CRIM 405 Week 2 Lecture Notes
CRIM 405 Week 2 Lecture Notes CRIM 405-002
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This 8 page Class Notes was uploaded by Cailyn Notetaker on Monday September 14, 2015. The Class Notes belongs to CRIM 405-002 at George Mason University taught by Andrew Novak in Fall 2015. Since its upload, it has received 29 views. For similar materials see Law and Justice Around the World in Criminology and Criminal Justice at George Mason University.
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Date Created: 09/14/15
CRIM 405 Week 2 Lecture Notes Common and Civil Law I Historical Origins 09142015 The Folklore Common Law Civil Law quotjudgemade quotcodebased judges and lawyers are most powerful actors problem solvers distinction doesn t exist between public and private law emphasis on oral proceedings abstract principles extrapolated from facts favors justice unjust laws changed by judges academic intellectual scholarly University professors are most powerful actors system builders public v private law emphasis on written proceedings abstract principles applied to facts favors certainty unjust laws amended by legislature THE REALITY All modern countries have constitutions legislative statues and regulations with judges lling in necessary gaps 0 Difference between common law and civil law is historical and cultural not always a description of the world as it is The Resurgence of the Later Roman Empire 0 Roman law begins in 450 BC with Twelve Tables jurisconsults Roman legal scholars emerge end of 3d century BC 0 First professional lawyers judges turn to them for advice 0 Opinions of jurisconsults form Roman law and remain intact after fall of Rome in 400 BC Byzantine Empire reviews Roman Law ideas 0 justinian uses huge amount of Roman law to publish most noteworthy code in history Corpus juris Civilis The Code of Emperorjustinian The Institutes 0 Introduction 0 Summary of roman law 0 The Code 0 Collection of Roman legislation 0 The Digest 0 Treatise compiled from best Roman scholars and jurists 0 Most in uential part of code 0 The Novels 0 Legislation enacted after code and digest completed After the Fall Byzantine Empire retreated from Western Europe 0 New legal in uences arose o CANON LAW dominated family law 0 LAW MERCHANT Roman law didn t deal with modern commercial relations Law of commercial dealing that arose with trade 0 CUSTOMARY LAW Local traditions survived and mixed with Roman law 0 Very slow travel spread of ideas no mass printing Local laws varied from town to town The Revival University of Bologna became principal legal center 1100 AD TookJustinian s code studied and carried law back to newly established European universities 0 These laws mixed with local traditions to form national laws 0 Roman law most in uential in Holy Empire served as default law The Intellectual Tradition oRoman law uni ed the western world 0 Split into national laws national churches national languages after 15th century 0 By 1600 Roman law dominated continental Europe but rise of quotnation statequot created distinct quotnationalquot legal systems 0 National legislatures con rmed modi ed changed Roman law as they saw it to create their own laws oDifferent schools of thought 0 Humansists France Focus on Roman law in its entirety 0 Natural law Netherlands Legal principles based in inherent nature of man Origin of international criminal law 0 Historicists Germany No universal law law is a cultural characteristic of a community The Napoleonic Code of 1804 0 Development of national legal systems led to attempts to codify these new national laws 0 Two most in uential in the civil law world French Civil Code German Civil Code 0 French Civil Code rst modern code Similar to Justinian s Code but created new substantive law 0 State emphasized protection of private property enforce freedom of contract and promoted patriarchal family 0 Designed to be simple clear easy to read by the common person The German Civil Code of 1896 0 Complete opposite of French Code Drafted over 20 years Accompanied uni cation attempting to adapt Roman law to contemporary conditions Emphasized science of law Most precise code of its time logically closed system full of cross references 0 Very detailed articulates almost any given problem Drafted later than the French Code re ects changing European values General Characteristics of Civil Law Systems oDistinguish between public law and private law 0 Public law governs relationship between citizen and the state o Private law governs the relationship among citizens o Distinction is criticized and becoming less important o Comprehensive codes do not codify public law because it developed later Civil law systems have more than one court system usually divided between public and private law o Common law countries tend to have uni ed court system Origins of English Common Law oWith fall of Roman Empire tribal law triumphed in Britain including AngloSaxon traditions and customs Necessity not design developed common law Messy fragmented based on convenience rather than logic Judges traveled around resolving disputes using local customs and common sensethese rules repeated again and again and crystallized and became law Characteristics of English Common Law oBritain had rst centralized court system Kings power encroaches on those of the barons and local feudal lords o BaronsFeudal lords rebelled against King Magna Carta of 1215demise of local rural courts and the rise of single centralized court system Stare decisis Judges in UK bound by decisions of higher courts 0 Case law forms precedent Fragmented court system separate courts for law damages equity unjust people admiralty controlled the seas and ecclesiastical courts family law 0 Eventually merged into a single court system English Common Law Worldwide Messy with a matrix of cases and statutes oCharacterized by overwhelming exibility to adapt to local conditions which make it durable 0 Flexible nature of British empire made welcome of common law easy in various locations worldwide The American Legal System FEDERALISM State and federal govt are separate but overlapping 0 States have plenary power states come rst unless US constitution says otherwise 0 Federal system 94 district courtsgt13 appeals courtsgt1 supreme court States vary 0 Ex Virginia court system is old DC is new court system Virginia s system arose organically DC s was planned much simpler The United Kingdom 0 Highest court for England wale and Northern Ireland Supreme Court of The UK 0 Established in 2005 went into operation in 2009 0 Prior to 2005 highest court in UK was House of Lords o 12 members UKJudges appointed byJudicial Appointments Commission based on merit oDifferent from US 0 More formal o Not fused UK Ireland South Africa Hong Kong 2 states on Australia Barristers can argue in court Solicitors represent clients Parliament House of Commons o Single member districts firstpastthepost elections at least every 5 years o Prime Minister represents largest party in Commons cabinet composed of Members of Parliament selected by Prime Minister 0 Major legislation originate in Commons House of Lords 0 Role reduced in recent years o Traditionally hereditary few seats pass at death o Lords only have ability to delay bills no veto o Three types of lords Spiritual 25 Temporal 100 hereditary 600 lifetime Law Lords 25 0 Major reforms in 1999 with House of Lords Act controversial and expecting more reforms The Law Lords Used to be the highest court in House of Lords until 2009 0 Not formal judicial body each Lord gives separate speeches instead ofjudicial opinions Staffjudicial Committee of the Privy council 0 Highest court of the British Empire 0 Still highest court for British overseas dependencies and former colonies that chose to save it as an appellate court O Staffed by Law Lords and seniorjudges drawn from around Commonwealth The UK Court System SUPREME COURT COURT OF APPEALS o Hears appeals from Crown Courts in criminal cases or High Court in civil cases o 40 judges 0 Decisions made by panels of three judges CROWN COURTS oTria court for higher level criminal cases 0 Single judge HIGH COURT oTria court for civil cases o Queen s Bench Division hears disputes 0 Separate divisions for family law etc MAGISTRATE S COURTS o Lower level criminal court summary offenses traffic offenses Appeals to Crown Court COUNTY COURTS 0 Equivalent of small claims court Devolution and Eurooean Integration DEVOLUTION o Centralization of GB reversed with Ireland s independence Decentralization of power from National Parliament to regional parliaments of Wales Northern Ireland Scotland and Greater London Scotland and Northern Ireland powerful control of internal affairs Incudes criminal justice law enforcement and corrections EUROPEAN INTEGRATION o European Court ofJustice UK has to comply with complete European Union Law European Court of Human Rights UK Citizens can le complaints under European Convention on Human Rights European law incorporated into English law 0 O O O Exporting the Common Law India British took advantage of internal divisions in India to take over entire subcontinent India bene ted from law reform during early Victorian era when Bloody Code replaced by more humane penal code Written constitution of 1949 longest in world Bicameral Legislator o Lok Sabha directlyelected lower house 0 Rajya Sabha indirectlyelected upper house Strong prime minister and weak president Court system o Supreme Court o 24 High Courts o 600 District Courts District courts have original jurisdiction over serious crimes o Appeal to High and Supreme Courts Lesser crimes begin in magistrates courts o Appeal to district courts Federal system power shared between Union govt and 29 states and 7 union territories
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