CHAPTER 1
JUSTICE SYSTEMS IN
SELECTED COUNTRIES
Copyright © 2015 Sesha Kethineni. All rights
reserved.
Philip L.
Reichel
FOUR LEGAL TRADITIONS
 Common
 Developed in England
 Custom provides the primary source of law. Determining whether
something was “customary” was historically left to members of the
community
 Stare decisis: principle of precedent
 Civil




Oldest and most widespread of traditions
Originated in the codes of Roman Law (e.g., the corpus juris civilis)
Laws are a result of written codes provided by a political authority
Courts enforce the law rather than interpret or make new laws
Copyright © 2015 Sesha Kethineni. All rights reserved.
FOUR LEGAL TRADITIONS
 Islamic
 Sacred not secular; completely reliant on religion
 Shari’a
 Qur’an (Islam’s holy book) & Sunna (the statements and deeds of
Muhammad)
 Some Muslims use a strict interpretation on how to apply Allah’s law,
and believe every rule of law must be derived from the Qur’an or the
Sunna
 Mixed
 Incorporate elements from several traditions
 Typically includes basic elements of two traditions
 Each predominates separate fields (private & criminal)
Copyright © 2015 Sesha Kethineni. All rights reserved.
SUBSTANTIVE & PROCEDURAL
CRIMINAL LAW
 Substantive
 What the laws are
 Penal/Criminal code
 Procedural
 How laws are enforced
 Used to determine guilt
 Adversarial Process
 Prosecution and defense act as opponents
 Truth and justice will unfold from a free and open competition
 Inquisitorial Process
 Investigation by the government with a common goal of truth and justice through
corroboration
 Mixed Process
Copyright © 2015 Sesha Kethineni. All rights reserved.
JUSTICE SYSTEMS IN COMMON-LAW
COUNTRIES
 England & Wales
 Home of the common law legal system
 Law has been derived from statutes, case law, and constitutional
conventions
 Significant constitutional reforms since 1997
 Substantive Law: Insanity
 13th century: “wild beast test”
 1843: M’Naghten Rules for sanity
 Standard of diminished responsibility in cases of murder
 Procedural Law: Adjudication
 Follow the adversarial model of adjudication
 Do not follow the practice of voir dire in juror selection
Copyright © 2015 Sesha Kethineni. All rights reserved.
JUSTICE SYSTEMS IN COMMON-LAW
COUNTRIES
 India
 Retains the common law tradition established during British
colonialization
 Indian Penal Code provides substantive law
 Code of Criminal Procedure (1861) and the Indian Evidence Act
(1872) form procedural law
 Substantive Law: Insanity
 Recognizes insanity as a valid defense
 Dictates that “unsoundness of mind” rather than “insane ”
 1959 case Lakshmi v. State: Not every type of “unsoundness of mind”
 Procedural Law: Adjudication
 Mixed adjudication process
 Jury trials are no longer utilized
 Many minor issues in rural areas are handled by panchayats (village
courts)
Copyright © 2015 Sesha Kethineni. All rights reserved.
JUSTICE SYSTEMS IN CIVIL-LAW COUNTRIES
 France
 Home to the civil law
 Divides various laws into public and private law
 Two primary documents of substantive law are the Code of Criminal
Procedure and the Penal Code.
 Substantive Law: Insanity
 Individuals are rational decision makers
 Criminal act (actus reus) & intent (mens rea)
 Without this intent, insanity could be argued
 Insanity: a psychological or neurological impairment that destroys the offender’s discernment
or their ability to control actions.
 Procedural Law: Adjudication
 Relies heavily upon the inquisitorial process
 The king’s prosecutor is a part to the suit in every criminal case
 Two magistrates also used during the investigation and the trial.
Copyright © 2015 Sesha Kethineni. All rights reserved.
JUSTICE SYSTEMS IN CIVIL-LAW COUNTRIES
 Germany
 Development of the civil legal code shaped by the German Civil Code
and the French Napoleonic Code
 Substantive law remained relatively stable for 100 years
 Major changes beginning in 1969 (e.g., the Criminal Law Reform
Acts)
 Emphasized the restructuring of sanctions to make them more conducive
to rehabilitation.
 Substantive Law: Insanity
 Stipulates that only intentional conduct is punishable
 Persons with “diminished capacity” excused from criminal prosecution
 Procedural Law: Adjudication
 Inquisitorial process
 German citizens serve as lay judges rather than jurors
Copyright © 2015 Sesha Kethineni. All rights reserved.
JUSTICE SYSTEMS IN AN ISLAMIC
LAW COUNTRY
 Saudi Arabia




One of few countries that follow the Islamic legal tradition
No penal code, nor a code of criminal procedure
The Qur’an and Sunna provide the basic standards of adjudication
Substantive Law: Insanity
 Two aspects of criminal intent: general criminal intent and specific
criminal intent
 Possible to commit an act with general intent, but without specific intent
 Under Islamic law, criminal capacity increases with age
 Procedural Law: Adjudication
 The Shari’a does not specify procedures of adjudication
 Developed at the discretion of the state
 Both adversarial and inquisitorial procedures
 Single judge in deciding official court matters
Copyright © 2015 Sesha Kethineni. All rights reserved.
JUSTICE SYSTEMS IN A MIXED-LAW
COUNTRY
 People’s Republic of China
 Prime example of the mixed legal tradition
 Comprehensive codes of substantive and procedural laws generated
in 1979
 Reflect the influence of the USSR
 Substantive Law: Insanity
 Recognizes the need for both act and intent
 Law lists persons who are still considered to have mens rea (e.g.,
intoxicated persons, deaf-mute or blind persons)
 Considered with persons who are “mental patients”
 Procedural Law: Adjudication
 More inquisitorial than adversarial
 Trial a continuation of the investigation, which is begun by the prosecutor
before the trial
 Adjudicators consist of a collegial panel of judges and people’s assessors
Copyright © 2015 Sesha Kethineni. All rights reserved.
The full set of PowerPoint slides is
available upon adoption.
Email bhall@cap-press.com
for more information.