Chapter 4 Flashcards
England
Overview:
England is the historical backbone of the Common Law Tradition. Operates as a capitalist economy, with various forms of socialism.
Has a Unitary government: government power is centralized rather than being divided between states and a central government.
Opposite of United States: Federalism- power divided between states and a central government.
Monarch - sole and absolute ruler of a country, such as King or Queen, is head of state. The influence of the monarchy in England has eroded and the Prime Minister the Head of Government, has almost all the power.
Parliament, especially the House of Commons, is the supreme power in England, Wales, Scotland, and Northern Ireland.
Major component of parliament- House of Commons. The real leader of the country is the Prime Minister. The head of the political party that possesses a majority of seats in the House of Commons. Advisor to the monarch and chairs of the cabinet.
Historical Development:
English bill of Rights, Magna Charta, The Petition of Rights, and Act of Settlement. All pioneered a tradition of limited government, i.e. limiting the king’s power over the Lords and then eventually English citizens.
Since rise of British Empire many legal changes have lead to the export of English law to the colonies. Lead to legal pluralism - the mixing of more than one system of law within a particular country or region of a country.
Recent development in English law is the formation of the Supreme Court in 2005. Supreme Court of the United Kingdom: 12 person court, serves as court of last resort. No written constitution for the Supreme Court to interpret, however, has a strong “constitutional tradition” that has evolved over centuries. Can be called “unwritten constitution”. Includes charters, organic laws, traditions, and legal procedures. Organic laws - the laws of Parliament that describe the machinery of government and govern the electoral process.
The Rights of Englishmen – although not written in a single document (common law rights) are a sacred tradition and recognized by the courts of England.
Crime / Criminal Law:
The Research and Statistics Department of the Home Office collects crime stats in England. Police and data from the British Crime Survey (BCS) believed to be more credible. 4.2% drop in overall crime from 2010-11 to 2011-12. Crime issues: drug use and trafficking and hate crimes.
All crimes are either arrestable or unarrestable offenses.
Arrestable - indictable offenses that are punished by a term of incarceration. Ex: manslaughter, murder, rape, burglary, assault.
Unarrestable - generally tried in magistrates courts. Ex: drunk and disorderly conduct, loitering, most traffic offenses.
Criminal Justice System:
Lord Chancellor: Appointed by Prime Minister. Appoints all judges and supervises the court system in England. Keeping order is a shared responsibility between national and local government. The police and prison system fall under the Home Secretary, who sets standards and provides most of the funding for the police. Local governments retain the right to hire law enforcement and do financially contribute to maintaining the local office. CJ system is highly affected by decisions made in Parliament. Each year Parliament enacts laws defining more offenses and laws that make changes to the system of justice. Ex: Criminal Justice and Police Act changed how police were trained.
England vs. USA
Common language.
Similar in governmental and cultural traditions.
Both encourage local administration and funding.
Parallel crime rates - except U.S. violent crime rate is much higher (guns).
Both use get tough on crime policies.
France
Overview:
The French Republic is divided into 22 administrative regions. Further divided into 96 provinces with one prefect managing each province.
Strong Economy - fertile farmland and highly developed industrial sector. Major producer of steel, chemicals, and nuclear energy.
Unitary State: highly centralized form of government.
Written Constitution.
Two house legislature - National Assembly (lower chamber) and Senate (upper chamber). Is popularly elected.
President is also popularly elected.
Historical Development:
Declaration of the Rights of Man and of the Citizen (1789):
Defining moment in revolutionary period. Asserted right to resist oppression, rights of liberty and equality, separation of powers, and the right to presumption of innocence and to freedom from arbitrary detention.
Crime / Criminal Law:
Directory of Justice Statistics showed slight decrease in crime since1990’s.
French National Monitoring Centre on Crime show crime increase. Crime Issues: drugs, immigration, terrorism, and human trafficking.
Declaration of the Rights of Man and of the Citizen.
Penal Code - Divided into 5 books:
Book 1- general provisions, criminal liability, lengths of sentences, kinds of punishment.
Book 2 - describes crimes (felonies and delits) against persons, including human rights.
Book 3 - describes crimes (felonies and delits) against property.
Book 4 - describes crimes (felonies and delits) against nation, government, and public order.
Book 5 - other crimes (felonies and delits) not found in preceding books.
New Law (1999): Completed and attempted crimes, alternative to incarceration, new crimes – genocide, terrorism, sexual harassment.
Criminal Justice System:
The Constitutional Counsel Court - Reviews legislation proposed by the legislature, Prime Minister, or President and determines constitutionality.
The Council of State - Supreme administrative court and leading advocate of citizen’s rights.
Supreme Court of Appeals - highest court with lower ordinary courts under it that deal with civil and criminal law cases.
Police: Police Nationale and Gendamerie. Correctional Services - Under control of Ministry of Justice
France vs. USA
Both developed after a revolution.
Republican in style.
Written constitution.
France has centralized form of government.
Both use get tough on crime policies.
Germany
Overview:
Country is divided into 16 states (Lander).
Federal Republic - power distributed between federal government and states. Government - Executive, Legislative and Judicial Branches.
Bicameral Legislature: lower house and principle chamber is the Bundestag; and the upper chamber is the Bundesrat.
Historical Development:
German Civil Code.
The Basic Law - 146 articles describes system of law, checks, and balances.
Crime / Criminal Law:
Criminal Federal Police - collect crime statistics.
Crime Issues - drugs, immigration, ethnic violence. Violent Crimes have risen.
German law is a combination of ordinances, statutes, and administrative rules.
Bundegesetz - federal statues.
Landegesetz - State laws (Lander).
Criminal code distinguishes between felonies (Schwerverechen) and misdemeanors (Vergehen).
Germany vs. USA
Federal republic - distributes powers between state and federal governments.
Germany has a Civil Law tradition.
The Basic Law in Germany performs like the Constitution in the U.S.
Crime rates have dropped - hate crimes have risen in Germany.
China
Overview:
Most populous nation and one of the world’s oldest civilizations. Unitary, multinational, socialist country.
National People’s Congress (NPC): Theoretically the most powerful governmental entity, meets annually to review and approve the budget and major new policy directions, laws, and personnel changes. In reality, all levels of the Chinese government are subordinate to the Chinese Communist Party.
Chinese Communist Party (CCP): Sets all policy, law, etc., in China and the real role of the NPC is to implement the CCP policy.
Historical Development:
Confucian Philosophy:
Confucius (551-479 BCE). Believed that social order can be achieved through moral and political reforms and that humans are by nature good or capable of goodness. What is essential is that people treat one another with kindness and propriety. When people act contrary to this ethos, they bring shame on themselves, their family, and friends. This idea of the group consciousness or collective good, is the main force that motivates people to avoid illegal or immoral actions. So, written laws and formal social control may be important, but not nearly so much as strong, personal, moral virtue.
Taoist Philosophy:
Proposed that all forces of nature are connected and that it is necessary for individuals to become one with these forces. If a person is in a state of harmony or oneness with nature, then conflicts will cease to exists. Together Confucian and Taoist philosophy have permeated Chinese culture. This has the goal of: Getting citizens to be in harmony and agreement with those around them and with the rules of society, individualism is absorbed into the greater good and communal good. The best way to enforce this is through social persuasion and informal social control. Including: Family, neighbors, fellow workers, local town, city, or countrywide boards that point out deviant behaviors and provide sanctions. The Chinese have traditionally distrusted formal laws.
Crime / Criminal Law:
Criminal Law - Amended in 1997:
452 Articles (old law had192).
Generally, has articles defining the following offenses:
1. Counter revolutionary offenses
2. Offenses endangering public security
3. Offenses against socialist economic order
4. Offenses infringing on the personal and economic rights of citizens
5. Offenses of encroachment of property
6. Offenses against public order
7. Offenses against marriage and the family
8. Dereliction of duty and corruption
The amended laws still neglect to include provisions for some basic human rights enjoyed by citizens of many other countries like Freedom of Speech and Freedom of Association. Even with this new emphasis of the rule of law in China, the Communist Party remains the major decision-making body in the country. The government is still unrestrained by the rule of law.
Four Components of CJ system:
Police - Ministry of Public Security.
Procuratorate - Under Supreme People’s Procurator.
Courts - Two tiered: Peoples Courts and Special People’s Courts. Supreme People’s Court of China is the highest court: deals with both systems of courts and issues of national attention. China also has an informal system of justice: social control mechanisms via Confucius/Taoist principles.
Corrections - Ministry of Justice.
China vs. USA
Unitary Socialist Government - China.
All forms of government are subordinate to the Chinese Communist Party - China.
System of informal social control - China.
Crime has risen in China but keep in mind China does not record a number of common crimes.
Strike hard campaigns similar to get tough policies in U.S.
Japan
Overview / Historical Development:
Japan is an archipelago of almost 7,000 islands where people have lived since 30,000 BCE. Divided into 47 administrative divisions called prefectures. 99% of population are native Japanese - homogenous.
American Influence due to World War II.
New constitution - 3 branches of government:
Legislative government - bicameral (the Diet) with House of Representative and House of Councilors.
Executive Branch - Prime Minister, a cabinet (appointed by Prime Minister), and a hereditary emperor.
Judicial Branch - headed by Supreme Court appointed by the Cabinet.
Japan is a Unitary State, so no federalism or shared power with the states; Federal is the central power. Constitutional monarchy.
Crime / Criminal Law:
Crime Rates are very low.
Crime Issues: Youth crime, Organized Crime, theft.
Organized Crime - “Boryokudan” is the main reason for crime increases in recent years.
Many cultural reasons for low crime rate (i.e. honor/shame system).
Japanese Criminal Code:
1. Penal code: Defines crimes and punishments. Divided into 2 books: First deals with general provisions such as criminal intent, age of responsibility, and types of sanctions. Second lists the major crimes and the elements of those crimes. Makes no formal distinction between felonies and misdemeanors. Crimes divided into 3 categories: Crimes against the state – bribery and crimes against the imperial family. Crimes against individuals – homicide, assault, rape, kidnapping, theft, fraud, robbery, and embezzlement. Crimes against society – indecent behavior in public, arson, and gambling.
2. Code of criminal procedure
3. Prison law
Criminal Justice System:
Hybrid Criminal Justice System.
Police:
National Police Safety Commission - administrative arm, makes national policy decisions and administers all police affairs including education, communications, and statistics.
National Police Agency - runs the day-to-day through the prefectural of police.
Courts:
Hierarchical in nature.
Supreme court - highest appellate level court. Emphasize use of mediation, compromise, and consensus in resolving disputes.
Japan vs. USA
Prime Minister is much like the President in U.S.
Japan has a Unitary government.
Written Constitution.
Hierarchical court system.
Extensive criminal procedure laws.
Japan also borrows traditions from Civil Law countries.
Japan has a very low crime rate compared to U.S.
Both use get tough policies.
Saudi Arabia
Overview / Historical Development:
Economy based primarily on Oil.
Welfare State: Government plays a key role in the protection and promotion of the economic and social well-being of its citizens.
Made up of 13 provinces called mintagah – “run” by governors who in practice report to the King. The King is the chief of state and head of government and rules with the “help” of a 25 member Council of Ministers, all appointed by the King.
Non-constitutional monarchy.
The Saudi’s considered the Qur’an to be their form of constitution.
Not a democracy - no system of election.
Crime, Criminal Law and the CJ System:
Crime underreported because of use of informal and non-legalistic responses to crime. Can say with great confidence that crime is Saudi Arabia is very low when compared to other modern countries or even other Islamic countries.
Crime Issues: terrorism and human trafficking.
No penal code or criminal procedure – almost no laws relying instead on Shari ’a “law” from the Quran. Islamic Law as laid out in the Shari ’a is the basis for all criminal justice functions.
System is administered through religious courts whose judges are appointed by the King (Imams).
Police are highly centralized.
Saudi Arabia vs. USA
Emphasizes Sacred Law Tradition.
No clear difference between religious influence and governmental decision making.
Non-constitutional monarchy.
King is highest court of appeal.
Police highly centralized.
Has few written laws.
Like U.S. has been affected by terrorism.
Very low crime rate compared to U.S.
