COMPARTV CRIM JUST - Exam 2 - Ch 4, 5, 6

The legal systems in today's world can be divided among four families, or traditions. Each legal tradition has unique elements that influenced its development and form. The existence of sovereignty and nationalism means that the legal system

(i.e., legal institutions, procedures, and rules) in one country is not exactly duplicated in any other, yet certain countries do share "legal traditions" with one another (Merryman, 1985, pp. 1-3). These traditions are the basis for their groupings

The idea of the state having a legal personality is not present under the Islamic tradition. The Shari'a took no steps to define the interests of the community or public. Consistent with the Arabic emphasis on the individual, the Islamic legal tradition gives primacy to private law (

). The Shari'a exists to orient the private lives of Muslims and their relations with each other. As in the common tradition, a single legal system appropriately hears all types of disputes. However, instead of justifying this as resulting from a widespread interest by the state, Muslims justify it as a general concern with the individual

Another technique to achieve flexibility under common law is the practice of particularization.

- A review of U.S. Supreme Court holdings in any subject area quickly exemplifies this point. - The common legal tradition limits court decisions to very particular facts. - Two cases may involve stopping a suspect and searching the suspect's person and surrounding area. - However, in case A, the suspect was walking away from the reported scene of the crime while in case B the suspect was running away. - The particular behavior of the suspect may well make the cases different in the court's eyes. - As a result, the judge in case B may decide that the decision in case A did not set a precedent for the situation now before her. - So the case B judge has the flexibility to make law for this "unique" case.

Primary Source of Common Law

- For the common legal tradition, the primary source of law is custom. - Law is a public expression of society's entrenched vision of right and wrong, or good and bad (Postema, 1986). - Like the civil law, common law rests on certain principles. - The difference between the two is that for common law, the principles exist as generally accepted tradition instead of through writing. - Writing them down reveals, not creates, the principles. Because the traditional way of identifying custom was through the court rather than legislative process, judges came to play a pivotal role in common law. A decision by a judge was accepted as legal recognition of a custom. - In this sense, the judge "made law" by accepting the custom as binding in a particular case. - The absence of a cultural suspicion about judicial actions and the tradition of accepting principles other than those specifically written by rulers and legislators gave the common law judge lawmaking and law-applying authority.

Because the phrase civil law is familiar to American readers, it is necessary to distinguish the term's general use from its use in reference to a legal tradition

- In its more typical usage in the United States, civil law is set against criminal law because it deals with private wrongs instead of the social wrongs handled by criminal law. - w. In that manner, civil law deals with such matters as contracts, ownership of property, and payment for personal injury. However, in its original meaning, civil law referred to the code of laws collected by the Roman emperor Justinian

Primary Source of Islamic Law

- Islamic law is presumed to be of divine origin. - Its primary sources, the Qur'an and the Sunna, specify the legal principles linked to right and wrong behavior. - Its authority is based on God's commands instead of long-held traditions or directives issued under the auspices of state power. - In fact, its divine nature means that no worldly authority can supplement it, let alone change it. - So, like civil law judges, Islamic qadi (i.e., judges) must turn to written documents for solutions to disputes. - Also like their civil counterparts, qadi cannot do more than identify the correct principle for use in a particular case. The difference lies in the source of that principle.

Collectivism and Context - Japan, collectivism and context are separately highlighted as key cultural patterns when trying to understand Japan's legal system. The two characteristics are discussed together in this section because of their shared importance in the development of an Eastern Asia legal tradition

- One's sense of self can be described in either individual or collectivist terms. The family and group orientation of such Eastern Asia cultures as China, Japan, and Korea results in a sense of self-worth and identity that is linked to the groups to which one belongs. One's individual nature is understood in the context of that person's relationships. The point can be made no clearer than by Nisbett and Masuda's (2003) observation that if an important person is removed from an individual's social network, that individual actually becomes a different person. - Contrast that view of self with the Western view of the person as an individual, different from others, rebellious even. Such training starts early with Western babies often sleeping in a different bed (even a different room) than their parents—a rare situation for Asian babies. While Asian children are learning the proverb about the nail that sticks out getting hammered down, the Western child is learning about rugged individualism. Linked to this collectivist sense of self is an appreciation for the importance of context and relationships. Again, psychologists help us understand this. When shown animated vignettes of underwater scenes, Japanese and American participants were asked to report what they had seen.

Primary Source of Eastern Asia Law

- Preferably, for the Eastern Asia tradition, formal law is not even needed, so no "source" can be identified. - When moral virtue has been internalized (i.e., when li is dominant), law's "source" is within each individual. - Realistically, if disappointingly, formal law (fa) is required in modern societies, but that formal law can still reflect aspects of Confucianism. - Legal codes (in the civil legal tradition sense) are necessary for maintaining social order in modern society, but those codes can be based in Confucianism to the extent that they present models for behavior rather than specifying particular rules. - Further, when enforcement of those codes relies on informal more than formal procedures, there are aspects of li in the law's enforcement. - This is the approach taken by the Eastern Asia tradition, so the primary source of law is identified by the principles of Confucianism.

Tazir Crimes

- Tazir offenses are harmful acts that are not specifically mentioned in the Qur'an or Sunna—but are understood to be included among actions the Shari'a calls transgressions. Since they are not specifically mentioned, their punishment is unspecified and at the discretion of the government or the court. When the court has determined that the conduct is indeed a transgression as understood in Shari'a—and that the offense has been proved through legally required evidence—the judge imposes a punishment that is proportionate to the offense and is consistent with the goal of protecting the common good - Tazir crimes include—but are not limited to, because new crimes can be added— such offenses as those violating proper Muslim conduct (e.g., obscenity, provocative dress, eating pork) and ones necessary for an orderly society (e.g., traffic violations, fraud, embezzlement, corruption). Importantly, the tazir category also includes acts from the hudud crimes that, for some legal reason or technicality, cannot be handled as a hadd crime. - Examples might include petty theft, attempted adultery, homosexuality, and cases supported by doubtful evidence - Any imposed punishment for tazir offenses should be educational, rehabilitative, and have a deterrent effect. As such, the sanctions can range from long-term imprisonment or light corporal punishment to counseling and payment of restitution

America's Civil Law Tradition

- The United States is among the countries identified with the common legal tradition - Yet the lack of surprise with which you read that statement distorts the role played by the civil tradition in America's history. - English common law to a dramatically different culture. - Settlers in the American frontier had to stretch their imagination when applying the ancient customs and traditions of eleventh-century England to the legal problems that arose with the cattle drives and gold rushes of the nineteenth-century West. - The civil law tradition also predisposed some areas to recognize the usefulness of law codes. - . Miners' codes served as bodies of law in western mining camps from Colorado to California. These rough but workable rules and processes provided a means to record claims, to decide whose claim was first, to settle disputes among claimants, and to enforce decisions of miners' "courts" (Friedman, 1973). Answers to such questions were not easily identified in English common law. - Despite flirtations with codification and the civil tradition, the legacy followed by American legal systems has been that of the common law. Admittedly, Louisiana did more than flirt with civil law. Louisiana codes of 1808, 1825, and 1870 borrowed heavily from the French Code Napoleon. As a result, Louisiana judges decide cases (private more than public law) chiefly on the basis of codes rather than prior decisions. The complicated history of the civil law in Louisiana reminds us that aspects of the civil tradition have helped shape a specifically American legal system. - Undoubtedly, one area in which law in America (and indeed in all common law countries) has become more civil-like is with the increased reliance on statute as an important source for law. Yet, even when the legislature plays a primary lawmaking role, we view the resulting statutes in a special way. As Sereni (1956) explained, statutory provisions are not authoritatively established unless and until they have been interpreted by the courts

Flexibility in Civil Law

- The civil legal tradition faces a similar problem but for different reasons. - The idea of a state authority (e.g., legislature, parliament, and the like) reducing to writing all the necessary components of substantive and procedural law cannot be seriously proposed, yet that is the objective under civil law. - Ideally, the civil law judge simply extracts the facts in the case, finds the appropriate provision from the legislature, and applies it to the problem - , if a relevant provision is not found, the fault is assumed to lie with either the judge (who obviously cannot follow clear instructions) or the legislator (who failed to draft clearly stated and clearly applicable legislation).

Equity

- The early history of equity (from the Latin aequus, meaning "fair" or "just") links it to the subtraditions of feudal practices and custom, yet it differs from those because of its eventual standing as a separate legal system both conflicting and cooperating with common law - In the early stages of development, the king was in constant contact (usually through his council) with the various judges and courts across the country. In an informal manner, cases moved from court to court with little difficulty and without excessive regard to jurisdictional boundaries. Judges, in close cooperation with the king's council, had considerable discretion, especially in procedural matters. - With the fourteenth century came significant elaboration of the judicial system responsible for implementing the common law.

Li and Fa - The teachings of Confucius, and especially the concepts of li and fa, are important to the understanding of the Eastern Asia legal tradition.

- The essence of li is maintenance of an orderly society with harmonious social relationships among people. This harmonious society is the result of rulers who govern in moral and virtuous ways and thereby set examples for everyone else. As moral and virtuous behavior trickles down to the public (and is supported with moral and virtuous examples from family, teachers, and others), people internalize virtue as simply the way to behave rather than the way others are forcing them to behave. - Contrasted with li is the concept of fa—formal law and sanctions or, for our purposes, criminal law and punishment. When li is successfully implemented in society, there is no need to call upon fa. Unfortunately, li is not always able to prevent misbehavior and fa must step in to maintain social order.

Primary Source of Civil Law

- The primary source of law in the civil tradition is the written code. - The code, which is complete and self-sufficient, is provided by the ruler or the legislature. - Of course, completeness is a problem because the codes would become unreasonably extensive if they anticipated all possible acts and the specifics of every case. - Instead of offering direct and specific solutions to particular problems, codes supply general principles from which logical deduction provides a resolution in each case (Sereni, 1956). - In this manner, civil judges need only identify the applicable code principle to decide a particular case. - The solution is expected to be reached through an independent process of legal reasoning that the judge can identify and explain. - This process allows the judge to apply the law but not to make it—exactly what the cultural tradition of separation of powers had in mind. - Therefore, under the civil legal tradition, the solution to each case is to be found in the provisions of the written law, and the judge must show that the decision is based on those provisions.

Flexibility in Common Law - The concept of stare decisis has the potential to tie common law to the vestiges of the past.

- When judges are expected to decide the present case similarly to the way like cases were decided in the past, it seems unlikely that much change can occur. Perhaps even more important, what happens when the court is presented a case that seems very dissimilar to preceding ones? Luckily for the judge and, therefore, for nations under this tradition, common law provides for flexibility by empowering judges to develop solutions to unique cases by "making law" (Postema, 1986) - . The only restraint requires the solution to be built from a base of existing law. The result is law established by judicial decision and precedent rather than issuing from statutes, codes, or divine proclamation

With the Church claiming jurisdiction over the entire life of Christians, potential conflict with the state was inevitable.

. In fact, the papacy and the government in Constantinople were in serious conflict from the time of Pope Leo I (440-461) onward. By Pope Gregory's time (590-604), canon law had secured a foothold in the legal system of the empire. Ullman (1975) suggests that an important reason for this ascendancy of canon law was its flexibility. With Gregory, canon law operated as a living law, providing a written system of law for contemporaries. The Roman law, as codified in the Corpus Juris Civilis, stood in stark contrast with its centuries-old standards. Canon law developed from real situations in the current time period and was flexible enough to absorb features of other systems like those of the Germanic tribes By the ninth century, both Roman law and canon law had experienced their heyday. Germanic and other invaders provided modifications as the empire collapsed, but by the eleventh century each had reestablished itself as a superior system. Law became a major object of study at Bologna and other Italian universities, and Italy became the legal center of the Western world

The geographical distribution of these five schools provides variation in how Islamic law is applied from one country to another—and even within a country

. It is important to remember that the Shari'a is not necessarily the sole basis for all law in every Islamic (or predominantly Muslim) country—nor do Muslims necessarily want Shari'a law to be the official law of the land in their home country. A Pew Research Center survey (Lipka, 2015) of Muslims in 39 countries found that nearly all Muslims in Afghanistan (99 percent) and most in Iraq (91 percent) support Shari'a law as official law, but in other countries—especially Southeastern Europe and Central Asia— relatively few favor the implementation of Shari'a law (e.g., Turkey, 12 percent; Albania, 12 percent; Kazakhstan, 8 percent)

A legal tradition puts the legal system into a cultural perspective

. It refers to deeply rooted and historically conditioned attitudes about things such as the nature of law, the role of law in society, how a legal system should be organized and operated, and the way law is or should be made, applied, or perfected (Merryman, 1985). From this perspective, it is possible to analyze the legal systems of a considerable number of countries at one time. In doing so, however, we must not forget the variability of systems within the traditions. England, New Zealand, and New Jersey share a common legal tradition but do not have identical legal systems. Similarly, France, Germany, and Italy have their own legal systems but can be grouped in the same legal tradition along with the separate legal systems of Argentina and Brazil

Private and Public Law The concepts of private law and public law provide a useful distinction in comparing legal systems. In the sense used here, the terms refer to a "legal personality." That is, where do legal rights and obligations lie? Under civil law, the question requires two answers.

. Some matters are the sole concern of the individuals involved. Those individuals come as equals before the judge, who serves as referee in the matter. The legal rights and interests lie with the private individuals, and, in its truest form, the right to sanction rests with the individual as well. Public law in the civil tradition refers to rules governing activities of the state or of persons acting in the public interest. A separate system of laws, of courts to hear such cases, and of procedures regulating the whole process is a feature of the civil tradition Under common law, the distinction between public and private law is not so clear. Common law does not provide separate systems for handling private and public disputes. Both types of questions go before the same courts of law, are heard by the same judges, and are governed by similar rules. Cases involving state action are placed in the same position as those involving the action of ordinary citizens position as those involving the action of ordinary citizens (Schwartz, 1956). The absence of a distinction between public and private law in the common tradition is historically based. Essentially, English common law is predominantly public law because the courts were justified in settling disputes only because of the lord's (finally, the Crown's) interest in the case. In this manner, the public or state was given a legal personality. In the capacity of a "personality," the state could bring claims against an individual. Civil law also recognized a legal personality of the state, but claims initiated by that "personality" progressed through the separate legal system set up for that purpose

In addition to relying on ijma for resolving questions of proper application of the Qur'an and Sunna, reasoning by analogy also came to play an important role. Souryal (2004) compares this use of analogy (qiyas) to the rule of precedent or stare decisis in the common legal tradition.

. That is, judgment is rendered in a new case by using a previous solution found in the Qur'an or the Sunna to resolve a similar case. For example, Lippman et al. (1988) note that some judges have sentenced persons who committed sodomy (not mentioned in the Qur'an or Sunna) to the same penalty the Qur'an provides for adultery by reasoning that sodomy and adultery are similar offenses - With the Qur'an and Sunna serving as primary sources, and qiyas and ijma as secondary, the Shari'a had its basic sources. Not surprisingly, however, those sources were not understood or applied in a similar manner throughout Islamic countries any more than civil, common, or Eastern Asia law is consistent across nations following those traditions. The best way to understand the variation is with reference to the schools of law that developed as Shari'a spread.

A Procedural Component of Legal Traditions: How Does Law Keep Pace with Changing Society - How is flexibility provided?

1- Common Tradition - Judge-made law and particularization 2- Civil Tradition - Variation in reasoning and definition, and identification of issues as either questions of law or questions of fact. 3- Islamic Tradition - Fatwa (legal opinion or ruling) and the process of ijtihad (independent reasoning). 4- Eastern Asia Tradition - The reliance on informal procedure and, for China and North Korea, on vagueness in how the law is written

Some Cultural Components of Legal Traditions a: Do legal rights and obligations lie with the individual (private law) or the state (public law)? B:What is the position of the judiciary in relation to other government branches? 1- Common Tradition 2- Civil Tradition 3- Islamic Tradition 4- Eastern Asia Tradition

1- Common Tradition A:Public law, with both the individual and the state having a legal personality. B:Courts share in balancing power 2- Civil Tradition A:Public law when concern is with the state's legal personality; private law when concern is with the individual's legal personality B:Courts have equal but separate power 3- Islamic Tradition A:Private law because the concern always centers on the individual's legal personality. B:Courts and other government branches are subordinate to the Shari'a. 4- Eastern Asia Tradition A:Legal rights and obligations simultaneously have both private and public aspects. B: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).

substantive law is composed of internal and external characteristics. A Substantive Component of Legal Traditions: Where Does the Law Come from? - The primary source of law is

1- Custom - Common Tradition - Law expresses entrenched visions of right and wrong 2- Codification - Civil Tradition - Written code provided by rulers or legislators. 3- Divine revelation - Islamic Tradition - Law has the authority of God rather than tradition or directive. 4- Principles of Confucianism - Eastern Asia Tradition - Ideally the "source" is within each individual but realistically lies in codes presenting models for behavior

Briefly, the five madhahib, which are named for their greatest teachers, are

1- Hanafi 2-Maliki 3-Shafi'i 4- Hanbali 5- Ja'afari

Comparison of Sunni and Shi'a Islam: A-Sunni Islam B- Shi'a Islam 1-About 2- Proportion of Muslims 3- Prophets 4- Primary geographic presence 5- Current leaders 6- Religious authority other than the Qur'an 7- Summary of differences and similarities

1-About A: Originated with the teachings of Prophet Muhammad. Sunnis believe that Muhammad's close friend Abu Bakr was his successor B:Originated with the teachings of Prophet Muhammad. Shiites believe that Muhammad's son-in-law, Ali, was his successor. 2- Proportion of Muslims A:85-90% B:10-15% 3-Prophets A:Muhammad, Jesus, Moses, and Abraham. B:Muhammad, Jesus, Moses, and Abraham 4- Primary geographic presence A:Spread across the world and comprise the majority of Muslims in most Muslim countries. B:Spread across the world, but comprise the majority of Muslims in Azerbaijan, Bahrain, Iran, Iraq, Lebanon, and Yemen. 5- Current leaders A:Imams, who are considered human leaders B:Imams, who are considered infallible and perfect interpreters of the Qur'an 6- Religious authority other than the Qur'an A:Ijma (consensus) of the Muslim community B:Infallible imams 7- Summary of differences and similarities - Distinctions between Sunni and Shi'a Islam began as political (different views regarding the true successor to the Prophet Muhammad and the nature of religious authority) but gradually became more theological. Importantly, however, both hold the same fundamental beliefs and many Muslims do not distinguish themselves as being anything more specific than Muslim.

1. Classical Systems: 2.• Mixed Systems: 3• Secular Systems:

1. - Saudi Arabia and Iran are in this category, but Saudi Arabia has the more puritan version. The penal law of Saudi Arabia is entirely based on Shari'a, so hudud (see Chapter 5) offenses are recognized and corporal punishments can be applied. Iran's new (2013) penal code continues to recognize hudud offenses and, although it is no longer a punishment for adultery, stoning remains the punishment for apostasy. Corporal punishment, including amputation and flogging, may still be applied (Human Rights Watch, 2012). 2. - The majority of Muslim countries fall in this category. Some of these countries (e.g., Afghanistan, Pakistan, and Sudan) lean toward the classical group, but others (e.g., Indonesia, Malaysia, and Morocco) are clearly examples of mixed legal systems. For example, Pakistani criminal law is based on legal codes introduced during the colonial period by Britain, but amendments have incorporated Islamic law such as the recognition of hudud offenses. Moroccan criminal law, on the other hand, is influenced by Shari'a in a very limited way. For example, Muslims disrespecting Ramadan can be punished with a fine or detention and the code forbids attempts to convert a Muslim to another religion. 3. - Turkey is the sole example for this category. Turkey's constitution protects religious freedom and the penal code is broadly consistent with the laws of the European Union. There has been no direct or indirect reference to Shari'a law in Turkish criminal legislation since the 1930s

1. Common Tradition 2. Civil Tradition 3. Islamic Tradition 4. Eastern Asia Tradition

1. • Feudal practices • Custom • Equity 2. • Roman law • Canon law • Codification 3. • Qur'an and Sunna • ijma and qiyas • Schools of law 4. • Confucianism • Collectivism and Context • Legal Informalism

Ijma is the process wherein qualified legal scholars of the Muslim community reach agreement (consensus) regarding a complex matter or event.

2 Following Muhammad's death, the caliphs (leaders of the Muslim community) used consultants to help in the proper interpretation of the Qur'an and Sunna for situations where judgment was unclear or hard to reach

In 1928, law professor John Henry Wigmore (1928) published a three-volume work on the evolution of the various legal systems.

A 1936 version (Wigmore, 1936) not only revised and expanded the information but also incorporated the three previous volumes into one library edition. This prototype of comparative legal studies still sets the standard for comprehensive coverage. Wigmore believed there had been 16 legal systems in the world: Egyptian, Mesopotamian, Chinese, Hindu, Hebrew, Greek, Roman, Maritime, Japanese, Mohammedan, Celtic, Germanic, Slavic, Ecclesiastical, Romanesque, and Anglican. By 1936, Wigmore saw six systems as having completely disappeared as legal structures (Egyptian, Mesopotamian, Hebrew, Greek, Celtic, and Ecclesiastical). Five survived as hybrids (Roman, Germanic, Slavic, Maritime, and Japanese). ). The Chinese Hindu, and Mohammedan systems remained essentially unmixed, and the two newest (Romanesque and Anglican) were hybrids.

When discussing the schools of law in Islam, Glenn (2014) makes a comparison to law in the United States. For both U.S. law and Islamic law, one must know which state law or which school of law is applicable. That is, which state law is pertinent, and which Islamic school of thought is relevant?

A key difference, of course, is that state law has geographic boundaries whereas a preferred school of thought indicates personal preference (unless a country or region has legislated adherence to a single school).

phasized—although the state may act to protect the individual. Hybrid systems, by definition, have characteristics from several of the other legal traditions. As such, it is not surprising that legal personality in the Eastern Asia tradition has aspects of both civil and common traditions. However, one must also consider the notions of li and fa as expressed in Confucianism. When that is done, the distinction between public and private law becomes cloudy

A society based on li is orderly and harmonious because everyone has internalized the moral and virtuous ways exemplified by those in authority. Proper behavior is the result of internal rather than external forces, so the obligation to behave is "private" in the sense that it reflects individual obligations. Since an entirely li-based society is utopian, the Eastern Asia legal tradition came to rely also on formal law and sanctions (fa) wherein the state came to have a legal obligation to enforce proper behavior. However, the state role is tempered by a preference to rely on li. The result is a view of legal rights and obligations as simultaneously having both private and public aspects . When a formal response is required, the established legal institutions are used and the state, in its legal personality, takes action against the wrongdoer. The result is a coinciding of public and private law—at least as we are using the terms

Describing Islamic law as emphasizing private law should not be understood as saying that state officials cannot initiate action against suspected offenders. Chapter 5 explains the three categories of criminal acts recognized in the Islamic legal tradition (hudud, qisas, and tazir), and we will see that the first are considered acts against God.

Acting as God's agent, the state initiates action against persons accused of committing hudud crimes; however, in doing so, the state is still protecting an entity (albeit an omnipresent one in this case). Similarly, the state may initiate action (rather than waiting for the victim to bring action) against offenders in the other two crime categories as well. In doing so, the state acts to maintain public order among citizens rather than acting in response to behavior that has harmed society as a whole. The offenses are considered to have been private wrongs rather than public wrongs, and it is, therefore, the individual's legal personality that is emphasized—although the state may act to protect the individual.

According to Blackstone's Commentaries (Tucker, 1803) on the Laws of England, legal custom is ancient (no one can remember its beginning), continuous (it has never been abandoned or interrupted), peaceable (it has the common consent of those using it), reasonable (in terms of "legal" reason), certain (ascertainable), compulsory (it is not obeyed at option), and consistent (one custom cannot contradict another)

As complete as that definition might sound, we must still consider the question of how custom is determined. One way to decide whether a custom met the criteria for being a good legal custom was the jury system. Presumably, if a freeman's peers settle a dispute by using principles that reflect common and immemorial custom, the decision exemplifies common law. Or, as Blackstone suggested, the only way to prove that a principle is a rule of common law is to show that it has always been the custom to observe it

2- Maliki

As the Hanafi school was spreading north and east from Islam's geographic origins around the cities of Medina (western Saudi Arabia) and Kufa (central Iraq), the Maliki school went west and is prevalent today in Northern and Western Africa and northern Nigeria. Under the Maliki doctrine, the four basic sources of Shari'a are recognized. The Malikis' concept of ijma originally was more restrictive than that of the Hanafis, but over time the Malikis broadened their acceptance of the legal scholars they recognized as authorities

Superior magistrates, especially the praetor, of Rome issued edicts that initially identified how magistrates planned to fulfill their duties. Complaints between Roman citizens were taken to the urban praetor, who handled cases of Roman jus civile (private law)

By issuing edicts at the start of his term, the praetor could identify the principles he would follow during his one year in office. Although the edict was valid only for that praetor's term, a tendency developed for praetors to borrow from their predecessor's edict. This certainly is different from stare decisis in common law, but it does suggest an early means of attaining consistency in procedure (Watson, 1970). A more appropriate link between the praetor and common law refers to a means for attending to fairness. In this manner, the edicts became a body of law known as the jus honorarium, which was to Roman law what equity was to common law (Kolbert, 1979). Advance notice of the procedural rules he would follow allowed the praetor to give the process a sense of fairness.

- As a result, the contact between monarch and judge became infrequent, and the court's discretion in handling matters was correspondingly reduced.

By the mid-1350s, we find courts refusing to bend procedural rules, even in a sense of "fairness," and instead declaring that judges were bound to custom and to taking a strict definition of statute

Because Islamic law's basic source is a religious text, it is sometimes portrayed as a harsh and inflexible system that is inappropriate in today's world

Certainly criminals have been amputated, beheaded, and stoned under Qur'anic provisions. However, there have also been criminals whose punishment has been set aside because of their victim's forgiveness. In fact, the Qur'an encourages forgiveness with the same vigor that it advocates retaliation. That point, which becomes clearer throughout this book, is good to keep in mind so that preconceived notions of Islamic law do not prevent a more dispassionate understanding of its operation.

Just as the common legal tradition developed from several basic subtraditions, the civil tradition has its own underpinning (see Figure 4.2). Specifically, we consider the role played by Roman law, canon law, and codification. Roman Law

Civil law preceded common law chronologically because of its link to Roman law. In turn, Roman law was the result of statutes, edicts of magistrates, and the interpretations of jurists - Three legislative bodies created Roman law statutes. The comitia centuriata and comitia tributa enacted statutes known as lex (a collection of laws) - . The concilium plebis enacted plebiscitum, a law passed by the common people. - These laws were binding only on the average citizen unless the Senate made it binding on the nobility and senators.

Confucianism

Confucius (the Latin name for the Chinese philosopher K'ung-fu-tzu) was a fifth-century bce teacher whose philosophy had great influence in China, Korea, and Japan. Rather than a religion, Confucianism is best viewed as a moral and ethical system developed from the teachings of Confucius. It is considered to be the most important single source of an Eastern Asia legal tradition ( More generally, the countries in Eastern Asia have been influenced by Confucianism because, compared with the West, they all emphasize family- or group-based collectivism, hierarchy, harmony, and informal control mechanisms

Although the common law tradition operated with a judiciary that balanced the power of the legislature and the executive, the civil tradition functioned with a judiciary separated from the other two branches of government. This separation of powers is one explanation for the development of a separate legal system for public law. It also, of course, reflects a greater suspicion of the judiciary under the civil tradition than was present in the common legal tradition

Despite the different paths taken, both civil and common law traditions rely on each government part as a source of law. As is explained later, there are important differences with regard to which government area is emphasized as the primary source of law, but for now we need only point to the expectation that each part has a role to play.

Schools of Law

Differences among Muslims in how Islam is interpreted and applied are linked first to one of two sects in Islam (Sunni and Shi'a) and then to the school of law to which particular Muslims adhere. These schools of law (madhahib, or, singular, madhhab) originally numbered in the hundreds but today have narrowed to five major ones: Hanafi, Maliki, Shafi'i, Hanbali, and Ja'afari. The first four are linked to Sunni Islam and the last to Shi'a Islam. We begin by reviewing the two sect

The Demise of the Socialist Legal Tradition

During the second half of the twentieth century, many scholars identified the socialist legal tradition as an important contemporary legal tradition. Others believed the historical link between civil law and law in socialist countries meant that socialist law was simply a modification of civil law and not deserving of separate status. Even after the fall of the Soviet Union, arguments were made that a socialist legal tradition continued in the world's remaining socialist countries—and, Partlett and Ip (2016) make a good argument that China remains an example of that legal tradition

Before the Norman Conquest of England (1066), a nonfeudal Anglo-Saxon political system provided dispute settlement through assemblies of freemen sitting in shire and hundred courts. Upon his arrival in England (see Map A.10), William the Conqueror (1066-1087) chose not to abolish the existing Anglo-Saxon process. Instead, he set up an orderly government with stern enforcement of royal rights. A new system of royal courts was developed with the primary interest of settling disputes of landholders

For example, a baron (beholden to his lord the King) presided over disputes between the baron's vassals. In doing so, the baron drew upon the advice of his other vassals (the disputants' peers) in arriving at a judgment. Failure by a vassal to answer an order to appear (summons) in court could result in the lord reclaiming the vassal's land.

Asia, of course, encompasses an extremely large area that includes remarkably diverse cultures

For our purposes, the specific area termed "Eastern Asia" by the United Nations Statistics Division (2013) identifies the countries said to be following an Eastern Asia legal tradition. Specifically, those countries are China (including the special administrative regions of Hong Kong and Macao), Japan, Mongolia, and both North and South Korea As the Eastern Asia legal tradition is described and explained, the influence of both civil and common legal traditions will become apparent. However, the countries used to show an Eastern Asia tradition (China especially, but Japan as well) have enough unique characteristics that the result is clearly a hybrid that blends those Western influences with more clearly Asian traits. Those traits to be highlighted here are linked to the ethical and philosophical teachings of Confucius with their emphasis on collectivism and a preference for legal informalism.

Over the centuries, the rules of equity became as strict, consistent, and "legal" as those of the common law. The growth and formalization of equity finally provided an opportunity to unite the two legal systems, and in 1875 a judicature act removed the formal distinction between the two courts. Common law was now complete.

From a historical base (feudal practices), the common legal tradition had basic principles (custom) and a sense of fairness (equity).

A key point upon which Bracey, Glenn, and Vogler agree is that any categorization of legal traditions is more provisional than conclusive

Glenn (2010, p. 362) notes that any attempt to isolate one legal tradition from others may be immediately challenged by information that is inconsistent with the separation chosen. Vogler (2005, p. 16) warns that he certainly is not suggesting that any criminal justice system can be characterized as falling wholly or even predominantly within any of his three traditions. And Bracey (2006, p. 30) reminds us that any attempt at grouping legal systems into broader categories of legal traditions results in something reflecting the designer's goals more than any agreed-upon reality. - So, why do it? Because, as all three agree, doing so provides some clarity to a very complex situation. - Or, as explained in Chapter 1's coverage of the need for classification, it provides a way to order and summarize diversity

Custom

Henry II saw the reign of his predecessor, Stephen (1135-1154), as a period without law and troubled by civil war. Henry's grandfather, Henry I, on the other hand, ruled over a more orderly kingdom. In addition, in the 100 years since the Norman Conquest, both royal courts and the separate system of church courts had grown and become involved in many jurisdictional disputes - Henry II sought to return order to thekingdom and to solve disputes between state and church courts.

The principal element in most premodern legal systems was custom. Not surprisingly, custom was an essential aspect of court decisions under Anglo-Saxon law and the English feudal process

Importantly, however, custom was not always consistent by geography or by social standing. Local village customs settled disputes among peasants and other villagers. Occasionally, those customs contradicted those of vassals, lords, and other freemen. Plucknett (1956) notes that village customs in England frequently kept a woman's property free from her husband's control and allowed her to enter into contracts on her own. - Bourgeois custom did not allow such behavior by women. - This point becomes important because the common legal tradition was built upon only one of these custom types. Specifically, common law was the custom of landholders as accepted and interpreted by the royal courts. - It is appropriate to keep this point in mind as we discuss custom's role in the origin of common law

Ijma and Qiyas

In applying the Qur'an and Sunna, some Muslims came to take a strict interpretation and believed that every rule of law must be derived from the Qur'an or the Sunna. Others believed that human reason and personal opinion should be used to elaborate the law. In the early ninth century, the jurist Shafi'a proposed a compromise that some authors claim earned him the title "father of Muslim jurisprudence" (Coulson, 1969). Basically, Shafi'a sided with the strict interpreters but also acknowledged gaps that human reason was helpful in filling. Human reasoning, he believed, had to be subordinate to principles established by divine revelation in order to make sure it did not result in human legislative authority. Cases not seemingly answered by the Qur'an or Sunna were to be handled through a consensus of legal authorities (ijma) and by a process of reasoning by analogy, or qiyas.

The degree to which Islam affects law in Muslim societies is not the same across the countries where Islamic law is present. At one end of the spectrum is Saudi Arabia (see Map A.2), where the Qur'an and Sunna are considered the nation's constitution. At the other end is Turkey, where the law is secular, despite a population that is 99 percent Muslim.

In between are countries where Islam plays an important, but not sole, role. In some of those countries, Islamic punishments apply only to Muslims. In others, Shari'a is applied only in personalstatus matters (e.g., marriage, divorce, and inheritance) but not for crimes. Variation within countries is also found with some allowing Shari'a as a local (e.g., Indonesia) or state (e.g., Nigeria) option.

Vogler (2005) also sees legal traditions as nicely grouped in three, but for him they are paradigms that may be identified as the inquisitorial, adversarial, and popular justice traditions.

In contrast to a tripartite view of the world's legal traditions, Glenn (2014) uses seven categories (chthonic—a bit like Bracey's traditional or customary law and Vogler's popular justice, Talmudic, civil, Islamic, common, Hindu, and Confucian), although he suggests that others also exist

Sunni Islam started as the larger group and continued to be politically stronger. Today, estimates are that 85 to 90 percent of the world's Muslims are Sunni.

In five countries—Iran, Azerbaijan, Bahrain, Iraq, and Lebanon—at least half the Muslim population is Shi'a. In the United States, 65 percent identify as Sunni and 11 percent as Shi'a—the remainder with neither group or simply as Muslim (Lipka, 2014, 2015). As we review differences in Sunni and Shi'a understanding of Islam, it is important to keep in mind that—despite the differences in opinion and practice—Shi'a and Sunni Muslims share the main articles of Islamic belief. Many Muslims do not distinguish themselves by claiming membership in any particular group; however, current global political conditions mean there has been a degree of polarization and hostility in many Muslim societies

Disputes among the villagers were deemed more appropriately handled by the lord of the manor than by a royal court. If the manor court was unavailable or inappropriate, villagers could turn to the traditional shire or hundred courts.

In this manner, England retained Anglo-Saxon influences on its legal system into the early twelfth century. Law under Henry I (1100-1135) continued to be mostly Anglo-Saxon and administered at a local level according to widely varying regional custom (Plucknett, 1956). Even so, the administrative machinery, such as royal courts, put into place by William I and Henry I, provided the base for a common law dominating the realm. The realization of a common law occurred with Henry II (1154-1189). - We now turn to custom as the next subtradition of common law

Islamic courts do not operate as a counterbalance to the legislature and executive.

Instead, consistent with its emphasis on private law, the Islamic court serves as a stabilizing device among contending persons (Rosen, 1989). Actually, under classic Islamic theory, neither the state nor the courts were instruments for the application of law. Instead, each was to focus on the individual and perform its respective duties in a way that allowed individuals to carry on with their own affairs.

Compared with the other three legal traditions, Islamic law is uncommon in its singularity of purpose

Islam recognizes no distinction between a legal system and other controls on a person's behavior. In fact, Islam is said to provide all answers to questions about appropriate behavior in any sphere of life. As a legal tradition, Islam is unique among the four discussed here. Although each of the other three took some principles and techniques from religion, the traditions themselves remained distinct and separate from religion. Islamic law, however, is intrinsic to Islamic faith and life in Islamic countries

For our purposes, the essential principles of Confucianism lie in the concepts of li and fa.

Li has many meanings but mostly it refers to moral and social rules of conduct that are shared and internalized by individuals. At a very basic level, it has been defined as etiquette or propriety, but it is more than that. Li is a way of life—or, at least a way of living one's life—that includes adherence to the specific legal code, but even more importantly it presumes conforming to the broader moral code. In this sense, there is a similarity between li and Islam's perspective of Shari'a as encompassing all aspects of the devout Muslim's life—not just one's legal obligations.

Balance/Separation of Powers Some of the more important cultural changes in modern times were the eighteenth-century political and intellectual revolutions in most Western nations. Especially significant were documents such as the American Declaration of Independence and the French Declaration of the Rights of Man and of the Citizen, which offered ideas about human equality and the relationship between state and citizen. We quickly notice political, economic, and intellectual aspects of the revolutions, but there were important legal ramifications as well. Consider first the impact that these events had on the civil and common law countries.

Members of the French judicial aristocracy were targets of the French Revolution because of their tendency to identify with the landholders. Repeated efforts toward reform had been obstructed by courts' refusing to apply new laws, interpreting them contrary to their intent, or hindering attempts of officials to administer them (Merryman, 1985). The situation differed from the one found in England (and America), where judges had more often been on the side of the individual against a power-wielding ruler. English citizens did not have the French fear of judicial lawmaking and of judicial interference in administration. Another reason for targeting French judges was their failure to distinguish clearly between applying law and making law. Montesquieu and Rousseau had argued for the importance of establishing and maintaining a separation of governmental powers. Especially important was a clear distinction between legislative and executive duties on the one hand and the duties of the judiciary on the other. In the French Revolution, this emphasis on separation of powers led to a system designed to keep the judiciary from intruding into areas reserved for the other two powers: lawmaking and execution of the laws.

Before Muhammad, Arabic tribes operated under customary law, of which blood revenge was a major tenet. After the angel Gabriel called Muhammad to be a prophet, Muhammad preached about the need to replace old tribal loyalty with equality and brotherhood among all Muslims. In 622 ce, he fled from harassment in Mecca to greater appreciation in the city of Medina. As his prophet status spread, Muhammad was asked to judge disputes between Muslims. Generally, he followed the customary law of the town (to the extent that it was consistent with Islamic principles), but in cases where that law was lacking, he turned to Allah for direction

Muhammad provided no tables, commandments, codes, or digests. Instead, Allah's revelations and Muhammad's own behavior provided answers to the quarrels and questions of the townsfolk. In time, these events comprised the primary ingredients of Islamic law—the Shari'a, "the path to follow." In its purest form, it consists of the writings in the Qur'an (the holy book of Islam) and the Sunna (the statements and deeds of the Prophet).1 However, even taken together, these two elements do not make up a comprehensive code of law. In fact, they hardly constitute the bare skeleton of a legal system (Coulson, 1969). Therefore, added to the primary sources were two secondary sources of law: consensus by jurists (ijma), and analogical reasoning (qiyas). Both those primary (Qur'an and Sunna) and secondary (ijma and qiyas) subtraditions of Islamic law were, and are, influenced by differences among schools of thought. Those schools are discussed as the third subtradition of Islamic law

Countries such as Jordan and Kuwait have both civil and Islamic aspects in their legal systems, whereas other nations combine Islamic and common traditions (e.g., Kenya and Nigeria).

Muslim countries providing the clearest examples of widespread use of Islamic law as official law include Iran, Pakistan, Saudi Arabia, Sudan, and Syria. The Islamic legal tradition encompasses diverse legal systems and undoubtedly is influenced by civil, common, and socialist countries. Nevertheless, it gives all appearances of maintaining its footing in its subtraditions of the Qur'an, the Sunna, ijma, and qiyas

Nigeria (a secular nation with a judicial system inherited from its period as a British colony), in one of the country's 12 northern states that have adopted versions of Islamic law

Nigeria's common law heritage (resulting from being a British colony) is contrasted with its Islamic law heritage (introduced by Arab traders and conquerors), and the country today is trying to accommodate both. Seeing why that is a difficult task requires an understanding of the differences inherent in common, Islamic, and other legal traditions.

The division between the Sunnis and the Shi'a (also known as Shiites) dates to the death of Muhammad and the resolution as to who should succeed as the leader (not prophet—only Muhammad was considered a prophet) of the Islamic world

One group of Muslims elected Abu Bakr (a close companion of Muhammad) as the next caliph, and he was duly appointed to that position. A smaller group—believing leadership of Muslims should continue in Muhammad's family line—wanted Ali, Muhammad's cousin and son-in-law, to become the caliph. Those believing Abu Bakr should become the successor have come to be known as Sunni, and those favoring Ali are called Shi'a (also Shiite) Muslims. Table 4.1 shows some of the differences in each school's understanding of Islam.

Unfortunately, the ideal is, like most ideals, unrealistic. Relevant provisions often cannot be found, so where is the flexibility needed to handle those situations?

One way to provide flexibility in civil law is to recognize that deducing a solution from a necessarily general legislative provision may lead judges to different conclusions. That is, different judges will often employ different reasoning, which will lead to different results (Sereni, 1956). As long as the judge shows how the decision proceeds logically from the rule stated by the legislature, the solution should be regarded as acceptable. Similarly, the civil tradition allows for changes in meaning over time. Earlier civil courts may have correctly ruled in their time, but subsequent modification in the meanings attached to words in the written law allows and requires contemporary courts to arrive at different findings with reasoning as sound as that of their predecessors

. Custom in common law, codification in civil law, the integration of religion and criminal justice in Islam, and a preference in some Asian countries for persuasion over punishment are examples of cultural elements that help us appreciate each legal tradition. Sometimes the cultural differences hide similarities among the traditions

Similarly, some traditions are culturally alike in certain ways but have very different operations as a result. An important cultural component to consider when discussing an Eastern Asia legal tradition is the role played by socialism generally and the Communist Party more specifically—especially when China is used as an example of an Eastern Asia legal tradition. Some aspects of socialism were easily incorporated into an Eastern Asia legal tradition— By drawing attention to points such as these, the comparative justice scholar seeks to identify similarities and differences among legal traditions. As examples, we briefly consider the cultural components concerning "public and private law" and the "balance/ separation of powers

The movement to citing prior cases as binding (i.e., the movement to precedent in its modern sense) instead of simply showing custom began in the sixteenth century. Still, it was in the seventeenth century that the practice became established.

Specifically, decisions of the Exchequer Chamber (where the judges were the state chancellor and the treasurer) were held to be binding on other courts. Even so, the process was not really entrenched until the nineteenth century brought a strengthening of the House of Lords and the organizing of a single court of appeals. Therefore, custom is not only a basic component of common law but also what has allowed precedent and stare decisis to become essential features

3- Shafi'i

Taking a position between the more liberal Hanafi and more conservative Maliki schools was the Shafi'i. The most distinguishing feature of the Shafi'i school is that it recognizes only the four basic sources of Shari'a—with the Qur'an and the Sunna being paramount and qiyas and ijma secondary. The Shafi'i school spread farther east than the Malikis and prevails today in Islamic communities throughout Southeast Asia and in Egypt, where al-Shafi'i died

The Hebrew legal system started with Moses receiving the two tablets of stone and the recording of the first five books of the Bible (known as the Torah, or Ancient Law).

That first period (about 1200-400 bce) was followed by the Classic period (300 bce- 100 ce) in which rabbis developed the law. - The Talmudic period (200-500) saw the consolidation of records and was followed by the Medieval period (700-1500) of private codes and commentaries. Finally, in the Modern period (1600-1900), the Hebrew language and legal system were relegated to secondary standing as Jews became more linked to national (territorial) norms. - Actually, Wigmore (1936) suggests that the Hebrew system ended as a strictly legal system with the end of the Classical period. After 100 ce, Hebrew law was replaced in Palestine by Roman rule, and since then, Jewish law has operated mainly as local custom and as ceremonial and moral rules With the background provided by Egyptians, Mesopotamians, and Hebrews, we can move to the contemporary arena and begin the journey of understanding one way that today's legal systems can be grouped and categorized. When doing so, it is important to remember that the four categories used here are used for explanatory rather than definitive purposes

- One of his efforts resulted in the Constitutions of Clarendon (1164), which listed customs said to be the practice during the reign of Henry I.

The 16 articles forming the Constitutions provided custom as a basis for building order and served to declare the proper relation between church and state. The significance of custom must be elaborated

If law under each tradition really came only from the source identified in the preceding paragraphs, few legal systems of any type could remain effective

The belief that state authorities anticipate every nuance of each potential dispute is just as unreasonable as trusting that ancient custom provides useful guidelines for contemporary behavior. Similarly, believing that God's pronouncements for appropriate behavior today are the same as those provided in the sixth century requires as much faith as accepting utopian theories of a fifth-century bce philosopher. Obviously, each system had to provide ways to update, modify, fill in the gaps, and supplement the various sources of law in their respective legal traditions.

A momentary retreat to before the time of Christ will instill an appreciation for the maturity of the idea that law is an instrument for social organization. If, in the process of gaining that appreciation, we gain a sense of humility as well, that is all to the good. After all, in some ways, contemporary legal systems have existed for less time than others have been extinct.

The Egyptian legal system extends back as far as 4000 bce, but it was especially well organized by the Fourth Dynasty (2900-2750 bce). By that time, the Egyptian king, or pharaoh, ruled as a theocrat with divine authority coming from the sun god Osiris through his son Horus. In this manner, the source of law and justice was presumed to be divine but was received by way of the pharaoh, who appointed chief judges. As sole legislator, the pharaoh provided codes that set down the proper behavior of his people. The particular procedures for implementing the codes were more likely handled by the chief judges. Disputing parties brought their case before a judge, who listened to their oral arguments. The trial judge was expected to stay quiet while listening to the petitioner, to not treat him impatiently, and to wait until he has emptied his heart and told his grief.

The Demise of the Socialist Legal Tradition pt 2. In the twentyfirst century, those arguments were increasingly difficult to justify as countries such as China and Vietnam moved toward versions of free-market economies, private property, and—especially in China—reform of criminal laws and the criminal justice system.

The European countries that were previously identified as following a socialist legal tradition are today most accurately placed in the civil legal tradition. Asian countries associated with the socialist legal tradition continue to be led by a communist party, but their version of communism has always been a bit different from European communism. As a result, China and North Korea are now best identified as reflecting an Eastern Asia legal tradition (along with Japan and South Korea) rather than a socialist legal tradition

4- Hanbali

The Hanbali school is found today mostly in Saudi Arabia, Qatar, and the United Arab Emirates. Similar to the Shafi'i school, Hanbali adherents recognize the four basic sources of Shari'a and place the Qur'an and the Sunna above qiyas and ijma in authority. Even as secondary sources, qiyas and ijma are restricted. For example, Hanbalis accept as authoritative only an opinion given by a companion of Muhammad, providing there is no disagreement with another companion. If there is disagreement, the opinion that is nearest to that of the Qur'an and the Sunna prevails.

Canon Law

The Roman Catholic Church developed canon law to govern the Church and the rights and obligations of its followers. Roman civil law was the universal law of the worldly empire, and canon law was the universal law of the spiritual realm (Merryman, 1985). Civil courts administered Roman civil law, whereas ecclesiastical courts managed the canon law - The primary source providing the specifics of canon law was the various decretal letters. These decrees were authoritative papal statements concerning controversial points in doctrine or ecclesiastical law. Basically, any matter the papacy considered relevant to the well-being of the whole Christian body public was potential subject matter for a decretal letter. It had official and binding force and in essence was a judicial verdict signifying appropriate behavior and thought

Although not the oldest, the common legal tradition provides a familiar base for discussing the history and essential features of a legal tradition. After covering that more native material, we can move to less familiar traditions

The Romans occupied Britain from about 50 ce to the start of the fifth century. - At that point, only the groundwork for the Roman law (civil legal tradition) had been laid. - By the time the Corpus Juris Civilis was published (533 ce), the Romans in Britain had been pushed out by Germanic tribes such as the Saxons and the Angles. - St. Augustine's efforts at converting Britain to Christianity (597 ce) provided some Roman influence in terms of church law, but this early period served mainly to provide a base for a separate legal tradition called common law. - The common legal tradition developed from several subtraditions. - Those include feudal practices, custom, and equity (see Figure 4.2). - An overview of each provides information helpful in understanding the basics of common law.

Codification

The components of the civil legal tradition have relied primarily on written (codified) laws. Though not fully realized until the Corpus Juris Civilis, Roman civil law had a tradition, dating back to the Twelve Tables, of laws being binding because they were authorized and recorded. - . Canon law supported the codification principle through papal decrees. Codification became so entrenched that in 319 bce Emperor Constantine could declare, "The authority of custom and long usage is not slight but not to the extent that it will prevail against reason or against statute" (quoted in Kolbert, 1979, p. 13). Roman law and canon law provided a tradition of codification that, in turn, emphasized a revolutionary nature of law and stressed its written form

By the fifteenth century, the chancellor was essentially an autonomous judge deciding cases in the name of the king. This situation did not always sit well with common law judges. To appease them, the fifteenth- and sixteenth-century chancellors often called upon the judges to explain a point of law

The cross-pollination of ideas between common law courts and chancery courts benefited both. Common judges learned that technicalities were not an excuse for reaching obviously wrong decisions, and the chancellors came to understand better the law and its application. In addition, chancery courts aided common law courts by providing relief to procedural and substantive defects in the common law system. Plucknett (1956) identifies such faults as slowness, expense, inefficiency, technicality, antiquated methods of proof, and suspicions of volunteer witnesses as particular areas where chancery courts helped common law courts. Having one court system existing primarily to correct the defects of another court system is not desirable in perpetuity. Something had to give.

In its more than 4,000-year existence, the Egyptian legal system obviously passed through many stages and in the process formulated some principles from which Western society could have profited by observing

The discovery of a 250 bce bail bond for a jail prisoner's release and a recognition of women's independence and equality with men in some legal relations remind us that we more "modern" citizens may be in many respects mere revisors instead of innovators

The origin of common law in custom makes precedent a basic concept in the common legal tradition. When stated as a policy, precedent is called stare decisis, which means courts are expected to abide by decided cases. However, we must be careful here not to imply that courts before the sixteenth century had anything even resembling the modern principle of precedent or policy of stare decisis.

The distinction is best handled by referring to the work of medieval judge Henry de Bracton. Bracton saw the courts of his time (mid-thirteenth century) as foolish and ignorant corruptors of doctrine, deciding cases by whim instead of by rule (Plucknett, 1956). In an attempt to return to the rule of law, Bracton reviewed the original plea rolls (immense in number and without index) from the courts. He used those documents to research legal principles and then to identify cases as historical evidence for the accuracy of his statements. Bracton was searching for evidence of custom, and that custom could be identified through reference to several cases. As a result, court decisions were governed by custom, not by the case or cases cited as proof of that custom

The second basic source of Shari'a is the Sunna, which refers to the way the Prophet Muhammad lived his life. The Sunna is reported in hadiths, which are statements providing a narration about the life of the Prophet in terms of what he said, did, or approved

The hadiths have been passed on in a continuous and reliable chain of transmission from Muhammad and his companions to later adherents. A hadith contains three important parts: the statement itself; an indication of its authority by reference to the chain of reporters (i.e., A heard it from B, who heard it from C, who heard it from a companion of Muhammad); and a comment regarding the report as being something Muhammad did, said, or approved That hadith, explains the Center for Muslim-Jewish Engagement (n.d.) at the University of Southern California, was recorded by Abu-Dawud, who lived a couple of centuries after the Prophet's death. Each report in his collection was checked for compatibility with the Qur'an, and the veracity of the chain of reporters (Aisha, Ummul Mu'minin in this example) was painstakingly established. Abu-Dawud's collection is recognized by the overwhelming majority of the Muslim world to be one of the most authentic collections of the Sunna of the Prophet.

In the region between the Euphrates and Tigris rivers (basically Iraq today), the Mesopotamian civilization emerged and fought off successive waves of conquest until the arrival of Persians and Greeks in the centuries before Christ.

The legal system developed by these traders emphasized commercial law and has provided reasonable counterparts of today's deeds, partnerships, and other contract forms. The most notable achievement of the Mesopotamian legal system was the Babylonian law called the Code of Hammurabi. King Hammurabi's (circa 1792-1750 bce) Code is one of the first-known bodies of law. The laws, engraved on stone tablets, emphasized property rights and spoke to such issues as theft, ownership, and interpersonal violence.

5- Ja'afari

The most important Shi'a school of law is the Ja'afari. Shi'a Islam differs from Sunni Islam in its belief of the "Imamate." This means that, after the prophet, the only true leader of the Muslims at any given time is an Imam who is descendent from Muhammad's family and is appointed by Allah. The last such Imam for the main Shi'a group (the Twelvers) was Muhammad Mehdi. He disappeared at age 9 in ce 878 and is believed by the Twelvers to be still alive and in hiding. He will reappear near Judgment Day to establish the Kingdom of Allah, to fill the world with equality and justice, and to bring about the victory of the Shi'a faith. Shi'a Islam regards the Imam to be an independent source of religious behavior with the same standing as the Qur'an and the Sunna. His rulings should be obeyed in the same way as those primary sources of Shari'a hadith and must therefore be obeyed the same way. The Shi'a school of law can be found in Iran, Pakistan, India, Iraq, Lebanon, Bahrain, and Azerbaijan

Feudal Practices

The primary political and military system of the Middle Ages (about 500 to 1450) was feudalism. Under this system, a lord provided vassals with land in exchange for military and other services. - By the 1200s, when feudalism was in decline, several layers of feudal relations existed. - For example, the vassals of an important baron (the vassals lord) were in turn the lord of their own vassals. - Obviously, not everyone could be a landholder. - Someone had to do the work necessary for keeping the lord (at whatever level) viable. - A variety of peasant villagers provided this service in their role as agricultural workers in the lord's estate or manor

The Qur'an and Sunna

The primary subtraditions of Islamic law, or Shari'a, are the Qur'an and the Sunna. The Qur'an, the holy book for Muslims, was recorded by scribes and edited by scholars. It contains rules that God laid down and revealed to the Prophet Muhammad for governing human behavior. - For Muslims, there is no distinction among rules for different segments of life. The Qur'an contains rules for the religious, personal, social, economic, and all other aspects of Muslims' lives. There actually is little material dealing with legal issues in the strict sense of the term, but provisionsidentifying crimes and punishments are included and are considered by Muslims to provide a divinely ordained legal system (

The classification strategy deemed most useful for this text is one using four legal traditions identified as common, civil, religious/philosophical, and hybrid

The religious/ philosophical tradition has included such important legal systems as Hindu and Judaic, but the most important contemporary example is the Islamic legal tradition. The hybrid category includes those legal systems drawing from several legal traditions—especially a combination of common and civil but also customary—and legal systems in Asia provide especially good contemporary examples of such combinations. So, for purposes of simplicity and clarity of discussion, the Islamic legal tradition serves as our third category and an Eastern Asia legal tradition as our fourth. - It is important to remember, however, that the Islamic and Eastern Asia legal traditions are merely representative of their respective broader categories. - Of the four traditions, the American reader is most familiar with the common legal tradition, because the United States falls into that general category. - The civil tradition is today's primary competitor with the common legal tradition and can be found in some format throughout the world

As the preceding review suggests, the decision to place the various legal systems into categories is easier than deciding how many categories to use, what to name them, and on what to base them. Bracey (2006) makes a compelling argument for concentrating on three legal traditions based on what its followers believe to be the source of law

The result, for her, are Western law (laws are from humans who are state officials), religious law (law has divine origin), and traditional or customary law (law is as old as the group itself and is proper for the group).

no legal system is a pure example of a particular legal tradition some countries are more accurately described as combining aspects of several traditions.

This is especially true in countries colonized by nations that imposed their particular brand of law on an existing indigenous legal system. Further complicating matters are those countries subjected to multiple colonization periods by nations with different legal systems. As a result, the legal systems in countries like some in Africa use combinations of common and Islamic law, and some in South America were shaped by both civil and common influences. - . It is appropriate to keep these combined systems in mind as we discuss the four legal traditions—not because they challenge the use of four categories but because they remind us that the categories are artificial groupings that try to bring order to a confusing array of legal systems

Justinian became emperor in 527, succeeding his uncle Justin. As one of his first acts, he charged 16 experts with examining the existing juristic writings and refining the massive bulk of material then serving as Roman law. T

The resulting Corpus Juris Civilis was meant to eliminate incorrect, obscure, and repetitive material. Further, it was to resolve conflicts and doubts while organizing the remaining material into some systematic form (Merryman, 1985). At its completion in 533, the Corpus Juris Civilis stood as the sole authority for the laws and juristic writings Interestingly, most of the material in the Corpus Juris Civilis was over 300 years old and, therefore, predated Christianity. Emperor Constantine (275-337) was the first Roman emperor to become Christian, and Theodosius (346-395) made Christianity the sole religion of the empire. Obviously, Justinian's compilers had access to some 200 years of ecclesiastical law that they chose to ignore. Although church law did not have much impact on Roman law, it was an important factor in the development of the civil legal tradition.

The Corpus Juris Civilis (i.e., the law applicable to all Roman cives or citizens) set the stage for subsequent law not only with Justinian's successors but eventually with Napoleon and his Code Civil (Code Napoleon) as proclaimed in 1804.

The use of civil codes as a legal tradition spread across Europe and to such places as Quebec, Canada, and South America. As a result, in much of the world, the term civil law brings to mind a legal tradition based on written codes, not a specific type of law dealing with private wrongs. Because the concern throughout this book is with criminal justice systems, there is no need to use civil law in reference to those laws regulating individual disputes. So when you read about civil law systems and civil legal traditions, place it in the context of a code of laws as first developed for the Roman Empire

The earliest form of written Roman law dates to 451 and 450 bce, when a council of 10 men inscribed 12 bronze tablets with specifics concerning the rights of Roman citizens. T

These Twelve Tables were approved as lex by the comitia centuriata in 450 bce. They provided the basis for private rights of Roman citizens, consisted mainly of ancient custom, and concerned procedure more than substantive law. For example, the opening passage of the Twelve Tables states, "If a man is summoned to appear in court and does not come, let witnesses be heard and then let the plaintiff seize him. If he resists or absconds, the plaintiff can use force. If he is ill or too old, let the plaintiff provide a beast to bring him: but if he declines this offer, the plaintiff need not provide a carriage"

Confucianism, with its belief that humans are teachable and improvable, is most obviously found in li, but it is also seen in fa.

This is important since formal law is clearly present in Eastern Asia legal systems. If principles of Confucianism were not found in the formal legal codes of China and other Eastern Asia countries, it would be difficult to argue that an Eastern Asia legal tradition exists. More on that point later, but here the idea is simply that Confucius did not deny the utility of formal law and punishment, but he did stress the superiority and effectiveness of li - If the moral philosophy of Confucianism were the only aspect of an Eastern Asia legal tradition, it would be better to simply present that tradition as an example of the religious/philosophical family rather than setting it apart as a key example of a hybrid legal tradition. But the moral preference for persuasion over punishment is not the only unique aspect of the Eastern Asia legal tradition. Also important are collectivism, context, and informalism

1- Hanafi:

This is the oldest of the schools and has the largest number of adherents. It recognizes the four basic sources of Islamic law, which are the Qur'an, the Sunna, qiyas, and ijma (see the first and second subtraditions covered earlier in this chapter). In addition to those four, the Hanafi school accepts personal reasoning and local custom to solve a problem. These additions make the Hanafi school the most liberal of all schools of law. Followers of the Hanafi school are found most frequently today in the areas known today as Israel, Syria, Lebanon, Jordan, Turkey, Iraq, Afghanistan, and among the Muslim population located southwest of the former Soviet Union, and in India and Pakistan. It is also present in Sudan and East Africa.

Legal Informalism - Informal justice relies on legal institutions that are mostly nonbureaucratic, minimize the use of professionals, and prefer substantive and procedural norms that are vague and flexible (Abel, 1982). Under such a model, reconciliation, restitution, and reintegration become more important than punishment and retribution

This preference for legal informalism is seen in several Eastern Asia legal systemsand is highlighted with examples from China throughout this book and from Japan i A preference for vague and flexible substantive and procedural norms is less apparent in the legal system of some Eastern Asia countries than in others. J We must be careful not to deemphasize the increasingly important role of formal law in Eastern Asia legal systems. F

Saudi Arabia and Iran (see Map A.2) claim to fully implement Shari'a in all areas of law, including the criminal law, whereas such countries as Jordan, Kuwait, and Pakistan have some criminal laws reflecting traditional Islamic practices (e.g., banning Muslims from drinking alcohol) but others that are more secular in nature or involve modern interpretations of Shari'a

To show some of the variation, Otto (2010) and Rhode (2005) provide information that allows us to group some predominantly Muslim countries according to the degree to which their legal system has been affected by Shari'a. The first group includes countries where classical Shari'a law affects most areas of law. A second group contains mixed systems wherein Shari'abased law has no overall dominance, but has a significant role in one or more areas of law. The final category is for secular legal systems in which Shari'a has no role at all in the country's legal system

Not surprisingly, this inflexibility in the royal courts led to unhappy people who were unable to obtain justice. These people turned to the king and asked him to add fairness to the law. The king's agent in such matters was the chancellor, who had responsibility for guiding the king's conscience.

Traditionally, the chancellor was also a church official, but with the growth of the office and expansion of responsibilities, laymen came to be appointed as chancellor in the fourteenth century. Simultaneously, then, judges were isolated from the king while another royal office, with direct access to the monarch, was strengthened. The outcome of these events was the institutionalization of equity as an important aspect of law in England. - The chancellors decided conflicts between law and morals based on morality rather than technical law. Therefore, in chancery court, decisions were based on the equity of the case without concern for the procedural necessities

Today legal scholars identify three or four legal traditions (some call them legal families). This number has not been consistent throughout history, and some formerly prominent legal traditions no longer even exist

We concentrate on four contemporary traditions but must first mention some historically significant ones

When Justinian announced the Corpus Juris Civilis, his goal was to abolish all prior law

When France (see Map A.10) codified its law in the Code Napoleon, all prior law in those areas was repealed. Of course, both Corpus Juris Civilis and the Code Napoleon had principles of prior law incorporated in the new codes. However, in each case, and by implication in all cases of codification, the codes received their validity not from a previous incarnation but from their incorporation and reenactment in the new code (Merryman, 1985; Sereni, 1956) - The relevance of codification's revolutionary nature becomes clearer when contrasted with common law. - The view of civil law codes as replacing, instead of extending, prior law more appropriately distinguishes the civil and common traditions than does the presence of codes themselves - Besides its revolutionary nature, codification is distinguished by its written form. Some people argue that civil law is distinct from common law in that the former is written and the latter is unwritten. This distinction is misleading. Actually, the distinction between written and unwritten law has little to do with whether the law is put in writing - Codification gives civil law a revolutionary character and written format that adds to its separate identity among legal families. Upon combining those features with the historical links to Roman and canon law, we have the basic ingredients of the civil legal tradition

The next legal tradition covered here is the religious/philosophical tradition. Although it has included such important legal systems as the Hindu and Judaic ones, its primary contemporary example is Islamic law

With more than 1.6 billion followers, Muslims represent about 23 percent of the world's population. Christianity is the world's largest religion with an estimated 2.2 billion adherents (31 percent of the global population) but projections by the Pew Research Center indicate that by 2050 Muslims and Christians will each account for about 30 percent of the global population. Muslims live all around the world but a majority live in the Asia-Pacific region (62 percent) and about 20 percent are in the Middle East-North Africa region Along with Christians and Jews, Muslims believe in one God, whom they call Allah. Allah's messenger was the Prophet Muhammad (570-632), who had been preceded by Jesus and the Old Testament prophets. The religion preached by Muhammad is Islam (Arabic for "submission"), and its followers are "those who submit to Allah" (Muslims).

Predictivity is the main quality lacking in synthetic versus authentic classification.

With the natural groups resulting from authentic classification, we could be told that a country's legal system falls in the civil legal tradition and immediately predict characteristics of that system. With synthetic groups, though, the best we can do is assume that the country has cultural similarities or links to Western Europe and speculate that the country's system might therefore share ideas with Western Europe about such things as the appropriate source of law and the proper role of judges. The great variability of systems within each tradition means that we cannot yet (and maybe never will) achieve an authentic classification of legal families. A much more extensive investigation of the various systems and a clearer understanding of their characteristics must precede any progress toward identifying natural groups of law systems. Until then, we must rely on artificial groups such as the four presented here Because artificial groups depend on the criteria chosen by the person doing the classification, the resulting categories reflect his or her interests. My interests are threefold: the values and attitudes supporting legal systems (the cultural component), the characteristics of law in each system (substantive law), and procedures by which each system enforces the law (procedural law)

Finally, Roman law was the result of interpretations by jurists.

s. These jurists were statesmen knowledgeable in the law, not lawyers or legal practitioners in the modern sense. The emperor would confer upon certain jurists the right or privilege of giving written opinions on cases. Those opinions would become binding on the parties in the dispute. Because jurists also could write on imaginary cases, there came to be an extensive, and often contradictory, collection of legal opinions on a variety of cases. At this historical point, the emperor Justinian provided one of the most important legal documents in the civil legal tradition.

Hybrid legal traditions are those that consist of elements found in some or all of the other main legal traditions.

these would include those systems identified as Civil/Common, Civil/Islamic, Common/Islamic, and Other. But beyond that, hybrid legal traditions could also include aspects of traditional or customary law Designating one of the four contemporary legal traditions as "hybrid" is more accurate than helpful. There is no question that many countries have legal systems that draw from more than one legal tradition. In fact, an argument could be made that such adaptation is true of all legal systems. But trying to describe and analyze a legal tradition that incorporates aspects of other traditions will not be very practical. ? A more practical approach seems to be one that selects a specific example of the hybrid tradition to represent the broader hybrid category. This is similar to using the Islamic legal tradition to represent the broad religious/ philosophical category. The specific hybrid example used here is an Eastern Asia legal tradition