International Systems of Justice
International Systems of Justice
The United States is a common law system, which originates from old English common law. What is unique about the common law is that the law is not codified in statutes or written material, but rather the law is made through judicial decisions (Cohen, 1989, p. 15). In a common law system, there are no comprehensive legal codes, rules, or statutes (The Common Law and Civil Law Traditions, p. 1). As case law develops over time, judicial precedent shapes the law (The Common Law and Civil Law Traditions, p. 1). In a common law system, therefore, judges have tremendous influence in interpreting and, essentially, making new law (The Common Law and Civil Law Traditions, p. 1).
Another hallmark of the common law tradition is the adversarial system, where judges act as neutral moderators moderator between the parties in a trial (The Common Law and Civil Law Traditions, p. 1). The idea of the adversarial system is that each party will present its case in the best possible light to the judge, a neutral third party decision-maker. The judge in an adversarial system is often compared to an umpire, not directly participating directly in the contest, but overseeing that the trial is conducted fairly. The parties are primarily responsible for organizing and developing the case in the adversarial system (Parisi, 2002, p. 6).
Another popular legal system is the civil law system. Most European nations and all of Central and South America have a civil law system in place (Apple and Deyling, p. 3). Civil law roots can be traced back to ancient Rome (Apple and Deyling, p. 3). There are two different branches of civil law; codified Roman law originating from the Justinian Code and uncodified Roman law (Tetley, 1999, p. 596). In the civil law system, the basis for the law is legislation in the form of comprehensive codes (Dainow, 1967, p. 424). A civil code is a large statutory compilation that contains a broad range of different topics (Dainow, 1967, p. 424). These codes are general in nature and do not contain specific details or special rules (Dainow, 1967, p. 424).
The main difference between the common law and civil law traditions is its trial proceedings. Civil law countries have inquisitorial systems, in contrast to the common law adversarial system (Parisi, 2002, p. 2). Judges in civil law systems serve a much more active role in the trial process than in the common law system (Parisi, 2002, p. 6). Judges are responsible for determining the order evidence is admitted and can weigh the credibility of the particular evidence in question without having to abide by any formal rules of evidence (Parisi, 2002, p. 6). Judges are also permitted to investigate facts sua sponte, asking questions, and sometimes conducting witness examinations (Parisi, 2002, p. 7).
While common law and civil law are the most popular types of legal systems, others exist. Another legal system is socialist law. In a socialist law system, legislation is the only source of law and is supreme to all other segments of government (Ludwikowski, 1988, p. 90). The constitution carries with it the supreme legal authority, and other acts of government bodies must conform with the fundamental tenets of the constitution (Ludwikowski, 1988, p. 90). The basic purpose underlying socialist legal theory is that the law is a vehicle for the state to eliminate all residual effects of capitalism and to further promote the socialist economy, and to ultimately transition into a communistic society (Wing-Hung Lo, 1997, p. 471).
The fourth type of legal system is Sharia law. Unlike other legal traditions, Sharia law is religious Islamic law. Sharia law is comprised from four main sources: 1) the text of the Koran, 2) reports about the sayings and life of the Prophet Mohammed, 3) Islamic scholars, and 4) analogies to teachings from the Koran or Prophet when a new situation arises (Sonne, 2015, p. 729). Because sharia law is religious law, it prescribes particularly comprehensive rules for marriage and family (Sonne, 2015, p. 729). Sharia law is widely used in Middle Eastern nations and some African and Asian nations that have a large Muslim population.
Under sharia law, criminal acts are separated into three different categories (Lippman, 1989, p. 38). Hudud crimes are the most serious and are crimes against God (Lippman, 1989, p. 38). The punishment for Hudud crimes is specifically prescribed in the Koran (Lippman, 1989, p. 38). Quesas crimes include crimes of bodily injury and murder, which is punishable by retaliation in the form of “an eye for an eye” (Lippman, 1989, p. 38). The third type of crime, Ta’azir crime, consist of offenses that do not have specific punishments in the Koran, and therefore, judges have discretion in deciding what punishment might be appropriate (Lippman, 1989, p. 38).
As computers and the Internet have virtually eliminated geographical borders and boundaries for jurisdictional purposes, law enforcement personnel all over the world have formed global alliances to combat cyber crime. Many nations are banding together in a cooperative effort to enable more efficient law enforcement (Brenner and Schwerha, 2002, p. 360). For instance, parties to the Council for Europe’s Convention on Cybercrime agree to cooperate with preservation and evidence collection even in the absence of a formal treaty between the requesting nation and requested nation (Brenner and Schwerha, 2002, p. 360).
Policing varies among different nations and different parts of the World. As is longstanding tradition in England, police function as servants of the greater community (Fosdick, 1915, p. 28). As members of the community entrusted with ensuring public security, police in England do not have any greater authority than the private citizen (Fosdick, 1915, p. 28). The American police system was borrowed from the English system but has since departed from community-oriented policing (History of the Police, p. 11). American policing emphasizes crime prevention in a reactive manner and places great importance on arrests and response time (History of the Police, p. 11).
A large body of international law is devoted to human rights law. There are many crimes that are considered crimes against humanity at the international law level. The International Criminal Court has jurisdiction to prosecute and punish individuals who commit these crimes (Robinson, 1999, p. 43). Crimes against humanity are crimes that violate humanitarian law and include murder, extermination, enslavement, and deportation (Robinson, 1999, pp. 44-45). Political crimes against humanity such as apartheid, enforced disappearance, and genocide have been identified in international written documents (Robinson, 1999, p. 45). International law also defines war crimes and the Security Council of the UN is empowered to establish a tribunal to prosecute offenders of war crimes (Meron, 1994, p. 79). During the conflict in Bosnia-Herzegovina, the Security Council determined that the atrocities committed was a threat to international peace, and subsequently created a special criminal tribunal to bring the offenders to justice (Meron, 1994, p. 79). References
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