Chapter 3 Flashcards
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 rulemaking that are typified in the stories of Moses and King Solomon.
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.
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
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 citizens’ behaviors and a judicial system to handle disputes.
Mesopotamia Systems:
Lasted until first century B.C.
Development of the code of Hammurabi. 282 laws covering property rights, renting, and medical treatment. “eye for an eye, tooth for a tooth”.
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.
Indigenous Laws:
Native laws of persons who originate from or live in a particular area.
Ex: In America, Indigenous laws are practiced by Native Americans on reservations. Navajo Nation - calls for swift justice and emphasizes the restoration of harmony and acceptance back into the community.
Types of Law
Public law - relations between governments and citizens. Constitutional law, criminal law, tax law, and environmental law.
Private law - regulates behavior between individuals that involves no large public interest.
Civil law - distinguished from criminal law. Private disputes between individuals. Lower standards of proof and less stringent procedures.
Criminal law - offense against the state rather thanas a dispute between individuals. The state acts as the aggrieved party.
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.
The Civil Law (notice uppercase)
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.
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.
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.
The Common Law
More ancient and complex than French or German Codes.
History:
First used in the King’s Court in England. Appointed judges to travel around the country and settle disputes. Over time a body of law was developed based on these judges’ decisions. Established precedent with “stare decisis”.
Judicial independence - judges bound by law rather than by desires of rulers.
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.
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.
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.
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 by Mao Zedong. In 1949 the People’s Republic of China was officially established. After Mao’s death Deng Xiaoping promoted new goals of modernization in agriculture, industry, defense, and technology.
Socialist vs. Civil Law (6 distinctions)
1.The public/ private law distinction:
- Collective ownership of property and means of production by the state, and the regulation of the economy by the state means that regulations, laws, rulemaking, and enforcement become the dominate activity of the State.
- Public laws become the dominate law and grow huge bureaucracies.
2.The importance of economic crimes:
- The concept of economic crimes in a Socialist state is the act of disrupting or obstruction of the State owned means of production is a crime against the very economic foundation of the State.
- Where all of the means of production are owned by the state, and full employment is guaranteed to every citizen of the state, to work at less then100 percent is a crime against the State.
- The educational or social engineering function of law:
- Post revolutionary societies where the laws are drastically changed to fit the new Socialist order, the public must be re-educated in the new socialist order and the new socialist laws.
- One of the prime agents of re-education is the government and the legal system. - The role of the procurator:
- The Procurator in the Civil Law system is roughly equivalent to the prosecutor in the Common Law system but with much great breadth and depth of power and responsibility.
- Procurator works on behalf of the government with nine roles: criminal investigator, grand jury, criminal prosecutor, judicial ombudsman, executive branch ombudsman, general ombudsman, prison ombudsman, military ombudsman, and propagandist of Soviet law. - The distinction between political and non-political justice:
- In socialist societies it is difficult to draw a distinction between “ordinary” cases and those cases in which the government has a particular interest that supersedes “conventional” justice.
- Prerogative Law: In which standard legal procedures are subverted through the intervention of those in power – a wanton disregard for matters of guilt or innocence under the law and instead replacing that with what the State believes is the overriding principle of protecting what is important to the collective. - The mitigated independence of the judiciary:
- In a Socialist state, why do you need an independent judiciary, when you have a benevolent State that is always looking out for the best interest of the collective, and rules for the benefit of its citizens.
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.
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 – Crimes against God, a violation of natural law. Very serious crimes that include robbery, theft, blasphemy, robbery, apostasy, rebellion, defamation, drug offenses and sexual crimes (adultery, sodomy, and fornication). The government brings the charges against the perpetrator.
Tazirat – Private crimes against individuals or against society which include murder, manslaughter, assault. Here the families heirs or the victim must bring the complaint against the perpetrator.
Punishment:
Sanctions are prescribed in the Qur’an and are often harsh. They include corporal and capital punishment. Amputation of hands or feet and death. 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.
