent crime, has had an adverse impact on tourism, which is an industry that the government is keen to promote (Irish, 1999).

JUDICIARY Of all the criminal justice agencies during apartheid, the police were undoubtedly hated and feared the most, because it was the organization most visible and frequently encountered by a majority of black South Africans. However, while the judiciary was not as visible to most blacks, it nevertheless was complicit in enabling the apartheid regime to continue to violate many of the basic principles associated with the rule of law. In this context, the judiciary is associated with the whole legal establishment, that is, judges and lawyers. Of course, there were exceptions to this aforementioned generalization, but they were clearly in the minority.

It was mentioned earlier that South Africa and Russia are two countries covered in this book that lend themselves to some interesting comparisons. In the past, both relied heavily on agents of their criminal justice systems to carry out the respective agendas of the apartheid and communist regimes. Today, both countries serve as illustrations of nation states that have proclaimed their goal of adopting a democratic form of governance and embracing principles associated with the rule of law. In the new Russia, the leadership acknowledged that it was prudent for the country to have a Constitutional Court that would serve as the supreme judicial body authorized to provide constitutional oversight. Likewise, the authors of the new Constitution of the Republic of South Africa recognized the value in having a Constitutional Court serve as the ultimate authority in interpreting all matters associated with the constitution. Thus, constitutional supremacy would reign over the authority of parliament or the national executive.

Chapter 8 of the Constitution of the Republic of South Africa is devoted to courts and the administration of justice. Section 165 of the Constitution states that “judicial authority is vested in the courts,” that “courts are independent and subject only to the Constitution and the law,” and that no person or state unit of government can interfere with the work of the courts. The Constitution authorizes the creation of four types of courts: the Constitutional Court, the Supreme Court of Appeal, the High Courts, and Magistrates’ Courts. It also indicates that other courts may be established by Parliament and may be comparable to High or Magistrates’ Courts.

Organization and Administration of the Courts

The judiciary of South Africa is divided into superior courts and lower courts. Figure 4.3 illustrates the organization of South African courts. Three of the tiers in the court hierarchy are superior courts, and they are presided over by justices or judges. The lower courts are represented in the fourth tier, and they are presided over by magistrates. Before the functions of these courts are described, it is important to mention briefly the role of a few government units that have a role to play in either the management of or support for the courts.

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The Department of Justice and Constitutional Development

The Department of Justice and Constitutional Development is a cabinet-level unit of government. The minister of justice and constitutional development is a member of the National Assembly who is appointed by the president to head this department. The Ministry of Justice and Constitutional Development is responsible for espousing and promoting the values associated with democracy, social justice, and human rights that are found in the Constitution of the Republic of South Africa. It focuses on improving the effectiveness and accountability of all units of government to legal compliance. It seeks to enhance the effectiveness and efficiency of courts and agencies that provide judicial services. Finally, it attempts to improve the quality and accessibility of legal services to citizens.

Within the ministry is the Justice College, which is the training branch for a number of court personnel. The College is responsible for training magistrates, prosecutors, family advocates, court interpreters, clerks, court managers, administrative personnel, and others working in the judiciary. After 1994, there was a good deal of attention given to providing courses designed to mainstream minorities with a legal education into practices within the justice system. Generally, training at the college is rigorous enough to eliminate candidates who aspire to careers as either prosecutors or magistrates but lack the requisite skills. Moreover, the first six months on the job is a probationary period in which the person could be terminated, if it is determined the candidate should not be retained. It should also be noted that legislation was passed in 2008 to create the South African Judicial Education Institute, which is designed to train new judges to the High Court.

Another unit within the Department of Justice and Constitutional Development is the State Attorney’s Division. This office is responsible for representing the state in civil cases in which a governmental department or agency is a party or to represent state officials who are being sued in their capacity as an official of the government.

Judicial Service Commission

The authority of the Judicial Service Commission is explained in section 178 of the Constitution. The Commission is composed of the Chief Justice of the Constitutional Court, the President of the Supreme Court of Appeal, a judge, the minister of justice and

Supreme Court of Appeal

High Courts

Magistrates’ Courts

Constitutional Court

FIGURE 4.3 | Organization of the South African Courts F O S T E R , C E D R I C 1 6 9 2 T S

con stitutional development, two practicing advocates, two practicing attorneys, one law professor, six members from the National Assembly, four members from the National Council of Provinces, four persons designated by the president after consulting the leaders of parties represented in the National Assembly, and when the matter concerns a specific High Court, the judge president of that High Court and the premier of the province concerned.

The Judicial Service Commission essentially has two responsibilities. First, it advises the national government on issues associated with the judiciary or the administration of justice. Second, it is involved in the process of screening candidates to serve as members of the judiciary. In this second capacity, the six members from the National Assembly and the four members from the National Council of Provinces are excluded from participating with others on the commission.

Director of Public Prosecutions

There is a National Director of Public Prosecutions who is appointed by the president. While the minister of justice and constitutional development is the cabinet officer who exercises the final responsibility for public prosecutions, it is the national director who has the overall daily authority for the administration of prosecutions in the country. Moreover, each of the nine provinces has a director of public prosecutions with advocates, prosecutors, and staff who are responsible for receiving information from the police about alleged criminal cases in their province and then determining if the evidence in the case is sufficient to bind the accused over for trial.

Within the National Prosecutions Service there are some specialized units that have been identified as needing particular attention. They include the Office of Witness Protection, Asset Forfeiture Unit, Specialized Commercial Crime Unit, Priority Crimes Litigation Unit, and the Sexual Offences and Community Affairs Unit.

As mentioned earlier, the judiciary of South Africa is divided into superior courts and lower courts. The superior courts include the Constitutional Court, the Supreme Court of Appeal, and the High Courts. Of the lower courts, it is the Magistrates’ Courts that concern us.

The Constitutional Court

The Constitutional Court is composed of 11 justices from which one is the chief justice and one the deputy chief justice. According to section 167 of the Constitution, the Constitutional Court is responsible for deciding only constitutional matters and ultimately decides if a legal concern is a constitutional issue. The court may decide disputes that arise between different branches or agencies of government at the national or provincial level when the matter in question relates to the Constitution. If there is a disagreement between the executive and legislative branches over the constitutionality of the proposed legislation, the court decides the constitutionality of all bills in the national and provincial parlia- ments. The court rules on the constitutionality of any amendment to the Constitution. It

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also determines whether the parliament or president has failed to fulfill a constitutional obligation. Finally, the court ultimately decides if an act of parliament or a provincial act is constitutional. National legislation and the rules of the court permit an individual to bring an issue before the court or to appeal directly to the court, if the court agrees that it is in the interests of justice. In order for a case to be heard in the court, at least eight members of the court must consider the matter. The Constitutional Court is located in the city of Johannesburg.

As mentioned already, the Constitutional Court was a new feature of the South African judiciary. The original members of the court began to hear cases on February 15, 1995. What is significant about this is that the first two cases that it heard dealt with criminal justice issues. In the case of S v. Makwanyana (1995), Makwanyana had been sentenced to death, and the issue centered on whether the death penalty was constitutional. The court ruled that the death penalty was unconstitutional, for it violated the ninth (equality), tenth (human dignity), and eleventh (right to life) rights found in the Bill of Rights. In the second case, S v. Zuma (1995), the case focused on the constitutionality of section 217 of the Criminal Procedure Act (1971) dealing with the admissibility of a confession. At issue was whether a defendant had to prove his claim that a written confession was forced under duress. The court ruled that this was unconstitutional on the grounds of the presumption that a confession was made freely and voluntarily.

The Supreme Court of Appeal

The Supreme Court of Appeal consists of a president and deputy president along with judges of appeal. The number of judges is determined by parliament. Presently, there are a total of 22. This court is considered the highest court of appeal, with the exception of constitutional issues, and may hear appeals on any matter. It is specifically delegated to hear appeals, issues associated with appeals, and any other matter that is defined by an act of parliament. As such, it is usually the ultimate court of appeal for most cases. When a case is presented in this court, a panel of three or five judges would hear the appeal, which is based on written and oral arguments. The Supreme Court of Appeal is located in the city of Bloemfontein.

High Courts

The jurisdiction of the High Courts is determined by the territory each serves. There are 13 High Courts: 10 are provincial and three are local. Each court has a judge president and at least one deputy president. The number of judges serving a court is usually determined by the judge president. According to the Constitution, High Courts can decide constitutional cases, as long as the matter in question is not the sole responsibility of the Constitutional Court or is assigned to another court by an act of parliament. High Courts have both appellate and original jurisdiction. The appellate jurisdiction is limited to appeals from a Magistrates’ Court. When a High Court sits to hear an appeal, at least two judges would handle the matter.

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The original jurisdiction in civil matters involves cases in which the issue amount is greater than 100,000 rand. With regard to criminal cases, it must be deemed a serious criminal offense. Original jurisdiction cases are heard by a single judge. In the event a very serious criminal case comes to the court, a judge might be joined by two assessors. Assessors are usually advocates or magistrates who have retired from active work. The role of assessors is explained later. Within each of the High Courts is the Special Income Tax Court. A single judge would sit to hear such cases and be assisted by an accountant and a member of the business community.

Magistrates’ Courts

Magistrates’ Courts are responsible for less serious civil and criminal cases. These courts are divided into two categories. Regional Magistrates’ Courts deal exclusively with criminal cases with the exception of treason. These Regional Magistrates’ Courts can also impose a term of imprisonment of up to 15 years or a fine of up to 300,000 rand. The other category is the District Courts. They are authorized to handle both civil and criminal cases. With reference to criminal cases, they can sentence an offender to prison for up to three years or a maximum fine of 100,000 rand. A single magistrate hears a case. In some instances a magistrate may select one or two people from a list to sit as an assessor. As mentioned, the role of assessors is discussed later. It should also be noted that Maintenance Courts deal with child-support issues and are also found in the Magistrates’ Courts.

Specialized Courts

For our purposes there are essentially two kinds of specialized courts. One group deals with noncriminal matters. They include Labor Courts and Labor Appeal Courts (which have a similar status to that of a High Court), Divorce Courts, Land Claims Court, the Water Tribunal, and Small Claims Courts. Children’s Courts were created to deal with child custody issues. The establishment of Equality Courts illustrates the country’s commitment to issues associated with hatred or discrimination. These courts deal with a host of issues, such as age, culture, disability, economic or social status, ethnic or social origin, gender, HIV status, language, nationality, marital status, race, religion or conscience or beliefs, and sexual orientation. Finally, the Courts of Chiefs and Headmen have jurisdiction over matters at the level of a magistrate’s court when the matter deals with an issue of customary law. The matter at hand may deal with a dispute regarding livestock or lobolo, which is usually translated as bride price.

The other group of specialized courts focuses on criminal matters. For example, Com - munity Courts deal with petty criminal issues, such as shoplifting, petty theft, drunkenness, drinking in public, minor traffic offences, various offenses on trains, and common assault. Sexual Offenses Courts are designed to assist children and other victims with the support and care needed during the trial process. The Child Justice Courts will be discussed in the section on juvenile justice.

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The Legal Profession

For our purposes, the South African legal profession is divided into four groups: attorneys, advocates, judges, and magistrates. South Africa’s long association with the British Commonwealth had a significant impact on the development of the country’s legal profession. As in England, there are two types of lawyers in South Africa. While they do not employ the English terms of “solicitor” and “barrister,” the result is essentially similar for South Africa’s attorneys and advocates.

Attorneys

The role of attorneys in South Africa is similar to that of solicitors in England. They are the office lawyers or legal generalists who handle most of the legal paperwork that most people need from a lawyer. They are also found working in lower courts. If a case is scheduled for hearing in a higher court, especially at the appellate level, or requires a specialist in a legal area, the attorney would seek the services of an advocate.

Anyone planning to become an attorney must first earn an LL. B. (Bachelor of Laws) degree, which is an undergraduate law degree offered at a South African law school. A person may also enter a law school program as a postgraduate and complete the degree at an accelerated pace in light of their original undergraduate degree. For admission as an attorney, the person would be interviewed by a senior member of the Law Society along with a background check before they would be permitted to apply for “articles.” Service under articles of clerkship, or articling, is a two-year period of apprenticeship in which the law graduate acquires practical training in the skills of drafting legal documents and is provided an orientation to the legal profession either with a practicing attorney or a state’s attorney. The period of articling may be reduced if the candidate has enrolled full-time at the School for Legal Practice for a period of six months or has performed service in the community at a law clinic. The candidate would then sit for an examination that is prepared by the provincial Law Society. It consists of four parts: practice and procedure in various courts, wills and estates, contracts, and rules of conduct and legal bookkeeping.

Advocates

As mentioned, advocates are the legal specialists, especially at oral argument in court. Thus, they are similar to that of English barristers. Advocates are employed by attorneys to represent a client either in a higher court or in an appellate court. They are selected by the attorney based on their expertise in a particular branch of the law and their skill at oral advocacy. Advocates are either junior or senior counsel, with all advocates starting out as junior counsel. After a period of practicing law for at least 10 years and with the endorsement of the Bar Council, the president of South Africa may acknowledge the person’s expertise and appoint them senior counsel. The advocate would then put the letters SC after his or her name.

The requirements for becoming an advocate are somewhat similar to that of an attorney. For a person to be considered a candidate to be an advocate, they must secure the L.L.B.

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degree as was the case with candidates aspiring to become attorneys. Candidates must become members of a Bar Association or societies, which are organized at each of the locations of a High Court. They must participate in a one-year practical skills training program, referred to as a pupilage, with a practicing advocate and then pass the bar examination. The successful person would then begin their career as a junior counsel.

Judges

Judges are appointed by the president in the role of head of the national executive. According to section 174 of the Constitution, the president must consult the Judicial Service Commission and the leaders of the parties represented in the National Assembly when appointing the Chief Justice and Deputy Chief Justice to the Constitutional Court and after consulting the Judicial Service Commission on the appointment of the President and Deputy President of the Supreme Court of Appeal. With specific reference to the Constitutional Court, the president appoints the other justices after consulting with the Chief Justice and leaders of the parties represented in the National Assembly. The Judicial Service Commission prepares a list of potential candidates for the president, and the list contains at least three names more than are needed to fill any vacancy. The president can either make the appointments from the list provided or elect to have the Judicial Service Commission provide a supplemental list of candidates, which must be used to complete the process. At least four members of the Constitutional Court must have been serving as judge when selected to serve on the Constitutional Court. Finally, the president appoints all the other judges in the South African court system after consulting with the Judicial Service Commission.

Constitutional Court justices serve a single nonrenewable term of 12 years or until they reach 70 years of age. An extension to the term of office can occur through an act of parliament. All the other judges hold office based on terms spelled out in various acts of parliament. Judges can be removed from office only if the Judicial Service Commission concludes the person is incapacitated, incompetent, or guilty of misconduct or if the National Assembly calls for a resolution that has the support of two thirds of its members to remove a judge.

Magistrates

Magistrates are appointed by the minister of justice and constitutional development. These officials are not referred to as judges. They serve in lower courts, that is, the magis - trates’ courts. The educational qualifications to serve as a magistrate are at least a B. Juris, a three-year diploma, or a B. Proc. degree in law, but it is recommended that a candidate secure the LL.B. degree. A B. Juris degree would not entitle a person to practice law as an attorney or advocate; it would allow employment in law-related work. A B. Proc. degree would enable a person to pursue candidacy as an attorney but not as an advocate. Moreover, the candidate must successfully participate in a course at the Justice College and complete six months of practical training at the magistrate court at which the candidate is seeking employment.

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The minister is assisted in identifying qualified candidates to serve as magistrates by consulting the Magistrates’ Commission. The composition of this commission and procedures for selecting people are similar to that of the Judicial Service Commission, which was explained earlier in the process of selecting judges. In addition to appointing, promoting, or transferring magistrates, the Magistrates’ Commission is also responsible for receiving complaints, investigating grievances, taking disciplinary steps, and discharging people from service as magistrates. In recent years, the Magistrates’ Commission has received praise from the Law Society of South Africa for dealing with magistrates found unfit to function as judicial officers.

Assessors

At section 180 of the Constitution, it indicates that legislation may enable lay participation in the administration of justice. This statement is an acknowledgement of both the past practice and the potential for exploring other avenues to include the public in the administration of justice in the newly created democratic country. In the past, the English jury was introduced in 1828 at the Cape. Throughout the first half of the twentieth century, more trials were conducted without a jury. Finally, the Abolition of Juries Act (1969) ended this method of lay participation in the administration of justice.

This void in lay participation was filled to a limited extent by assessors. Section 145 of the Criminal Procedure Act (1977) authorized judges to decide if they wanted to sit singly or with assessors. A judge may elect to utilize one or two assessors that help in the decision- making process. Assessors are usually advocates or magistrates who have retired from active work. A person may also be selected to serve as an assessor because of a technical expertise. When assessors are employed, the judge decides questions of law or a mixture of law and fact, whereas the judge and the assessors decide issues of fact. Sentencing is the sole responsibility of the judge.

Since 1954, magistrates’ courts were permitted the use of assessors, but they were seldom utilized. Again, magistrates had the choice to use assessors and could avail themselves of either one or two, and these assessors were not required to have any legal training. The magistrate would decide questions of law or a mixture of law and fact. The magistrate and assessors would decide issues of fact. The Magistrates’ Courts Act (1944) was amended in 1991 and indicated that if a person was being tried in a regional Magistrates’ Court on the charge of murder, the magistrate must employ two assessors unless the accused declined a trial with assessors.

Prior to 1994, all the magistrates were white and male. Many blacks saw courts in general and the criminal justice courts in particular as “white man’s justice”; they did not trust any court, for the courts had been a significant vehicle in support of the apartheid regime. A goal throughout the first half of the 1990s was to utilize assessors to a greater extent. By employing more assessors, it would enable magistrates to select black people who were familiar with the cultural nuances of the local community.

Since the mid-1990s, there has been a decline in the use of assessors, especially in the magistrates’ courts. Part of the reason has to do with the fact that there are now many blacks serving as magistrates and prosecutors in magistrates’ courts. There was also criticism over

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the reliability and competence of some assessors as factors in delays and postponements of trials. Related to these concerns was the cost of the assessor program in light of an underfunded court system (Gordon, 2006; Seligson, 2001; South African Law Commission, 1997).

LAW As was mentioned in the introduction to this book, South Africa is an example of a country that borrowed from both the Romano-Germanic and common law legal families. When the Dutch established an outpost in 1652 at the Cape of Good Hope for the United East India Company, they brought with them Roman-Dutch law. Roman-Dutch law was the law of the Netherlands in general and of the province of Holland in particular; it is considered a subset of the Romano-Germanic legal family. When the Cape came under the control of the British in 1806, the common law was introduced, but not totally, for the British guaranteed the continued use of Roman-Dutch law.

It is interesting to note that Roman-Dutch law was losing influence in the country of its origin, because at the beginning of the nineteenth century the Netherlands had embraced the codification movement by importing the Napoleonic code of France. As the British colonial power expanded in the region now called South Africa, English law influenced, and in some cases was adopted in, certain areas of law. For example, the English law of criminal procedure and the law of evidence were incorporated into the South African legal system in 1828 and 1830, respectively. Moreover, the English court system replaced the Dutch court hierarchy, and trial by jury, another common law feature, was introduced. When the Union of South Africa was established with a constitution in 1910, the position of English law was enhanced further. This would remain the case both before and during the period of apartheid (1948 to 1994).

It has also been suggested that the South African legal system in a sense incorporated characteristics associated with the socialist legal family during the period of apartheid. Just as socialist law was utilized by the Communist Party to advance its agenda in the Soviet Union, law, in the South African context, was a central feature of the National Party’s development and implementation of its apartheid policy. With the official demise of apartheid, the new political and constitutional order renewed its association more completely with the Romano-Germanic law and common law legal families. As a general rule, the Romano-Germanic, or more specifically, Roman-Dutch law is employed in the following areas: Roman-Dutch common law, law of contracts, law of delict (tort), law of the family, and law of persons. English law has influenced company law, laws of evidence, and the laws of procedure.

It should also be noted that customary law has had and continues to have a limited role to play in the legal system of South Africa. Customary law is associated with the indigenous legal systems that existed before the Dutch arrived in 1652. Customary law is unwritten and orally passed on to the next generation. It is associated with the original people living in South Africa and relates to the cultural traditions of a specific native group. Customary law, however, is not employed to decide issues associated with criminal law or

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effectively address terrorist threats. In addition, while police violence toward civilians is not new, there has been an enhanced reporting of cases of aggressive policing that involved the beating, shooting, and torture of civilians. As such, it has been suggested that a clear majority of the public distrust the police. As mentioned earlier, growing cynicism on the part of law enforcement officers has led some to be corrupted by the very organized crime elements that they are expected to pursue.

JUDICIARY When a state proclaims that it is subject to its own laws, it usually supports the validity of that proclamation by guaranteeing an impartial and independent judiciary. The Russian Federation is in the throes of transforming its judicial machinery so that it can assure its citizens that the state is, indeed, subject to its own laws. As is the case with so much of the Russian justice system, the judiciary is undergoing incremental reforms. In some instances, significant change has been introduced; in others, the proposed reforms remain largely on the drawing board. In those instances in which reform has been introduced, a word of caution is in order: the introduction of reform does not necessarily mean that it will be implemented in a timely manner—or, perhaps, at all.

Throughout the era of the Soviet Union, the basic principles associated with the administration of justice were the reverse of those found in a democratic society. Just as the Soviet police were subject to the dictates of the Communist Party, members of the judiciary were also expected to comply with the wishes of the party and the state. Thus, the notion of an impartial and independent judiciary was essentially absent.

It should be noted that during the Soviet era the judicial structure retained many of the characteristics that were in place before the Bolshevik Revolution of 1917. These characteristics were similar to those found in the Romano-Germanic law countries on the continent of Europe. The reasons for these similarities were twofold. First, although Russia was characterized as a backward country until the twentieth century, there were enlightened tsars who occasionally attempted to modernize the state administrative apparatus. From at least the sixteenth century into the eighteenth century, a number of tsars borrowed legal principles and administrative mechanisms from the West. The French model was the one that was principally emulated. Thus, a Russian version of the Romano- Germanic legal system and its accompanying judicial mechanisms were in place before the 1917 Revolution.

Admittedly, the composition and purpose of the judiciary changed following the Revolution, but in a number of respects, its form was strikingly similar to what had evolved on the continent of Western Europe. In some respects, this became even more pronounced after the end of World War II. As a result, some legal scholars questioned treating the socialist legal system as a separate legal family. They argued, not without justification, that socialist law was merely an aberration of the Romano-Germanic law family. Other legal scholars maintained that the Soviet legal system was a distinct family and should be treated as such. What made it distinct was not its form but rather the substance of the law and the purpose of its legal mechanisms.

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The importance of substance versus form was first illustrated during the early days of the Revolution. The leaders of the revolutionary movement had not developed a precise plan to replace the existing judicial system. Most scholars attribute this to the fact that the revolutionaries were caught off guard by the success they achieved in Russia. It should be remembered that Marx had not envisioned the socialist revolution occurring in a country with such an underdeveloped economic base. He was convinced that the revolution would first occur in an established capitalist country.

Lenin, therefore, failed to address a basic issue that confronts most revolutionary leaders: that of not having devised a clear plan for replacing the status quo, in this case the existing governmental mechanisms of the tsar. Lenin was not without some guidance, though. Marx and Engels had explained the role that the legal system would play in a socialist society, and the leaders of the Revolution moved quickly to transform those views into action by establishing a new court system.

For example, the People’s Commissars issued a decree in November 1917 that abolished all the courts and legal institutions that had existed under the tsar and created the people’s courts. One judge and two assessors would sit in a newly established people’s court to hear both civil and criminal cases in which the accused could be sentenced to as much as two years of imprisonment. Both judges and assessors were to be elected by the people of the district they served. The decree also called for the abolition of government investigators, prosecutors, and private attorneys. The judge was to conduct the preliminary investigation until a new legal system was established with appropriate administrative mechanisms. Any citizen could serve as a prosecutor or counsel for the defense.

In December of the same year, the revolutionary tribunal was created. It was responsible for more serious criminal offenses and for crimes against the state. Opponents of the revolutionary government found themselves before this tribunal, which was composed of a chair and six assessors elected by the people. The tribunal had the power to establish investigating commissions that were composed of people elected by local soviets. Each commission was empowered to issue orders regarding searches, seizures, and arrests. Although any police force could carry out the wishes of an investigating commission, the Cheka served as the tribunal’s principal investigative arm. Moreover, all citizens were eligible to serve as prosecutor or defense counsel before revolutionary tribunals.

Although piecemeal changes in the court system were introduced through decrees issued by the People’s Commissars after 1917, the most significant changes occurred with the enactment of the Statute on the Judiciary of the RSFSR (Russian Socialist Federative Soviet Republic) in 1922. This legislation established a unified judicial system throughout the federation. A court hierarchy was created with people’s courts, provincial courts, and the Supreme Court of the RSFSR. The Supreme Court was given the responsibility of supervising the other courts. With this legislation, the revolutionary tribunals were eliminated, and their authority was largely transferred to the provincial courts. There were two exceptions to this plan: separate military tribunals and military-transport tribunals were retained and were given the authority to hear crimes that threatened the military and transport systems, respectively.

Statutes also appeared in 1922 regulating the bar and the procurator’s office, which had been decimated as a result of the events of 1917. During this period, new legal codes

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were enacted dealing with civil law, criminal law, and criminal procedure. With the passage of the 1924 Constitution of the USSR, much of the previously adopted legislation was elaborated further. Thus, by the mid-1920s, the new Soviet legality was created, with judicial institutions designed to assure the success of the new social order. Serious setbacks to the furtherance of the Soviet legal system were to occur during the period of Stalin’s regime, especially during the purge trials of the 1930s. Since Stalin’s death, the Soviet leadership and legal profession attempted to resurrect a socialist version of legality with legitimate mechanisms to administer the system. With the advent of Gorbachev’s leadership, an even greater impetus was directed at reforming the legal system to achieve his vision of democratic socialism.

The Soviet Union had a four-tiered court hierarchy responsible for handling civil and criminal litigation. The courts were regulated by the 1977 Constitution of the USSR, the Code of Criminal Procedure, the Law on the Status of Judges in the USSR, and various statutes passed by the Supreme Soviet. The highest court in the Soviet Union was the Supreme Court of the USSR. The work of the court was performed in two ways. Four times a year, the court held plenary sessions. A plenum had a responsibility to consider: (1) protests of decisions from divisions within the USSR Supreme Court or union republic Supreme Courts, (2) interpretations of USSR law, and (3) disputes among the judicial agencies of the union republics. Thus, a plenum was concerned principally with an examination of judicial patterns that were emerging in the Soviet court system.

When the court was not addressing itself to issues at plenary sessions, its mem- bers were divided into three judicial divisions or collegia: (1) the collegium on civil cases, (2) the collegium on criminal cases, and (3) the military collegium. As a collegium, the court handled two kinds of matters. For exceptionally significant cases, it would occasionally serve as a court of first instance; under these circumstances, the court was composed of a judge from the court and two people’s assessors. In addition, the court entertained judicial protests from the chair of the Supreme Court of the USSR, the procurator general of the USSR, or their deputies. These protests were limited to decisions handed down in the Supreme Courts of the Union Republics that were considered contrary to all-union legislation or were in some way at odds with the interests of the particular union republic. In such cases, the bench consisted of three judges from the Supreme Court of the USSR.

As was indicated earlier, the Soviet Union was a federated country composed primarily of 15 union republics. Each republic had a Supreme Court that in many respects mirrored the organization of the Supreme Court of the USSR. The regional courts were the next tier in the hierarchy and consisted of courts of first instance and courts of appeal. As courts of first instance, they handled more complex civil cases and more serious criminal cases. As a court of first instance, a judge and two assessors would hear these cases. The appellate jurisdiction was limited to decisions, judgments, and rulings from the people’s courts that had not as yet entered into legal force. People’s courts were sometimes called district courts or city courts. These courts consisted of judges and assessors who were elected by a superior soviet of people’s deputies. Judges were elected to a 10-year term and assessors to a five- year term; both were renewable. The vast majority of cases of first instance were handled by the people’s courts.

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Organization and Administration of the Courts

With the creation of the Russian Federation, the authorities have attempted to establish a new judicial system. For over two decades, significant attempts have been made to establish an independent judiciary that conforms to the rule of law and democratic principles. This is an important undertaking, because throughout the Soviet period most people did not trust the courts. Judges were viewed as an extension of the law enforcement community, who were concerned about maintaining the interests of the Soviet state rather than the administration of justice. The Russian Federation has a five-tiered court hierarchy responsible for handling civil and criminal litigation (see Figure 5.3). The courts are regulated primarily by the Constitution of the Russian Federation, the Code of Criminal Procedure, and the 1996 Federal Constitutional Law on the Judicial System of the Russian Federation.

Constitutional Court of the Russian Federation

When a country is ruled by the dictates of a single political party that is considered above the law, as was the case with the Soviet Union, issues of constitutionality are irrelevant. The Constitution of the USSR authorized the procurator general to oversee the utilization of laws with the objective of assuring that they were executed properly and fairly. The Constitution, however, did not grant the procuracy the authority to rule on the constitu - tionality of laws and decrees.

During Gorbachev’s tenure, it was acknowledged that unconstitutional laws had been approved throughout the history of the Soviet Union. To rectify the problem, a Constitutional Supervision Committee was created to review draft legislation and to indicate whether it conformed to constitutional provisions. The need to have a mechanism in place for purposes of constitutional review was acknowledged early in the Russian Federation. As a result, the Constitution of the Russian Federation authorizes the Constitutional Court of the Russian Federation to be the supreme judicial body of constitutional oversight in Russia.

The Constitutional Court has several responsibilities. It handles cases concerning conformity with the constitution. These include federal laws and acts, laws and acts of members of the Federation, and domestic and international treaties. It resolves judicial disputes between two or more federal bodies, between a federal body and a member of the Federation, and between members of the Federation. Generally, these cases are entertained following a request from either the president, the Council of the Federation, the State Duma, one-fifth of the members from either chamber, the government of the Russian Federation, the Supreme Court of the Russian Federation, or other bodies of executive or legislative authority. The court also considers complaints from citizens if the issue involves an allegation that a person’s constitutional rights and liberties were violated.

The court consists of 19 judges. Depending on the nature of an issue, the court may sit in plenary session. If the matter involves an interpretation of the Constitution, a majority decision requires two-thirds of all the judges on the court with no abstentions. When not in plenary session, the court is divided into two chambers in order to handle the other business brought before it. The judges are nominated by the president of the Russian Federation and appointed by the Council of the Federation for a 12-year term. Members of the court must be at least 40 years of age; they retire at 70.

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Supreme Court of the Russian Federation

According to the Russian Constitution, the Supreme Court of the Russian Federation has the ultimate judicial responsibility for civil, criminal, administrative, and other cases from general jurisdiction courts. At least once a month, the Presidium of the court will meet to decide, among other things, cases heard by way of supervision. Judicial supervision involves entertaining either an appeal or a protest against a judgment of an inferior court before the lower court’s decision enters into legal force, or if it does have legal force, it is not being appealed by way of cassation.

Most of the work of the court is conducted in the three judicial divisions: civil, criminal, or military. For exceptionally significant cases, usually when important interests of state are at issue, the court may occasionally serve as a court of first instance. Under this circumstance, the court would consist of a judge and a jury, but on occasion, a panel of three judges might hear a case. Usually, the court handles appeals by way of cassation from regional courts. In these cases, the court consists of three judges. The judges of the Supreme Court are nominated by the president of the Federation and appointed by the Council of the Federation. Finally, the court is composed of 115 judges who can serve until the mandatory retirement age of 65.

Attached to the Supreme Court is the Judicial Department, which is a federal agency responsible for the administration of the Russian court system. It assumed this responsi- bility in 1998 when a federal law removed court administration from the duties of the Ministry of Justice. This is a practical example of protecting the independence of the judiciary. The Judicial Department deals with all organizational issues that impact the court below that of the Supreme Court. It is responsible for the oversight of a number of personnel matters, such as the selection and training of judicial candidates, working with law institutes, and raising the qualifications of judges and other court personnel. It also maintains court records and issues statistical reports. Finally, the Judicial Department is responsible for the maintenance of court buildings and the purchase of supplies and equipment for the courts.

Constitutional Court of the Russian Federation

Supreme Court of the Russian Federation

Regional Courts

District Courts

Justices of the Peace Courts

FIGURE 5.3 | Organization of the Courts of the Russian Federation

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Regional Courts

For our purposes, the courts at the regional level are referred to as regional courts, but one should be apprised of the fact that not all of these courts are officially referred to by this title. Some of these middle-tier courts are called courts of autonomous territories and supreme courts of autonomous republics. Such names explain the nature of the locality served. Moreover, some of the principal cities (such as Moscow and St. Petersburg) have city courts that enjoy the jurisdictional status of a regional court. These courts are divided into civil and criminal divisions. Regional courts include judges, who are nominated by the president of the Federation, and may include a jury depending on the nature of a case at trial.

Regional court jurisdiction includes original and appellate cases. As courts of first instance, regional courts handle the more complex civil cases and the more serious criminal cases that are not considered appropriate for the district courts. A judge and a jury or a panel of three judges would hear these cases. The appellate jurisdiction is limited to decisions, judgments, and rulings from the district courts that have not as yet entered into legal force. A panel of three judges entertains such appeals.

District Courts

District courts, which used to be referred to as people’s courts until 1996, are primarily courts of first instance. With regard to criminal cases, they handle the more serious offenses in which a defendant could receive a term of imprisonment of more than three years. At a criminal trial, the court would include a single judge and a jury.

The district courts also hear appeals from justices of the peace courts. In this context, the appellate procedures are different from what one would expect of a court with appellate responsibilities. Once a case is appealed, a single district court judge retries the case. Thus, the matter is not returned to the justices of the peace court for a reconsideration of the matter.

Justices of the Peace Courts

Justices of the peace courts were first introduced into Russia in 1864 but were abolished following the Russian Revolution in 1917. Throughout the 1990s, when there was a good deal of talk about judicial reform, it was suggested that justices of the peace courts be reintroduced in order to alleviate the backlog of cases in the district courts. This was also considered by some as another example of introducing democratization to Russia. Justices of the peace courts were gradually introduced throughout Russia from 2001 to 2003. From an organizational perspective, these courts are unique in that administrative support is supplied partially by the regional government rather than solely from the federal govern - ment. The regional administrative support includes the recruitment and training of the justices, providing court staff, and maintaining courtrooms. The federal government provides a budget to cover the salaries of the justices and many of the court personnel.

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The jurisdiction of the courts includes three general areas of Russian law. Civil cases include simple divorce issues that do not involve disputes over property or children, some property cases, disputes over land, and some labor disputes. Criminal cases encompass those offenses in which the maximum punishment is less than three years’ imprisonment. Finally, certain federal administrative law cases have been assigned to these courts. For purposes of criminal justice, the most prominent issues include petty hooliganism, public drunken - ness, and serious traffic violations of a noncriminal nature.

When the court sits, it consists of one justice of the peace. Thus far, many of the criminal cases have involved personal accusations, consumer fraud, and hooliganism. One study has indicated that the personal accusation cases are often successfully mediated by the justice. Less than 3 percent of those found guilty are incarcerated. When a person appeals the decision of the justices of the peace court, the matter is retried in a district court. The aforementioned study found that only 1.5 percent of the verdicts were overturned, and only 0.8 percent of the sentences were altered on appeal (Solomon, 2003).

Legal Profession

As it pertains to the criminal justice system, the Russian legal profession is divided into three distinct groups: (1) judges, (2) procurators, and (3) defense attorneys. By and large, members of each group are professionally trained in the law. Although jurors serve an important purpose in the judicial process, they are distinct from the legal profession. Their role will be discussed separately.

Before the status of the three professional legal groups is presented in their Russian context, some general comments about the Soviet legal profession are in order. As of 1988, the number of practicing attorneys in the Soviet Union was approximately 25,000; this was small in relation to the population of the country and in contrast with other industrialized countries (Schroeder, 1990). The history of the legal profession since the 1917 Revolution provides an explanation for the status of lawyers in the Soviet context. It should be remembered that the official view of the Revolution was that law, and therefore the legal profession, would ultimately become superfluous in a socialist society. It was expected that they would wither away in time. This attitude was illustrated by the fact that early decrees stated that anyone could serve in a judicial capacity, irrespective of their legal training. Although some jurists who had been trained in law before the Revolution were utilized by the government, the tendency was to recruit people who had not been exposed to the prerevolutionary law school curriculum. Thus, people who were interested in studying law were discouraged from doing so because it was uncertain that such training would enhance their careers. Moreover, the traditional method of studying law came to an abrupt halt with the abolition of university law departments.

With the passage of the 1936 Constitution, the Soviet leaders reversed themselves by opting for a view of law different from that of their predecessors. Stalin, among others, saw law as serving a vital role in assuring the stability of socialist society. As a result, legal education became respectable; by the late 1950s, it had reached new heights in terms of the number of people enrolled in university law departments and legal institutes.

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An important characteristic of the Soviet legal profession was the fact that most members worked for the state. This was obviously the case among procurators and judges, but it was equally true among professional defense attorneys. They belonged to professional bar associations that were controlled by the Ministry of Justice.

Despite this kind of control, the legal profession was not without some political clout. Donald Barry and Harold Berman indicated that the CPSU was influenced by public opinion. Professional organizations, such as the Soviet bar, were in a significant position to offer meaningful advice regarding party policy (1968). With the law elevated to a respectable status, a principal concern of the bar had been to enhance the status of the profession, especially through improvements in the educational system. Their goal was to improve their chances of influencing party policy.

It should be pointed out that the legal profession did not hold exclusive rights to representing people in courts. People not trained in law retained the right to participate in trials. Some experts suggested that the maintenance of this policy was an implicit example of the party leadership’s belief that in time a professional class of lawyers would not be necessary, as their purpose would wither away with the state. Thus, though the Soviet bar was attempting to become a more influential voice in party policy, at least as it pertained to law and the legal profession, the party was keeping its options open by controlling the extent to which it would allow the bar to become a strong lobbyist for its causes.

With Gorbachev’s efforts at democratization and perestroika, the legal profession improved its standing considerably. The introduction of economic change required the skills of lawyers. For example, changes in the law of property significantly increased the number of cases brought to court. With the introduction of new regulations governing cooperatives in 1988, legal cooperatives emerged that were not controlled by the Soviet bar (Schroeder, 1990).

Judges

Gorbachev’s attempts at redefining the communist ideology led to significant discussions about reforming the judiciary. The impetus for this reform was based on his view of democratic socialism. One of his goals was the establishment of a socialist style of checks and balances within government, and a specific feature of that goal was the creation of an independent judiciary. In order to appreciate what Gorbachev was attempting to achieve, it is important to consider the state of the judiciary (in terms of both the official position and actual perceptions of people) in the Soviet Union.

Judges were elected, performed a collegial task, and were independent and subject to the law. According to the Soviet Constitution, all judges were elected by specific groups. Moreover, all citizens who had attained the age of 25 were eligible for election as judge. A long-standing criticism from both within and outside the Soviet Union was directed at the lack of credentials held by many people’s court judges. According to M. Cherif Bassiouni and V. M. Savitski (1979), this concern was largely resolved. Citing a 1976 article in Pravda, they pointed out that 95 percent of the people’s judges had a university educa- tion (a considerable improvement since 1960, when only 71 percent had achieved that distinction). A formal legal education was finally imposed as a prerequisite for election

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(though a majority had already pursued advanced legal studies before this requirement was introduced). Those without formal legal training had to take a law course to assure their competency.

A second characteristic of the Soviet judiciary was the collegial manner in which they performed their tasks. Whether it was hearing a first-instance case or an appeal, a single judge did not decide an issue. A judge was always assisted in the process by either other judges or lay assessors. This characteristic was not unlike the principle of shared responsibility found in countries utilizing juries or lay judges.

A third characteristic was the independence of judges. Soviet legal writers had often criticized the manner in which some judges were appointed to their positions in the West. They maintained that it was flawed logic to assume that such judges would display a greater sense of equity because of their purported independent status. They argued that this kind of permanency of tenure instead would lead to arbitrary actions, because the judges would endow themselves with a perception of superiority. Moreover, as members of the bourgeoisie, judges would tend to perpetuate and protect the interests of the property class. In a country that claimed the elimination of class as one of its goals, this was an unacceptable method of judicial selection. From their point of view, election was the only way to assure a true sense of independence in the administration of law.

Associated with judicial independence was the principle that judges were subject only to the law. This principle implied that judges should not be exposed to excessive political pressure, because this would hinder their judicial objectivity. This principle is found in constitutional documents of most countries and was present in the Soviet Constitution. One must keep in mind, however, that the principle had not been honored in practice. The CPSU was not only the ultimate interpreter of the law, but it also controlled who was placed on the ballot for election as a judge.

From a Western perspective, these factors raised serious questions about the extent to which judges were allowed to interpret the law freely and independently. In the waning years of the Soviet Union, these concerns were discussed openly. The Soviets began to admit that too many judges deferred to the judgment of others, especially procurators and their investigators, and that judicial decisions had often been designed to conform more to the dictates of the Communist Party and the whims of local party officials than to the written law. In addition, the method of determining judicial effectiveness was not unlike that used for police and procurators, because part of a judge’s mandate was to reduce crime. As a result, judges were evaluated on the basis of the number of convictions and acquittals in their court. This kind of posturing resulted in defendants not being acquitted of charges that either lacked sufficient evidence or were based on illegally obtained evidence, which helped to explain the 99.7 percent conviction rate of criminal cases in Soviet courts (Dobek and Laird, 1990). These concerns, which were acknowledged by government officials, severely hampered attempts at judicial objectivity and led to charges of accusatory bias on the part of judges.

Finally, in countries that view the rule of law as a basic and decisive feature of the social fabric, citizens tend to regard the position of judges as prestigious because they are considered society’s guardians and interpreters of the law. This was not the case in the Soviet Union. Law had never played a significant role in Russia, and the Marxist ideology alleged

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that law would eventually wither away. As such, its value in the Soviet political and social context was limited and viewed as temporary. Moreover, the CPSU was the actual guardian of the law and the ultimate interpreter of the role that it and the judiciary would play in society (Ginsburgs, 1985).

While discussions continued on ways to improve the Soviet judiciary, the Law on the Status of Judges in the USSR (1989) was designed to establish its independence. The new law consolidated the rules governing the judiciary, which were scattered throughout various pieces of legislation and policy. It attempted to improve the standards of quality among judges who were often lax or totally absent. For example, judicial appointments would now call for a higher level of legal education, along with the passing of a qualifying exam - ination. The law also established a mechanism for judicial oversight, with the creation of qualifi cations collegia. Members of the collegia were judges elected to a five-year term by the conference of judges for the region served by the collegia. Finally, Article 3 of the law stated that “judges and people’s assessors are independent and subordinate only to law.” This was designed to address the problem of party interference within the judicial process.

With the establishment of the Russian Federation, the judiciary was confronted with several problems. The approval of a new Constitution in 1993 helped to clarify some judicial issues. Chapter 7 of the Constitution is devoted to the judicial branch. It addresses such basic principles as judicial independence, authority, and autonomy. The Constitution states:

Article 118. In the Russian Federation, justice is administered only by the courts. Judicial authority is exercised through constitutional, civil, administrative and criminal proceedings. The judicial system. . . is established by the Constitution of the Russian Federation and federal constitutional law. The creation of extraordinary courts is not permitted. Article 120. Judges are independent and are subordinate only to the Constitution . . . and federal law. Article 121. Judges are not subject to removal from office. The powers of a judge may be terminated or suspended only on grounds and according to procedures established by federal law. Article 122. Judges have immunity. Criminal charges may not be brought against a judge except according to procedures determined by federal law. Article 124. Courts are financed solely from the federal budget, and this financing must make possible the full and independent administration of justice in accordance with federal law.

The Russian Constitution established some basic principles about judicial independence, authority, and autonomy. These principles are significantly different from those espoused in the Constitution of the former Soviet Union and are similar to those found in Western countries.

In light of Soviet history, a central point of discussion remained the independence of the judiciary, specifically what independence would mean in the Russian context. In crafting

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the 1992 Law on the Status of Judges of the Russian Federation, the authorities used the 1989 Law on the Status of Judges in the USSR as a starting point. The 1992 law has been amended. With regard to the matter of independence, Article 2 of the law states, “Judicial power is self-dependent and acts independently of legislative and executive power.” Article 4 further points out, “Judges are independent and submit only to the Constitution of the Russian Federation and to the Law. They are not accountable to anybody in their activities which deal with the administration of justice.”

Despite these positive steps, a practical problem confronts the Russian Federation. There is a serious shortage of qualified judges. Some judges resigned with the collapse of the Soviet Union, others were asked to step down because of their judicial conduct, and some left to pursue other careers. For those judges who stayed, a process was not immediately in place to replace them as their judicial terms expired. Some judges were reelected by the now defunct people’s soviets to terms of five or 10 years and, in some instances, for life. There also are cases in which judges have continued to serve on the basis of the previous electoral mandate.

Many judgeships have been left vacant, however. It was estimated in 1994 that there were about 1,400 judges in the Russian Federation. As such, the lower courts were understaffed by approximately 1,500 judges. There were severe shortages in the higher courts, too. In some regions of the country, the shortage of judges amounted to more than 20 percent. There are also parts of the country where the judicial branch is close to paralysis. In some instances, people’s assessors were functioning as judges; in other cases, people who had no legal background or training were serving as judges. Finally, during this rather chaotic situation, some parts of the country attempted to alleviate the problem by electing justices of the peace who had been mandated to handle minor civil and criminal matters so that the understaffed courts could focus on more significant cases.

In an attempt to improve the quality of candidates for judicial appointment, the Law on the Status of Judges of the Russian Federation lists the basic requirements. A candidate must be a Russian citizen who is at least 25 years of age. The person is expected to have received a higher legal education and had experience within the legal profession for at least five years. A candidate must also pass a qualifying examination that is administered by the Ministry of Justice. Based on a candidate’s background, the results of the qualifying examination, and what specific judicial office is being sought, the Qualifying Collegium of Judges offers a recommendation to the office of the president of the Russian Federation. The president in turn offers his or her recommendation to the Council of the Federation. The Council is legally charged with making judicial appointments.

The newly created justices of the peace must meet many of the criteria established for Russian judges. The age, education, and work experience within the legal profession are the same. The qualifying examination and recommendation for appointment is the responsibility of judges from the region in which the person would serve. The rules for selecting a justice of the peace offer a good deal of latitude. They can be appointed or elected by the regional legislature or they can be elected directly by the people. Thus far, regions prefer to appoint rather than elect the justices. Finally, the justices serve a specific term in office that cannot exceed five years. The specific term is determined by local law. Once the term of appointment expires, the justice can seek another term in office.

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In an effort to further improve the quality of the judiciary, the Russian Academy of Justice was founded in 1998 by the Supreme Court of the Russian Federation and the Supreme Arbitrazh Court of the Russian Federation. The Academy of Justice was established for two purposes: to provide training for new judges and continuing education for members of the judiciary and to conduct research on court organization and issues that impact the judiciary. The arbitrazh courts constitute a separate system of federal courts with its own procedural code. Arbitrazh courts specialize in matters that deal with a wide array of contractual issues, such as right of ownership, changes in a contract, performance of obligations, loans, bank accounts, and bankruptcy.

Commentary on the judiciary has been somewhat mixed. On the one hand, it has been suggested that the levels of incompetence and corruption are exaggerated. The arbitrazh system was singled out as effective when dealing with disputes between businesses. Moreover, the number of people seeking the assistance of courts to resolve disputes has increased from 1 million under Yeltsin to 6 million during Putin’s tenure (Sakwa, 2008). On the other hand, Transparency International found that a Russian survey reported that more than 78 percent of the respondents did not expect to find justice in the courts. Part of the problem deals with “the unofficial expenditures” or bribes to some court officials. Comments from senior judges appear to support this public perception that corruption is clearly prevalent at the trial court level (Transparency International, 2007). Recom - mendations to address this problem have included public awareness campaigns to educate people about the role of judges, regular review of judicial salaries with the goal of achieving near-parity with the private sector, examination of existing penalties for corruption within the judiciary, and randomizing the allocation of trial cases to judges.

Although the government and the public are well aware of the problems confronting the judiciary, the issues continue to persist. Frequent reports have identified allegations of political interference, corruption, and judges working in concert with procurators and police in the administration of unfair trials. To illustrate, complaints have been made that perpetrators of torture are rarely placed on suspension or receive any disciplinary action. In those cases brought to trial, the sanctions are usually lenient, with some receiving a suspended sentence. As was the case during the Soviet period, it is not uncommon for judges to receive unsolicited specific direction from more senior judges in the judicial hierarchy on how to handle the case. Failure to comply with the directions can lead at most to removal from office and at least to the prospect of being passed over for promotion. In a 2010 study by the Levada Center, 92 percent of the respondents indicated that they did not have any faith in the Russian judicial system (ACAT-France, 2013; Amnesty International, 2012).

It should be noted that some victims of judicial abuse have sought justice with the European Court of Human Rights. The Court has been particularly critical of the failure to hold perpetrators of human rights violations accountable for their actions. Moreover, their rulings in favor of the victims have identified ineffective pretrial investigations and flaws in the trial and sentencing phases of the process. All concerns have been raised for some time now (Human Rights Watch, 2012, 2013, and 2014).

It has been suggested that there are a few bright spots associated with the courts. First, Putin is credited with improving the funding for courts. Second, the Constitutional Court is viewed as the most independent of the Russian courts. Some commentators have noted,

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however, that the court has been careful to avoid getting embroiled in matters of an overtly political nature (see Solomon in Ginsburg and Moustafa, 2008). Of course, one could characterize this as displaying sound judicial prudence, particularly under the circumstances. Unfortunately, the public perception of the judiciary is that it lacks independence and is subjected to manipulation at several levels by various government authorities for political reasons. While critics would concur with this assessment by the public, it has been pointed out that even critics acknowledge that the Russian judiciary is still a work in progress. One must consider the manner in which the Communist Party dominated the judiciary during the Soviet era. It has been suggested that it will take time for the judiciary to transition fully to a more independent and transparent system (Shiraev, 2010).

Procurators

The Office of the Soviet Procurator was originally established in 1922. It was a unique institution as compared with prosecutor’s offices found in Western criminal justice systems. Experts have characterized it as a highly centralized agency that embraces a unity of purpose and is assured a good deal of independence.

The procurator general of the USSR was appointed by, and accountable to, the Supreme Soviet of the USSR. Subordinate to the procurator general were three principal deputies, each responsible for the coordination of a group of departments. Included among these major units were general supervision, office of investigation, supervision and review of civil cases, supervision and review of criminal cases, supervision of the affairs of minors, supervision of the MVD, supervision of the KGB, supervision of the prisons, and supervision of the control and inspection department (Smith, 1978).

The procurator general was ultimately charged with the appointment of other procurators throughout the USSR, who served renewable five-year terms. The office represented a highly centralized system that assured a strict interpretation and observance of socialist law by all governmental and nongovernmental organizations, officials, and citizens. Unlike other components of the legal profession, the procuracy was clearly dominated by party members (one estimate placed it at 83 percent). It also tended to be a male bastion (Butler, 1988).

The Statute on Procuracy Supervision in the USSR explained the principal tasks of the procurators. Tasks included supervision of the execution of laws, the activities of preliminary criminal investigations, the legality and justification of judgments, the execution of judgments, and the places of confinement. Although the procuracy performed the role of the prosecutor in criminal cases, the office had a much greater role and authoritative scope than the prosecutors of other countries. Indeed, the procuracy served a powerful and influential role throughout all phases of the administration of justice in the Soviet Union. In addition to being highly centralized and unified in purpose, the procuracy retained an independent status. It was accountable solely to the Supreme Soviet. This further enhanced its position of authority among the various government units at the national, republic, provincial, and local levels.

It had been suggested for some time that Soviet criminal procedure was biased in favor of the prosecution because procurators were responsible for investigating the charges. To

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rectify this injustice and to assure greater objectivity, it was suggested that the investigation function be removed from the procurator’s office and placed with the Ministry of Justice. Although this approach was not introduced, it would have mirrored the method employed by countries adhering to Romano-Germanic procedural principles.

The Soviet procuracy was late in responding to Gorbachev’s reform agenda. Initially, it was thought that the procuracy might lose its authoritative position and jeopardize its future role in the criminal justice system (Smith, 1992). Although the legislative and executive branches of the Russian Federation had intended to curtail its powers, the procuracy remains the most powerful component of the Russian justice system. The other branches of government concluded that the procuracy was the only office capable of guaranteeing that law and order would be maintained while also acknowledging the importance of due process rights (Smith, 1996).

As a result, reference to the procuracy in the new Russian Constitution assures that it will remain a powerful organization with significant breadth and depth of authority in the justice system. For example, Article 129 of the Constitution states: “[the] Procurator’s Office constitutes a single centralized system in which lower-ranking procurators are subordinate to higher-ranking procurators and to the Russian Federation Procurator General.” The 1995 Law on the Procuracy, which has been amended several times, also explains in greater detail the responsibilities of the office, which illustrates why the procuracy is considered such a powerful organization within the justice system.

The procuracy essentially has two kinds of responsibilities. One of these is a supervisory function that is applied within four different forms or contexts. The first of these, and the most important, is a general supervisory authority over the execution of laws throughout the federation. Essentially, the procuracy provides oversight of the Russian bureaucracy and citizenry, ensuring that they are in compliance with the law. The ultimate goal is to assure that the law is executed and thus interpreted in a uniform fashion. A special Investigative Committee was established in 2007 and charged with the investigation of certain crimes deemed particularly serious. Many of these offenses are highly sophisticated and require extra resources to investigate effectively, and federal funds were forthcoming to address these problems. The crimes targeted included cases of fraud and embezzlement of federal funds and corruption in government agencies. The committee is also mandated to focus attention on crimes against women, children, and the elderly.

A second supervisory function of the procuracy involves providing protection to the rights and freedoms of the citizenry by advising people of their rights, offering recom - mendations to prevent further violations, and initiating legal proceedings against offenders. A third supervisory function focuses exclusively on the preliminary investigation into a criminal matter. Specific concern is directed at assuring that any search and seizure of evidence, any arrest or detention of a suspect, and all legal requirements leading to a prosecution are in compliance with the law. A final supervisory function of the procuracy involves oversight of all correctional facilities. This would include both institutions that detain people awaiting trial and those used for confining people to a period of incarceration after trial. In addition to these supervisory functions, other units within the procuracy are responsible for prosecuting criminal cases. Some of these personnel are involved in either

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coordinating or conducting the preliminary investigation into alleged criminal conduct, while others focus their attention on prosecuting cases in court (Butler, 1998).

The procurator general is nominated by the president of the Russian Federation and appointed by the Council of the Federation to serve a five-year term. All the other procurators are appointed by the procurator general, and the entire procuracy is organized by and subject to the procedures of federal law. The basic requirements to become a procurator are somewhat similar to those of candidates for judicial appointment that were mentioned earlier. A candidate for the procuracy must be a Russian citizen who is at least 25 years of age. The person is expected to have received a higher legal education and serve a six-month probationary period. It is interesting to note that people who work for the procuracy today cannot be involved with an organization that pursues a political agenda. This policy is in stark contrast to the Soviet era, when procurators and the investigative staff often followed or enforced the dictates of the Communist Party.

The Office of the Procurator General includes the Research Institute, which has existed for more than 30 years. The mandate of the Institute is to research and disseminate information about law, order, and crime. Because of the dramatic changes that have occurred in Russia since 1991, the Institute has spent a good deal of time directing its efforts at defining and clarifying the role of the procuracy as it relates to its mandated issues of law, order, and crime, as well as to internal organizational issues of administration and management (Skuratov, 1994).

Defense Counsel

Following the Russian Revolution and with the enactment of the 1917 Decree of the People’s Commissars on the Courts, the long-accepted notion that there should be a profession of practicing attorneys came to an abrupt end. Private attorneys were viewed as yet another product of a bourgeois society. In 1918, special collegia were formed for people who agreed to act as either prosecutors or defense counsel. Two years later, that system was abolished, as prosecutors were separated from defense attorneys. Under the new system, lists of people willing to serve as legal representatives were made available, but there were no regulations requiring that the people have formal legal training. By 1922, however, defense attorneys were organized into collegia or bar associations. In order to join a collegium, the candidate had to complete a legal education program and must have practiced for two years. Although this remained the basic requirement for admittance to the Soviet bar, it did not mean that the person had completed a five-year course of study at a university law department.

Bar associations (collegia of advocates) were organized throughout the country at the town, regional, and republic levels. There were 157 such collegia in the Soviet Union before the nation’s demise. Although these associations claimed to be independent social organizations, the organization and work of the membership was regulated by the state through specific statutes that pertained to their functions. Moreover, the collegia were ultimately controlled by the ministries of justice at both the republic and national levels.

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For years, lawyers for the defense were confronted with an image problem fostered by the attitudes of judges and procurators. People who supported a change in the standing of judges also suggested that the status of defense lawyers must improve. One suggestion was to establish a national bar association that would supersede in some respects the 157 local bar associations. It was alleged that a national association would provide the bar with a greater political voice and in turn strengthen the quality and quantity of counsel for the defense.

The status of defense counsel gradually improved in the years after World War II. Article 158 of the Soviet Constitution gave the accused a right to defense counsel. It was estimated in 1988 that counsel appeared in court for about 70 percent of the criminal cases and was present for approximately one-third of the preliminary investigations (Butler, 1988). In addition to defending a person in a criminal case or serving as an advocate for their interests in a civil matter, Soviet attorneys performed other tasks that were similar to those undertaken by lawyers in the West. For example, they advised clients on legal matters and drew up legal documents.

Soviet citizens in need of legal assistance could select their own defense counsel or allow the local legal aid bureau to assist in selecting an attorney. Over the years, Western scholars had been highly critical of the apparent limits imposed on counsel when defending criminal defendants. They took issue with the purported extent to which an attorney was free to provide counsel to a client. For example, a client in a political trial was not free to select an attorney of his or her choice because only a small number of lawyers had been cleared by the state to defend such clients (Kaminskaya, 1982; Subtelny, 1984).

Prior to 1958, defense counsel was not involved in any case until the matter came to trial. Thus, the task of defending a client was initiated after the completion of the preliminary investigation conducted by the procurator, KGB, or militia. Peter Juviler, among others, pointed out that on occasion the accused either were not told by the investigator of their right to legal assistance or had been discouraged from availing themselves of that right (1976). Moreover, Juviler argued that once counsel was appointed, it was not uncommon for investigators to attempt to block counsel’s access to the client before the trial. As a result of the democratization efforts during Gorbachev’s era, the law was changed to permit access to defense counsel for suspects, the accused, and defendants at the time of their detention, arrest, or the filing of charges.

Also of great interest to students of the common law system was the fact that Soviet defense attorneys did not conduct their own investigation into the case. In the Soviet system, it was the responsibility of the procurator to collect the evidence and identify witnesses, for it was assumed from the outset that the procurator would conduct an objective investigation. This method was characteristic of other countries influenced by the Romano- Germanic tradition. Defense counsel, however, could request that the procurator interrogate a particular witness. The vast resources at the disposal of the procurator were supposed to be used to uncover all relevant facts in a case. Thus, information that may lead to the accused’s exoneration was as significant as that which might incriminate the person. This method further enhanced the Soviet argument that defense attorneys need not be actively involved in the preliminary investigation.

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The assumption that the procurator would perform an objective investigation was proven false and became the subject of a good deal of criticism in the Soviet Union. Since 1970, counsel had been permitted to participate in the investigation with the approval of the procurator. However, according to Juviler, this type of waiver was rare. Another suggestion from proponents of democratization recommended that defense counsel be permitted to participate in the collection of evidence (as is the case in countries that adhere to Romano- Germanic legal principles). It was felt that such a change would improve the quality and objectivity of criminal investigations.

In the past, Soviet authorities argued that an active involvement by defense counsel at the investigatory stage would inevitably lead to two investigations. The procurator would begin to lose objectivity and become an advocate for the state’s actions, which was not the purpose—at least in theory. Moreover, the cost of a defense investigation would create an unnecessary burden on the accused and deprive some citizens of counsel. From the Soviet perspective, this was unacceptable, for it would destroy one of the purposes of socialist democracy.

During the Gorbachev era, two strategies were employed to improve the status of defense counsel. One involved reducing the supervisory authority of the Ministry of Justice over the various local bar associations. For some, the goal was to establish a national bar association. In 1989, proponents of a national association managed to create the Union of Advocates, a voluntary association. With the dissolution of the Soviet Union and other subsequent changes, it was not clear if the Union of Advocates would eventually gain supervisory authority over its profession or reach a compromise with the Ministry of Justice over its role in the Russian Federation. Early indications suggested that the Ministry of Justice might be reasserting its authority (Burrage, 1993; Huskey, 1990). The other strategy was to enhance the role of defense counsel in protecting the interests of their clients in criminal cases. The ultimate goal was to establish a level playing field by developing procedures that were more adversarial in nature. This would involve accepting the notion of the presumption of innocence of the accused and according defense counsel equal rights with those of the procurator.

Although nothing concrete happened during the Gorbachev era to establish a more equitable system of procedure, the Constitution of the Russian Federation suggests that significant change might be in the offing. Article 48 states: “Everyone is guaranteed the right to receive qualified legal assistance. . . . Everyone who is detained, put in custody or charged with committing a crime has the right to avail himself or herself of the assistance of a lawyer (defender) from the time he or she is detained, put in custody or charged.” Article 49 indicates: “Everyone accused of committing a crime is presumed innocent until his or her guilt has been proved according to the procedure stipulated by federal law and established by a court verdict that has entered into force. An accused person is not obligated to prove his or her innocence.” Finally, Article 50 points out: “No one may be convicted more than once for the same crime. During the judicial process, the use of evidence obtained by violating federal law is not permitted. Everyone who is convicted of a crime has the right to a review of the verdict by a superior court according to the procedure established by federal law, as well as the right to request clemency or a lighter penalty.”

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The Russian Constitution acknowledged various rights of the accused, but the procurator still retained a significant amount of power. In fact, some of the informal practices of the Soviet period that benefited the procurator continued to be utilized (Jordan, 2005; Solomon, in Pridemore, 2005). The 2001 Code of Criminal Procedure has been heralded as another illustration of Russia’s embrace of the principles of the rule of law. Various features of the Code are practical examples of a procedural shift away from the inquisitorial method to an adversarial approach. This, of course, enhances the position of defense counsel. Among the rights that counsel has gained are to meet privately with a client, to collect evidence independently of the procurator, to identify defense witnesses, to invite professional experts to testify on behalf of the defense, to be present for all procedural actions involving a client’s case, to examine and make copies of the government’s documents after the investigation, and to file appeals regarding pretrial or trial procedures.

It was mentioned earlier that there were 157 collegia of advocates at the time of the dissolution of the Soviet Union. In 2002, there were 47,000 advocates registered with one of the 145 collegia of advocates or one of the 50 “alternative” collegia throughout the Russian Federation. Each collegia is an independent self-governing professional association (Butler, 2003). It is also important to note that the 2002 Federal Law on Advocate Activity was designed to establish a national framework for the profession. One product of this legislation is the Federal Chamber of Advocates of the Russian Federation. The Chamber’s mandate is to represent the interest of advocates.

Jury

Trial by jury was first introduced into Russia in 1864, but it was abolished with the 1917 Revolution. During the period of the Soviet Union, a trial court included a professional judge and two people’s assessors. In all Soviet courts, assessors were elected to a five- year term. People’s court assessors were elected by the people the court served. Assessors serving in superior courts were elected by the corresponding soviet of people’s deputies. Any Soviet citizen who was at least 25 years of age was eligible for election. The work of an assessor was not a full-time responsibility; assessors heard cases for approximately two weeks out of the year. It was not a requirement to have any understanding of the law, and most assessors did not. Once elected, assessors were given an information handbook and were expected to attend lectures by jurists. These measures were designed to supplement their minimal understanding of the law.

Because of the limited amount of time actually served in court, assessors did not become very knowledgeable about either the substantive or procedural nuances of the law. Thus, they were dependent on the advice and counsel of the professional judge. The purpose of people’s assessors was not unlike that of jurors in England and France. They assured civilian participation in the administration of justice. From the official Soviet point of view, this was an important responsibility, but it appeared to be a cosmetic exercise in actual practice. Nevertheless, it served as another illustration of socialist democracy in action.

People’s assessors continued to be utilized in the courts of the Russian Federation until fairly recently. As was pointed out earlier, people’s assessors had functioned as judges in those regions of the country that do not have a sufficient number of professional judges

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to serve the needs of the area. Although assessors were viewed originally in the Soviet Union as assuring civilian participation in the administration of justice, the Russian Federation introduced jury trials into the present system initially on a limited basis. As a result, issues are likely to be raised regarding the necessity or desirability of having two distinct approaches for assuring citizen involvement in the judicial process.

When in 1992 the Ministry of Justice proposed the establishment of jury trials, there was some opposition to the idea, especially from the procurator general. Nevertheless, legislation was adopted in 1993 to introduce the jury on an experimental basis for certain types of cases in nine regions of the country. Support for its use was reaffirmed with the new Constitution of the Russian Federation. Article 123 states: “In instances stipulated by federal law, judicial proceedings are conducted with the participation of jurors.” By 2003, the experiment was extended to the other 69 regions of the country. Further guidelines for the use of the jury are found in the 2001 Code of Criminal Procedure.

Essentially, the procedure allows the defendant, if he or she has been accused of a specific kind of crime, to choose between a jury trial or a traditional trial. The list of crimes that fall under this category include murder, kidnapping, rape with aggravating circum - stances, child trafficking, gangsterism, large-scale bribery, treason, terrorist acts, calls for violent change in the constitutional system, and some other select crimes against the state.

In 2008, however, the use of the jury was eliminated in trials involving espionage, extremism, high treason, and terrorism. The objection to this change came from a wide group of stakeholders, such as members of the Jurors Association, lawyers, economists, and human rights groups. At issue is the concern that innocent people will be charged unfairly, especially given the breadth of circumstances that could be applied to extremism and terrorism. The opponents of this change also argued that rather than curb the use of the jury, it should be expanded. In light of the difficulties in establishing an independent judiciary, some are of the opinion that the use of the jury may, over an extended period of time, facilitate the emergence of a truly independent judiciary (Mishina, 2012).

Any Russian citizen who lives in the district where a trial will take place can serve as a juror. A juror must be at least 25 years of age, legally competent to serve, and without a criminal record. Twelve people are selected by the procurator and defense counsel after having their names drawn from a list of 30 to 40 eligible to serve. Potential jurors are questioned by the procurator and defense counsel, and a written challenge can be submitted to the judge objecting to the possible selection of a juror.

As is the case in English trials, the Russian jury sits separately from the judge in the courtroom. This is unique to recent Russian experience, because when people’s assessors were used, they sat on either side of the judge. Like common law countries that employ a jury, the Russian jury decides matters of fact, while the judge determines issues of law that arise during the trial. The responsibility of the jury is to determine if the accused is guilty or not guilty of the charges. Russian juries are expected to return unanimous verdicts during the first three hours of deliberations. Majority verdicts are permitted after that time. A not-guilty verdict is adopted if at least six jurors cast such a vote. If the jury finds the accused guilty, they can request that the judge show leniency at sentencing or they may decline to make such a request.

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The current use of juries has been in place for more than a decade. Several issues have been raised that point to defects in the system and calls for reform. First, some have suggested that the minimum age of a juror should be lowered to 18. Those who oppose such a change argue that people under the age of 25 do not possess a sufficient amount of life experiences to be placed in a position of deciding the fate of a person at trial. The counter argument is that young people serve in the military, and participating in the administration of justice is an equally important responsibility.

Second, it has been suggested that qualifications should be added when determining the fitness of a candidate as a juror. Some procurators and judges have suggested an education qualification should be introduced. The problem with this idea is that 90 percent of Russians have a secondary education, while only 28 percent are university graduates. Jurors are supposed to represent a cross-section of the community. Another qualification suggested by some is a “reliability” qualification. The concern with this idea is that the government could, and inevitably would, exclude people from jury service on subjective grounds of what constitutes trustworthiness.

Third, there is an issue of transparency in the process of selecting a jury pool. Concern focuses on the fact that the list of potential jurors is not made public. Moreover, questions are raised about who conducts the random-selection process. Critics contend that some jurors have been singled out for jury duty frequently because of their ongoing support for the procurator. Obviously, this raises questions about the supposed random selection of jurors. To rectify this problem, it has been suggested that selection committees composed of officials from the three branches of government, representatives from the bar, and citizens administer the process in open court.

Finally, there is a concern over the actual selection of the jury and the use of peremptory challenges. Defense counsel, in particular, is at a disadvantage because the names of potential jurors are only revealed on the first day of the trial, and they are only permitted two peremptory challenges. To help rectify these problems, it has been suggested that defense counsel should have the right to investigate the jury pool for possible manipulation or fraud. Moreover, requiring potential jurors to complete a questionnaire would provide more background information on members of the pool. Lastly, there appears to be general support to increase the number of peremptory challenges from between three and 10 for each defense counsel (Kovalev, 2014).

Legal Education

There were three approaches to acquiring a legal education in the Soviet Union. The most desirous method was selection as a day student in one of Russia’s 48 law departments that were associated with a university. Day students were selected from the people who scored the highest on a competitive entrance examination. They participated in a five-year program and were given books, tuition, and a stipend for living expenses. Night students, whose numbers had been equal or larger than day students, were individuals who had not scored as high on the entrance examination, but they had been accepted to the school. They participated in a six-year program and worked full-time at a job during the day. Finally, there was an extensive system of legal correspondence courses available for people who

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wanted to study law, even though they had not qualified for a law school position. As is the case in the United States and other countries that offer similar programs, this course of study was not held in high regard, because such programs lacked the academic rigor of a full-time course. Nevertheless, correspondence courses served a useful purpose in producing people knowledgeable in law, for the demand for lawyers had been outweighed by the numbers produced by law departments.

The system of legal education in the Soviet Union resembled that established on the continent of Europe, at least in terms of the range of nonlegal subjects offered. This was because Soviet law students had not already acquired the equivalent of an undergraduate college education. The typical first-year law student was 20 years old, had completed 10 years of formal education, and had worked the previous two years.

The curriculum was planned by authorities within the central government bureaucracy. The plan consisted of three groups of courses. The first group consisted of ideological courses. These courses, taken at the beginning of the program, included basic principles of scientific communism, history of the Communist Party of the USSR, and Marxist– Leninist philosophy. In addition, all students studied a modern foreign language (English, German, and French were most popular) as well as Latin. The second group included courses dealing with the culture and history of the law. Among the courses prescribed at this phase were Roman law, theory of state and law, history of political science, history of state and law of foreign countries, history of state and law of the USSR, government and law of bourgeois countries and countries liberated from colonial dependency, logic, court statistics, and accounting. The third category included more specialized law courses such as administrative law, finance law, civil and family law, civil procedure, criminal investigation, criminal law, criminal procedure, collective farm law, land law, labor law, social insurance law, international law, criminology, corrective labor law, court psychology, and forensic medicine and psychiatry.

The course format included lectures and a seminar component in the more advanced classes. Starting with the second-year students, approximately five weeks out of the year were spent in practical training in a court or government law department. Fifth-year students spent most of their time in practical training and in writing a thesis to be defended at the end of the year. Upon graduation, about 50 percent of the students joined the staffs of political agencies such as the MVD, KGB, procuracy, and courts; these were the most prized positions. About 25 percent entered practice as an advocate; approximately 20 percent became legal counsel for various institutes, industrial enterprises, and collective farms; and 5 percent continued their studies (Juviler, 1976).

The student desiring to continue legal studies at the graduate level was required to gain admittance to one of the four law institutes. These institutes trained future legal scholars and law professors but were not associated with the law departments of universities. The placement was quite competitive for the limited number of positions available. Candidates in the law institutes were required to complete two years of practical work before they were permitted to apply. Anyone meeting the entrance criteria was eligible, but only those invited to apply stood a serious chance of being accepted. In addition to training legal scholars, the institute’s staff produced legal treatises on Soviet law. Students spent a good deal of time assisting the staff in the preparation of these works. The rest of their time was spent

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in the research and writing of a thesis. Once a thesis was successfully defended, the student was awarded the degree of candidate of legal science. The student could remain at a law institute to continue a career of scholarly research or return to a university to teach.

Because of the heavy teaching assignments in Soviet law departments, the teaching faculty were not noted for their scholarly research (as is the case with law faculties in the West). Most scholarship was produced by the staffs of law institutes. Graduates of the institutes usually were awarded a doctorate degree for their contributions to the enhance - ment of Soviet legal knowledge. This was awarded approximately five to 10 years after receiving the degree of candidate of legal science. To achieve that distinction, the thesis must be defended before the faculty of a law institute other than the one attended by the writer.

Since the demise of the Soviet Union, two observations have been reported with regard to legal education in the Russian Federation. First, the ideological courses have been removed from the required courses of the law school curriculum. They have been replaced by courses designed to assist students in understanding the role of law in a market economy, such as banking, commercial law, and taxation. Some courses have also been introduced to retrain lawyers who initially studied law during the Soviet era. Second, interest in the study of law has increased significantly in the country. Although this may be initially attributed to the change in economic system and the opportunities the market offers to people trained in law, it should eventually benefit the justice system as the quality and quantity of lawyers interested in public law issues increase over time.

In light of the increased interest in the study of law, existing law schools have expanded their programs, and new law schools have been created to handle the demand. The five- year undergraduate degree is still designed to produce specialists in a branch of law. Because of the political and economic changes in Russia, the law graduate has a variety of career opportunities in the private sector that did not exist for previous generations of Soviet lawyers.

Questions have been raised about the quality of legal education in light of the transformation from the Soviet Union to the Russia Federation. One concern has been the proliferation of law schools offering an undergraduate program. While they appear to be meeting a market demand in that legal education is popular, a number of students have no interest in practicing law. Of course, a student’s lack of interest in actually practicing law is not unique to Russia. Students in several countries throughout the world elect to major in law because the training provides a skill set that offers them a wide range of employment opportunities upon graduation. Students who plan on a legal career tend to seek admittance to the more prestigious law schools. All students who wish to practice law, however, irrespective of the school attended, will find employment. It is interesting to note that those without superior knowledge and skills find work within the government.

Another major concern centers on the quality of the education offered. At issue for some is the lack of practical training in law schools. Some in the legal academic community oppose the notion that they should be preparing students for legal practice; rather, they see their role as providing theoretical training. While some in the private sector agree, others are of the opinion that legal education should be designed as practical training for the demands of the marketplace.

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Also related to the issue of the law school curriculum is the lack of attention paid to professional ethics. In light of the documented concerns over corruption and malfeasance within the judicial system, there is an obvious need to address the apparent lack of a moral foundation in the legal profession. Those concerned with this dilemma argue that law schools should provide courses that teach how to address ethical conflicts in the workplace and establish professional rules of conduct. Thus far, such courses do not exist (Shepeleva and Novikova, 2014).

LAW The essential idea behind the democratization movement has been a recognition of the significance (indeed the necessity) of government by rule of law. The leadership of the Russian Federation has acknowledged its importance by indicating in Article 1 of their Constitution that “[t]he Russian Federation is a democratic and federal state based on the rule of law, with a republican form of government.” This acknowledgment is a first step, because throughout the history of the Soviet Union, government was ruled by ideology— specifically that of the Communist Party. Moreover, as has been indicated elsewhere, creating law does not in itself assure that it will be implemented or enforced.

As it relates to the criminal justice system, the rule of law is often associated with issues such as due process, presumption of innocence, and rules of evidence. What follows is a presentation of the changing nature of such issues, first in the context of the Soviet Union and then considered under the circumstances found in the Russian Federation. Of particular interest is the impact on criminal law and criminal procedure as the country moves from a set of assumptions based on government by rule of ideology to a government based on the rule of law.

The history of socialist law began in November 1917 when the Bolsheviks assumed power in Russia and established a new order that was intended to lead to the emergence of a communist society. In that society, both the state and law were to disappear as a result of becoming superfluous in a communist society. The Soviet leadership, however, never claimed to have established a communist society.

Starting in 1917, they were in the process of creating a socialist state in the Soviet Union. The purpose of a socialist state was to prepare for the emergence of a communist society. According to Soviet jurists, all law was used to exploit the masses. However, they held that socialist law was unique. In fact, they argued that there were only two kinds of law: nonsocialist law and socialist law. Nonsocialist law was more maturely developed in capitalist countries; its purpose was to assure the protection of private interest through the exploitation of the masses. Socialist law was dominated by the doctrines of Marxism– Leninism; its purpose was to establish a collective interest by exploiting conformity in accordance with the goals of the Communist Party. Soviet society was considered imperfect because of its dependence on the use of coercion to achieve some of its ends. Nevertheless, Soviet leaders contended that their use of law was far superior to that found in capitalist countries.

Although the history of socialist law began in 1917, the Bolshevik break with the past was not a total rejection of previous practices. Admittedly, the substance of law changed

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and Human Rights Watch are but two examples), but also recently from within the government (Anonymous, 2012).

In the introductory chapter to this text, Herbert Packer’s crime control and due process models were sketched out. It was pointed out that each model represented a separate value system in the operation of the criminal process in the United States. Moreover, it was mentioned that these models could be employed as a tool in the comparative analysis of other justice systems. At issue in the Chinese context is Packer’s crime control model. The crime control model’s emphasis was on efficiency at controlling crime. The aim was to employ speed and finality of judgment throughout a process that ultimately presumed the accused guilty.

Throughout China, the police are under a good deal of pressure to enforce the law and maintain order. The ability to reduce crime and to solve crime expeditiously is a key objective of the police, in part because it is a prime goal of the Communist Party and the government, in order to ensure a stable society. To achieve this end, police employ extralegal measures. The principal tactic is to employ criminal detention. Criminal detention enables the police to hold a suspect for up to 30 days before officially arresting the person. Suspects are not allowed to see their families. They are held in a state of isolation, which leads to a good deal of mental pressure. In addition to this psychological torture, there are allegations of other forms of physical abuse. Thus, this has become a cost-effective method of not only solving the specific crime in question but usually leads to the resolution of some unsolved criminal activity.

While this strategy is often employed on political dissidents, it is used on other criminal suspects as well. Research in various public security bureaus estimates that between 75 and 90 percent of suspects are placed in criminal detention. It is important to note that this process is not considered a form of punishment by the authorities; rather, it is a key method of investigation. What has led to the government acknowledging this problem is that in recent years various miscarriages of justice have been identified, including wrongful convictions. A central reason for these miscarriages was the mistreatment of suspects while in criminal detention (Dui Hua, 2013; Dui Hua, 2014; Anonymous, 2012). Thus, criminal detention, and the tools employed for it, makes for a practical illustration of a crime control model within the Chinese context.

Also regarding the issue of detention, it was mentioned earlier that Xi Jinping has undertaken an anti-corruption campaign that includes high-ranking officials of the Communist Party. Party discipline committees are actively involved in this process of identifying and investigating such offenders. Those officials suspected of corruption have imposed on them shuanggui detention, which is an extralegal measure designed to encourage compliance with the investigation. Similar to criminal detention, the suspect is placed in an isolated environment for questioning. For the most part, suspects tend to cooperate in the hope that they will be spared a death sentence.

JUDICIARY Although China has a long tradition that dates back to ancient times, the role of law in the development of the country and its civilization is clearly lacking in prominence when

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compared with that found in the West. The concept of law and the manner in which it has emerged in China will be the subject of the next section of this chapter. What is of interest at this time is a consideration of how justice is administered in China. A brief introduction is provided, regarding the manner in which a judicial system was established and operated in a country that was not dependent upon law as the principal method of regulating society.

The period between the Xia Dynasty of 2205–1766 BCE and the Qing Dynasty of 1644–1911 CE is referred to as imperial China. Over that extremely long period, successive emperors established an elaborate, and often quite sophisticated, hierarchy of institutions that were responsible for the administration of government. From both a geographical and an organizational perspective, the bottom of this administrative hierarchy consisted of districts followed by departments, prefectures, provinces, and finally, the central adminis - tration. Government bureaucrats were found at each level of the hierarchy. At the district level, the head of local government was the magistrate. One of the magistrate’s many administrative responsibilities was dispensing justice, and this was done in his capacity as police chief, prosecutor, and judge.

It is important to remember that the purpose of justice in this context was to assert the authority and power of the emperor by punishing people who violated the order of the state. The person accused of violating the good order was placed at a significant disadvantage. To illustrate, the accused was presumed guilty rather than innocent. Defense attorneys did not exist. Torture was an acceptable method of extracting confessions. Further, judges occasionally applied the penal code by analogy. This meant that a penalty could be imposed for an act that was not specifically prohibited in the code but was analogous to an act that was prohibited.

In imperial China, all government officials, including magistrates at the district level, belonged to a single civil service. They were appointed and promoted by the central government. Most entered the civil service first by pursuing an education, and second, by passing a series of examinations. Although magistrates were educated individuals, they were not trained in law. Because magistrates had to prepare cases for trial and submit legal reports to higher authorities, they employed legal secretaries to assist them in their judicial work.

Although people functioned as legal advisers during the imperial era, it was not until the late Qing dynasty that they began to study law formally. The first people to do this usually pursued their legal studies abroad. To illustrate the lack of interest in pursuing a career in law, it is estimated that during the first half of the twentieth century, there were only a few thousand lawyers in China. Many limited the practice of law to the major port cities of the country. While a few bar associations were founded in some large cities, they were not very successful at improving the standing of lawyers in comparison with other professionals.

It is important to remember that for centuries China has had two kinds of justice systems. One is a formal system created by government that is bureaucratic, hierarchical, and designed to enforce and interpret a codified set of laws and regulations. The other kind of justice system is informal and based on the country’s cultural traditions that date back to ancient times. It is essentially administered at the local grassroots level and is extrajudicial in nature. Originally, this informal system had its basis in Confucian thought. Such a system

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was directed by a set of broad moral principals. These principals, in turn, led to the establishment of socially approved norms and values that required enforcement.

One could characterize this informal system as an early form of the alternative dispute resolution technique that has become popular in the West. Because China has been a peasant society for most of its history, the vast majority of its people had little need for a formal legal system in their daily lives. Conflicts continued to be resolved as they had for centuries—through an informal justice system. One of the principal changes that took place in the informal justice system after the Communists assumed power was that the socially approved norms and values that were enforced were based on the ideology of the Communist Party rather than the teachings of Confucius.

When the People’s Republic of China was founded in 1949, one of the first things that the victorious Communist Party did was abolish the laws enacted under the Kuomintang and eliminate the legal system and profession designed to make those laws operational. The government essentially relied on an informal system for the administration of justice that was based on the political ideology of the Chinese Communist Party. The purpose was to eliminate bourgeois elements, counterrevolutionaries, and other unsavory vestiges of the previous regime. Thus, the period from 1949 to 1953 marked a time when a good deal of political consolidation and economic transformation was going on throughout the country. It is interesting to note that many of the characteristics of this period were strikingly similar to those experienced in the Soviet Union following the October Revolution of 1917.

Following the introduction in 1953 of the first Five-Year Plan that was designed to develop the country’s national economy, the Chinese turned their attention to establishing a more formal legal system. They essentially modeled many of their efforts after the justice system that was operating in the Soviet Union. A particularly eventful year in the creation of this new justice system was 1954. In that year, the first Constitution of the People’s Republic of China was approved. Other pieces of legislation that were enacted at that time were the Organic Law for the People’s Courts of the People’s Republic of China, the Organic Law of People’s Procuratorates of the People’s Republic of China, and Regulations for Arrest and Detention. Plans were also initiated to draft a criminal code and a procedural code. Neither code, however, came to fruition during this period.

The effort to establish a more formal legal system for the administration of justice began to unravel with the Anti-Rightist Campaign (1957–1958) and then during the Cultural Revolution (1966–1976). Many party leaders were skeptical about importing the Soviet judicial model because of cultural and political differences. Some legal critics were concerned that the Soviet model was too Western. The Soviet codes were, after all, basically the civil law system of the West, which had incorporated socialist ideology as interpreted during Joseph Stalin’s tenure in power. Moreover, the Soviets had started to revise their own criminal and procedural codes as part of their de-Stalinization campaign. The adoption of these revisions make the Soviet codes appear even more Western, which simply heightened the alarm of some of the Chinese critics. The critics, for example, considered ideas such as legality, equality before the law, and an independent judiciary as bourgeois concepts that should be rejected.

Finally, Mao Zedong clearly preferred an informal method for the administration of justice over that of a more formal system. During his long tenure as leader (1949–1976),

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he permitted the adoption of or experimentation with a formal method for the administration of justice, but for only a relatively brief period of time. For the most part, Mao favored the role of party policy over that of law in regulating society. As a result of his position, law was either abolished or ignored. The judicial system was seriously injured during the Anti- Rightist Campaign and virtually destroyed during the Cultural Revolution. This was accomplished by attacking the legal profession and exiling judges, procurators, and lawyers to the countryside.

Following Mao’s death, the Chinese again commenced to experiment with a formal method for administering justice. The 1978 Constitution of the People’s Republic of China reintroduced some basic rights in the administration of justice. For example, the accused had a right to a defense and an open trial; the procuratorate was reestablished, and police had to receive approval from a court or a procurator to arrest a suspect. The 1982 Constitution expanded individual rights further, at least in theory.

In 1979, the National People’s Congress approved the Criminal Law of the People’s Republic of China and the Criminal Procedure Law of the People’s Republic of China. Both went into effect in 1980. Thus, the creation of criminal and procedural codes, which were initially discussed and drafted 25 years earlier, finally placed China’s justice system on a legal footing. Since that time, a number of other laws have been enacted and decisions adopted that further illustrate the newfound importance of law in the governance of the country.

Legislation was also approved that established a judicial system throughout the country. Three pieces of legislation were of particular significance. The Organic Law of the People’s Courts of the People’s Republic of China (1980) and the Organic Law of the People’s Procuratorates of the People’s Republic of China (1980) created a court hierarchy and a system of prosecutors. The Organic Law of the Local People’s Congresses and Local People’s Governments of the People’s Republic of China (1980) was also significant. It applied the principle of dual leadership, which had a long-standing tradition in the People’s Republic of China. Essentially, the principle states that local courts and procurators are not only accountable to a court or procurator that is at a higher level within their respective organizational hierarchies, but also to the local people’s congress and its standing committee. The congresses and standing committees have the authority to elect, appoint, and remove from office members of the judiciary. All the aforementioned legislative activity was designed to abandon Mao’s informal or populist approach to the administration of justice to one favored by Deng Xiaoping that had its basis in law (Trevaskes, 2007).

Organization and Administration of the Courts

The Chinese courts are organized into two categories: people’s courts and special people’s courts. The people’s courts consist of a four-tiered hierarchy, with five courts or tribunals responsible for the bulk of cases associated with the administration of criminal justice (see Figure 6.3). Before the court system is explained, it is important to mention briefly the responsibilities of the Ministry of Justice as they pertain to courts and judicial personnel.

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Ministry of Justice

The Ministry of Justice has had a checkered history since the founding of the People’s Republic of China. Throughout much of the 1950s, the ministry was responsible for the administration of courts. In 1959, the ministry was abolished as a result of the Anti-Rightist Campaign (1957–1958). Many judges, procurators, and other people trained in law were sent to the countryside for purposes of rehabilitation. This also happened during the Cultural Revolution (1966–1976). With the demise of the ministry, the Supreme People’s Court assumed responsibility for the administration of the courts.

With the government acknowledging the important role that law would play in the development of contemporary Chinese society, the Ministry of Justice was reestablished in 1979. Its principal responsibilities include training legal personnel, improving legal education, supervising lawyers, overseeing the mediation system, conducting legal research, compiling laws and decrees, publishing materials on law, and disseminating legal information to the public.

In reference to the Chinese courts, the principal pieces of legislation governing the judicial authority of the courts are the Constitution of the People’s Republic of China and the Organic Law of the People’s Courts of the People’s Republic of China. Several principles that relate to the courts are enunciated in Section VII of the Constitution of the People’s Republic of China. They are as follows: (1) judicial proceedings are conducted in a manner designed to assure that all people are equal before the law; (2) trials are open to the public, unless special circumstances warrant a closed trial (such as cases involving state secrets and crimes committed by a minor); (3) an accused has a right to a defense; (4) the courts’ judicial power is exercised independently and not subject to the interference of other institutions or individuals; and (5) citizens of all nationalities have a right to use their own spoken or written languages in court.

The Organic Law of the People’s Courts not only reiterates these constitutional principles but also offers additional provisions that explain the general administration of the court system. First, the courts have adopted a collegial system toward the administration

The Supreme People’s Court

Higher People’s Courts Special People’s Courts

Intermediate People’s Courts

Basic People’s Courts

People’s Tribunals

Military Court

Railway Court

Maritime Court

FIGURE 6.3 | Organization of the Chinese Courts

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of justice. This means that first-instance cases are tried before a panel of judges or a panel of judges and people’s assessors. Only in minor criminal cases does the law provide for a trial before a single judge. In all appellate matters, the court would be composed of a three- to five-judge panel. Second, judgments and orders at first instance from a local people’s court can be appealed to the next court in the hierarchy and a procurator can present a protest to the next court in the hierarchy. The appellate judgment or orders from the second instance court are final. Third, cases involving the death sentence must be approved by the Supreme People’s Court or a court that has been authorized by the Supreme People’s Court to handle such matters. Fourth, if a court judgment or order is legally effective but an error in fact or law is subsequently determined, the Supreme People’s Court may review the case or authorize a retrial in a lower court. If a procurator discovers a definite error, the procurator can lodge a protest, which can also trigger a rehearing of the case. Fifth, if a trial court decides that the procurator has initiated a prosecution in which the evidence is insufficient or not clear or that there are other possible illegalities, the court can return the case to the procurator for further investigation. Finally, a member of a judicial panel can be asked to withdraw from a case if a party in the case is of the opinion that the member of the panel may have an interest in the case or cannot be impartial. The president of the court decides if the member must withdraw from the case.

The Organic Law also indicates an established and ongoing method of monitoring and influencing the work of courts on a regular basis. Article 11 states: “people’s courts at all levels set up adjudication committees which practice democratic centralism. The task of the adjudication committees is to sum up judicial experience and to discuss important or difficult cases and other issues relating to the judicial work.” Thus, adjudication committees are often the most important decision-making authority within a court. The committee is composed of the president and vice presidents of the court, heads and deputy heads of various divisions, as well as some additional judges. While chief procurators are invited to attend the meetings of adjudication committees, they do not have the right to vote.

Adjudication committees have the authority to decide individual cases and are often given the responsibility of handling particularly difficult cases. They can override the decision of a judge and direct the judge to determine a case in a specific manner. It should be pointed out that this specific kind of influence is not unique to China. It is a natural feature of a judicial system that operates within a communist political context, and it has been common in other countries that have subscribed to the communist ideology in the recent past. While many legal scholars oppose the use of such committees, it has been suggested that in light of questions surrounding the competence of some trial judges and concerns over corruption at the trial level, adjudication committees might serve a useful purpose for the near future (Peerenboom, 2008).

It has been suggested that the involvement in criminal cases by adjudication committees has declined somewhat, but such involvement has increased in civil and economic cases (see Peerenboom in Peerenboom, 2010). Moreover, it was recently noted that criminal cases represent less than 10 percent of the total court caseload (see Fu in Cao, Sun, and Hebenton, 2014). This also reflects another significant change with China’s new economy. As mentioned earlier, for centuries China’s peasant society relied upon an informal system of dispute resolution to settle disagreements rather than go to court. Today, there is a greater

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need, especially in urban areas but not limited to them, for the expertise found in a more formal legal system (see Landry in Ginsburg and Moustafa, 2008).

The Supreme People’s Court

The Supreme People’s Court is not only the highest court in the judicial hierarchy, but it is also constitutionally responsible for the administration of all lower courts. The court is organized into seven permanent divisions. These include two criminal divisions and single divisions for administrative, civil, communications and transport, complaints and petitions, and economic matters. Other divisions can be created if necessary.

The Supreme People’s Court is accountable to the National People’s Congress and to the Standing Committee. The President of the Supreme People’s Court is elected by the National People’s Congress to a five-year term that can be renewed once. The vice presidents, chief judges of divisions, associate chief judges, and judges are appointed by the Standing Committee and can be removed by that committee.

It is important to note that the Supreme People’s Court does not have the authority to invalidate a law that has been passed by the National People’s Congress. The court is responsible for the following kinds of judicial matters: first-instance cases assigned by law or decree to its jurisdiction or cases that the court decides to hear (which are extremely rare); cases on appeal or protest from higher people’s courts or special people’s courts; cases of protest from the Supreme People’s Procurator; and the approval of death penalty cases. It is interesting to note that the court has been called upon to assist in the drafting of legislation for the National People’s Congress.

Moreover, judges are appointed and can be removed by the Standing Committee. This is also the case with judges at the other levels within the court hierarchy, which would be appointed or removed by a local standing committee. These standing committees are advised on such personnel matters by the corresponding political-legal committee, which is accountable to the Communist Party. The committees are ultimately responsible for all legal institutions, and their principal mandate is to protect the authority of the Party and to assist in maintaining the social stability of the country. As such, they are not dictating how the typical cases before a court should be adjudicated, but they undoubtedly influence the outcome of a case deemed a threat to national security.

The Higher People’s Courts

There are 30 Higher People’s Courts, and they are found in provinces, autonomous regions, and municipalities that are directly under the central government. These courts are organized into three permanent divisions—civil, criminal, and economic; other divisions can be established if needed. These courts handle the following kinds of judicial matters: first- instance cases originally assigned by law or decree or cases transferred from a lower court, appeals of and protests against judgments and orders from lower courts, and protests lodged by a procurator.

While the Higher People’s Courts are supervised by the Supreme People’s Court, they are also accountable to the appropriate people’s congress in the geographical region in which

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they are located. For example, if a Higher People’s Court handles judicial matters for a specific province, then it is accountable to the people’s congress of that province. The presidents of Higher People’s Courts are elected by the local people’s congress. The other judges are appointed by the standing committee of the local people’s congress; they can also be removed by this standing committee.

The Intermediate People’s Courts

The Intermediate People’s Courts are found in prefectures and municipalities that are under the direct control of either a province, autonomous region, or the central government. There are 381 Intermediate People’s Courts; these courts each contain civil, criminal, and economic divisions and can establish other divisions if necessary. The courts handle the following kinds of judicial matters: first-instance cases assigned by law or decree or cases transferred from a lower court, appeals of and protests against judgments and orders from lower courts, and protests lodged by a procurator. The Criminal Procedure Law (1996) is quite specific on the kinds of first-instance cases assigned to intermediate people’s courts. They include state security endangerment cases, criminal cases punishable by life imprisonment or the death penalty, and criminal cases involving foreign nationals.

The Intermediate People’s Courts are ultimately responsible to the Supreme People’s Court, but they are also accountable to the people’s congress in the local prefecture or municipality. The presidents of Intermediate People’s Courts are elected by the local prefec - tural or municipal congress. The other judges assigned to the court are appointed and removed by the standing committee of the local people’s congress.

The Basic People’s Courts

The Basic People’s Courts are generally responsible for a county, municipality, or municipal district. There are approximately 3,000 of these courts, and they may also be organized into the three traditional divisions—civil, criminal, and economic. These courts essentially handle the typical or ordinary criminal cases. If a court is of the opinion that it is about to preside over a significant criminal or civil case, it can request that the case be transferred to a court at a higher level. Basic People’s Courts can establish people’s tribunals in rural areas, and they serve as a branch of the Basic People’s Court. More than 18,000 tribunals have been established throughout the country. Basic People’s Courts are also authorized to handle minor criminal matters informally, to settle civil disputes, and to coordinate people’s mediation committees.

As was the case with other courts in the hierarchy, the president of a Basic People’s Court is elected by the local people’s congress. All the other judges associated with the court are appointed and can be removed by the standing committee of the local people’s congress.

Special People’s Courts

Both the Constitution and the Organic Law authorize the creation of Special People’s Courts. It is the responsibility of the Standing Committee of the National People’s Congress to

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establish such courts. Presently, these include military courts, railway courts, and maritime courts. The military courts are a fairly closed system within the People’s Liberation Army and are essentially responsible for handling criminal cases of military personnel. The railway courts are responsible for criminal cases involving the railway system and economic disputes pertaining to railways. The maritime courts deal exclusively with maritime law and maritime trade matters.

The Legal Profession

In the first half of the 1950s, there were approximately 3,000 lawyers throughout China. They were organized into 800 legal advisory offices and were considered legal workers for the state. With the Anti-Rightist Campaign and then the Cultural Revolution, the legal profession ceased to exist (Leng and Chiu, 1985).

The government reestablished the legal profession in 1982. Initially, the Provisional Regulations of the Peoples Republic of China on Lawyers explained the responsibilities and qualifications of lawyers. Chinese lawyers were viewed as legal workers for the state. The requirements for practicing law in China were Chinese citizenship, support for the socialism system, having the political rights that enable a person to elect or be elected to various positions within government or society, and possessing the requisite educational qualifications. At the time, a person’s political connections were more important than formal education. Moreover, there was no requirement to pass a bar examination. Although bar associations were established, they did not have any authority to regulate the profession; that was the responsibility of the government.

Under these circumstances, the legal profession was viewed essentially as a tool of the government. The Lawyers Law of 1996 was passed to change that perception and to illustrate a modest degree of independence from the government for the profession. Lawyers were no longer considered legal workers for the state, but rather as professionals providing legal services to society. In some areas of legal practice, lawyers are asserting their professional rights and obligations. This implies a degree of independence from government control. Unfortunately, lawyers who practice criminal law often remain constrained by procurators and police from exercising any significant level of professional independence (Peerenboom, 2002).

Throughout the 1980s and early 1990s, it was acknowledged that the minimal edu - cational requirements to practice law were having an adverse impact on the legal profession. People were complaining about the level of incompetence and degree of unethical behavior. As a result, a greater emphasis was placed on enhancing and enforcing the educational requirements of graduating from a university law department or a political-legal institute and by being employed in judicial work for at least two years. Another way of satisfying the educational requirement was to have graduated from a higher education institute; have an understanding of law in a particular area of expertise, such as economics or business; or have some formal training in law. In 2001, the Lawyers Law was amended to require that a person have a college degree as a basic prerequisite to sit for the bar examination.

To practice law a person’s qualifications are scrutinized at the provincial level of government. It is the judicial department of a province that issues the certificate that enables

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a person to practice law. The person must then register with the Ministry of Justice. Once approved, lawyers are expected to uphold the socialist legal system by protecting not only the rights of an individual client but also by providing a service to society. According to legislation approved by the National People’s Congress, lawyers are responsible for performing a number of tasks that include acting as legal advisors to state agencies and groups, serving as agents to litigants in civil suits, defending people accused of crime, taking part in litigation for a party who has initiated a private prosecution or an injured party involved in a public prosecution, furnishing legal advice in nonlitigious matters, acting on behalf of a party involved in mediation or arbitration, answering questions on law, and drafting documents related to legal issues.

The growth in the legal profession has been significant. In 1981, there were about 4,800 lawyers in the country, and this increased to 12,000 by 1983. By 1990, it was estimated that the profession had increased further to 34,000 (Gelatt, 1991; Leng and Chiu, 1985). It should be pointed out that approximately one-half of these people are considered part- time lawyers. Part-time lawyers are people who are employed full-time as law teachers or legal researchers. The educational institutions in which they are employed have established legal consultancy offices. They are available to consult on legal questions and do not charge fees. By 1998, the profession had experienced another significant growth spurt with more than 110,000 lawyers registered (Peerenboom, 2002). It is estimated that the number is now approaching 230,000.

Recently, the Criminal Procedure Law was amended. According to the White Paper on the Judicial System and Reform Process, these changes in procedures were designed to address human rights concerns: to prohibit torture or other illegal measures, to stop self- incrimination, to exclude illegally obtained evidence, and to improve the rules associated with detention (Anonymous, 2012). While the amended changes in the law will be addressed in the section on the law, it is important at this time to identify how the amended law is designed to impact members of the judiciary.

Judges

Prior to 1979, the legal system was either weak or nonexistent in the People’s Republic of China. Throughout most of the period, law was viewed in a negative context, and the judiciary was without any real authority in light of the political climate. Courts tended to focus almost exclusively on criminal matters, with many cases being decided on the basis of party policy rather than law. As a result, judges were selected on the basis of their political qualifications rather than an understanding of or training in law. From 1949 to 1979, particularly during periods of crisis, military officers were frequently recruited to serve as judges throughout the court hierarchy. They were selected because of their proven political allegiance.

Since the early 1980s, the government has stressed the importance of law in economic development. The leaders acknowledge the need to develop a socialist legal system and a judiciary that can deal with technical legal issues. The government made a concerted effort to introduce significant incremental changes in the judiciary. For example, according to

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Article 34 of the Organic Law of the People’s Courts (1980) “citizens who have the right to vote and to stand for election and have reached the age of 23 are eligible to be elected presidents of people’s courts or appointed vice-presidents of people’s courts, chief judges or associate chief judges of divisions, judges or assistant judges; but people who have ever been deprived of political rights are excluded.” Added to these criteria in 1983 was that “judicial personnel of people’s courts must have an adequate knowledge of the law.”

In 1995, the Judges Law of the People’s Republic of China took effect. Article 9 of the Judges Law lists the qualifications that a judge must possess:

1. to be of the nationality of the People’s Republic of China; 2. to have reached the age of 23; 3. to endorse the Constitution of the People’s Republic of China; 4. to have fine political and professional quality and to be good in conduct; 5. to be in good health; and 6. to have worked for at least two years in the case of graduates from law specialties of

colleges or universities or from non-law specialties of colleges or universities but possessing the professional knowledge of law; or to have worked for at least one year in the case of Bachelor of Law; those who have Master’s Degree of Law or Doctor’s Degree of Law may be not subject to the above mentioned requirements for the number of years set for work. The judicial personnel who do not possess the qualifications as provided by sub-paragraph (6) of the preceding paragraph prior to the implementation of this Law shall receive training so as to meet the qualifications as provided by the Law within a prescribed time limit. The specific measures shall be laid down by the Supreme People’s Court.

These qualifications illustrate the attempts that the government has made to enhance the quality of candidates for the judiciary.

To facilitate the efforts at educating judges and other court personnel, the government commissioned law institutes and law departments of universities to provide training in basic legal subjects. It was reported that 17 percent of all judges had received some law training at a university by 1987 and that this figure had risen to 66 percent by 1993. The significant jump was apparently due to a large number of judges completing a three-year night school program in law. Advanced training is also now available for senior judges and those judges who have completed a university education (Finder, 1993). The availability of such training will continue in light of the aforementioned judicial requirements that are spelled out in the Judges Law 1995.

Irrespective of these efforts to improve the qualifications of the judiciary, there con- tinues to be a shortage of technically competent judges. To illustrate, only 5 percent of judges had a bachelor’s degree in law in 1995. By 2000, 19 percent of presidents and vice presidents and 15 percent of the other judges of the basic people’s courts had a bachelor’s degree. The degree, however, was not necessarily in law (Peerenboom, 2002). According to Transparency International, 51 percent of judges had a college degree by 2007 (Trans - parency International, 2007). As a result of this change, the government is no longer

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relying on a pool of former military officers to fill judicial vacancies in most parts of the country. The exception is in western China, where they have been unable to attract law school graduates.

The Judges Law has been amended to enhance judicial qualifications. All new judges must have a bachelor’s degree in law or a bachelor’s degree and knowledge of law. In addition, two years of legal work experience is required. Judges are also required to take a national examination. After passing the examination, the judicial candidates participate in three months of training before assuming their duties as a judge.

A study that interviewed 88 judges from 13 areas of China provides further insight, albeit limited, regarding a judicial profile. In this study, 60 percent of the participants were male and 40 percent female. In addition, 60 percent indicated that they were under the age of 40. Among these participants, 77 percent said that they were graduates. Of these, 27 percent noted that they either had completed a postgraduate degree or were pursuing one. The researchers cautioned about the nature and quality of education that some participants had achieved, with some acknowledging that it was through self-study, corresponding, or a Communist Party school. With regard to the participants’ work experience prior to becoming a judge, 67 percent had been employed in courts often as clerks. Finally, 53 percent had more than 10 years of experience as a judge and 44 percent less than 10 years of experience (McConville and Choongh, 2011).

In reference to selecting people for judicial appointments, presidents of the people’s court at a specific level within the court hierarchy are elected by the corresponding people’s congress. For example, the President of the Supreme People’s Court is elected by the National People’s Congress, while the president of a basic people’s court that is serving a municipality is elected by the people’s congress for that municipality. Thus, presidents of courts at all levels are selected because of their political career rather than a career or significant knowledge in the law.

The term of office of a court president is five years, the same as that for deputies serving in a people’s congress. A people’s congress also has the authority to remove from office a president that it elected. All the other judges that are working within a specific court are appointed by the corresponding standing committee of that particular court. To illustrate, the judges working in an intermediate people’s court for a prefecture would have received their appointment through the standing committee for that prefecture. Standing committees also have the authority to remove a judge from office. At all levels within the judicial hierarchy, people’s courts can appoint assistant judges to aid the regular judges with their work and may grant them the authority to function as a judge for a period of time. These assistant judges also can be removed from service by the court.

In 2001, new efforts were initiated to improve further the selection of judges. Presidents of the basic people’s courts were to be selected based on merit associated with their judicial work. Presiding judges of trial courts would be selected on a competitive basis. All judges were also expected to improve the quality and quantity of their work. Moreover, in 1998 a five-year plan was announced that required all existing judges to meet the new educational and work product standards. Failure to comply could lead to termination or a transfer to another type of position within the court system. In light of the method of selection, appointment, and promotion, the Chinese judiciary is not viewed as a separate governmental

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power from the executive or legislature, but rather as a division within the state’s bureaucracy. Moreover, judges are more apt to view themselves as civil servants rather than independent professionals (see Peerenboom in Peerenboom, 2010; see Sali in Peerenboom, 2010; Trevaskes, 2007).

In addition to improving the educational standards of judges, the other major prob- lem is the level of corruption associated with the judiciary. The major cause for this corruption is associated with inadequate salaries that are less than those paid to lawyers and in some cases below that of police officers. While judges are supposed to receive raises, many local governments have failed to implement the increases. While the principal form of judicial corruption is associated with bribery, there remains the problem of government interference, especially local party officials abusing their authority. To address this problem, the Supreme Court issued a code of ethics for judges in 2003. The following year, the procuratorate focused increased attention on corruption enterprises involving law enforcement and judicial personnel. It has also been suggested that the judicial process should be made more transparent by permitting the general public to observe trials (Transparency International, 2007).

Since 2002, all judges, procurators, and lawyers must pass a national judicial examination in order to qualify as a legal professional. At the end of 2011, almost 500,000 people had passed and were deemed qualified to work in the field of law. In light of the amendments made to the Criminal Procedure Law, the White Paper on the Judiciary stressed that courts must function fairly, impartially, and independently. Their purpose is to ensure that the rights of people are protected and that equity and justice is achieved. Their efforts are designed to enhance national stability.

To instill these professional judicial values in judges, special trial management institutes have been established as a form of a continuing education program. A further aid in this endeavor has been implemented by the Supreme People’s Court. The Court has introduced a somewhat novel program referred to as the case guidance system. Here, the Court has identified specific real cases that have been adjudicated and deemed worthy as models of how a statute should be interpreted and its appropriate application in the model case. While these cases in the guidance system are not binding on the lower courts, they are used to illustrate how the quality of the judicial process can be improved. The cases identified in this guidance system cover virtually all aspects of law and are not limited to criminal law (Anonymous, 2012).

Procuratorate

Within the context of the judicial system and possibly beyond it, the procuratorate is one of the most powerful components within the criminal justice system of the People’s Republic of China. The procuratorate is governed essentially by two pieces of law: the Constitution of the People’s Republic of China and the Public Procurators Law of the People’s Republic of China 1995. According to the constitution, the procuratorate is responsible for “legal supervision,” and it exercises this authority “independently and are not subject to interference by administrative organs, public organizations, or individuals.”

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As is the case with other components of the government, the procuratorate is a large hierarchical bureaucracy in which various levels correspond to many administrative divisions of the central government. The Supreme People’s Procuratorate is at the top of the organizational pyramid. This is followed by people’s procuratorates established in provinces, autonomous regions, and municipalities directly under the control of the central government. Branches of these procuratorates are located in provinces, auton- omous regions, municipalities directly under the control of the central government, autonomous prefectures, cities under the control of provincial governments, counties, cities, autonomous counties, and municipal districts. In some instances, a procuratorate might be established for an industrial, mining, or agricultural area or a forestry zone. In order to become a public procurator, a person must possess the requisite qualifications that are spelled out in the Procurators Law 1995. The qualifications are identical to those of a judge (listed earlier).

Like the courts, the procuratorate is influenced in a special manner by the political system through the existence of procuratorial committees. According to Article 3 of the 1980 Organic Law of the People’s Procuratorate, “people’s procuratorates at all levels shall each set up a procuratorial committee. The procuratorial committee shall apply the system of democratic centralism and, under the direction of the chief procurator, hold discussions and make decisions on important cases and other major issues.” As was the case with the courts, this committee system is not unique to China. It is a natural feature of a judicial system that is operating within the communist political context, and it was common in other countries that subscribed to the ideology of communism in the recent past.

While the constitutional purpose of the procuratorate is “legal supervision,” the breadth and depth of this responsibility are explained in greater detail in the Procurators Law 1995. According to Article 6, the functions of the public procurator are: “(1) to supervise the enforcement of laws according to law; (2) to make public prosecution on behalf of the State; (3) to investigate criminal cases directly accepted by the People’s Procuratorates as provided by law; and (4) other functions and duties as provided by law.” Article 7 also states that “Chief procurators, deputy chief procurators and members of procuratorial committees shall, in addition to the procuratorial functions and duties, perform other functions and duties commensurate with their posts.”

Article 8 goes on to explain specific obligations associated with the procuratorate. These include:

1. to strictly observe the Constitution and law; 2. to take facts as the basis and law as the criterion, to enforce laws impartially and not

to bend law for personal gain when exercising their functions and duties; 3. to safeguard the State interests and public interests, and to safeguard the lawful rights

and interests of citizens, legal persons and other organizations; 4. to be honest and clean, faithful in the discharge of their duties, and to abide by

discipline; 5. to keep State secrets and the secrets of procuratorial work; and 6. to accept legal supervision and supervision by the masses.

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This list reflects the government’s attempt to retain its commitment to its socialist legal principles while also acknowledging the importance of principles associated with the rule of law. Throughout the Chinese criminal justice system, the power and authority of the procuratorate are considerable.

As was indicated earlier, the procuratorate is a large bureaucracy. At the top of the organizational pyramid is the Procurator-General, who administers the Supreme People’s Procuratorate. The Procurator-General is elected and removed by the National People’s Congress. The deputy procurators-general, members of the procuratorial committee, and other procurators are all appointed and removed by the Standing Committee of the National People’s Congress upon the recommendation of the Procurator-General. The chief procurators at the provincial, regional, and municipal levels are elected and removed by the corresponding people’s congresses. The term of office for a chief procurator is the same as that for deputies of the local people’s congress. The deputy procurators and procurators are appointed and removed by the standing committee of the people’s congress for the province, region, or municipality.

Like the courts, procurators have been the subject of a good deal of criticism in recent years. The public, in particular, have been outraged at the reports of miscarriages of justice, including wrongful convictions (Dui Hua, 2012; Dui Hua, 2014). As such, the White Paper has also singled out the procuratorate for criticism and admonished them for not ensuring that the rights of people were protected and that equity and justice were at least attempted. Once again, an agency of the government that was supposed to be in the business of protecting the social stability of the nation was actually endangering it. To help correct such deficiencies, special management institutes have been established to address these problems. It is important to note that the report on the procuratorate was not all bad. From 2008 to 2011, it was reported that they had conducted supervisions at various detention facilities and corrected 5,473 cases of illegal detention. The use of detention facilities by police before a suspect is arrested was explained earlier (Anonymous, 2012).

Defense Counsel

A defendant has the right either to defend himself or herself or to entrust that responsibility to another. Legal representation can be provided by a lawyer, by an organization of which the defendant is a member, or by the defendant’s relatives, guardians, or friends. The principal objective of defense counsel is to prove that the defendant is innocent. As is the case in most trials, especially following civil law procedures, the defense will present an argument that emphasizes the mitigating or extenuating circumstances of the defendant’s responsibility, in the hope of securing a reduced sentence.

In order to practice law in China and use the professional title of lawyer, a person must acquire both the educational qualifications and a certificate of practice. Article 6 of the Lawyers Law 1996 explains the options that a person has to obtain the educational qualifications that could be met with “three years legal education in an institution of higher learning, or higher qualification or attained an equivalent professional level, or has acquired an undergraduate education in another major in an institution of higher learning, or higher

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qualification, and has passed the examination for qualification as a lawyer.” The practice certificate is granted once the person shows proof that he or she passed the examination for qualification as a lawyer, served a year in training with a law firm, and is of good character and conduct.

Until recently, any attempt at serious legal representation of a defendant in China was highly unlikely because of procedural law prohibitions. The Chinese Criminal Procedure Law formerly stated:

After a people’s court has decided to open a court session, it shall proceed with the following work. . . to deliver to the defendant a copy of the bill of prosecution of the people’s procuratorate no later than seven days before the opening of the court session and inform the defendant that he may appoint a defender or, when necessary, designate a defender for him.

This seven-day rule excluded the defense from any involvement in the investigative stage of a case. It also severely limited the amount of time that a defense could be prepared for a defendant before the trial started. In fact, it was reported that in 30 percent of the cases, the trial had already started before a lawyer received notice (Chenguang and Xianchu, 1997).

The Chinese procedural system was essentially adopted from the former Soviet Union; it is, therefore, based on the civil or inquisitorial legal tradition. For students of the common law or adversarial tradition, it is important to note that in the civil law context, a defense attorney does not conduct an independent investigation into a client’s case. In the civil law system, the investigative stage in a criminal case is the responsibility of the procurator. This includes the collection of evidence and the identification and interviewing of witnesses. Under this method, it is assumed at the outset that the procurator will carry out an objective investigation. Unfortunately, serious questions have been raised about the extent to which procurators have been objective in their investigations.

While the defense does not conduct an independent investigation, the defense in many civil law countries has been permitted to influence the final investigative report. For example, the defense is permitted to request the inclusion of certain kinds of evidence that are favorable to a defendant. The defense might also suggest to the procurator that a specific line of questioning be put to particular witnesses during the investigative phase. This line of questioning might influence the decision to send the case to trial or at least alter the nature of the charges against a defendant.

The revised Criminal Procedure Law (1996) attempted to correct several of these concerns. The time frame in which a suspect may have access to a lawyer has been advanced considerably. According to Article 96, the accused could now consult with a lawyer “after the criminal suspect is interrogated by an investigative organ for the first time or from the day on which compulsory measures are adopted against him. . . .” The rights of the lawyer were also expanded at this initial stage in the process. Article 96 stated in part that a suspect “may appoint a lawyer to provide him with legal advice and to file petitions and complaints on his behalf. If the crime suspect is arrested, the appointed lawyer may apply on his behalf for obtaining a guarantor pending trial.” Article 96 also indicated:

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The appointed lawyer shall have the right to find out from the investigation organ about the crime suspected of, and may meet with the criminal suspect in custody to enquire about the case. When the lawyer meets with the criminal suspect in custody, the investigation organ may, in light of the seriousness of the crime and where it deems it necessary, send its people to be present at the meeting. If a case involves State secrets, before the lawyer meets with the criminal suspect, he shall have to obtain the approval of the investigation organ.

Although these changes in rights of Chinese defense lawyers were clearly improvements over the previous procedural law, significant restrictions still existed.

The initial stage in the legal process represents the time when a defense counsel’s client is a mere suspect and possibly one of many. As a result of recent procedural amend- ments, once the procurator decides to examine a case and a specific suspect with the objective of initiating a prosecution, the defense counsel of that suspect is extended some additional rights. For example, Article 36 stated: “Defence lawyers may, from the date on which the People’s Procuratorate begins to examine a case for prosecution, consult, extract and duplicate the judicial documents pertaining to the current case and the technical verification material, and may meet and correspond with the criminal suspect in custody.” Thus, defense counsel began to have access to the evidence at the investigatory stage of the process.

Article 37 pointed out that: “Defence lawyers may, with the consent of the witnesses or other units and individuals concerned, collect information pertaining to the current case from them and they may apply to the People’s Procuratorate or the People’s Court for the collection and obtaining of evidence, or request the People’s Court to inform the witnesses to appear in court and give testimony.” The article went on to state that: “With the permis - sion of the People’s Procuratorate or People’s Court and with the consent of the victim, his near relatives, or witnesses provided by the victim, defence lawyers may collect information pertaining to the current case from them.” Some of these provisions were in keeping with modern versions of civil procedural methods found in democratic countries, but it has been suggested that some adversarial elements may be entering into the Chinese procedural system. The initial view was that these provisions, if actually implemented, could enhance defense counsels’ efforts and place a greater burden on the procurator to prove guilt.

These amendments to the Criminal Procedure Law presuppose that the defendant had identified a person to serve as defense counsel. What about the defendant who had not entrusted his or her defense to counsel because of indigence, ignorance, or some other reason? The law addressed these circumstances in Article 34:

If a case is to be brought in court by a public procurator and the defendant involved has not entrusted anyone to be his defender due to financial difficulties or other reasons, the People’s Court may designate a lawyer that is obligated to provide legal aid to serve as a defender.

If the defendant is blind, deaf or mute, or if he is a minor, and thus has not entrusted anyone to be his defender, the People’s Court shall designate a lawyer that is obligated to provide legal aid to serve as a defender.

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If there is the possibility that the defendant may be sentenced to death and yet he has not entrusted anyone to be his defender, the People’s Court shall designate a lawyer that is obligated to provide legal aid to serve as a defender.

According to this article, an indigent defendant “may” be given legal counsel, whereas a defendant who has a physical disability, is a minor, or is facing the death penalty “shall” be granted counsel. These defendants would not have benefited from the expanded rights associated with Articles 36, 37, and 96 of the amended Criminal Procedure Law (1996).

Although changes in the 1996 Criminal Procedure Law as it relates to the expanded role of defense counsel were welcome, there was a degree of skepticism on the part of some comparative scholars. One concern focused on whether the spirit or only the letter of the law would be followed by agents of the justice system. A natural comparison was drawn in this regard between the changes in China’s procedures with those that occurred in the Soviet Union. Before 1958, defense counsel in the Soviet Union was not involved in a case until it went to trial.

After that date, the law gradually changed to permit counsel greater access to clients at progressively earlier stages in the investigative process. In the Soviet context, it was not uncommon for investigators either not to tell a suspect of his or her right to legal assistance or to discourage a suspect from exercising that right. In other cases, investigators attempted to block defense counsel’s access to clients. When these injustices were occurring, the Soviet police and procurators were extremely powerful. It was difficult to check their authority within the Soviet justice system. At the core of the skepticism was the strikingly similar circumstances of present-day China and the Soviet Union then.

It had been suggested that while changes in procedures had been introduced in the law to benefit defense counsel, they had not necessarily been implemented in practice. The police and procuratorate had opposed and often resisted adopting many of the amendments to the Criminal Procedure Law. As such, defense counsel was denied access to their clients and to exculpatory evidence. They had also been prevented from interviewing key witnesses. Because of the increase in crime, the public was not sympathetic to reforms of the criminal law that appear to assist defendants (Peerenboom, 2008).

Another concern from some critics was that the amendments to the Criminal Procedure Law did not go far enough. In reference to the provisions in Article 96, for example, some critics were of the opinion that defense counsel should have access to the client before the first interrogation, rather than after it. In addition, at this stage of the process, defense counsel did not have access to the information the investigators had collected. He or she received only the information provided by the client. Of particular concern was the fact that the suspect could be denied any privacy when conferring with defense counsel. The authority to decide this issue rested with the organization investigating the case—often a public security agency or a procurator.

Until fairly recently, defendants were not assured assistance from defense counsel unless they had a specific physical disability (blind, deaf, or mute), were a minor, or were facing the death penalty. According to the Lawyers Law 1996, legal aid was now provided to indigent defendants involved in criminal cases. Such aid could also be sought by people

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in need of legal assistance for other matters, such as workers’ compensation, claims for State compensation, and pension disputes for the disabled or families of the deceased. If an indigent defendant was granted assistance, defense counsel was available at the start of the trial.

Finally, in cases involving state secrets, a suspect would seek the permission of the investigators not only to secure a lawyer but also to speak with the lawyer. At issue were two concerns. One involved providing a clear definition or legal standard for what constituted a state secret. The other involved the possible denial of access to legal counsel in a high-profile case. At a time when China was attempting to show that it embraced the rule of law, the use of this procedure would likely raise concerns over the denial of a person’s due process rights.

In light of the criticisms directed at judges and procurators over the miscarriages of justice that were occurring in the courts, attention was also focused on the barriers preventing defense lawyers from attempting to protect the rights of clients and to provide adequate assistance at trial (Dui Hua, 2013; Dui Hua, 2014; Anonymous, 2012). The White Paper noted that the use of defense counsel was becoming a notable feature within the courtroom work group in China. To illustrate, from 2006–2011, lawyers assisted in the defense of clients in 2,454,222 cases, which was a 54.6 percent increase from the 2001–2005 reporting period.

The 2012 amendments to the Criminal Procedure Law have attempted to enhance the role of defense lawyers in addition to improving the professionalism and independence of judges and procurators. Specifically, legal aid is now available at the pretrial investigative stage and at trial. Legal aid, however, is not available during a death penalty appeal. With the exception of a few cases, according to the White Paper, defense lawyers can meet with their detained clients and should not be monitored. In addition, once a procurator begins to review a case, defense counsel has the right to access the materials in the file. It should be noted that the Supreme People’s Court has ruled that a lawyer’s access to the case file must be kept confidential. This means that they cannot share the information with the defendant’s relatives or copy the file. The purpose of this rule is to prevent the lawyer from using the media or Internet from gaining sympathy for his case. The threat of suspending the lawyer’s license to practice is employed to discourage testing this rule. Finally, if a lawyer feels he is being hindered by the police or procurator from carrying out his duties, he can file a petition either with the procuratorate at the same level or the next level in the hierarchy (Anonymous, 2012).

Unfortunately, recent criticisms continue to be leveled at the inability of Chinese defense lawyers to exercise their procedural rights on behalf of their clients. Specific concerns have been raised by both international groups (Amnesty International and Human Rights Watch) and scholarly researchers (see McConville and Fu in Cao, Sun, and Heberton, 2014). Among the issues frequently cited as a concern are: either the delay in access or the inability of the lawyer to see his client; the lack of access to the procurator’s case file and evidence; the limited right of the lawyer to collect evidence on behalf of his client; and the harass- ment of defense lawyers by government officials and the threat, at times, to take away the person’s license to practice law.

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People’s Assessors

The Organic Law of the People’s Courts explains the requirements and duties for serving as a people’s assessor. People who have voting rights and have reached the age of 23 are eligible to elect and be elected to serve as a people’s assessor. If people have been deprived of their political rights, they are excluded from serving. While serving as an assessor, a person continues to receive wages from his or her place of employment. If a person is not employed, he or she would receive a stipend for his or her services.

A typical first-instance case heard in either a basic or intermediate people’s court would utilize two assessors. Generally, one assessor would be elected from the neighborhood in which the defendant lives, while the other would be elected from the defendant’s place of employment. From the Chinese perspective, the use of assessors has two objectives that are central to the communist philosophy. People’s assessors are another illustration of the mass line in practice; that is, courts should consider the views of ordinary citizens when conducting judicial business. The other objective is to educate citizens about the work of courts. When assessors return to their neighborhood or work unit, they are expected to talk about their experience with the legal process. While the law indicates that assessors enjoy the same rights as judges, deference tends to be paid to the judge who obviously has judicial experience.

Legal Education

From the founding of the People’s Republic of China in 1949 to the beginning of the Cultural Revolution in 1966, approximately 19,000 students had studied law in China. During that period, there were only six universities that had law departments and four political-legal institutes that provided legal training (Leng and Chiu, 1985). All of these institutions for legal study were forced to close during the Cultural Revolution. In 1977, one year following the conclusion of the Cultural Revolution, two institutions reopened. It was reported that in 1983 only 3 percent of judges, procurators, and other judiciary officials had either a junior college or college degree in law. By 1995, any new hire as a judge or procurator was required to have a degree from an institution of higher education. (Minzner, 2013). By the middle of the 1980s, there were 29 law departments or law schools established; this figure rose to more than 80 by the middle of the 1990s (Chenguang and Xianchu, 1997; Leng and Chiu, 1985). Between 1990 and 2000, the number of first-year students in higher educational institutions studying law went from 1 million to 2 million. At the end of 2006, there were 603 institutions of higher learning offering a bachelor’s degree in law, 333 authorized to provide a master’s program, and 29 entitled to offer doctorates in law.

In China, legal education is the responsibility of both the Ministry of Justice and the Ministry of Education. In light of the growing importance that is being placed on law in the transformation of the society, law has become an important field of study. Students study it in high school and can pursue a two-year course in college. There are also short-term training courses in law.

The most prestigious places to study law are in a law department that is associated with a university or at a political-legal institute. Students must take a national examination

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to enter either type of legal training. Both offer undergraduate and graduate programs. Undergraduate programs last four years, while graduate programs are usually three years. An undergraduate program consists of the following kinds of courses: Marxism and Leninism, history of the Communist Party, political theory, political philosophy, political economy, logic, foreign language, theories of law and the state, Chinese legal history, foreign legal history, administrative law, civil law and procedure, constitutional law, criminal investigation, criminal law and procedure, economic law, marriage law, and public and private international law.

The political-legal institutes are designed for people who want a practical orientation to the law. Institutes also offer courses in evidence, investigation, and forensic medicine. While law departments have a more academic orientation, most graduates enter a practical career in law by working for courts, procurators, or public security. As part of their legal education, students of both law departments and legal institutes are required to participate in some clinical training with either a judicial department (court or procurator) or a public security agency.

In 1986, the Ministry of Justice introduced a national bar examination to determine if candidates were qualified to practice law. The examination is offered twice a year. In order to be eligible to take the exam, a person must complete his or her legal education program and have completed two years of either judicial or other legal work. The percentage of people who successfully pass the examination has increased over the years. For example, only 8 percent passed in 2002, while 22 percent of 420,000 candidates were successful in 2009.

What had initially sparked the interest in law and legal studies was Deng Xiaoping’s effort to transform China into a viable modern society. As mentioned earlier, Deng recognized that law would have a critical role to play in this process. Unfortunately, it was acknowledged that China’s laws were weak, and its judiciary lacked any standing as a legal authority. Thus, a critical part of Deng’s reform efforts included legal education because the country would need people with a background in legal studies. With the country in a hurry to transform itself, it undoubtedly moved too quickly in trying to equip enough people with training in law. Various organizations, from universities to junior colleges, secondary technical schools, and political-legal institutes, began to offer programs in legal education. Legal education became a big business, a growth industry.

Questions have been raised in recent years about the reforms in legal education during the 1980s and 1990s. In early 2000, the job market began to collapse for recent law graduates. Issues were raised about the poor quality of education offered at some institutions. Moreover, criticisms were leveled at law schools for being too theoretical and not offering practical skills that might enhance students’ job prospects.

In 2011, the political-legal authorities announced that there would be reforms in legal education. A central feature of the reform efforts was to move away from the uniform course offering and to permit greater diversity in the selection of courses. The objective was to allow institutions of higher legal education to elect one of the three approaches identified to transform legal education. One approach would focus on students who essentially planned to practice law by integrating practical training into their course of study. As such, clinical training, internships, and moot court would become an important feature of their curriculum. Another approach would focus on training elite students to work in the global

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economy. The third approach would be designed for students to acquire basic legal knowledge that would enable them to work in courts or government agencies. The political- legal committees had been critical of the Chinese legal programs borrowing extensively from Western concepts of law; as such, another aim in the reform efforts is to integrate Chinese socialist law in the political context of the country (Minzner, 2013).

LAW The historical development of law in China was dominated by two schools of thought: Confucian and Legalist. The Confucians were followers of the philosophical and political ideas of Confucius (551–479 BCE). While Confucius acknowledged that positive or written law (fa) had a role to play in state governance, he maintained that moral virtue or a moral code (li) was far superior. Confucius stated his position clearly in this oft-quoted passage from the Analects:

Lead the people with governmental measures and regulate them by law (fa) and punishment, and they will avoid wrongdoing but will have no sense of honor and shame. Lead them with virtue and regulate them by the rules of propriety (li), and they will have a sense of shame and, moreover, set themselves right.

The Confucians favored relying upon li as the source for regulating human behavior and social order. The Confucian position was based on the following arguments. Humankind is either basically good or is capable of learning goodness. The study of li shapes a person into an acceptable human being, because li is in conformity with human nature and the cosmic order. When a government is based on li, it operates harmoniously. Because li is unwritten, it has the flexibility to be interpreted to meet the needs of a particular situation.

It is important to stress the context in which these arguments were played out. The early development of li occurred when China was a feudal society. Society was highly stratified, and hierarchical differences were emphasized and considered very important. The emphasis placed on social stratification would continue into the twentieth century, even after the demise of the Qing dynasty in 1911.

The other school of thought was the Legalist perspective. The Legalists were pragmatic government bureaucrats for the most part. Their goal was to expand and secure the authority of the state or empire. For them, law (fa) was a written standard imposed by a superior upon an inferior. It was viewed essentially as a method of controlling people in a highly stratified society within the jurisdictional boundaries of the empire.

The position of the Legalists was based on the following rationale. Humans act out of self-interest. Law is used to control and punish selfish motives. The basis of a stable government can be law, as long as it is impartially applied to all and is publicized. The existence of harsh laws serves to deter people from committing wrong. In the long run, the existence of strict laws will enable society to be free from conflict.

The Legalist position was successful at helping the Qin dynasty (221–206 BCE) establish the first unified empire in China. During the Han dynasty (206 BCE–220 CE), however, the Confucian view was in the ascendancy. Throughout the long imperial period (2205

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