5 full page overview and 125 word summary at the end after reference page

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Comparative Criminal Justice
5th Edition

Chapter 3: Families of Law

Adrianna Hughes

University of Scranton

Learning Objectives: Chapter 2

  • Identify the reasons for international agreements on crime- related matters after World War II
  • Examine distinguishing characteristics of each legal family of law.
  • Understand the various types of laws
  • Describe the differences between Civil Law and Socialist Law
  • Explain the key aspects of Islamic Law

Comparative Criminal Justice Systems

5th Edition

Shared Notions of Justice

  • International human rights movement
  • Nations wanted to stop events like the holocaust from reoccurring
  • Formed International Criminal Court
  • Universal Declaration of Human Rights(UDHR)1948- spelled out basic civil, political, economic, social, and cultural rights that all human beings should enjoy, regardless of the country in which they live.

Comparative Criminal Justice Systems

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Shared Notions of Justice

  • When nations ratify these agreements, they assume the obligations to protect human rights by taking specific action.
  • These international agreements were the result of discussion and negotiations among countries from all over the world with different histories, customs, and legal traditions.
  • Issues such as: treatment of women, children, migrants, and the disabled; racial and ethnic discrimination; use of torture; capital punishment; and the civil rights of all citizens are all shared issues of concern
  • Table 3.1 summarizes the nine core International Human Rights Instruments

Comparative Criminal Justice Systems

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Shared Notions of Justice

  • It is a positive sign that consensus over important issues has gown drastically.
  • However, it is still important to understand the underlying legal traditions in each country because these legal systems guide the operation of the police, courts, and corrections.
  • International Criminal Court- tries to merge the best parts of each legal tradition in adjudicate international crimes

Comparative Criminal Justice Systems

5th Edition

Historical Origins of Legal Traditions

  • Book of Exodus-
  • Ten Commandments
  • code based system-written laws that place limits on behavior

  • King Solomon
  • case based system- rules developed from decisions handed down in particular cases

  • All modern nation states combine the kinds of rule making that are typified in the stories of Moses and King Solomon

Comparative Criminal Justice Systems

5th Edition

Historical Origins of Legal Traditions

  • Legal system- refers to the agencies, procedures, and rules that make up how a country makes laws, enforces laws, and dispenses justice.
  • Legal families or legal traditions- broader terms used to understand the legal system and the cultural and historical foundations of the system.
  • Terms are usually used interchangeably


Comparative Criminal Justice Systems

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Historical Origins of Legal Traditions

  • No countries rely solely on the elements of a single tradition- no clear cut “ pure Common Law”
  • Countries borrow procedures from other legal traditions
  • Hybrid legal tradition- combines different aspects of more than one legal tradition
  • In all reality the hybrid legal tradition is the most common- but for our purposes this term is restricted to countries that have not historically or politically developed one clear or primary legal tradition
  • Ex: Japan

Comparative Criminal Justice Systems

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Roots of Ancient Legal Traditions

  • Egyptian System (4000 B.C.)- oldest known formal legal system
  • Rulers developed an extensive system for handling legal procedures that included codes to direct citizen behaviors and a judicial system to handle disputes
  • Mesopotamia System- lasted until first century B.C.
  • Development of the Code of Hammurabi
  • 282 laws - property rights, renting, medical treatment
  • “An eye for an eye, a tooth for a tooth”

Comparative Criminal Justice Systems

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Roots of Ancient Legal Traditions

  • Confucianism- moral system that stresses the development of individual moral virtue as an alternative to coercive power of state in producing good behavior.
  • Influenced Chinese governmental and educational practices, and individual attitudes toward correct personal behavior and duty to society

  • Hebrew Law( Talmudic Law)1200 B.C.- rooted in the word of God, as revealed to Moses.
  • First five books of the Hebrew Torah
  • Consists of the Torah and the Talmud- a guide to both civil and religious laws.

Comparative Criminal Justice Systems

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Indigenous Law

  • Indigenous laws- are native laws of persons who originate from or live in a particular area.
  • Ex. In United States- Indigenous law practiced by Native Americans on reservations
  • Navajo nation- calls for justice to be swift, direct, and personal emphasizing the restoration of harmony and reacceptance in the community

  • Indigenous population- 200 million persons- 4% of world’s population
  • Native, aboriginal- indigenous people

Comparative Criminal Justice Systems

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Types of Law

  • Public law- relations between governments and citizens.
  • Constitutional law, criminal law, tax law, environmental law
  • Private law- regulates behavior between individuals that involves no large public interest.
  • Civil law- disguised from criminal law
  • Private disputes between individuals
  • Lower standards of proof and less stringent procedures
  • Criminal law- offense against the state rather than as a dispute between individuals. The state acts as the aggrieved party

Comparative Criminal Justice Systems

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Types of Law

  • Civil Law Family- is used to denote the entire legal culture of a nation that uses that tradition.
  • Civil law-refers to the non- criminal aspects of that nations law.
  • These terms may seem confusing, but when talking about the type of law- civil- is usually lowercase. When talking about the legal tradition- Civil – has an uppercase C.

Comparative Criminal Justice Systems

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The Civil Law

  • Most pervasive legal tradition in the world
  • Basis for Socialist law
  • Sometimes called Romano- Germanic, Roman, or Continental law because of its historical roots
  • Code Based Law
  • Four major codifications of law
  • Roman law of the emperor Justinian
  • Corpus Juris Civilis- laws pertaining to family, property, torts, and contracts

Comparative Criminal Justice Systems

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The Civil Law

  • Canon Law
  • Dealt with church and spiritual matters
  • Provisions regulating family life and morals
  • Commercial law- body of legislation that deals with the exchange of goods between cities or nations

  • The Napoleonic Code
  • Drawn up by legal experts and went into effect in 1804
  • Incorporated new ideas from the Enlightenment
  • German Code
  • Long, academic, and complex
  • Took 20 years to put together
  • Scholarly effort to study previous law, develop a philosophy of law, and provide a rational basis for legal development

Comparative Criminal Justice Systems

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The Importance of the French and German Civil Codes

  • Influential in the development of law over the past two centuries
  • Both codes were developed during a time of industrialization and expansion
  • Imperialism was at its height fostering cross-national adaptation of laws and legal structure
  • As new countries formed and old countries sought to modernize full codes of laws helped to simplify the process
  • Unified civil codes were adapted to some degree according to local circumstances and local traditions

Comparative Criminal Justice Systems

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The Common Law

  • More ancient and complex than French or German Codes
  • History
  • The King’s Court( England)
  • Appointed judges traveled around country ruling on disputes that had not been settled in local courts
  • Overtime a body of law developed that was based on the decisions of the judge’s of the King’s Court
  • Established the importance of precedent
  • Stare decisis- “it stands decided”
  • Judicial Independence- judges bound by law rather than by desires of the ruler

Comparative Criminal Justice Systems

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The Common Law

  • History
  • Equity Courts
  • Judicial independence was not a welcome development
  • Practice arose of appealing directly to the King to rule on cases that did not fit well into the Common Law structure.
  • Writ of mandamus- orders public servants to perform the duties that are part of their jobs

Comparative Criminal Justice Systems

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The Common Law

  • Modern History
  • The Development of Criminal Procedure
  • Blackstone’s commentaries
  • Habeas Corpus
  • The Definition of Crimes
  • Pure Common law where judges make the law no longer exists. Now done through legislation
  • Current Status
  • Constitutional law- Supreme Court judges interpret the constitution based on the precedents of previous interpretations.

Comparative Criminal Justice Systems

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Current Event

  • The first article goes along with a video clip of Al Sharpton interviewing Larry Ward about “Gun Appreciation Day.” The Second Clip is also of Larry Ward expressing his views on “Gun Appreciation Day.”
  • Do you agree that there should be a civil right’s movement for guns, just as there were for African Americans in the mid 1900’s? Do you think it is appropriate or that Martin Luther King would advocate “Gun Appreciation Day” ?
  • http:// www.huffingtonpost.com/2013/01/15/al-sharpton-gun-adbvocate-larry-ward-slavery_n_2478572.html?ref=topbar

Comparative Criminal Justice Systems

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Socialist Law

  • The political, economic, and social term used to describe socialism is communism.
  • Proponent- Karl Marx

  • Historical Background
  • Grounded in Civil Law
  • Russia- Joseph Stalin tried to enact a “pure” communist approach
  • The Soviet Union then entered into a period of "Socialist legalism”- soon the system became very distinctive from Civil law and was thought of as Socialist Law.

Comparative Criminal Justice Systems

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Socialist Law

  • China
  • For nearly 4,000 years China was ruled by a series of feudal dynasties, which limited attempts to modernize the political, economic, or social structures in the country
  • Majority of people were poor peasant farmers
  • In 1921 the Communist Party of China was formed- Mao Zedong
  • In 1949 the People’s Republic of China was officially established
  • After Mao’s death Deng Xiaoping promoted new goals of modernization
  • Agriculture, industry, defense, and technology

Comparative Criminal Justice Systems

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Current Event

  • Read the following articles about pollution and freedom of the press in China. Although the article does not reference crime. It does touch on China’s openness in allowing media coverage of the high levels of pollution, which is also a international concern
  • What is China’s normal position on high levels of international media coverage? In your opinion, does this recent trend show a trend toward further modernization and connection internationally for China? Why or Why not?
  • http://www.nytimes.com/2013/01/15/world/asia/china-allows-media-to-report-alarming-air-pollution-crisis.html?ref=world
  • http://www.nytimes.com/2013/01/15/opinion/dim-hopes-for-a-free-press-in-china.html?ref=world

Comparative Criminal Justice Systems

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Socialist V. Civil Law

  • Six Distinctions between the two
  • The public/ private law distinction-
  • The importance of economic crimes
  • The educational or social engineering function of law
  • The role of the procurator
  • The distinction between political and non-political justice
  • The mitigated independence of the judiciary

Comparative Criminal Justice Systems

5th Edition

Sacred Law

  • Secular law- law that does not pertain to religion or any religious body
  • Sacred Law- based on a sacred text or body of religious doctrine
  • No clear separation between the religious and the legal
  • In some countries, the legal tradition is called Islamic Law
  • Islamic law is based on the rules of conduct revealed by God with two primary sources: the Shari’a and the Sunnah

Comparative Criminal Justice Systems

5th Edition

Sacred Law

  • Islamic Law
  • The Shari’a- “the way”- describes the actual law that is practiced in Saudi Arabia
  • Concerned with aspects of individual behavior
  • Crimes are organized by whether they are crimes against God(Hudud crimes) or Crimes against society( Tazirat)
  • Hudud crimes- violation of natural law- very serious include robbery, theft, blasphemy, etc.
  • Tazirat- murder, manslaughter, assault
  • The families heirs or the victim must bring the complaint against the perpetrator

Comparative Criminal Justice Systems

5th Edition

Sacred Law

  • The Sunnah- practices, habits, and saying of are prescribed in the Qur’an and are often harsh. ThMuhammad, the prophet of Islam
  • Sanctions ey include corporal and capital punishment. Imprisonment is the punishment of last resort under Shari’a
  • Equality
  • Islamic law makes a distinction between men and women in many matters.
  • Women do not count as witnesses for certain crimes or may county only half as much as male witnesses

Comparative Criminal Justice Systems

5th Edition

Sacred Law

  • Islamic Law is the Fundamental Bases for All Laws
  • The Necessity of Islam
  • From ancient times man has tried to reason beyond his ability and has been prey to jealousy as a result.
  • 622 A.D. Islam was first revealed to the prophet Mohammad in Mecca.
  • Before this period the were in darkness. Mecca was governed by a strong tribe name the Koraish people who worshipped Idols in the form of statues. Before leaving on a journey they would touch the statue and would do the same on the return. There was no single Idol. Each home had its own choice.

Sacred Law

  • The society was ruled by the laws of the land, survival of the fittest. There was no equality between master and slave, between leaders and followers, between men and women and many families killed new born females.
  • Prohpet Muhammad received the Islamic religion from God and tried to share it with the people asking them to stop worshipping idols and stop discrimination based on origin, race, color, and sex.
  • Muhammad left Mecca and went to Medina and established the first Islamic Gov.
  • RELIGIOUS MINORITIES- Under Shari’a the Islamic State can be classified into three religious categories

Sacred Law

  • 1. Muslim
  • 2. The People of the Book (Zimmis)- on muslims, who believe in one of the heavenly revealed scriptures. Torah, Bible. The reside under protective cover.
  • Unbelievers – have no protective convenant under the state.

  • Islamic Law is the Fundamental Bases for All Laws
  • Islam and Violence – Most Islamic countries the followers try to spread the word of Islam. A small number resort to armed violence
  • Sunnis 85-90 %
  • Shites 10-15 %

Sacred Law

  • The Nature of Islamic Gov.
  • Shiites – Believe that the appointment of the an Islamic government is not a public matter. The ruler is considered to be an infallible person who never commits major or minor mistakes.
  • They believe that the Muslim ruler represents the divine will therefore the people should have nothing to do with his appointment. People have no right to revolt against their rulers.

  • Sunni- Believe that the Islamic Government is a civil one without religious authority. The leader is delegated by the nation and brought into power by the people who obey him as long as he considers the Islamic rules otherwise they discharge him from office.

Sacred Law

  • Muslim Legal Scholars classify crimes into three categories:
  • 1. HUDDUD- ADULTERY, THEFT, DAFAMATION, BLASPHEMY, BANDITRY
  • PUNISHMENT - EXECUTION, CRUCIFIXION, CUTTING OFF THE HAND AND FEET FROM OPPOSITE SIDES.

2. QISAS- CRIMES AGAINST BODILY INTEGRITY (murder, voluntary and involuntary, physical injury, and maiming)

PUNISHMENT – Retaliation or Lex Talionis (not specifically ordained by the Qur’an

3. TAZIR CRIMES – less serious, attempted adultery, homosexuality, lesbianism, rape.

4. ACTS THAT ARE PROHIBITED BY SHARI’A WITHOUT A SPECIFIC PUNISHMENT, (eating of pork, providing, false testimony, tampering in measurements and lengths.

Sacred Law

  • The standard of proof is high in Islamic Law and for Huddud crimes the standard of proof is especially high
  • Apostacy – renunciation of Islam by a Muslim ( a confession or two witnesses).
  • Rebellion
  • Theft
  • Adultery ( 4 male witnesses)
  • Dafamation
  • Drug Offenses

Current Event

  • After reading the article about women’s perils in India. Discuss what type of Legal tradition India would fit into. How do the reoccurring events taking place in India go directly against the International Human Rights movement?
  • Also, discuss the implications for future legislation that may come from these terrible routine occurrences.

  • http://www.nytimes.com/2013/01/13/world/asia/in-rapes-aftermath-india-debates-violence-against-women.html?_r=0

Comparative Criminal Justice Systems

5th Edition