Judicial Process Chapter One
Public law
.
career judiciary
A professional judiciary akin to civil service, based on competition examinations, requiring specialized education, and under strict supervision by higher courts; in contrast to U.S. judiciaries that are staffed by judges who are generalists by training and selected through a political process. Consequently, adversarial systems place great value on practical experience (i.e., apprenticeship and gaining professional experience through the "practice" of law), rather than undergraduate instruction followed by an examination and admission into a career judiciary (discussed more fully in Chapter Four).
codification movement
The complexity of common law produced new pressures in the early nineteenth century to codify a U.S. version of the common law, principally in Massachusetts and then in New York. In 1811, Jeremy Bentham, a noted English legal reformer, went so far as to offer to write a code in a letter sent to President James Madison.17 Even though Madison declined, the codification movement, led by the lawyer David Dudley Field, succeeded in enacting a Code of Civil Procedure in New York in 1848. Field's efforts met harsh resistance from the East Coast legal establishment; yet the Field Codes, as they were called, were adopted toward the end of the century in the Dakotas, Idaho, Louisiana, Montana, and California. Notably, the common law system ultimately survived the codification movement because support for codification waned by the onset of the twentieth century.
tort law
Tort law provides remedies for private civil injuries and can be traced back to 1850 when it was recognized as a separate category of law. Before then, most legal claims seeking relief for harm caused by acts that did not arise from contract law—such as injury to a person's reputation (slander or libel), a threat to do bodily harm (assault), or harmful physical contact (battery)—were typically adjudicated under the common law system of writs, such as "trespass" (directly violating a person's property interest) or "trespass on the case" (indirectly violating a person's property interest). Advances in technology and industrialization after the Civil War exposed the difficulties of litigating newly discovered tort claims—often caused by steamboats, railroads, and industrial accidents—with the arcane rules of common law pleading. The law of torts thus emerged and eventually expanded to include fault-based conceptions of legal liability, like negligence, and related issues of the foreseeability of harm, such as "proximate cause."54
French Civil Code
Two variations of what became the modern civil law system took hold in France and in Germany during the nineteenth century. The French Civil Code of 1804, or Code Napoléon, developed under the rule of the emperor Napoléon Bonaparte, eradicated all traces of aristocratic power in French nobility, clergy, and judiciary. It was built on three pillars—codes broadly protecting property, contract, and patriarchal family relationships—that formerly were under the domain of the church or the aristocracy. Since the law was based on universal ideas of natural justice (liberty and equality), it was crafted in simple terms, and it accordingly limited the need for lawyers and courts. The code was thus distinctly antifeudal and antijudicial because French judges were part of the aristocratic class that had too often abused power. The bias against the judiciary is important because it laid the foundation for a tradition that institutionally isolated courts from other branches of government and reduced judges to civil servants.
family law
Maintaining stability of various legal relationships affecting families, including marriage, dissolution, and child custody
corporation law
Maintaining stability of various legal relationships affecting private enterprise and business corporations
Gubernatorial appointment
Method of judicial selection in which the governor appoints a person to a judicial vacancy without an election.
Marbury v. Madison (1803)
The Supreme Court asserted that power in the landmark case of Marbury v. Madison (1803).39 In declaring that it is the Court's duty "to say what the law is" under the Constitution, Chief Justice John Marshall elucidated the enduring principle of judicial review. Since judicial review enables courts to check majority will and laws from the political branches, it remains a controversial and formidable power of appellate court policymaking (for a full discussion on appellate courts, see Chapter Nine; and, judicial policymaking, see Chapter Ten).40
judicial review
the power to declare acts of the legislature or executive branch unconstitutional
Qur'an
the sacred writings of Islam revealed by God to the prophet Muhammad during his life at Mecca and Medina
Kadi justice
Lawyers and judges work to reach amicable solutions in an informal manner by emphasizing oral testimony instead of written documents or evidence. In this fashion, kadi justice—the law as delivered by judges construing religious doctrine—is neither adversarial (as in common law) nor investigative (as in civil law). Instead, the process is one of religious obligation, aimed at achieving a just result according to the word of Allah.
Marxist theory
Accordingly, as it is based on Marxist political and economic principles, socialist ideology rejects outright Western liberal democratic thought. Marxist doctrine was espoused by Karl Marx (1818-1883) and inspired by Friedrich Engels (1820-1895). Marxist ideology theorizes that history is a series of alternating cycles of birth and destruction, in which one economic system is created, destroyed, and replaced by another. Feudalism, for example, was replaced by capitalism as new forms of production took hold. At the heart of socialist ideology is the belief that the wealthy elites in civil society (the bourgeoisie) capture the means of economic production from the working class (the proletariat) and deprive workers from enjoying the fruit of their labor. Marxist theory, therefore, seeks to eliminate the source of the class struggle, namely individual ownership of private property and the accumulation of wealth. Marx hypothesized that capitalism would be replaced after a revolution in which the proletariat overthrew the bourgeoisie and, ultimately, restored freedom through the collective ownership of the economic means of production. An ideal state would then emerge in which law and government would "whither away" because there would be no need for law to maintain social control. Marxist theory, however, failed to be realized in socialist-influenced legal systems. Nonetheless, Marxism found expression in a principle of socialist legality. That is, the concept of law is meaningful only if it furthers the objectives of the underlying socialist ideology. In the former Soviet Union, the law's purpose was to ensure national security and educate the masses (by force, if necessary) to advance socialist economic development.
Judicial self-restraint
Although Hamilton favored what is called judicial self-restraint (i.e. that courts should defer to the legislature and the laws it creates on behalf of the people it represents in the democratic process), there is little doubt that the court's exercise of judicial review enables the judiciary to assume the important role of safeguarding individual and minority rights against dominant political majorities in the legislative process.
William Blackstone
Apart from England, contemporary common law legal systems include the United States, Canada, Australia, and Ireland (see the "In Comparative Perspective" box on major global legal systems). In the United States, the common law was adopted in conjunction with each colony's distinctive legal heritage. The reception of common law was facilitated by the writings of Sir William Blackstone (1723-1780). Blackstone held the first professorship of English law at Oxford University, where he delivered a series of lectures later published as Commentaries on the Laws of England (1765-1769). The Commentaries received wide distribution and represented "the most ambitious and most successful effort ever made to reduce the disorderly overgrowth of English law to an intelligible and learnable system."15 Blackstone's Commentaries were also influential in reinforcing an integral aspect of U.S. constitutionalism by emphasizing that judges are the "living oracle of the law," who only "declare" the law, not make it. Indeed, in a classic statement of judicial restraint, Alexander Hamilton asserted in Federalist No. 78 that courts have "neither FORCE nor WILL, but merely judgment."16 However, Blackstone's declaratory theory of law was ultimately challenged in the late nineteenth century by judges and legal theorists who advanced a jurisprudence of American legal realism (as explained in Chapter Two).
Administrative law
At the federal and state level, the legislature makes statutory law, but administering or implementing it requires the creation and existence of agencies. Executive agencies play a formidable role in Washington, D.C., as well as in most state capitals, because they possess delegated legislative authority to make law. The Environmental Protection Agency, the Federal Communications Commission, the Nuclear Regulatory Commission, the Securities and Exchange Commission, and the U.S. Postal Service are familiar examples of independent agencies and government corporations that have been delegated specific powers to regulate environmental protection, public broadcasting, nuclear energy and safety, financial securities in the marketplace, and the nation's postal service. Similar bureaucratic entities are infused into state legal systems. Under the federal Administrative Procedure Act,41 and similar state laws, administrative agencies are key sources of law because they are empowered to make administrative regulations. Federal regulations, which are published in the Federal Register and are accessible in the Code of Federal Regulations, are based on broad legislative mandates that are expressed in statutory law. Because Congress lacks the institutional capability to review the application of all the statutes it enacts, it falls to administrative agencies to interpret and implement them. As a result, agencies also have quasi-judicial functions in resolving disputes with other agencies, interest groups, and the public, typically after agency hearings before promulgating regulations.
declaratory theory of law
Blackstone's Commentaries were also influential in reinforcing an integral aspect of U.S. constitutionalism by emphasizing that judges are the "living oracle of the law," who only "declare" the law, not make it. Indeed, in a classic statement of judicial restraint, Alexander Hamilton asserted in Federalist No. 78 that courts have "neither FORCE nor WILL, but merely judgment."16 However, Blackstone's declaratory theory of law was ultimately challenged in the late nineteenth century by judges and legal theorists who advanced a jurisprudence of American legal realism (as explained in Chapter Two).
equity
By the fifteenth century, common law evolved alongside the law of equity—a special set of rules permitting relief for those who suffered injustices because of the strict operation of the writs system.
inquisitorial
Civil law systems are inquisitorial in operation and differ from adversarial systems used in common law jurisdictions like the United States (as further discussed in the next section). In inquisitorial systems, legal institutions and practices are structured to arrive at legal truths under a written code or by following specific legal procedures. Lawyers, who are trained as specialists in narrowly defined areas of law, earn a formal law degree at a university as undergraduates before they become eligible to practice. Judges are prepared to be civil servants who begin (and often end) their careers in a judicial bureaucracy. Finally, adjudication in inquisitorial civil law systems is proactive in the sense that all who play a role in litigation (especially judges) are active participants in, typically, a three-stage process that usually has a preliminary hearing, an evidence-taking stage, and a decision-making stage. Each stage is structured to engage litigants and judges in an active search for facts and evidence.12 Except for select criminal cases, there is basically no "trial" process per se, and the presence of a lay jury is rare, because judges play the fact-finding role and determine the facts (evidence) before issuing a ruling.
Taxation law
Collection of public revenues
Li
Confucius, a government official and teacher who helped restore order in the Chou Dynasty in the fifth century (B.C.), espoused the principle of social harmony, as expressed through the relativism of li—a moral code of socially accepted behavior in order to achieve a harmonious balance between nature and man. Li directs people to accept fault instead of assigning blame, which reinforces social harmony. Li stands in sharp opposition to law and formal sanctions (fa). Instead, li makes "law," as understood in the West, superfluous, and, hence, it is frowned upon to resort to courts and formal sanctions. When social harmony is disrupted, order is restored through persuasion and conciliation, rather than formal edicts that traditionally were perceived to serve the selfish aims of rulers.
Corrective justice
Corrective justice "fixes" a wrong that has harmed an innocent third party. If someone has stolen a car or vandalized public property, corrective justice is delivered by punishing the offender.
Criminal law
Criminal law deals with the use of governmental power to enforce violations of federal and state penal codes. The legal guilt for committing a crime is defined under statutory law that covers different kinds of illegal behavior, ranging from traffic offenses to capital murder. Generally, crimes are categorized in accordance with the harm they cause. Felonies, such as arson, rape, aggravated assault, and grand larceny, are serious offenses, punishable by lengthy prison sentences. Misdemeanors involve less property or bodily harm and include minor offenses, such as disorderly conduct, possession of marijuana (in small amounts), loitering, and public intoxication. Accordingly, misdemeanors carry less severe punishments, typically with shorter incarceration (less than one year) or the payment of restitution.
Bankruptcy law
Discharge or reorganization of corporate and individual debt due to financial hardship
Distributive justice
Distributive justice, on the other hand, rectifies an inequality existing between parties because it is just to do so.
Antitrust law
Facilitation of free market competition between business competitors
property Law
Facilitation of the various legal relationships affecting the possession and transfer of real (land) or personal (tangible items) property
probate law
Facilitation of transfer of property upon death or disability
Gideon v. Wainwright (1963)
For example, in Gideon v. Wainwright (1963),45 a landmark case guaranteeing the right to counsel for indigent defendants, the Court protected Clarence Gideon's right under the Sixth Amendment to have an attorney appointed for him at trial. The rulings in Mapp v. Ohio (1961),46 which upheld the exclusionary rule (requiring the exclusion at trial of evidence obtained from an unreasonable search or seizure under the Fourth Amendment), and Miranda v. Arizona (1966),47 which requires police to read defendants their "Miranda warnings" in order to prevent violations of the Fifth Amendment's privilege against self-incrimination, are other oft-cited examples of cases expanding defendants' rights. Because the accused is presumed innocent and the government has the burden of proving guilt beyond a reasonable doubt, courts pay careful attention to whether rules of legal procedure and evidence are fairly applied in accord with constitutional requirements. Under the Sixth Amendment, for instance, defendants are entitled to "a speedy and public trial, by an impartial jury."
Judicial federalism
In addition, because of the system of judicial federalism—that is, separate federal and state constitutions and courts (as further discussed in Chapter Three)—the highest state courts apply the law and exercise judicial review under their respective state constitutions. For instance, in 1892, before his appointment to the U.S. Supreme Court and while serving as a state supreme court judge, Oliver Wendell Holmes, Jr., rejected a policeman's claim that a New Bedford, Massachusetts, mayor improperly fired him under a state law prohibiting policemen from soliciting money for "any political purpose whatever." Judge Holmes ruled that the policeman has "a constitutional right to talk politics, but he has no constitutional right to be a policeman."38 In one respect, Judge Holmes's decision settled the dispute at hand—the aggrieved policeman lost the case as well as his job because his free speech rights under the state constitution did not trump the mayor's power to dismiss him. But, in another respect, the outcome reaffirmed the legislature's power to condition the employment of public servants because, Judge Holmes ruled, the state constitution and constitutional law recognized the legislature's authority to define individual rights, duties, and obligations.
therapeutic (problem-solving) agents
In recent years, one of the most important trends in the U.S. courts has been the growing acceptance of therapeutic jurisprudence, or "the role of the law as a therapeutic agent."60 Increasingly, problem-solving courts, which let judges use the law as a form of mental health therapy to enhance individual well-being, are becoming a significant part of the legal landscape. Most, but not all, problem-solving courts are specialized courts that assist underage offenders, defendants accused of domestic violence or drug crimes, and those with mental health problems. Several states use such courts to address problems of homelessness, prostitution, sexual predators, gambling, and (through so-called reentry courts) offenders who have been released from prison but cannot assimilate into the community. In general, problem-solving courts have three characteristics: (1) intensive judicial monitoring, requiring offenders to report to the court regularly on the status of their efforts in drug treatment, securing employment, completing restitution, and the like; (2) aggressive professional outreach, involving judicial efforts to create a symbiotic relationship with off-site professionals, such as social workers or social scientists; and, (3) community engagement, involving judicial efforts to establish a relationship with community leaders and laypersons and encouraging them to participate actively in the justice system. These traits enable a better informed and trained staff to give immediate, hands-on intervention, an approach that provides individualized justice in a well-structured collaborative program that can take into account a participant's progress by constant evaluation and supervision.
stare decisis
In sum, precedent gives law stability and predictability but remains open to change. As explained further in Chapter Nine, the doctrine of precedent, or stare decisis ("let the decision stand"), is a key aspect of judicial behavior in the U.S. judicial system and elsewhere.
Constitutional Law
In the United States, constitutional rights, duties, and obligations are given final effect by the Supreme Court. The Court's rulings are binding as the "supreme Law of the land" under Article VI of the U.S. Constitution. Notably, though Article III vests judicial power in "one Supreme Court," the Constitution is silent on whether the Court has the authority to determine the constitutionality of legislation or official executive action.
Sunnah
Indeed, a large proportion of the world's population adheres to the tenets of Islamic religion. Although in its "pure" form it has ostensibly only been in place in Afghanistan (before the U.S.-coalition-led occupation after September 11, 2001), the Maldives Islands, and Saudi Arabia, many of the world's major legal systems embody Islamic law. A personal commitment to the Islamic faith is holistic, involving all aspects of life. "Islam," as has been said, "is a religion, a legal system, and a lifestyle all in one."21 Islamic law is based on the word of Allah, as revealed to the Prophet Muhammad ibn Abdullah (570-632 c.e.) by the angel Gabriel. The revelations were compiled into Islam's most important sacred text, the Koran, which is supplemented by the Sunnah, which reports the teachings of the prophet Muhammad. Together, the Koran and the Sunnah constitute the basis for Islamic law, the Shariah. As divine law, the Shariah cannot be changed by man. It can be interpreted by scholars, but, by a command from Allah, anything less than total compliance is a violation of the whole Islamic community and subject to severe sanctions not only in this world but also in the next.
Federalist No. 78
Indeed, in a classic statement of judicial restraint, Alexander Hamilton asserted in Federalist No. 78 that courts have "neither FORCE nor WILL, but merely judgment."16 However, Blackstone's declaratory theory of law was ultimately challenged in the late nineteenth century by judges and legal theorists who advanced a jurisprudence of American legal realism (as explained in Chapter Two) In defending the role of courts in Federalist No. 78, he observed that "the judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution; because it will be least in the capacity to annoy or injure them." In democracy with separation of powers, the courts are limited in what they can do.
Statutory law
Law affecting the government embodies public law—that is, the legal relationships among governments and between governments and individuals. Statutory law, or legislation enacted by legislatures, is the major source of public law. The Americans with Disabilities Act (1990),37 a federal statute designed to protect disabled persons from employment discrimination, is an example of statutory law. Federal and state constitutions delegate authority to legislatures to enact statutes. Article I of the U.S. Constitution, for instance, vests the U.S. Congress with broad legislative powers. Yet, because statutes are drafted in general language, they are often ambiguous and require administrative and judicial interpretation. The interplay between the legislative, executive, and judicial branches in determining the meaning of statutes raises important questions of separation of powers and, sometimes, of constitutional law. Public law includes distinct but interrelated subcategories, such as constitutional law, administrative law, and criminal law, among others, that merit further discussion
civil law
Most European countries have civil law systems. In the sixth century (A.D.), the emperor Justinian sought to restore the glory of Roman law by codifying portions of it into one source, the Corpus Juris Civilis (CJC)—consisting of Institutes (an introduction to basic principles), a Digest (a summary of past Roman scholarship), Codes (a compilation of past Roman legislation, edits, and other laws), and Novels (a section for future legislation after the Code and Digest were completed). After the fall of the Roman Empire, the CJC was rediscovered by scholars at the University of Bologna, Italy, in the eleventh century. The rediscovery coincided with the development of the canon law by the Catholic Church and the rise of commercial law—a set of rules governing commercial relationships across the European continent. In time, the CJC (Roman civil law), canon law, and commercial law helped to produce a common law, the jus commune ("law of the community"), which became part of the civil law that was later "received," or adapted, in one form or another by European states. This history shaped the basic codes found in civil law countries, namely, the civil code, the commercial code, the code of civil procedure, the penal code, and the code of criminal procedure.
Adversarial
Not everyone who believes he or she may have suffered some harm through the misfeasance of others seeks the help of attorneys and courts in civil actions, however (see "Contemporary Controversies over Courts: The Dispute Pyramid" in Chapter Eight). For those who do seek legal relief, the main participants in adversarial litigation (parties, lawyers, and judges) participate in criminal and civil cases—though, the lawsuits in those types are different because in criminal cases the law is enforced to maintain the public peace; whereas, in civil cases a private claim is asserted seeking monetary damages for a legal injury. In both types of cases, parties reach settlements either informally (before a trial) or formally (after a trial). Some disputes having significant legal ramifications, such as contract enforcement in construction projects, or property division in divorce cases, are resolved without invoking the full expense of the formal trial process through alternative dispute resolution (ADR) mechanisms, sometimes connected to court forums, but many times not (in private settings). Unlike the civil law tradition, common law systems are adversarial, so lawyers have considerable power to shape and make the law through a competitive struggle to win a case. Former New York Judge Jerome Frank once referred to this process as the fight theory (its application to criminal and civil cases is analyzed in Chapters Seven and Eight). In Judge Frank's view, "The lawyer aims at victory, at winning in the fight, not at aiding the court to discover the facts." In other words, the lawyer "does not want the trial court to reach a sound educated
Alternative dispute resolution (ADR)
Not everyone who believes he or she may have suffered some harm through the misfeasance of others seeks the help of attorneys and courts in civil actions, however (see "Contemporary Controversies over Courts: The Dispute Pyramid" in Chapter Eight). For those who do seek legal relief, the main participants in adversarial litigation (parties, lawyers, and judges) participate in criminal and civil cases—though, the lawsuits in those types are different because in criminal cases the law is enforced to maintain the public peace; whereas, in civil cases a private claim is asserted seeking monetary damages for a legal injury. In both types of cases, parties reach settlements either informally (before a trial) or formally (after a trial). Some disputes having significant legal ramifications, such as contract enforcement in construction projects, or property division in divorce cases, are resolved without invoking the full expense of the formal trial process through alternative dispute resolution (ADR) mechanisms, sometimes connected to court forums, but many times not (in private settings). The similarities and differences between adversarial litigation in criminal and civil cases, and the ADR alternatives, are analyzed further in Chapters Seven and Eight.
Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc. (1984)
Notably, in Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc. (1984),42 the Supreme Court established guidelines that frame judicial review of agency statutory interpretation. If Congress's legislative intent is clear, then the courts should defer to an agency's construction of the statute; but if the statute is ambiguous, then courts should only overturn an agency's action if its interpretation of the statute is unreasonable. Even though the Supreme Court continues to interpret the precise scope and application of the Chevron rule in subsequent cases, the judiciary still retains significant control over agency regulations and lawmaking.
Islamic law
Notably, the region now known as the Kingdom of Saudi Arabia was not subjected to pressures other Muslim countries faced in adapting to Western values and secularism. This explains why Saudi Arabian courts have had difficulties in trying to modernize their operations while also attempting to follow the theory and practice of Shariah law. As a theocracy, Saudi Arabia's legal structures and procedures remain based on an orthodox version of Islamic law. The Basic Law of 1992, for example, is expected to conform to Shariah. Because there is no separation between political and religious life, the legal process aims to reveal religious truths rather than discover empirical facts. Shariah encourages reconciliation, and most disputes are resolved in this manner, rather than in courts. The concept of sulh, "compromise, settlement or agreement between the parties," is derived from the Koran. Indeed, one study reports that 99 percent of all civil cases are resolved in this fashion.23 Lawyers and judges work to reach amicable solutions in an informal manner by emphasizing oral testimony instead of written documents or evidence. In this fashion, kadi justice—the law as delivered by judges construing religious doctrine—is neither adversarial (as in common law) nor investigative (as in civil law). Instead, the process is one of religious obligation, aimed at achieving a just result according to the word of Allah.
private law
Private law regulates the affairs of citizens in a variety of legal areas. It is the primary mechanism by which individuals resolve personal disputes. It defines personal obligations to other citizens, groups, or business entities. At the same time, it also gives citizens vested interests in remaining safe from physical or material harm. The law regulating corporate behavior is private law, as is the law establishing the rules governing civil marriage, divorce, and child custody. The assets and liabilities of a person's estate are distributed in accordance with the law of probate, another subunit of private law. These typologies and others (listed in Table 1.2) are also considered civil law. Notably, civil law, as used here, has a different connotation from that of the (code-based) European civil law tradition, and it is most easily understood in contrast to criminal law. In criminal law, the government has an interest in the prosecution of offenders who commit crimes. Conversely, in civil law, the government's interest usually only extends to providing citizens with the means of resolving a private dispute. To illustrate, a person failing to fulfill a contract or causing personal injuries by acting negligently (a tort action) is a civil action in private law. Upon a finding of civil liability, the aggrieved party may seek to recover the monies lost upon breach of contract; or, in a negligence lawsuit, try to recover an amount of money that "compensates" them for the harm they suffered by being kept out of work, or losing a limb, due to the defendant's irresponsible conduct (civil litigation is further discussed in Chapter Eight).
religious legal systems
Religion has influenced the development of law and legal systems throughout history. Roman Catholic canon law in continental Europe continues to loom large in the civil law tradition, and, likewise, Hinduism remains an important part of Indian legal culture. The Bible inspired the development of Anglo-Saxon law. The Talmud, oral interpretations of scriptures committed to writing in Jewish law, helped shape Israel's "mixed" legal system of Talmudic, civil, common, and Muslim law. Muslim or Islamic law as expressed in the Koran, Islam's holy book, is the touchstone for "mixed" legal systems found in Pakistan, parts of Malaysia and Indonesia, northern and eastern Africa, and much of the Middle East.
International law
Scholars have long recognized the significance of the role that law plays in an increasingly complex global legal order. Yet, the precise meaning of international law, generally understood as "those rules of law applicable to relations among sovereign states,"31 is less clear today than it was in the early twentieth century. The binding effect of rules of international law—mostly consisting of treaties, customary international law, generalized legal principles, and decisions of international organizations or tribunals—has become more complicated, especially for domestic national courts trying to apply them in a transnational legal environment. The trend toward globalization has brought significant evolutionary changes to the modern international legal system, including: (1) the increasing codification of international law, thereby pushing courts to rely less on custom as a basis for their decisions; (2) the rapid growth of new global and regional institutions; (3) the development of international human rights and criminal law; (4) the growing acceptance of executive agreements and instruments created apart from the formal treaty processes; and, (5) the growing presence of international administrative or regulatory bodies, such as the International Civil Aviation Organization (a specialized agency of the United Nations that sets safety standards for international air travel). The demands placed on the global legal order have also brought a proliferation of multinational corporations, specialized law firms, and courts dealing with specific areas of international law and foreign affairs, such as the European Court of Human Rights, the Inter-American Court of Human Rights, the International Criminal Court, and the European Court of Justice.
Socialist (Ideological) legal system
Socialist legal systems borrow heavily from the civil law system and use of codes. However, their defining characteristic is political ideology and the instrumental use of law in service of the socialist state. In this respect, socialist doctrine cannot embrace a Western conception of law. In this light, law in the Western sense is the foundation of liberal democracy because it limits the operation of government and is a safeguard for individual rights. Conversely, socialist legal ideology denies that law as understood in the West exists and, instead, contends that law is used to enslave the populace.
Five pillars of personal responsibility
The Shariah identifies five pillars of personal responsibility (profession of faith, daily prayer, almsgiving, fasting, and pilgrimage to Mecca), and it provides guidelines for social relations involving family, criminal, contract, and international law.
Shariah
The Shariah identifies five pillars of personal responsibility (profession of faith, daily prayer, almsgiving, fasting, and pilgrimage to Mecca), and it provides guidelines for social relations involving family, criminal, contract, and international law. During the nineteenth and twentieth centuries, nations subscribing to Islamic law were greatly affected by their contacts with the West, and consequently many of them incorporated versions of Islamic law in accordance with the civil law tradition. Indeed, the demise of the Ottoman Empire in the early twentieth century helped spur on the emergence of secular codes and parallel court systems that displaced Shariah law in countries undergoing Western modernization. However, the assimilation process generated controversy, and secular Western norms increasingly clash with those of Islamic fundamentalists who advocate returning to a traditional form of Shariah.22
Justice
The differences in legal systems may be explained by identifying the sources and nature of law within a country. The former dean of Harvard Law School Roscoe Pound once observed that "laws are general rules recognized or enforced in the administration of justice."35 While there is no universally accepted definition of law, a common understanding of it is that "law" is a rule of conduct, or societal norm, enacted by government that details what is right or wrong, and which is enforced through the imposition of a penalty. Those subject to the law's command obey it because it is just to do so; and complying with the law is the basis for political obligation. The law's legitimacy is also intertwined with the law's social purpose. Hence, the law's purpose is critical to appreciating how law regulates human activity, while simultaneously maintaining social order and securing justice. In conventional terms, "justice" is understood in two ways: corrective and distributive. Corrective justice "fixes" a wrong that has harmed an innocent third party. If someone has stolen a car or vandalized public property, corrective justice is delivered by punishing the offender. Distributive justice, on the other hand, rectifies an inequality existing between parties because it is just to do so.
Law
The differences in legal systems may be explained by identifying the sources and nature of law within a country. The former dean of Harvard Law School Roscoe Pound once observed that "laws are general rules recognized or enforced in the administration of justice."35 While there is no universally accepted definition of law, a common understanding of it is that "law" is a rule of conduct, or societal norm, enacted by government that details what is right or wrong, and which is enforced through the imposition of a penalty. Those subject to the law's command obey it because it is just to do so; and complying with the law is the basis for political obligation. The law's legitimacy is also intertwined with the law's social purpose. Hence, the law's purpose is critical to appreciating how law regulates human activity, while simultaneously maintaining social order and securing justice. In conventional terms, "justice" is understood in two ways: corrective and distributive. Corrective justice "fixes" a wrong that has harmed an innocent third party. If someone has stolen a car or vandalized public property, corrective justice is delivered by punishing the offender. Distributive justice, on the other hand, rectifies an inequality existing between parties because it is just to do so.
Confucianism
The legal systems in China and Israel provide further illustrations of contemporary mixed legal systems. The legal tradition in China is rooted in Confucianism, a philosophy derived from the teachings from Master K'ong (Kung Fu-tse), or Confucius (551-479 B.C.).
contract law
The modern law of contracts grew out of the common law tradition. In the United States, contract law underwent a major transformation in the late eighteenth century. Under prior doctrine, contracting parties could avoid performing their agreements if it could be shown that the terms were clearly unfair. The emerging doctrine, often referred to as the "will theory of contracts," instead recognized that the law should honor agreements based on the intent of the parties. The inherent fairness of the exchange thus became less important than whether the contracting parties in fact made an agreement. Accordingly, the "convergence of wills"49 became a basis for modern contract law. Because the intent to make a contract determines its enforceability, agreements reached in principle but not yet performed—so-called executory contracts—became enforceable as well. In short, in making contracts, parties may now be certain that their agreements would be legally binding documents. Will theory had enormous consequences. One effect was to transform the judicial function: Courts began to share the responsibility with legislatures in determining statutory law. Hence, "antebellum judges dethroned the English common law by Americanizing it,"50 a process hastened by the judiciary's rising stature as agents of economic lawmaking in all aspects of capitalism, including contract, antitrust, labor, bankruptcy, and commercial law. By the outbreak of the Civil War, contract law had become the predominant source of private law. A corresponding legal change occurred in the law of torts as well, particularly in the states.
Mapp v. Ohio (1961)
The rulings in Mapp v. Ohio (1961),46 which upheld the exclusionary rule (requiring the exclusion at trial of evidence obtained from an unreasonable search or seizure under the Fourth Amendment), and Miranda v. Arizona (1966),47 which requires police to read defendants their "Miranda warnings" in order to prevent violations of the Fifth Amendment's privilege against self-incrimination, are other oft-cited examples of cases expanding defendants' rights. Because the accused is presumed innocent and the government has the burden of proving guilt beyond a reasonable doubt, courts pay careful attention to whether rules of legal procedure and evidence are fairly applied in accord with constitutional requirements. Under the Sixth Amendment, for instance, defendants are entitled to "a speedy and public trial, by an impartial jury."
Miranda v. Arizona (1966)
The rulings in Mapp v. Ohio (1961),46 which upheld the exclusionary rule (requiring the exclusion at trial of evidence obtained from an unreasonable search or seizure under the Fourth Amendment), and Miranda v. Arizona (1966),47 which requires police to read defendants their "Miranda warnings" in order to prevent violations of the Fifth Amendment's privilege against self-incrimination, are other oft-cited examples of cases expanding defendants' rights. Because the accused is presumed innocent and the government has the burden of proving guilt beyond a reasonable doubt, courts pay careful attention to whether rules of legal procedure and evidence are fairly applied in accord with constitutional requirements. Under the Sixth Amendment, for instance, defendants are entitled to "a speedy and public trial, by an impartial jury."
negligence
Under common law, tort claims did not have to prove fault or intent because rules of strict liability applied. That is, all an injured plaintiff had to show was that the defendant committed the act in question, without regard to fault. In Brown v. Kendall (1850),55 however, the Supreme Court of Massachusetts helped revolutionize the law of torts by holding, in the words of Chief Justice Lemuel Shaw, "the plaintiff must come prepared with evidence to show either that the [defendant's] intention was unlawful or that the defendant was in fault; for if the injury was unavoidable, and the conduct of the defendant was free from blame, he will not be liable." The controlling standard of legal liability for the tort of negligence, he wrote, was that the parties exercise "ordinary care," or "that kind and degree of care, which prudent and cautious men would use, such as is required by the exigency of the case, and such as is necessary to guard against probable danger." In other words, a plaintiff could only win if there was proof that the defendant did not use ordinary care. Moreover, Chief Justice Shaw added there would be no liability if the plaintiff helped cause the accident—that is, if there was no "contributory negligence."
fight theory
Unlike the civil law tradition, common law systems are adversarial, so lawyers have considerable power to shape and make the law through a competitive struggle to win a case. Former New York Judge Jerome Frank once referred to this process as the fight theory (its application to criminal and civil cases is analyzed in Chapters Seven and Eight). In Judge Frank's view, "The lawyer aims at victory, at winning in the fight, not at aiding the court to discover the facts." In other words, the lawyer "does not want the trial court to reach a sound educated guess, if it is likely to be contrary to his client's interest." As Frank concluded, "Our present trial method is thus the equivalent of throwing pepper in the eyes of a surgeon when he is performing an operation."18 As a result, lawyers have more control and influence in common law systems, and judges ostensibly let attorneys "fight it out." In contrast to the civil law system, the common law system lets the litigants and their lawyers, instead of the government, carry the burden of developing facts and defending rights.
common law
Whereas civil law systems are based on the primacy of the legislature and a legal code, common law systems are based on the rule of judges. The origin of common law stems from the Norman conquest of the Anglo-Saxons in the Battle of Hastings in 1066 by King William I. After taking control, William I distributed the land only after the fee holders swore loyalty and promised to pay sums of money to the king. In short, William I solved the problem of maintaining order and earning tax revenue by creating a legal system for resolving private disputes among the landholders. Accordingly, the judge is the central figure in a common law system. The rulings of early common law judges were "unwritten" in the sense that written law did not exist to guide their discretion. Still, once a ruling was made, it became binding as a precedent for future cases. As more and more cases were decided, "a common law in the realm" emerged. Notably, whereas judges had the obligation to "declare" the law based on precedent, they also had the power to "make" law by creating new precedent if that was necessary to avoid an injustice for litigants. As Judge Benjamin Cardozo remarked, "The power to declare the law carries with it the power, and within limits the duty, to make law when none exists."14 Striking the proper balance between declaring and making law was conditioned by the norm that the highest court of appeal was not bound by its own precedents and, hence, high courts could reject past decisions. In sum, precedent gives law stability and predictability but remains open to change. As explained further in Chapter Nine, the doctrine of precedent, or stare decisis ("let the decision stand"), is a key aspect of judicial behavior in the U.S. judicial system and elsewhere.
German Civil Code
Whereas the French Civil Code was inspired by revolution and strived to protect rights universally, the German Civil Code of 1896 was more technical. Proponents of the German Historical School, led by Friedrich Carl von Savigny (1779-1861), argued that legal systems must be constructed from historically derived principles of legal science. Accordingly, the German Civil Code of 1896 was a self-contained body of written law: Lawyers or judges did not have to resort to extraneous social, economic, political, or moral values to apply it. Unlike the French code, the German code made clear that the science of law (rules, legislation, and the like) was left to the realm of the lawyer and the judge, not to the common person. Hence, the German Civil Code was detailed, precise, and logical. Definitions and elaborate cross-references (to other parts of the code)
legal system
a set of institutional structures for applying the law, legal procedures for administering the law, and substantive legal rules
de facto
in fact
Dockets
list of cases to be heard While the origin of problem-solving courts can be traced back to the creation of juvenile courts in 1899, they have gained wider appeal since the opening of a drug court in Dade County, Florida, in 1989. In response to the problems of recidivism and prison overcrowding, the basic model of therapeutic courts aims to let problem-solving judges manage their dockets and impose sentences requiring long-term monitoring instead of incarceration. That court's success encouraged others to adopt similar programs.
