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Week 5 Lecture Notes

by: Cailyn Notetaker

Week 5 Lecture Notes CRIM 405-002

Cailyn Notetaker
Law and Justice Around the World
Andrew Novak

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European Law and Hybrid, Socialist, and Customary Legal Traditions
Law and Justice Around the World
Andrew Novak
Class Notes
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This 12 page Class Notes was uploaded by Cailyn Notetaker on Monday October 5, 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 14 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: 10/05/15
CRIM 405 Week 5 10052015 The Rest European Law and Hybrid Socialist and Customary Legal Traditions Tobics Covered European Legal Tradition Socialist Tradition Legal System of China Hybrid Legal Tradition Legal System ofJapan CustomaryTraditional Criminal Justice Workshop on CustomaryTraditional Law The European Legal Tradition oSupranational legal norms and institutions in Europe have gained power in the last 50 years oAffects legal traditions institutions actors methods and foundations of member legal systems Two most farreaching oThe European Union Originated in 1952 from European Coal and Steel Community between Benelux countries France West Germany and Italy Promotes legal integration through treaties in immigration policy labor policy monetary policy science and technology policy etc oThe European Human Rights System Much larger organization deal sin more limited body of law only human rights democracy and rule of law issues Council of Europe created European Convention on Human Rights set up world s rst multinational human rights court 0 Components of the European Union 0 Council of Ministers Responsible for major policy decisions of EU Consists of one representative rom each state EU s principal lawmaking body makes decisions by majority 0 European Commission Drafts and presents legislative proposals for Council to adopt Guardian of EU treaties Must be independent of governments Divided into 36 departments supported by large civil service in Brussels and Luxembourg Controls most budgetary matters 27 commissioners answerable only to European Parliament 0 European Parliament Parliament is directly elected by universal suffrage from the population of the entire EU Sessions in Strasbourg committees meet in Brussels secretariat based in Luxembourg 0 European Court ofJustice Guarantees proper interpretation and application of EU treaties and other legal instruments Composed of 27 judges Hears appeals from European Court of First Instance relieving caseload of ECj Hears appeals in businesses that are ned for dumping or anticompetitive activity and lots of other areas o Treaty Regime o Four fundamental freedoms free movement of goods workers services and capital must be exercised on basis of equality without discrimination by nationality o Maastricht Treaty 1993 lntegrated European and Coal Community European Atomic Energy Agency and European Economic community into a single European Union Provided authoiry for establishment of common currency common citizenship common foreign policy o Treaty of Amsterdam 1997 and Treaty of Nice 2003 Reformed EU to allow enlargement 10 countries joined in 2004 and 2 more in 2007 o Treaty of Lisbon 2009 EU Charter of Fundamental Rights now legally binding Similar to European Convention on Human Rights EC will now also hear human rights cases Supremacy of EU law in member states o European integration requires that EU member states recognize EU law and supreme over domestic laws o Many laws passed by EU have direct effect in member states laws of member states are automatically changed by changes to EU law EU transformed from legal order based in public international law to one of constitutional law Not all law is directly effective only important laws are o Supremacy of EU law is achieved by ECJ s judicial review o Domestic court is bound by EC interpretation o Not all countries have passively accepted direct application of EU law 0 EU and Convergence O O O O O O O 0 Heavy civil law in uence Only 427 members are common law Binding nature of EC decisions are more reminiscent of English common law EU law con icts with traditional civil law codes in labor banking insurance and consumer law Heavy modi cation of domestic private law Emphasis on establishing a business rights of workers social security freedom of movement insurance all blur traditional distinction between public and private law in traditional civil law theory Will there be a Europeanwide prosecution service in coming years Council of Eurooe Created after WW2 to promote European unity Statute of the Council of Europe 1949 Emphasis on human rights and democratic governance Have the task of drafting the European Convention on Human Rights Eur0pean Convention on Human Rights First supranational human rights system in the world for protection of human rights Gives individuals state right to petition for human rights violations First effective judicial review mechanism for many civil law countnes Protects classic civil and political rights life liberty freedom from torture and slavery thoughtconscience expression assembly marry privatefamily life movementtravel etc Multiple protocols 1st protocol 1952 right to education 4th 1963 Abolition of debtors prison and freedom movement 6th 1983 abolition of capital punishment 7th 1984 protection of due process rights of immigrants right to appeal in criminal cases right to compensation for miscarriage ofjustice ban on double jeopardy and equality for spouses European Court of Human Righs 0 Established in 1998 Previously Convention s norms enforced by the European Commission on Human Rights and a part time court These merged into a fulltime permanent court by Protocol 11 to ECHR 0 Total of 47 judges not necessarily one from each member state Committees 3 judges I Decided whether a case is admissible Chambers 7 judges a First level to decide a case Grand Chamber 17 judges n Serves as appellate court for decision from Chambers n judgments is nal and binding in international law 0 Margin of Appreciation Doctrine Degree of discretion that Court accords to national authorities before it nds violations to have occurred Gay rights broad margin This means greater latitude to states Eur0pean Social Charter 0 Expanded human rights regime to economic and social rights 0 Enforced by European Committee of Social Rights who receive reports from all member states twice yearly Committee of Experts forwards conclusions about whether a country is in compliance with the ESC to a special committee composed of member reps whch can pass resolutions making recommendations to member states Protocol 1998 Allows certain NGOs to lodge complaints directly with the committee This is a naming and shaming mechanism in contrast to the binding court decisions of the ECHR The Socialist World and the Legal System of China 0 Characteristics of Socialist Law 0 Historically grounded in Romanbased civil law but with modi cations lncreased public law sphere with more limited private law sphere Extensive public and social welfare often in exchange for political support of alliances lnquisitorial criminal procedure but usually with a more powerful role for the procurator Preference for collective over individual 0 Chinese legal tradition o Confucian heritage emphasis on social status proper education moral virtue government by example 0 Communism and Chinese legal tradition easily dovetailed both have emphasis on militarism focus on masses unity respect for authority etc 0 Chinese Legal System 0 19491979 China operated a Sovietstyle criminal justice 0 0 system with overall control in hands of Communist Party formal codes of law rejected in favor of edicts passed by ruling party with the goal of destruction of economic class and creation of social order based on rule of the people Cultural Revolution tried to bring China to purer form of communism by abolishing police and legal class causes economic and political disruption instead 1979 First modern codes of criminal law and procedure passed treat political and nonpolitical offenses differently 1997 reforms to depoliticize legal and corrections system and reduce amount of discretion for govt officials still neglects some basic human rights provisions China perceives itself as a success story 0 Chinese Political System 0 0 Fourth Constitution 1982 doesn t limit reach of govt power but authorizes deep involvement of the state in citizens lives Only one recognized political party Chinese Communist Party CCP Struggles with official transparency and corruption o Lawmaking branches National People s Congress Parttime supreme lawmaking authority a All initiatives must be preendorsed by CCP s central committee Standing Committee of NPC Fulltime lawmaking body composed of select members of NPC State Council Cabinet of China headed by the premier The Premier holds executive power like a prime minister n Enormous number of ministries re ecting involvement of state Presidency Head of state with limited powers 0 Court system People s TribunasgtgtBasic People s CourtsgtgtHigher People s Courtsgtgt Supreme People s Court People s Tribunals and Basic People s Courts I Hear oweve disputes n Emphasis on medication and involvement of general populace in decision making a Socialism emphasizes the role of the common man not the legal elite Intermediate People s Courts a General jurisdiction where serious criminal civil and economic cases go Higher People s Courts n Handle criminal civil and economic matters that affect the whole province as well as criminal cases transferred from Intermediate People s Courts and cases protested by the procurator a Basic intermediate and higher courts can use 24 lay assessors in addition to a professional judge a Judges are often poorly educated Supreme People s Courts n Deals with matters of national importance I Usually appeals from Higher People s Courts n Provides examinations and advice and interprets law a Legal training is regulated by Minister ofJustice with a lot of new law schools a Legal profession is controlled by CCP The Hvbrid World and the Legal System of lapan 0 Hybrid legal system with deep roots in more than one legal tradition 0 Legal systems that were colonized by both a common law and civil law country and have characteristics of both Louisiana Quebec Puerto Rico 0 Japan modeled after European civil law but in uenced by common law after American occupation o Americanin uenced constitution mandated three branches of govt Diet bicameral legislature a House of Representatives a House of Councilors Executive Branch n Prime Minister and cabinet a Head of state is emperor hereditary monarch Supreme Court on American model 0 Japanese Legal system 0 Supreme Court rarely strikes down laws 0 Criminal Cases Summary courts limited lowlevel jurisdiction 438 Distric courts civilcriminal jurisdiction with family juvenile divisions 50 n One judge presides over most but important criminal cases are heard by panel of 3 judges High courts intermediate appeal 8 n Typically threejudge panels but may be ve judges n Decisions are written and by majority Supreme court court of nal appeal I Has not developed into signi cant political force as in USA 0 judges have a bureaucratic career japan has very few lawyers Nonlawyers can perform some legal functions but japan is also much less litigious 0 Less litigious ldeals of harmony and conciliation are strong in japan Emphasis on mediation Legal profession very closed bar passage rate is very low Emphasis on shame and stigma 95 of defendants plead guilty prison reserved for the worst of the worst a Lowest rate of incarceration in the industrialized world 0 Adversarial system with a powerful procurator Procurator investigates and collects evidence and provides info to the judge to assist in sentencing Procurator able to suspend and cancel prosecutions even when he or she can prove that the offender committed a crime 0 Saibanin Use of lay assessors for serious cases where there is a considerable public interest A type of mixed jury system Lay assessors selected from pool of candidates and asked to serve for one year panels with 46 lay assessors and 13 professional judges Other Hybrids Scotland 0 Legal system never merged with that of the United Kingdom after Act of Union in 1701 o Remains uncodi ed Roman law but in uenced by English common law and European law 0 Some differences Age of majority 16 in Scotland 18 in UK Juries 15 members in Scotland 12 in UK Three verdicts guilty not guilty not proven 0 College ofjustice is highest court with judges called Senators of the College Court of Session civil cases High Court ofjusticiary criminal cases Court Accountant probate law 0 The public prosecutor is called a procurator scal but this is an adversarial system 0 South Africa 0 Seized by British in 1803 when Napoleon overran the Netherlands never received Dutch civil code 0 Court structure is English common law but substance of law is based on uncodi ed RomanDutch law Property law is Dutch 18th century law but criminal law based on modern English penal code As in civil law system writings of 16 quot17th century Dutch scholars are sources of law and can be cited in court 0 Legal systems of Botswana Namibia Lesotho Swaziland and Zimbabwe based on South African law 0 Constitution of 1995 Magistrate s Courts gtgt High Court gtgt Supreme Court of Appeal Constitutional Court 0 During apartheid strong turn toward Dutch law as Afrikaans law and Dutch law similar Since end of apartheid English common law paramount Customarv Indigenous and Traditional Criminal lustice Characteristics of customary law NonWestern law exists especially in family law probate law or customary land tenure Very rare in criminal law 0 Most common in former British colonies In pretty much every country modern penal and criminal procedure codes have replaced precolonial criminal law 0 Some elements still exist in some countries penal codes Common law civil law and Islamic law are all based on written law 0 Legal professions formed to interpret these written sources 0 Assumption not true in rest of world law was oral passed through tradition generally owned by elders and community as a whole Impossible to separate from spiritual world Outside of Europe historical shortage of labor and surplus of land 0 As a result crime resulted in an economic loss to the victim s community Result compensation from perpetrator to victim 0 Crime could cause spiritual harm for the perpetrator and the community compensation or retaliation could restore harmony No quotstatequot as we de ne state 0 Policing done by community punishments carried out by community 0 Capital punishment highly culturally contingent on religious notions of death burial and afterlife BE CAUTIOUS about overromanticizing this form of comparative criminal justice it tends to privilege older men over women children single men and outsiders Glocalization o Glocalizationquot is the portmanteau of globalization and localization 0 Theory The world s legal systems are becoming more different not more similar They will never be more similar than when the British imposed the same legal system on all their colonies 0 Because of globalization technology including the internet and travel local issues and languages are nding expression in the global marketplace for the rst time


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