Ch04: Legal Tradition

Define: Legal System

Refers to a country's legal institutions, procedures, and rules.

Define: Legal Traditions

Refers to deeply rooted and historically conditioned attitudes about the nature of law, the role of law in society, how a legal system should be organized and operated, and the way the law is or should be made, applied, or perfected.

One of the few things about which comparative criminal justice scholars agree is that there are four legal traditions in the world today. a. true b. false

b. false

Shi'a Islam started as the larger and politically stronger Muslim group and today is estimated as comprising 85% to 95% of the world's Muslims. a. true b. false

b. false

The civil legal tradition is also considered to be an example of the religious/philosophical legal family. a. true b. false

b. false

The primary source of law in the Eastern Asia legal tradition is divine revelation. a. true b. false

b. false

What are the four legal traditions?

- Common Legal Tradition - Civil Legal Tradition - Religious/Philosophical Legal Tradition - Hybrid Legal Tradition

What subtraditions are influencing hybrid law (Eastern Asia) tradition?

- Confucianism - Collectivism and context - Legal informalism

What are the three components used to compare the legal traditions?

- Cultural Component - Substantive Component - Procedural Component

What are the two questions used when comparing the cultural components of legal traditions?

- Do legal rights and obligations lie with the individual (private law) or the state (public law)? - What is the position of the judiciary in relation to other government branches?

What subtraditions are influencing common legal tradition?

- Feudal practices - Custom - Equity

What subtraditions are influencing religious/philosophical law (Islamic) tradition?

- Qur'an and Sunna - Ijma and qiyas - Schools of law

What subtraditions are influencing civil legal tradition?

- Roman law - Canon law - Codification

What is the position of the judiciary in relation to other government branches?

Common Tradition: - Courts share in balancing power. Civil Tradition: - Courts. have equal but separate power. Islamic Tradition: - Courts and other government branches are subordinate to the Shari'a. Eastern Asia Tradition: - Courts are subordinate to the legislature in some countries (China and North Korea), share in balancing power in others (South Korea), and have equal but separate power in still others (Japan).

When comparing the substantive components of legal traditions, what is the primary source of law?

Common Tradition: - Custom: - Law expresses entrenched visions of right and wrong. Civil Tradition: - Codification: - Written code provided by rulers or legislators. Islamic Tradition: - Divine Revelation: - Law has the authority of God rather than tradition or directive. Eastern Asia Tradition: - Principles of Confucianism: - Ideally the "source" is within each individual but realistically lies in codes presenting models for behavior.

When comparing the procedural components of legal traditions, how is flexibility provided?

Common Tradition: - Judge-made law and particularization. Civil Tradition: - Variation in reasoning and definition, and identification of issues as either questions of law or questions of fact. Islamic Tradition: - Fatwa (legal opinion or ruling) and the process of ijtihad (independent reasoning). Eastern Asia Tradition: - The reliance on informal procedure and, for China and North Korea, on vagueness in how the law is written.

Do legal rights and obligations lie with the individual (private law) or the state (public law)?

Common Tradition: - Public law, with both the individual and the state having a legal personality. Civil Tradition: - Public law when concern is with the state's legal personality; private law when concern is with the individual's legal personality. Islamic Tradition: - Private law because the concern always centers on the individual's legal personality. Eastern Asia Tradition: - Legal rights and obligations simultaneously have both private and public aspects.

_______________ was a fifth-century BCE teacher whose philosophy had great influence in China, Korea, and Japan.

Confucius

In its purest form, the Shari'a consists of canon law and the principles of Confucianism. a. true b. false

b. false

A basic source of Shari'a is the ____________, which refers to the way the Prophet Muhammad lived his life.

Sunna

Define: Substantive Component

The characteristics of law in each system.

Flexibility is provided in the Eastern Asia legal tradition through reliance on the strict interpretation of formal codes. a. true b. false

b. false

Define: Procedural Component

The procedures by which each system enforces the law.

Define: Cultural Component

The values and attitudes that support each legal system.

One of the several reasons that common law codes are not the same as civil law codes is that common law codes do not abolish all prior law for that topic. Which of the following is the textbook's way to describe this difference? a. codes under common law are not revolutionary b. codes under common law replace, rather than extend, prior law c. codes under civil law are not revolutionary d. codes under civil law extend, rather than replace, prior law

a. codes under common law are not revolutionary

Why is precedent considered a basic concept in the common legal tradition? a. it provides a way to identify custom through reference to earlier case decisions b. it forces judges to follow the written code c. it allows laypeople (jurors) to influence the law d. it refers to the process legislators must follow when they create common law

a. it provides a way to identify custom through reference to earlier case decisions

When we refer to legal institutions, procedures, and rules, we are referring to a: a. legal system b. justice entity c. legal tradition d. justice process

a. legal system

For purposes of comparative criminal justice, the essential principles of Confucianism lie in the concepts of: a. li and fa b. individualism and religion c. moral philosophy and oral tradition d. socialism and collectivism

a. li and fa

Although countries do not duplicate legal systems, it is possible for countries to share legal traditions. a. true b. false

a. true

Feudalism referred to a political system wherein a lord provided his vassals with land in exchange for military and other services. a. true b. false

a. true

Indigenous law refers to a culture's original law. a. true b. false

a. true

One aspect of custom, according to Blackstone, is that no one can remember its beginning. a. true b. false

a. true

The Twelve Tables were the earliest form of written Roman law. a. true b. false

a. true

When li is successfully implemented in society there is no need to call upon fa. a. true b. false

a. true

In Islam, the book that is considered the word of God (Allah) is the: a. Sunna b. Qur'an c. Qiyas d. Ijma

b. Qur'an

The three major subtraditions forming the civil legal tradition are: a. precedent, equity, and feudal practices. b. Roman law, canon law, and codification. c. comitia centuriata, comitia tributa, and concilium plebes. d. Code Napoleon, Corpus Juris Civilis, and precedent.

b. Roman law, canon law, and codification.

During the Fifth and Sixth Centuries, __________ courts administered state law, while ________ courts managed canon law. a. ecclesiastical / tribal b. civil / ecclesiastical c. French / papal d. Roman / Italian

b. civil / ecclesiastical

Which of the following is NOT a feature of legal custom as conceived by Blackstone? a. it is ancient (no one can remember its beginning) b. it is intermittent (it may be abandoned or interrupted but always returns) c. it is compulsory (it is not obeyed at option) d. it is consistent (one custom cannot contradict another)

b. it is intermittent (it may be abandoned or interrupted but always returns)

Which term refers to deeply rooted and historically conditioned attitudes about things such as the nature of law and the role of law in society? a. legal system b. legal tradition c. due Process d. attitudinal jurisprudence

b. legal tradition

The primary source of law in the civil legal tradition is: a. custom b. written code c. divine revelation d. principles of confucianism

b. written code

Under which legal tradition do legal rights and obligations always lie with the individual? a. common legal tradition b. Eastern Asia legal tradition c. Islamic legal tradition d. all of the above e. none of the above

c. Islamic legal tradition

Hadiths, which provide a narration about the life of the Prophet Muhammad, contain three important parts. Which of the following is NOT one of those three? a. the statement itself b. an indication of its authority by reference to the chain of reporters c. a seal affixed by Muhammad himself or one of his direct decedents d. a comment regarding the report as being something Muhammad did, said, or approved

c. a seal affixed by Muhammad himself or one of his direct decedents

The three major subtraditions forming the Eastern Asia tradition are: a. fusion, philosophy, and individualism b. corpus juris civilis, socialism, and codification c. confucianism, collectivism and context, and legal informalism d. precedent, harmony, and formal justice

c. confucianism, collectivism and context, and legal informalism

The three major subtraditions forming the common legal tradition are: a. roman law, canon law, and precedent b. feudal practices, corpus juris civilis, and mazalim c. custom, feudal practices, and equity d. canon law, ecclesiastical law, and jus honorarium

c. custom, feudal practices, and equity

The primary source of law in the Islamic legal tradition is: a. custom b. written code c. divine revelation d. principles of confucianism

c. divine revelation

Why do some people consider the jurist Shafi'a to be the father of Muslim jurisprudence? a. he was the first person elected the Islam's highest court of law b. he provided a creative solution to the weight that should be given to the oaths taken by victims and those taken by the accused c. he proposed a compromise between those believing that all rules must be derived from the Qur'an or Sunna, and those believing that the law should be elaborated through the use of human reason and personal opinion d. he served as Muhammad's scribe and put into writing each of Muhammad's rulings

c. he proposed a compromise between those believing that all rules must be derived from the Qur'an or Sunna, and those believing that the law should be elaborated through the use of human reason and personal opinion

During the reign of Henry II, attempts were made to return order to England through the Constitutions of Clarendon, which: a. established a court of equity b. ended feudalism c. provided custom as a basis for building order d. merged church and state courts

c. provided custom as a basis for building order

____________ law was the universal law of the spiritual realm and was administered by the church courts.

canon

Of the four major legal traditions, the _____________ is the oldest, relies on codification, and has roots in Roman law.

civil

When countries are distributed on a pie chart according to their type of legal tradition, the single category holding the most countries is the ___________ legal tradition.

civil

One's sense of self can be described in either individual or _______________ terms.

collectivist

The primary source of law in the common legal tradition is __________________.

custom

According to the You Should Know box in Chapter 4, Iran can be grouped with the religious states and ____________ can be grouped with the secular states in terms of how each applies Islamic law. a. Indonesia b. Jordan c. Saudi Arabia d. Turkey

d. Turkey

The process by which Islamic legal scholars reach a consensus regarding how to handle a case that does not appear to be answered by either the Qur'an or Sunna is called: a. qiyas b. hadd c. analogy d. ijma

d. ijma

A technique by which flexibility is achieved under common law is: a. legal tradition b. mazalim c. canon law d. particularization

d. particularization

In most parts of the world, the term civil law refers to a legal tradition based on ________; but in the United States, civil law more commonly refers to _________. a. custom / violations against the state b. canon law / indigenous law c. wrongs against individuals / violations against public morals d. written codes / a specific type of law dealing with private wrongs

d. written codes / a specific type of law dealing with private wrongs

When a country's legal institutions are mostly non-bureaucratic, minimize the use of professionals, and prefer substantive and procedural norms that are vague and flexible, that country is said to be using legal ____________.

informalism

Whereas the term civil law is frequently used in America to refer to a type of law dealing with ___________ wrongs, it is understood in most of the rest of the world as referring to written codes.

private

It seems that the closest thing Islamic law might have to common law's stare decisis is _________, or reasoning by analogy.

qiyas

Codes exist in common law jurisdictions, but codification in the civil legal tradition is distinguished by its revolutionary nature and ___________ form.

written