Throughout this course, we have been learning about legal systems which are very
different from the ones here in the United States. A look at the various types of these systems in
place around the world has shown that not every country or place does it the same way, nor
would the same style of legal system work for every country, especially in countries that place
different values of differing ideals. Although time has been spent on a worldwide journey, the
system that is most familiar to me is that of the United States. This system is the one that I will
propose solutions to the two challenges that will be described within this paper. To paraphrase
the author of our primary textbook, you can learn a lot of theory relating to traditions from the
traditions themselves. (Glenn, 2014)
The United States Legal System
From the very early formation of the United States of America, there has been a focus on
protecting the rights of the individual. There has also been an emphasis on the rights of all
citizens as was demonstrated in the very first lines of the Constitution of the United States of
America. “We the People of the United States, in Order to form a more perfect Union, establish
Justice, insure domestic Tranquility, provide for the common defence, promote the general
Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and
establish this Constitution for the United States of America.” (U.S. 1787) Even before the
formation of the union of States, in the initial protestation document of the Declaration of
Independence, it is clear that the people of America were going to speak as one. The opening
paragraph says, “The unanimous Declaration of the thirteen united States of America,8When
in the Course of human events, it becomes necessary for one people to dissolve the political
bands which have connected them with another, and to assume among the powers of the earth,
the separate and equal station to which the Laws of Nature and of Nature's God entitle them, a
decent respect to the opinions of mankind requires that they should declare the causes which
impel them to the separation.” (U.S. 1776)
Reading just the above excerpts of the foundational documents shows an emphasis on
speaking as one, “We the People of the United States,” (U.S. 1776) not most of, not a few of,
although all the people of the colonies did not agree the founders were intelligent enough to start
with the wording “We the People.” (U.S. 1776) With the founding of this country, there was a
clear emphasis on the importance of protecting those rights. The Declaration of Independence
goes on to state, “We hold these truths to be self-evident, that all men are created equal, that they
are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty
and the pursuit of Happiness.--That to secure these rights, Governments are instituted among
Men, deriving their just powers from the consent of the governed, --That whenever any Form of
Government becomes destructive of these ends, it is the Right of the People to alter or to abolish
it, and to institute new Government, laying its foundation on such principles and organizing its
powers in such form, as to them shall seem most likely to effect their Safety and Happiness.”
(U.S. 1776) This very foundational work emphasizes the importance of protecting the rights of
the individual, of allowing that person to determine how they want to live, to be free, and to do
the things that they want to do and not be forced to do the bidding of the government over them.
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These documents lay out the plan, the vision, for the legal system of the United States of
America.
With the writing and implementation of the Constitutional Convention and the laying out
of the design of this set of documents in particular, the plan was now unfolding, and the legal
system was being more fully designed. The ability for the Constitution to change with the growth
of the country or remain unchanged at the will of the people is all laid out in the Constitution.
Article I lays out that a body of elected people shall have the legislative duties for the Country. It
describes that the “People” shall be the ones to choose their leaders. It explains the “Powers and
Duties of Congress” in section V. (U.S. 1787) The Constitution further lays out the “Legislative
Process” in section VII, the “Powers of Congress” in section VIII, the “Powers Denied
Congress” in section IX, and the “Powers Denied to the States” in section X.
Article III of the Constitution sets the judicial power of the United States. The very first
section, section I states, “The judicial Power of the United States, shall be vested in one supreme
Court, and in such inferior Courts as the Congress may from time to time ordain and establish.
The Judges, both of the supreme and inferior Courts, shall hold their Offices during good
Behaviour, and shall, at stated Times, receive for their Services, a Compensation, which shall not
be diminished during their Continuance in Office.” (U.S. 1787) Throughout this Article, the
foundation of the United States Legal System is given its structure. Within this Article the
structure of the legal system goes from infancy to early adulthood and starts its slow march to
adulthood albeit not without its challenges.
Benefits
Unlike many other Nations around the globe, the rights of the individual are relatively
protected here in America. The Declaration stated this in short with the statement, “that all men
are created equal, that they are endowed by their Creator with certain unalienable Rights, that
among these are Life, Liberty and the pursuit of Happiness.--That to secure these rights,
Governments are instituted among Men, deriving their just powers from the consent of the
governed.” (U.S. 1776) Although some rights do vary from State to State, the core rights laid out
in the U.S. Constitution are protected and it is the duty of the legal system, as headed by the
Supreme Court of the United States, to protect these rights from infringement. The Supreme
Court regularly checks the powers of the government and strikes down laws created by the
legislative bodies as unconstitutional when they infringe upon these rights. Is this system of
government perfect, absolutely not, but it is a more perfect union to establish justice and does try
to ensure domestic tranquility just as it is stated in the preamble of the Constitution.
Another benefit of the American Legal System is the clear establishment of acceptable
conduct while being efficient, somewhat, and predictable. The American Legal System has rules,
and these rules are not some secret set that is unknown to the masses but rather are a set or rules
written down and, for the most part, easily accessible to the general public. The system makes
experts in the field of law, Lawyers, available to any person who is accused of a crime,
regardless of their station in life. There are set procedures and rules of conduct that make the
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system more predictable, even the judges have set codes of conduct that they are supposed to
follow. Is the system perfect, nope, but it is better than many. In most cases, unless a judge goes
rogue, they will make their decision based solely on the evidence that is presented, not on their
own personal belief system or on their mood of the day but rather on what has been proven. This
makes the criminal system in America rather predictable, some say boring, while others say
better.
Challenges faced by the United States Legal System
One of the challenges faced by the legal system here in America is one that likely will
never be solved, it’s the lack of resources. Both a benefit and detriment of the system of
capitalism is that there are seldom enough resources to solve all the problems faced by the justice
system. When speaking about the Justice System in this context it includes the branches of the
executive branch, law enforcement, as well as the judicial branch, the courts. Simply put, there
just aren’t enough courts, judges, jails, holding facilities, or law enforcement to address the woes
of society. There isn’t enough money that can be thrown at the problem to fix it, it may help but
money alone will not right the train. This lack of resources, in some ways, leads to the rising
level of crime, along with the foolish defund the police movement and the failure of District
Attorneys to hold people accountable for their actions.
A Proposed Solution
In his 1966 Convocation, Dr. King stated, “It may be true that morality cannot be
legislated but behavior can be regulated. It may be true that the law cannot change the heart but it
can restrain the heartless. It may be true that the law cannot make a man love me, religion and
education will have to do that, but it can restrain him from lynching me.” (King, 1966, p4) The
legal system, while not truly broken, sure can be damaged at times. For a person's actions, or
“behavior” to be regulated there needs to be available resources. First for parents in the home to
teach what is morally right with an emphasis on the golden rule, second for the education of all
people in primary school to fill the gaps left by those parents, and third for the law enforcement
community to correct the behavior of those who refuse to learn. This also means that not only
more funding is needed at a local level for law enforcement and the courts but also for all the
periphery of those agencies.
Money is a resource, a much-needed one, but not needed more than people. People to
become lawyers and work at a reasonable rate to help others, people to become psychologists
and psychiatrists, nurses and doctors, social workers and people to hold others accountable for
their actions and not make excuses for those actions. Granted, drug addiction is a real thing, and
it does become a disease, it changes the chemistry of the brain just as alcohol usage does, but no
one is holding a person down and forcing them to take that first drink, use that drug for the first
time, it was a choice. More needs to be done in the field of prevention. As the Bible states in
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Proverbs 4:23, if we can teach people to "Guard your heart above all else, for it determines the
course of your life." (NLT) perhaps we could prevent problems and over time heal them.
The Talmudic Legal System
Benefits
The Talmudic legal system stems from religious origins. Nearly everything within this
system is based on Jewish law as determined by the Rabbinical class. The Talmud was the center
of nearly all Jewish culture with its interpretations determined by the leaders, or Rabbis. In many
Jewish communities, it still serves as the center of Jewish life and culture. The Talmud is
comprised of two different parts: the Mishnah and the Gemara. The Mishna is the written record
of the oral traditions of the “Oral Torah.” “As such, the Oral Law has the status of a direct divine
command among Orthodox Jews.” (My Jewish Learning, 2024) Jewish tradition is long and
relatively unchanging for thousands of years. This is a significant benefit of Talmudic Law, it is
the same for you as it was for your parents, and their parents, and so on. This is an extremely
deeply rooted system of laws that does not change because a new judge sits on the bench.
A strong second benefit of the Talmudic Law system, if adhered to, is that it always
provides an unchanging identity for the Jewish people. Although like any system of religious
beliefs, there are and will always be people who read the same thing but interpret it differently
for the vast majority of Jewish sects the unchanging system provides a very solid and reliable set
of traditions.
Challenges
Although mentioned as a strength above the same thing that adds strength to the
Talmudic system can also create challenges. This is the long history of much of the Mishna
having been from Oral Tradition. Differing sects often will disagree with the interpretations of
the differing oral traditions. As an example, “The Sadducees and8Pharisees8were in constant
conflict with each other, not only over numerous details of ritual and the Law but most
importantly over the content and extent of God’s8revelation8to the Jewish people (Britannica, T.
Editors of Encyclopedia (2022, November 21). Differences of this type, throughout history, have
often separated the Jewish people.
Since the Talmud is not technically complete, although there are millennia of traditions,
the story is not yet fully written and as such there could continue to be an evolution in Talmudic
Law. As mentioned, although at its core it has largely remained unchanged for thousands of years
it is still being added to each year, thereby always changing ever so slightly. These changes tend
to be referred to as “corrections,” these changes “emerge as rare exercises of judicial discretion
to depart from biblical rules, although they also attest to a Talmudic distinction between law as
an aspect of individual justice.” (Suzanne Last Stone, Religion and state: Models of separation
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from within Jewish law,8International Journal of Constitutional Law, Volume 6, Issue 3-4, July-
October 2008, Pages 631–661)
The Hindu Legal System
Benefits
One of perhaps the biggest benefits of the Hindu Legal System is the system's approach
to fairness. According to a paper written by Matthew L.M. Fletcher, University of Michigan Law
School, the Indian Courts that oversee the Hindu Legal System have a duty, “to successfully
guarantee fundamental fairness in the form of due process and the equal protection of the law for
individuals.”8 (Fletcher, Matthew. "Indian Courts and Fundamental Fairness: Indian Courts and
the Future8Revisited."8University of Colorado Law Review884 (2013): 59-96) If a court system is
successfully seeing to this it would have to be a very fair system indeed.
A second significant benefit of the Hindu Legal System is how it recognizes the formal
Verstaatlichung of dharma. This is a methodology of legal reform that endorses rather than
overrides customary practices. (INDAS International Conference, 2013) This has allowed for
the more traditional practice of the Hindu belief system while allowing for the modernization
of laws.
Challenges
Although the courts are directed to specifically protect fairness and individual rights there
is a long history of a caste system. Often it is reported that the slow judicial process can hinder
economic growth and investor confidence.8The unreliability and inefficiency of the judiciary
can also decrease public trust in the legal system. (Werner Menski, How Hindu Law Continues
in Modern India, pg 244, 2019)
For most, it is the sheer expense of being heard in the court system that makes its use
most difficult. With “90 percent of the litigants earn less than Rs. 3 lakh per annum and the
median expected cost of litigation for this group is around Rs. 16,000,” that’s less than earning
USD 3,593 per year and the cost of going to court averaging being about $191 that means that a
little over 5% of their annual income would need to be paid to the courts alone. This does make
me wonder how exactly the Hindu Legal System actually ensures fairness for its litigants.
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