Comparative Justice Final (Crim 405-GMU-Dobson)

Legal tradition

A set of deeply rooted, historically conditioned attitudes about the nature of law, about the role of law in the society and the polity, about the proper organization and operation of a legal system, and about the way the law is or should be made, applied, studied, perfected, and taught.

Canon law

The law of the Roman Catholic Church, created by the Church for its own governance, and to regulate the rights and obligations of the people who are part of it.

Commercial law

Commercial law was the pragmatic creation of practical men engaged in commerce, it was then interpreted and applied in commercial courts, where the judges were merchants, the sources of law were the needs of commerce and the interests of merchants.

Revolutionary thought

Secular natural law- All men are created equal. They have certain rights regarding life, property, and liberty, Separation of powers is essential. The powers of the executive, legislative, and judicial should be separated in order to limit power.

Justinian Code

Justinian forbade any further reference to the old jurisconsults. Any works of the jurisconsults that were approved were in the Corpus Juris Civilis. As a result, references to older jurisconsults disappeared. Many of the documents were destroyed. Justinian also banned new commentary on the Corpus Juris Civilis. He believed that the written law was quite sufficient for any dispute resolution. This order was disregarded in his lifetime.

corpus juris civilis

Compilation and codification of the existing body of Roman law, Justinian wished to eliminate what was "wrong, obscure, or repetitive to resolve conflicts or doubts, and to organize what was worth retaining into some systematic form

Of persons, of things, of obligations

The Corpus Juris Civilis addresses the law of persons, family, inheritance, property, torts, unjust enrichment, and contracts

Separation of powers

Power to make the laws (legislative), was to be separate from power to enforce or execute the law (executive), and from power to resolve disputes about the law (Judicial).

French Declaration of the Rights of Man and the Citizen

Passed by the Parliament in 1789, it included rights of liberty and equality, the right to resist oppression, and the need to have separation of powers to avoid tyranny.

John Locke

All men are created equal and endowed with certain unalienable rights, including life, liberty, and property, profoundly affected the role of the individual in government. The individual had rights, and the law should protect those rights.

Montesquieu

Separation of Powers, power to make the laws (legislative), was to be separate from power to enforce or execute the law (executive), and from power to resolve disputes about the law.

Thomas Hobbes

Hobbes in Leviathan- Security, the ability to provide internal order, and external security from invaders, was another well recognized responsibility of the state.

Sovereignty

The ability to rule in a particular area or region, was one legal premise of the state

1648 Treaty of Westphalia

The emergence of the modern-nation state system

judicial review

The power of the courts to declare that a statute is void because it conflicts with the constitution, this is a contradiction of the sharp separation of legislative and judicial power, Traditionally, judicial decisions were not law, but judicial review is now accepted

French Civil Code of 1804

designed to be read by every man. It was intended to be a citizen's guide to the law, careful not to give judges too much authority, wanted the law to be exercised easily

Secular

They believed that secular natural law could provide a legal system that would meet the needs of the new society and new government.

European Union

civil law now extends past national borders. States must adapt their systems to conform to EU standards. There is no general EU criminal code- criminal law is handled by the member states—unless it is transnational crime

The sources of law in civil law: Constitution

The written constitution is recognized at this point as the most important source of law, this limits the power of the legislature and legislation.

The sources of law in civil law: Legislation

Statutes made by the legislature are the law

The sources of law in civil law: Regulation

Administrative, less powerful than statute, but more powerful than custom

The sources of law in civil law: Custom

If a person acts according to custom, under the assumption that the custom represents the law, that action will be accepted as legal, provided there is no statute or regulation to the contrary

guarantees of the French Civil Code

Equality before the law, Freedom of religion, Abolition of feudalism, Property rights

jus commune

a common body of law based on Roman civil law emerged in Europe

adoption by other countries of the French Civil Code

The code was widely admired for its merits, its clarity, and its consolidation of the goals of the revolution- spread in Europe to Belgium, the Netherlands, Italy, and parts of Poland, The French established multiple colonies in Africa, and those countries adopted the civil code, Latin American countries, upon gaining independence, embraced the French Civil Code for their legal systems

German Civil Code of 1896

Origins in German legal traditions, including Roman law, old Germanic law, and the contemporary German legal system, the German legal system has at its core five codes: civil, civil procedure, commercial, criminal, and criminal procedure.

Friedrich Karl von Savigny

He and his followers, inspired by Kant, Hegel, and German romanticism, persuasively argued against adopting a French-style code.

Certainty

The need for certainty is almost dogma, or a fundamental goal, a standard argument against a proposed change in the legal process is that it will reduce the certainty of the law

Equity

The belief is that people need to be certain of what the law is, equity generally refers to the power of the judge to mitigate the harshness of strict application of a statute

Court of Justice of the European Union

Interprets EU law, making sure it is applied in the same way in all EU countries. It also settles legal disputes between national governments and EU institutions.

Differences between German Civil Code and French Civil Code

The German code was not designed to abolish previous law, used by legal professionals (German) VS handbook for citizens(French), derived from historical data and study (German) VS derived from secular natural law (French)

Rule of law

The rule of law , by some definitions, is composed of five separate items: (1) a government bound by law, (2) equality before the law, (3) law and order, (4) predictable and efficient rulings, and (5) human rights

William the Conqueror

After 1066 invasion, had to consolidate and centralize power. Administering justice was one part of the plan for consolidating power

Normans

In 1066, the French-speaking Normans conquered Britain, the new arrivals were in a new place with people speaking a different language, the Norman nobles did not speak the local language, and the conquered nobles were not to be trusted.

Writ

A letter, or command, from the King which allowed the case to be brought before the Royal Court, covers persons, property and obligations To be heard before the court, a case has to fall in the category covered by a writ

Jury

Including the people in the legal system, by putting decisions regarding guilt or innocence in the hands of the people, the people would regard the justice system as more legitimate

Writ of habeus corpus

Requiring a person under arrest to be brought before a judge or into court, especially to secure the person's release unless lawful grounds are shown for their detention.

Writ of certiorari

Given to cases that the Supreme Court will hear.

Judge-made law

Refined, molded and changed in the process of actual judicial decision making.

Precedent

Relied on their own past actions, which they modified to fit changing times and changing patterns of litigation

Constitution

The document to place those limits on government

Constitutionalism

The government's willingness to stay within those limits lends credibility to the document and legitimacy to the government.

Marbury v Madison

Laid out the logic for judicial review, became the cornerstone of judicial power.

Differences between common law systems in US and Britain, including criminal process

US systems often have elected judges, a marked difference from the British common law system, U.S. adherence to rights protection is stronger in some areas than Britain's protections are, One of these areas is admission of evidence in a trial, Much evidence that would be thrown out in a U.S. court is accepted without question in a British court, In Britain, there are fewer restrictions on the press, so much is published about people in Britain that would not be published in the United States.

Voir dire (U.S meaning)

Allows potential jurors to be questioned before they are allowed to be part of the jury.

Unitary system

Power allocated federally

Federal system

Power devolved to the states.

Magna Carta

Drafted by a group of barons who wanted to protect their rights and property from a tyrannical king, later adopted, and today it is revered for its protection of the common man

Organized crime

A continuing criminal enterprise that rationally works to profit from illicit activities that are often in great public demands. Its continuous existence is maintained through the use of force, threats, monopoly, control and, or the use of the corruption of public officials.

Human trafficking

Victims are moved using fraud or coercion to make them forced laborers or sexual slaves

Drug trafficking

Illegal transport of narcotics, most commonly Heroin, and opiates, Cocaine, and coca derivatives, Methamphetamines, Opioids, Other synthetic drugs

Interdiction

The seizing of drug shipments by government authorities

Eradication

The elimination of opium poppy and coca crops by destroying the plants. This is carried out by military or law enforcement authorities.

Corruption

Dishonest or fraudulent conduct by those in power, typically involving bribery.

Civil Rights

The rights of citizens to political and social freedom and equality.

Political Rights

They ensure one's entitlement to participate in the civil and political life of the society and state without discrimination or repression

First Amendment of the US Constitution

"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."

Fourteenth Amendment

"No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."

Which is not considered an element of the rule of law-democratic government, equality before the law, law and order, predictable and efficient rulings by courts

Democratic Government

For many years, in English common law, one heard the phrase: if there is no writ, there is no right. What did this mean?

To be heard before the court, a case has to fall in the category covered by a writ. If there was no writ that could address the problem, then there was no right to be heard by the court--And no right to be protected.

Which country has stricter controls on the admission of evidence: Britain or the United States?

United States

Which of these is an aspect of international/transnational organized crime-human trafficking, human smuggling, drug trafficking

All of these

Gangs involved in organized crime exist only in the Americas (North, Central, and South America) True or false?

False

Which of the following is not true about Germany- 1) In addition to the constitution, Germany uses statutes, regulations, and custom (customary law) as sources of law, 2) Germany has a federal system, like the U.S., with power divided between the national government and states (lander), 3) In Germany's legal system, the justices are elected, not appointed, 4)Germany has constitutional courts at both the state and national level- The courts review laws to see if they comply with the constitution.

In Germany's legal system, the justices are elected, not appointed- Judges are paid low salaries.

Which of the following is not true about the European Union (EU) and the European Court of Justice- 1) There is no EU criminal code. Criminal law is handled by the individual member states 2) Member states do not have to change their laws to conform to the laws of the European Union 3) The first steps toward creating the European Union were made after WWII 4) Issues of transnational crime are addressed by the European Union, because transnational crimes (drug trafficking, money laundering, etc) require international cooperation

Member states do not have to change their laws to conform to the laws of the European Union.

Which of the following is not true about the German Civil Code- 1) The German Civil Code was more widely adopted by other countries than the French Civil Code was, as it was easily transferable to other countries, 2) The German Civil Code emerged after extensive study of German history, German law, Roman law, and contemporary German legal practice, 3) Friedrich Karl von Savigny and his followers argued that Germany's law should something that emerged from the nation's experience and historical growth, 4) The German Code was designed to be used by legal professionals, not by ordinary citizens, like the French code was

The German Civil Code was more widely adopted by other countries than the French Civil Code was, as it was easily transferable to other countries, The code was not widely adopted by other countries.

Which of these is not a similarity between French civil law and German civil law- 1) Both incorporate a sharp separation of powers, 2) Both are designed to be complete, clear, and coherent codes of law. 3) Both encourage the participation of judges in the making of law. 4)Both encouraged the development of the monolithic modern nation-state

Both encourage the participation of judges in the making of law- Judges are not to make law in either system.

Certainty and equity are two priorities of civil law. Which of these is not true about certainty or equity- 1) Equity, is somewhat like judicial discretion, as it allows judges to allocate property or responsibility according to the facts in a case 2) Often, the need for certainty in the law has prevailed over any demand for change in the law 3) Certainty is about knowing clearly what the law is. In current practice, the large amount of legislation and regulation is causing a lot of change, which presents a challenge to certainty 4) Equity presents no challenge to certainty in law

Equity presents no challenge to certainty in law, in fact Equity does present a challenge to certainty.