Exam 2 Flashcards
What is a legal system?
attitudes, values, and norms regarding the nature and role of law
What is a legal tradition?
the values and norms that underlie a legal system
How can legal systems be classified?
common, civil, socialist, islamic
What is the most dominant legal tradition in the world today?
civil law
How does Wigmore’s legal system classification look like?
grouped into 16 systems
What are features of the Egyptian legal system?
1) source of law and justice was divine
2) codes to direct citizen behavior
3) judicial system to handle disputes
What is the source of law of the Egyptian legal system?
divine (the pharoah rules with divine authority coming from the Sun God Osiris through his son Horus)
What are the characteristics of the Mesopotamian (Hammurabi) legal System?
1) contained the Code of Hammurabi
2) “an eye for an eye, a tooth for a tooth”
Why is the Code of Hammurabi relevant?
first written code, written crime and punishment
What makes the Chinese system different?
moral force and the rule of reason, rather than the adherence to the strict legal rules
What are characteristics of the Hebrew legal system?
- started with Moses recording the first 5 books of the bible (Torah/Ancient Law) on two tablets of stone
- the Hebrew Bible (includes Torah) and the Talmud (guide to civil and religious laws)
What is the source of law in the civil law tradition?
written code
What are the key aspects of the development of civil law?
1) Roman Law: The Law of 12 Tables and Corpus Juris Civilis
2) Canon Law: law of the catholic church
3) codification
Why is the Law of Twelve Tables important?
1) public persecution of crimes
2) system for an injured party to seek compensation
3) law must be written
What is Corpus Juris Civilis?
1) laws pertaining to family, property, torts, and contracts
2) referring to the law itself rather than its precedents
3) forbade legal commentaries
What is Canon Law?
law of the Catholic church
What are papal letters?
publication or announcement issued directly by the Pope or by an official delegated by him.
Why is codification important?
allows laws to be gathered together in groups which can be bound in a law book
What is the source of law in the common law legal tradition?
customs
What are the 3 key subtraditions of common law?
1) feudal practices - royal courts
2) custom
3) equality
What was the role of royal courts and how did judges in those courts make legal decisions?
judges in conventional cases based their decisions on a combination of common sense and local norms and laws
Why is the Constitutions of Clarendon important?
- listed customs in practice
- judges at royal courts expected to follow legal custom
What is precedent, or stare decisis?
custom identified by reliance on people and through reference to several cases
Why did the equity courts develop and which official from the king’s court was in charge?
over time judges saw themselves as bound by the common law rather than the desires of the king. The chancellor was in charge
Does the dual court system still exist in England and Wales?
no
What is the source of law in the socialist legal tradition?
principles of the socialist revolution
What is socialism and what are its key characteristics?
1) Socialism: characterized by the absence of classes and by common ownership of the means of production and livelihood
2) Russian Lw
3) Marxism-Leninism
What is the interplay between customary and codified law in Russian legal history?
the law should reflect the will of the monarch, but customary laws applied to cases in which the monarch has no interest
What are the consequences of Marxism-Leninism on the legal system?
1) new laws not enacted for 5 years
2) law is subordinate to policy developed
Is the requirement of specificity satisfied for common law?
Yes, the expectation was that everyone knew the custom
What is the traditional classification of common-law offenses?
felonies, misdemeanors, and treason
How would the actual cases be classified based on the modern classification?
arrestable or non-arrestable
Why is Scotland specific?
- relies on justice and judge-made laws
- Scottish High Court has the right to create new crimes
How does substantive criminal law look like in civil law traditions?
- codification in the form of the penal code
- the code contains general provisions and a systematic list of crimes and punishments
How do the French classify offenses?
1) crime (serious felonies)
2) delit (less serious felonies/misdemeanors)
3) contravention (violations)
How do the Germans classify offenses?
1) verbrechen (felonies)
2) vergehen (misdemeanors)
How is the approach towards crimes in the socialist law systems different from the one used in civil law systems?
principle of codification used, but definitions ambiguous
What was the definition of crime under the Soviet regime?
“any socially dangerous act or omission which threatens the foundations of the Soviet structure”
What was the Chinese Code?
192 articles divided into 2 sections (general and special)
How could crimes be classified in the Islamic law countries?
1) hudad
2) quesas
3) ta’azir
What are hudad crimes and give an example
- crimes against god
ex: drinking alcohol in public
What are quesas crimes and how are they different from hudad crimes?
- private wrongdoings, crimes such as assault and murder
- prosecution is brought by victim or heirs, do not have specific punishment (settled privately)
What is diyya?
a compensation for a felony
What are ta’azir crimes and what is an example?
crimes prohibited by the Qur’an and Sunna that are not specifically subject to punishment, such as eating pork
Who is in charge of the prosecution of ta’azir crimes?
discretionary
How does the adjudicatory process in adversarial systems look like?
- free and open contest
- compared to a game in which both sides are trying to win and a neutral ref decides 2 things: whether they are playing by the rules, which side wins
What are some key characteristics of the adjudicatory process in adversarial systems?
1) free and open contest
2) typically trials not proceeded by any official investigation or prep of evidence
3) most advantages are on the side of the accused
4) oral and public trial (jury)
5) vast majority settled through guilty pleas -> no trial
What safeguards does the system have in place to prevent abuse of the adjudicatory process in adversarial systems?
1) cross-examinations of witnesses
2) power is not concentrated, but dispersed
How has the traditional adversarial process changed?
- creation of a professional police force and of a public prosecutor to investigate the commission of crimes, compile evidence, seek authority to prosecute, and actually conduct the criminal proceeding on behalf of the state
- move towards the inquisitorial system
What is specific about the inquisitorial process and is it the same as the Spanish Inquisition?
- through an “official inquiry” or a continuing investigation conducted by an active judge
- different than Spanish Inquisition
What are the basic stages in the inquisitorial process?
1) investigative phase
2) examining phase
3) trial
How has the traditional inquisitorial process changed?
- reforms in the investigative and examining phases
- defendant can be questioned during the examining phases and at the trial; cannot be sworn and may refuse to talk
- trial cannot be averted by a guilty plea
What is the impact of a confession in adversarial systems?
no more controversy and the case proceeds to sentencing
What is the impact of a confession in an inquisitorial system?
just another fact added to evidence
What are the specifics of the criminal procedure in the socialist countries?
- derived from criminal procedures in civil law countries
- pretrial process completely controlled by the prosecutor or the police
- judge’s role is active while attorney’s is passive
Does Islamic law predetermine the details of the criminal procedure?
no its up to the country and its legal system
What is judicial review?
checking the constitutionality of criminal rules and the actions by government agents
What is the Rechsstaat and what are the steps in achieving it?
rule of law
1) establish or recognize some fundamental values
2) write them down (constitution)
3) establish procedures that would challenge the constitutionality of the laws
What are the models in accomplishing judicial review?
concentrated, diffuse, and mixed
How is the concentrated model different from the diffuse model?
concentrated: issues of constitutionality addressed by a specific state agency
diffuse: control of constitutionality is assigned to the entire judiciary
What countries would be examples of diffuse and concentrated models?
diffuse: USA
concentrated: Germany
Which countries use the mixed model of judicial review?
Brazil
What are the problems in achieving judicial review in the Islamic and socialist countries?
Islam: there is no third step
socialist: the law is not viewed as an absolute value, rather it is subordinate to policy (rule of law is absent by design)
Define the police
UN: “public agencies whose principal functions are the prevention, detection, and investigation of crime, and the apprehension of alleged offenders”
Why do some countries have higher raters of police personnel per 100,000 than others?
-consequence of crime rates, level of economic development
What factors does Bayley use to classify countries based on their police?
1) centralization of forces
2) number of forces
Where would the Nigerian police fit under Bayley’s classification?
centralized single system
How is Nigerian police organized?
- led by Inspector General of Police w/ 6 assistants
- 12 zonal commands
- each zone includes 2-4 states
What are the tasks of Nigerian police?
maintaining law and order and protecting life and property through the federation
Where would the Japan police fit under Bayley’s classification?
decentralized single system
What is the organization of police in Japan?
1) National Public Safety Commission (supervises NPA)
2) National Police Agency
3) local police (perform actual police work)
What are koban and chuzaisho?
koban: urban areas
chuzaisho: rural areas
Where would the France police fit under Bayley’s classification?
centralized multiple coordinated
What is the organization of police in France and characteristics of each agency?
1) Police Nationale: operates in urban centers
2) Gendermerie Nationale: rural areas, national security
Where would the German police fit under Bayley’s classification?
decentralized multiple coordinated system
What is the organization of police in Germany?
1) state police
2) Schupo (municipal)
3) Kripo (plainclothes)
4) Bepo (officers in training)
5) Federal Border Police
6) Federal Criminal Police Office (investigations)
Where would the Spain police fit under Bayley’s classification?
centralized multiple uncoordinated system because of overlapping jurisdictions
What is the organization of police in Spain?
1) Guadria Civil (rural, highways)
2) Cuerpo Nacional de Policia (urban areas)
3) Policia Municipal (municipals can create own police)
Where would the Mexico police fit under Bayley’s classification?
decentralized multiple uncoordinated system
What is the organization of police in Mexico?
1) federal
2) state
3) municipal
Where would the USA police fit under Bayley’s classification?
decentralized multiple coordinated
What is confidence in the police and why is it important?
crucial for good police-community relations
What do results of the studies say about the level of police confidence across the world?
1) victims from countries in transition (CIT) less likely to report their victimization to the police than victims from established democracies (ED)
2) for victims from CIT, not reporting more likely to be driven by police-related reasons
3) victims from CIT were less satisfied with their reporting experience than victims from ED
Which legal tradition is most likely to yield high levels of confidence to the police?
civil law
What is police misconduct?
police officer who commits an act or omission of a violation of rules or codes of ethics
What are the forms of police cooperation?
- exchange of information
- joint operations
- training of police personnel in other countries
- participation in international conferences/seminars/meetings
- international publications
- cooperation in obtaining equipment
- international research projects
- mutual holiday visits
What is Interpol and what is its mission?
“to be the world’s preeminent police institution in support of organizations, authorities, and services whose mission is preventing, detecting, and suppressing crime”
What kinds of services does Interpol provide?
1) a unique global communication system
2) a range of criminal databases and analytical services
3) proactive support for police operations around the world
How is Interpol organized?
1) General Assembly
2) Executive Committee
3) General Secretariat
4) National Central Bureaus
What is Europol’s mission?
“to improve police cooperation between the EU member states to combat terrorism, illicit traffic in drugs, and other serious forms of international crime”
What kinds of services does Europol provide?
1) exchange info between member states
2) obtain, collate and analyze info and intelligence
3) notify the proper authorities of the member states without delay of info
How is Europol organized?
1) Management Board
2) Directorate
3) national units
What is the Schengen Convention and why is it important?
goal to provide unhindered travel among member states with assurance of strict identity controls at airports, sea ports, and land borders for travelers arriving from countries outside the EU
What is the Euro Warrant?
1) eases extradition process between EU countries
2) own nationals are no longer exempt from surrender to another country
USA compare police confidence
civil slightly below, common we are above slightly
What does it mean that the law in Russia is viewed as artificial?
-written law not part of Russian mentality -> law viewed as something arbitrarily done by an autocrat
Why is Islamic legal tradition different from the other 3 traditions?
Islam regulates all aspects of a person’s life
What is the source of law is Islam?
-divine
What are the primary components of Islamic law?
1) The Shari’a
2) Witnesses and Oaths
3) Extensions of Islamic Law (mazalim courts)
What are the primary sources of Islamic law?
1) The Shari’a
2) Allah’s revelations
3) the Qur’an
4) the Sunna
What are the secondary sources of Islamic law?
1) qiyas
2) ijma
Why are witnesses and oaths a key element in the Islamic legal systems?
1) The holy books specify the number of witnesses/oaths
2) plaintiff carries the burden of proof
3) party may challenge the other to take an oath
What are mazalim and why did they develop?
- non-Sharia courts
- developed as a way to resolve criminal and civil cases
How is flexibility provided in Islamic systems?
mazalim courts
What does the police integrity survey tell us about the extent of police integrity?
great variation, some regions more likely to be corrupt (Africa, Latin America, some of Europe)
What is the most frequent Interpol notice?
red
What are the 2 small Japan police boxes?
Koban and Chuzaisho
What is the legal tradition of Finland?
civil
Does Finland have a death penalty?
no
What is Finland’s police system?
single, centralized
What is Finland’s judicial review?
concentrated, has a Constitutional Committee
What is Brazil’s legal tradition?
civil
Does Brazil have a death penalty?
yes
What is Brazil’s police organization?
multiple, decentralized uncoordinated
What is Brazil’s judicial review?
mixed, Supremo Tribunal Federal + all courts
What is South Korea’s legal tradition?
civil, common, confucians
Does South Korea have a death penalty?
yes
What is South Korea’s police organization?
single, centralized
What is South Korea’s judicial review?
concentrated, has a constitutional court
What is South Africa’s legal tradition?
civil, common, traditional
What is South Africa’s police organization?
single, centralized
Does South Africa have a death penalty?
no
What is South Korea’s judicial review?
concentrated, has a constitutional court
Who plays the role of the accuser in Adversarial systems?
the state in a continuation of private investigation
Who plays the role of the accuser in Inquisitorial systems?
the state, in a substitution for private vengeance
How is truth determined in Adversarial systems?
free and open competition
How is truth determined in Inquisitorial systems?
through an official inquiry or continued investigation
Where does the power lie in Adversarial systems?
shared by prosecutor, judge, defense, jury
Where does the power lie in Inquisitorial systems/
concentrated in the judge
How active is the trial judge expected to be in Adversarial systems?
very passive
How active is the trial judge expected to be in Inquisitorial systems?
very active
What is the level of cooperation expected from the defendant in Adversarial systems?
none
What is the level of cooperation expected form the defendant in Inquisitorial systems?
expected but not required
Does the guilty plea prevent the trial in Adversarial systems?
yes
Does the guilty plea prevent the trial in Inquisitorial systems?
no
