Law, Justice, and Society:
A Sociolegal Introduction
Chapter 14
Comparative Law:
Law in Other Cultures
Comparative Law
Importance of Comparative Law
knowledge of legal systems other than our
own
 provides us with a new understanding
 and appreciation of our own
 and will better equip us to identify its
strengths and weaknesses

Comparative Law
Law in Preliterate Bands and Tribes
band: small groups of hunters and gatherers
 tribe: larger groups who augment hunting
and gathering with agriculture

Comparative Law
Law in Preliterate Bands and Tribes
(cont.)

what is crime?
–

must be written
–

a violation of a criminal statute
can preliterate people commit crimes?
homicide and theft
Comparative Law
Law in Preliterate Bands and Tribes
(cont.)
no formal agents of social control
 exposure to informal pressures to
conformity
 Inuits and self-redress

–
–
ultimate result of most extreme form of selfredress?
song duel
Comparative Law
Law in Preliterate Bands and Tribes
(cont.)

group response to offender
–

ostracism and banishment
tribal social control:
–
–
Hurons and fines paid by the clan
witchcraft and treason were crimes against
society; punishable by death
Comparative Law
Law in the Modern World: Four Traditions
civil law
 common law
 Islamic law
 socialist law

Comparative Law
Law in the Modern World: Four Traditions
(cont.)
Source: Adapted from percentages provided by Reichel (2005).
Comparative Law
Common Law





originated in England--Normal conquest, 1066
means of unifying England, increasing royal
power at the expense of feudal lords
fashioned from local customs
judge-made law
spread throughout world via colonization and war
Comparative Law
Common Law (cont.)
unwritten
 respects precedent
 adversarial
 uses grand and petit juries
 uses judicial review

Comparative Law
Civil Law





ancient Rome and nineteenth-century France and
Germany
Twelve Tables in 450 BCE
Code of Justinian, 533 CE
Napoleonic Code, 1804 CE
typically developed after a major social upheaval
as a result of distrust of previous status quo
Comparative Law
Civil Law (cont.)

French civil law
–
–

emphasizes communitarian values rather than
individualistic
crime control system, as opposed to due process
(American)
written
–
–
codes create the civil law rather than revealing existent laws
laws replace, rather than supplement, previous law
Comparative Law
Civil Law (cont.)

precedent is not officially recognized
–

not binding and considered a tool of last resort
inquisitorial rather than adversarial
–
–
–
–
truth-seeking investigation and interviews
led by judge; all parties (including accused) expected to cooperate
strong presumption of guilt if case goes to trial
presumption of innocence necessary in common law because
investigation is not as thorough
Comparative Law
Civil Law (cont.)
–
–

common law civil rights viewed as unnecessary
right to remain silent is a formality with little force
traditionally made little use of juries
–
–
–
used only for very serious crimes
juries consist of three judges and nine laypersons
jurors can question all other parties
Comparative Law
Civil Law (cont.)
–

penalty phase takes place soon after conviction
phase
judicial review is used sparingly
–
–
–
reflection of democracy
appeals can take place; however, authoritative
but not binding
can rule on points of law and fact
Comparative Law
Civil Law (cont.)

types of crime
–
–
–

crimes
delicts
contraventions
no bail
Comparative Law
Socialist Law




originated in 1917 with the Russian Revolution
and USSR
based on codified Marxist/Leninist ideology
it is the only system of law considering itself to
be a temporary anachronism devoted to its own
demise
emphasizes communal values over individual
rights; low-tolerance crime control
Comparative Law
Socialist Law (cont.)

Chinese socialist law
–


socialist law combined with aspects of Confucius
written; precedent is not recognized
inquisitorial and adversarial
–
–
–
mostly inquisitorial
emphasis on confessions, such that evidence is never presented
to defendants prior to trial
can defend themselves in court, hire lawyer or advocate
Comparative Law
Socialist Law (cont.)
–

advocates see that procedural law is observed and
lenient sentences received
quasi-jury system
–
–
–
–
collegial bench; one to three professional judges
and two to four lay people’s assessors
no right to remain silent
defendant can argue with other actors
very punitive
Comparative Law
Socialist Law (cont.)

death sentence
–
–


immediate
delayed
judicial review is severely limited
Supreme People’s Court
–
–
–
answerable to Standing Committee of Chinese Communist
Party
advisory opinions
does not hear cases from lower courts
Comparative Law
Socialist Law (cont.)

Higher People’s Court
–

Intermediate People’s Court
–
–

prefecture level
original jurisdiction
Basic People’s Court
–

analogous to U.S. state supreme court
U.S. district (felony) court
appeals from both prosecutor and defendant
Comparative Law
Islamic Law

written
–
–
–
Qur’anic precepts, interpretations, and commentary
constitution
Shari’a: path to follow
consists of Qur’an, commentary, and case laws
 Saudi Arabia

Comparative Law
Islamic Law (cont.)

four distinctions
–
–
–
–
based on direct revelation from God
attempts to regulate behavior and thought processes
does not require uniformity of law
taxonomy of crime and punishment
Comparative Law
Islamic Law (cont.)



hybrid inquisitorial/adversarial
precedent is absent
no use of juries
Comparative Law
Islamic Law (cont.)

crime and punishment
–
–
–


Hadd
Quesas
Ta’azir
those crimes with punishments delineated by
Qur’an are more serious than other crimes
higher standards of evidence for Hadd crimes
Comparative Law
Islamic Law (cont.)

court
–
–

no representation
oath swearing
judicial review is limited to certain cases
–
appeals apply only to sentences imposed by lower
courts
Comparative Law
The Rule of Law



recognition that there are fundamental principles and
values stressing human dignity and value
these values and principles are articulated and
formalized in writing and contained in revered
documents
substantive laws and administrative procedures are
implemented to hold the state and its agents to those
values and principles
Comparative Law
The Rule of Law (cont.)

France

Saudi Arabia

China
Comparative Law
Convergence of Systems




as world becomes more complex and interdependent,
cultures will converge
this results in systems of law coming into contact and
becoming more similar
this is resulting in recognition of the rule of law and
individual rights
examples:
–
–
International Court of Justice (World Court)
European Court of Human Rights
Comparative Law
Convergence of Systems (cont.)

does this apply to socialist and Islamic
systems?