Our world is no longer defined by its borders; financial transactions, business meetings, and personal communications between people half the globe away can all be done within milliseconds thanks to the technology we have, literally, at our fingertips. The advent of this technology has also yielded another by-product, other than the ability to communicate at speeds Edison and Einstein only theorized about: the need to study and understand the systems of justice that exist in the many corners of our world. Since modern technology allows for nations to interact considerably more freely than they did even 10 years ago, the ability to understand and compare the many justice systems of the world is paramount.
One reason why the need to study the various justice systems of the world is paramount to students, is that the status quo should never be allowed to exist unchecked. For example, a student of the American criminal justice systems does themselves a disservice if the only system of law they study and find acceptable is their own criminal justice system. “A comparative view of legal systems allows us to understand better the dimensions of our own system” (Reichel, 2008, p.4-5).
Another reason to study the justice system of other countries is that it allows the student the benefit of understanding how other societies deal with various crimes and social ills. For instance, a student who only has been exposed to a legal system who imprisons those found guilty of drug offenses, should not believe themselves to be well-rounded on the subject if they do not expose themselves to other legal systems where these types of crimes are handled differently, and include alternate forms of punishment outside of their own model of criminal justice.
Lastly, by studying the justice systems of other countries allows for a student to create ways in which the legal system of their own country may possibly be modified to function more effectively and efficiently. “A technique used in one country to combat crime might be successfully adapted for use in another country” (Reichel, 2008, p.5). For example, can the conflict resolution techniques for the crime of theft by the Aboriginal people of Australia be adapted into the restorative justice practices used in Houston, Chicago, or Seattle (Reichel, 2008)?
It seems our world becomes smaller and smaller each passing day. However, as much as modern technology has allowed us to communicate and execute business transactions between countries as never before, it has yet to familiarize the various criminal justice systems of the world in quite the same manner as technology has allowed people in California to share computer files with people in Finland.
2. The legal traditions recognized throughout the modern world are mostly creatures of the alpha-male societies of the ancient world. As the ancient world was claimed and re-claimed by various civilizations, one lasting impression that was left, even after some civilizations changed roles from conquerors to those who became conquered, was their respective system of law. Although the maps of the world have changed, scholars recognize that four legal traditions exist in our world today.
One of these traditions is the common legal tradition. Rooted in ancient Roman society, the common legal tradition is centered on three tenets: feudal practices, customs, and equity. Even after the Romans hold over the ancient world became untenable, this one facet of their legal system remained, especially in the lands of their northwest conquests, such as present day England and Wales. During the Middle Ages in Western Europe, society was clearly demarcated into three realms: the king, nobles, and peasants. The king ruled supreme over a designated country or large geographical area, the nobles were charged with ensuring that the king’s lands were governed as the king saw fit, and that taxes were also collected. The peasants’ role was that of laborers and to maintain the king’s lands. As time progressed, this class system came to include more and more layers. “By the 1200s, when feudalism was on 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” (Reichel, 2008, p. 107.) Since the crops and the land still had to be maintained, peasants remained a constant. However, as disagreements between lords and lords, and lords and their underlings began to occur, some measure had to be in place so that each layer of the feudal world had a form of legal remedy. Borrowing from Anglo-Saxon customs, William the Conqueror (1066-1087) introduced a system by which royal courts were created where barons presided over disputes between lesser nobles, and disputes among peasants were heard by the lord of their manor rather than in a royal court (Reichel, 2008).
The use of custom is also rooted in the Anglo-Saxon and English feudal epochs. During these periods there emerged a reliance on the previous decisions a court had made in deciding a case that was presently before a court. This became a practice that was more frequently used and accepted, and laid the groundwork for the current practice of allowing precedent to govern how a court decides a case, or stare decisis.
Lastly, the use of equity (or fairness) also defines common law. For too long those at the bottom of the social strata, seeking a legal remedy, found that those in power either provided too little punishment or an excessive amount of it. This became most prevalent during the mid-1350s, when “the people turned to the king and asked him to add fairness to the law” (Reichel, 2008, p. 110.) With the addition of equity as a free standing and permanent facet of the common law, this legal tradition has remained viable to the present day in such countries as the United States and Australia.
Another legal tradition is called the civil legal tradition. Historically, this tradition is attributed most to the ancient Romans. The Romans delineated their justice system into three bodies. These legislative bodies enacted statutes for the nobility, senators, and the common people to follow. “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” (Reichel, 2008, p. 112).
Another ingredient of civil law is canon law. Roman civil law was the universal law of the worldly empire, and canon law was the universal law of the spiritual realm (Merryman, 1985). Whereas civil courts administered Roman civil law, ecclesiastical courts managed the canon law (Reichel, 2008).
Since Roman civil law and canon law were centered on existing via statutes, the codification of each provided for the final ingredient to this type of legal tradition. “Roman law and canon law provided a tradition of codification that, in turn, emphasized a revolutionary nature of law and stressed its written form” (Reichel, 2008, p. 114-115). The polar opposite of law driven by custom, codification gives civil law a revolutionary character and written format that adds to its separate identity among legal families (Reichel, 2008). Today, civil law is used by such countries as Italy, Colombia, and Holland.
A third type of legal tradition is the socialist legal tradition. This legal tradition, created by the Roman Empire being split into an Eastern and Western Empire, distinguished itself from the Roman civil legal tradition in the west mainly because of geography. “Russian legal history borrows from the Eastern or Byzantine Empire, primarily because Russia’s contact with the eastern Romans did not occur until the 10th century” (Reichel, 2008, p. 117). Prior to Russia falling under Mongol rule in the 13th century, the main source of law came from the Russian Code of Laws which was written by Grand Prince Iaroslav the Wise (Reichel, 2008). During the Mongol control of Russia, Russian princes still retained their positions as judges, since keeping them in such positions allowed the Mongols to keep control and maintain law and order of a very vast and diverse country. “Control by Mongols essentially ended by 1490, and in 1497 the Grand Prince of Moscow issued a new Code of Laws for all territories subject to Moscow” (Reichel, 2008, p. 118). These laws echoed those of the Russian Code of Laws, but they also formed the foundation of Russia’s monarchical regime, which gave the power of interpreting the law to the grand prince who, in time, became known as the czar.
Another hallmark of the socialist legal tradition is the belief of law as being artificial. This mindset was cultivated by many years of the common people witnessing the law benefitting the Bourgeoisie (the nobility) while alienating the Proletariat (common people). This manner of thinking existed for a long time, so long that by the time Marxism-Leninism took over Russian society one of its main teachings was that the need for law, any law, would cease to exist.
After Marxism-Leninism became the focal point of post-revolution Russia, “the primary principle directing the new Soviet law was the idea that law is subordinate to policy” (Reichel, 2008, p. 120). The thought process here was that if the concept of law is artificial, it can be applied or disregarded as policy dictates. ‘The policy to which law is subordinate places the rights of the collectivized economy and the socialist state above the idea of law or the rights of an individual” (Reichel, 2008, p.120).
With the demise of the Soviet Union and the independence of many former Soviet controlled countries, the socialist legal tradition appears to be the one tradition most likely to fade away. Today, this legal tradition is used only by a few of countries (Cuba, North Korea, China, and Vietnam).
The final legal tradition centers on religion, more specifically the Islamic religion. Although this tradition can encompass other religions, such as Hinduism and Judism, with more than 1.3 billion followers Muslims represent about 20% of the world’s population, and as such deserve to be selected over other religions (Reichel, 2008). Islam is based on the teachings of their recognized god Allah and his messenger named Muhammad. Whereas Catholics, Protestants, Christians, and Lutherans are all religions that in some form govern the way a person should act towards themselves and others, none of these religions are as all encompassing of a person’s life the way Islam is. “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” (Reichel, 2008, p. 123).
The Islamic faith has two sources of Islamic law (referred to as Shari’a). The primary source is the Qur’an. According to Reichel (2008), “The Qur’an contains rules for the religious, personal, social, economic, and all other aspects of Muslims’ lives”. The second source is called the Sunna. It is from this source that Muslims learn of the teachings of Muhammad. This is done via statements (or hadith) Muhammad made that have been handed down through the millennia from one trusted source to another. “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 “ (Reichel, 2008, p. 125).
Islamic law is divided into five schools (or madhahib) of law: the Hanafi, Maliki, Shafi’I, Hanbali, and Fa’afari. Each of these schools of Islamic law recognizes the four basic sources of Islamic law (the Qur’an, the Sunna, qiyas, and ijma). “Cases not seemingly answered by the Qur’an or Sunna were to be handled through a consensus of legal authorities (the ijma) and by a process of reasoning by analogy, or qiyas” (Reichel, 2008, p. 126). However, the five schools are differentiated in the manner in which they interpret the teachings of Muhammad. Today, only Afghanistan and the Maldives practice strict Islamic law, while countries such as Egypt, Iraq, Qatar, India, and Saudi Arabia practice a combination of Islamic law and other traditions.