ComparativeCriminal Justice
Whilecomparative criminologists are busily comparing crime patternscross-nationally, comparative justice scholars are considering the similaritiesand differences in how countries attempt to maintain social order andaccomplish justice. Research has identified the different ways policeorganizations are structured, described variation in criminal procedure aroundthe world, explained the many ways that laypeople are used during adjudicationprocedures, and offered explanations for variation in sentencing and punishmentpractices. And those are just a very few topics and authors who are buildingthe knowledge base of comparative criminal justice. As an example of the typeof information resulting from comparative justice studies, we offer adescriptive account of how the courts are structured in four differentcountries. To introduce another comparative technique, the countries are chosento reflect each of four legal traditions. This concept of legal traditions—alsocalled legal families—refers to a culture's attitudes, values, and normsregarding the nature, role, and operation of law. Three specific legaltraditions are used here, plus a fourth category that includes countries with amixture of several traditions.
Civil Law Family andGerman Courts
Theoldest contemporary legal family is the civil legal tradition. Persons familiarwith the American legal system often find this term confusing because civil law in U.S. jurisdictions refers toprivate wrongs (such as contract disputes) rather than to the criminal law, which handles social wrongs (such asthefts and assaults). Some authors attempt to avoid this confusion betweencivil law as private wrongs and civil law as a legal tradition by referring tothe Romano-Germanic law family. That designation is appropriate because theorigins of the civil law tradition are in the Corpus Juris Civilis (450b.c.) and the laws of the Germanic tribes, such as the Franks and the Bavariansthat bordered the Roman Empire in central Europe and eventually conquered mostof Europe. Although use of the term Romano-Germanic avoids theproblems of confusion, especially by Americans, between the civil law familyand civil law as private wrongs, most comparative scholars prefer to refer tothe civil law tradition. We honor that preference and use the term civil law asreferring to one of the world's major legal traditions.
Countriesin the civil law family consider the source of law to be its written, orcodified, nature. That is, laws are binding because they are authorizedand recorded by the competent authority (e.g., the ruler or the legislature). Anumber of different codifications of civil law followed the CorpusJuris Civilis, including the famous Code Napoléon (1804),which codified the civil law of France. During the first part of the 19thcentury, the idea of codification spread from France to other parts of Europeand to Latin America. Germany was among the countries finding favor with theidea of codification, but the Germans did not agree with basic principles usedin developing the Code Napoléon.With significant deliberation andhistorical research, Germany finally succeeded in creating its version of acivil code (the German Civil Code of 1896), which became effective in 1900.
TheGerman national legislature determines, for the entire country, what behavioris criminal and what will be the accompanying punishment. However, each Germanstate is responsible for administering both the law and the punishment.
Germany’spenal code places criminal offenses into one of two categories. The moreserious offenses are punishable by imprisonment for at least 1 year, whereasthe less serious offenses are punishable by a shorter term or a fine. Thedistinction is similar to that of felonies and misdemeanors in the UnitedStates, but Germany's less serious category comprises a broader range ofoffenses than American misdemeanors do. In addition, the German categoryincludes some crimes such as larceny, fraud, or negligent homicide that wouldbe considered felonies in many American jurisdictions.
Adistinguishing feature of the civil legal tradition is a reliance on theinquisitorial rather than adversarial process for adjudication. The adversarialprocess, found especially in the common law tradition, assumes that truth willarise from an open competition over who has the correct facts. The prosecutionand defense propose their version of the “truth,” and the judge or jurydetermines which side has the most accurate portrayal. Rather than acompetition between opposing sides, the inquisitorial process is more like acontinuing investigation. All parties in the case are expected to provide allrelevant evidence to the court. The judge, not the attorneys for defense orprosecution, then calls and questions witnesses. As a result of this process, thecivil legal tradition has a procedurally active judge and rather passivelawyers. This is nearly opposite the adversarial process, which has aprocedurally passive judge and rather active advocates.
TheGerman states are responsiblefor administering federal law, so all trials are conducted at the state level.Federal courts exist primarily to handle appeals from the state courts.Germany’s criminal courts are organized in three tiers. At the bottom are thelocal courts that hear minor criminal cases where the punishment is not likelyto be more than 4 years' imprisonment. Above them are the regionalcourts where major criminal cases are tried and the punishment is likelyto be more than four years imprisonment. The higher regional court hears appealsfrom the lower state courts and will also try some exceptional cases (e.g.,treason). Appeals on points of law from the state courts may eventually reachthe Federal Court of Justice, which is Germany's highest court. When theappeal is on a constitutional question, the Federal Constitutional Courtdecides the issue and returns the case to the lower court for finaldisposition.
Legalsystems following the inquisitorial process seldom use a jury as Americans knowthe term. Instead, participation from the public is in the form of lay judgesserving alongside professional judges on what is termed a “mixed bench.”Working together, the professional and lay judges consider evidence, questiondefendants and witnesses, and then decide the punishment in cases where theyfind the defendant guilty. In Germany's version of the mixed bench, trials forthe less serious crimes are heard by a panel of one professional judge and twolay judges. When the trial is for a more serious offense, it will be heard bythree professional judges and two lay judges. The verdict is by majority vote,so it is possible that the lay judges have a significant say in the outcome.However, since the professional judge or judges typically dominate thequestioning and the deliberation, lay judges have to be especially assertive tohave significant influence. The lay judges are assigned to trials over a 4-yearperiod, but they serve an average of only 1 day per month.
Common Law Family andCanadian Courts
Youwill recall that the primary source of law in the civil legal tradition is thewritten code. For the common legal tradition, the primary source of law iscustom. The distinction between codification and custom is confusing because itis possible—in fact, likely—that common law is also expressed in written form.However, it is neither necessary nor sufficient that common law be written downfor it to have legal authority. A brief review of the origin of common law willmake this point more clearly.
Inan attempt to return order to an increasingly disrupted kingdom, Henry II(1154–1189) issued the Constitutions of Clarendon (1164), which listed customssaid to be the practice in England when the 12th century had begun. The ideawas that traditional, consistent, and reasonable ways of deciding disputesprovided the appropriate source of law. Determining whether something was“customary” fell to members of the community, who sat as a jury of peers.Judges were expected to follow legal custom by abiding by prior decisions insimilar cases. In this manner, custom could be identified by reliance on thepeople and through reference to several cases. Importantly, however, the casewas not referred to as the source of law; it merely provided proof that a legalprinciple (a custom) was once applied.
Eventuallythe practice of citing prior cases was done less to show custom and more as away to reference authority. In this way, common law developed a reliance onprecedent, wherein courts are expected to abide by previously decidedcases. Those cases were in written form, but they cannot be considered writtenlaw in the way the civil legal tradition views written. Theprior cases reflected custom, albeit custom in writing, rather than reflectingspecific decisions by rulers or legislators. The criminal statutes found incommon law countries today must be considered in the same way. When common lawlegislatures prepare written penal statutes or codes, they are not somuch making written law (as do civil law legislatures) as theyare proposing law. That is because final determination regardingthe validity of a statute lies with the courts, who will evaluate thelegislature's work. In other words, civil law legislation stands on its ownbecause the legislature is the source of law. But common law legislation is notauthoritatively established until it passes examination of the courts becausecustom is the source of law.
Becausecommon law developed in England and influenced the application of law in theBritish colonies, this legal tradition is the one most familiar to citizens ofthe United States. Today, the United States, Canada, Australia, New Zealand,India, and former British colonies in Africa have legal systems counted amongthose of the common law tradition. Exceptions include parts of those countrieswhere France had great influence in the province's or state's history. SoCanada's province of Quebec and the state of Louisiana each have a strong civillaw tradition despite being part of a common law country.
Canada’scontemporary court structure was established with the passage of the BritishNorth America Act in 1867 (since renamed the Constitution Act) andwas thus influenced by the British judicial system. Enforcement of law falls tothe provinces, and the provincial court system handles all criminalprosecutions. Within the provincial system, there are five main types ofcourts: criminal matters, family matters, youth matters, small claims, andtraffic and municipal by-law matters. There are also federal level courts(federal court, federal court of appeal, and the Supreme Court of Canada) butthese courts do not hear criminal cases—except on appeal in the case ofthe Supreme Court. Also, it is important and interesting to note that theProvince of Quebec (a largely French colony at the time it was defeated by theBritish in 1760), follows French civil law but uses British common law forcriminal law matters.
Canada’s CriminalCode places crimes into one of three categories. Summary convictionoffenses are the least serious and result in only slight punishment (i.e.,a maximum of 6 months imprisonment or up to a $5,000 fine or a combination ofboth). They include, for example, committing an indecent act, creating a publicdisturbance, soliciting prostitution, and driving a motor vehicle without the owner'sconsent. Indictable offenses are the most serious crimes andbring the harshest penalty. Typical indictable offenses are murder, possessionof stolen goods, dangerous driving, and sexual assault. The accused has a rightto trial by jury when charged with an indictable offense, but not for a summaryoffense. Falling between summary and indictable offenses are hybridoffenses, a decision that is made by the Crown (known as “Crownelection”), such as theft of an item valued at less than $5,000 (Canadian),impaired driving, and some types of assault.
Canada’snine provinces and three territories generally have a three-tiered court systemgoing from provincial/territorial courts at the lowest level through superiorcourts (with name variation by province/territory) to theprovincial/territorial courts of appeal at the highest level. Theprovincial/territorial courts carry the greatest workload of any court levelbecause all cases enter at this level. The majority will also be tried andfinally disposed of in the provincial/territorial courts, but others (the mostserious indictable offenses) will be sent to the superior court for trial.
Provincialcourts may have separate divisions to handle family matters, cases of youngoffenders, traffic cases, and criminal cases. Most of the criminal cases arethose that have been charged as summary conviction offenses. In general, suchoffenses may be tried only before a provincial court judge sitting without ajury. Accused persons may appear in person at the trial or may send theirlawyer to represent them—unless the judge has issued a warrant requiring theirattendance. The term summary conviction implies that casualand concise justice is dispensed.
Indictableoffenses, and hybrid offenses charged as indictable, can be heard at either thesuperior or provincial court level. The most serious indictable offenses (e.g.,murder, treason, piracy) may be tried only by a judge of the superior courtsitting with a jury, unless the judge and the attorney general consent to forgothe jury. The least serious indictable offenses (e.g., theft, fraud, possessionof stolen goods) may be tried by only a provincial court judge. If the chargeis on an indictable offense not falling into either of those categories, theaccused can choose the mode of trial. Robbery, dangerous driving, assault, andbreaking and entering are examples of these “electable” offenses. The choicesavailable to the accused are to have a trial by a provincial court judge, asuperior court judge and jury, or a superior court judge. Failure to make achoice sends the case to a judge and jury. At the federal court level, andstanding as the country's court of last resort, is the Supreme Court of Canada.The Supreme Court justices are appointed by the federal government from listsprepared by the provinces.
IslamicLaw Family and Saudi Arabian Courts
TheIslamic legal tradition is unique among legal families in several respects. Thefirst difference is its perception of law's source as sacred rather thansecular. The other legal traditions, especially civil and common, havereligious links, but they remain distinct and separate from religion. TheIslamic legal tradition, on the other hand, is completely reliant on religion.
Muslims,like Christians and Jews, believe in one God, whom Muslims call Allah. OfAllah's messengers to the world, Muhammad (circa 570–632) is considered themost recent prophet by Muslims. The religion prescribed by Muhammad isIslam and its followers are “those who submit to Allah” (Muslims).
Islamiclaw is called the Shari'a, “the path to follow.” Its primaryingredients are the Qur'an (Islam's holy book) andthe Sunna (the statements and deeds of Muhammad). These two elementsidentify both crimes and punishments, but they provide very little informationregarding the legal process by which offenders are brought to justice.
Threecategories of crime are distinguished in the Shari'a: hudud, quesas, and ta'azir.Hudud, which are offenses against God, require mandatory prosecution andmust be punished in the manner prescribed in the Qur'an orthe Sunna. The seven hudud crimes areadultery or fornication, defamation, drinking alcohol, theft, highway robbery,apostasy (the rejection of Islam by one professing Islamic faith), andrebellion or corruption of Islam. The punishment for hudud crimesinclude death by stoning for a married person committing adultery, handamputation for theft, and whipping for persons using alcohol.
Quesas crimes are lessserious than hudud crimes and more serious than ta'azir crimes.They are similar to what other criminal codes call crimes against persons andinclude acts such as voluntary and involuntary homicide, assault, and battery.Punishments for these crimes can be acts of retaliation by the victim or hisfamily (e.g., the eye for the eye, the nose for the nose) or financialcompensation by the offender to the victim or his family.
Theleast serious of Shari'a crimes are the ta'azir. Includedin this category are all offenses not identified as either hudud or quesas crimes.Examples of ta'azir crimes are petty theft, homosexuality,eating pork, neglect of prayers, and acts damaging to the public interest.A ta'azir penalty can be execution but is more likely to bewhipping, imprisonment, or a fine.
Inthe Shari'a, God identified the crimes and stipulated thepenalty, but the law's application fell to humans. Not surprisingly, humansdisagreed about how to apply God's law. Some Muslims took a strictinterpretation and believed that every rule of law must be derived from the Qur'an orthe Sunna. Others believed human reason and personal opinion couldbe used to elaborate the law. The latter camp suggested that as the centuriesprogressed from Muhammad's time, there were new behaviors or situations thathad not been directly addressed in the early 7th century. Human reason, theseMuslims believed, could be used to fill the gaps.
Becausehuman reason could become human legislation, which is inappropriate because lawcomes from Allah and not from humans, it was important that the reasoning besubordinate to divine revelation. The result was a process known as qiyas, orreasoning by analogy. For example, Some scholars note that some judges havesentenced committers of sodomy (a behavior not mentioned in the Qur'an or Sunna) tothe same penalty the Qur'a provides for adultery by reasoning thatsodomy and adultery are similar offenses. The presence of ta'azir crimesalso allows the Shari'a to keep pace with modern society bymaking criminal any act that might cause damage to the public interest or thepublic order. In this way, acts not specifically mentioned 14 centuries ago(such as traffic violations, embezzlement, or forgery) are still consideredillegal by divine revelation rather than human legislation.
TraditionalIslamic societies such as Saudi Arabia mold their court system to ensure thatIslamic law is the basis for court proceedings and decisions. There is a dualcourt system in Saudi Arabia, with Shari'a courts handlingcriminal cases, family law, and some civil law. A separate system ofadministrative courts has jurisdiction over specific issues such as trafficoffenses and laws related to business and commerce. Our concern is withthe Shari'a courts, which follow a three-tieredstructure moving from the lower (summary and general courts) at thebottom, to the courts of appeal, and then to the Supreme Judicial Council.
Summarycourts and general courts are composed of one or more judges. Summary courtshear certain hudud and ta'azir cases, whereas general courts heardeath penalty cases and quesascrimes (i.e., non-death-penalty cases where a retaliatory punishment issought). Judgments in both summary and general court are handed down by asingle judge (qadi) except in general court cases involving death,stoning, and amputation (and other cases specified by law), where judgment isby three judges. A three-judge panel hears court of appeals cases, except thoseinvolving certain major punishments, such as death sentences, which are handledby a five-judge panel. Final appeal is before the Supreme Judicial Council,which is also the agency making regulations and policies for administering thecountry's court system as a whole. When the newJudiciary Law of 2007 isfully implemented (which had not yet occurred as of mid-2012), the Saudi courtswill include a specialized criminal court at the general court level and willalso have a new High Court, which will assume the previous Supreme JudicialCouncil's main function as the highest authority in the judicial system.
Althoughthe structure of Saudi courts is not especially unique, some of the procedurallaw governing the trial process is. Sanad highlights the rules of evidence as aparticularly important distinguishing feature of Islamic law in general. MostMuslim scholars maintain that evidence in criminal cases must be restricted toconfession and testimony. Regarding confession, it is not sufficient for theaccused to simply admit to the charges. For a confession to be valid, theconfessor must be a mature, mentally sound person who gives, with free will, aconfession that is neither doubtful nor vague.
For thesecond type of evidence, testimony, at least two witnesses should provideconsistent testimony before a conviction on hudud and quesas crimes can be given. But just any witnessis not acceptable. To be condoned, the witness must be an adult male (oneschool accepts two females as equivalent to one male), known to have goodmemory, sound mind, and good character.
Inaddition to requirements about who can testify, there are rules regarding howmany witnesses are required and how the testimony is given. For a conviction on hudud and quesas offenses, at least two witnessesshould provide consistent testimony about the accused's actions. In the case ofadultery, four witnesses are required. Because there are seldom times when twodevout male Muslims observe a burglary in process or four such witnesses watchadultery taking place, the “evidence” in many criminal trials is incomplete. Atthis point, the rules regarding how testimony is given come into play in theform of oaths.
Accordingto Rosen, witnesses under Islamic law are not sworn in before testifying. Infact, there is even some understanding that less than truthful statements maybe made in court as witnesses are speaking freely. However, if testimonyreaches a point where neither side has adequately supported its claim, oneparty may challenge the other to take an oath. If the person challenged doesso, he wins the case. Or the person challenged can refer the oath back to thechallenger who can secure victory by swearing to his own truthfulness. Thisprocess of challenging is not a haphazard one. The qadi plays a very important role because hedecides which party will first challenge the other to take an oath. Thatdecision is important because the first to swear wins the case. Rosen suggeststhat the qadi, after observing the comments fromwitnesses and from the parties themselves, looks for the person most likely toknow what is true about the case. That person is designated as the one first tobe challenged to take the oath. Because false swearers will suffer theconsequences of judgment day, devoutMuslims take oaths very seriously and, presumably, truthfully.
Mixed-Law Family andChinese Courts
Countriesincluded in the mixed legal family are those that have elements of several ofthe other main legal traditions. Importantly, this is not simply a “catchall”category where one places countries that do not fit well in one of the otherlegal traditions. Instead, mixed systems (also called hybrid systems) includethose countries where components of one legal tradition have combined withcomponents from another legal tradition. The result is a legal system thatdraws from two or more legal traditions.
Muchof the contemporary research and literature on mixed systems has focused oncountries where the civil and common legal traditions have combined. Butcomparativists are also considering other “mixes” where customary law,socialist law, and religious law are included. Although there is no agreementregarding the key features of mixed systems, the subsequent presence ofdifferent colonial powers is often mentioned as a common attribute. Quebec,Scotland, South Africa, and the Philippines are among the examples given ofcountries having a mixed legal tradition resulting, at least in part, from theinfluence of several colonial powers.
Inproposing the category of mixed legal systems as a “third family” (common andcivil being the other two), Palmer has suggested that countries in thiscategory will have, in a manner obvious to an ordinary observer, the basicelements of both civil and common legal traditions operating so that civil lawpredominates in the field of private law and common law predominates incriminal law. Mixed legal systems in this sense are rather few in number and,by definition, exclude countries where the mix involves legal traditions suchas religious, customary, or socialist. Castellucci suggests these other legaltraditions might be included if the idea of mixed is seen in a more descriptive sensethan the classificatory one provided by adherence to three or more categories.Using a family-tree approach, Castellucci describes a forest of legal systemfamily trees wherein the branches and foliage of each tree (each legal system)intertwines with others. Such a forest/family tree model would allow, forexample, the existence of a Chinese legal system coming from a mixture of civillaw and socialist law. That “tree” intertwines with, for example, Hong Kong'sChinese-common law mix and with a Chinese-customary mix that may describe theNorth Korea legal system.
Followingthe lead of Castellucci and others who consider mixed legal systems asincluding more than just a combination of civil and common legal traditions, wediscuss China as a country best described as being in the mixed legal traditiongroup. The mixture, for our purposes, includes elements of socialist law(continuing control by the Communist Party), civil law (codification of laws),and customary, or traditional, law (the influence of Confucianism).
China’sformal court system has four tiers. Going from the bottom up, they are thebasic people's court, the intermediate people's court, the higher people'scourt, and finally the Supreme People's Court. The basic people's courts, whichare found in each county and municipal area, handle the majority of theordinary criminal trials. The intermediate people's courts hear more seriouscriminal cases and appeals from the basic people's courts. Major criminal casesand appeals are heard by the higher people's courts, which operate at theprovince level and in some major cities. The Supreme People's Court servesprimarily in an appellate capacity but will also hear major criminal cases thathave an impact on the entire country.
Thecourts are essentially agencies of the central government (i.e., the CommunistParty) and as a result do not have judicial independence in the way Westerners think of the term.Court activities at each level are reviewed by a judicial committee. Members ofthe judicial committees are appointed by the People's Congress at each level,and it is through the People's Congress that the central government has itsinput and influence.
Atthe trial, those accused have the right to offer a defense, to argue the case,to explain their innocence, or to request leniency in punishment. Although thedefendant can provide self-defense, it is also possible to hire a lawyer or aska close relative to defend one's case. When cases are at trial with a public prosecutor,the court can appoint a lawyer to speak for the accused.
Likethe situation in most civil law countries, China does not use a jury butinstead has citizen input through representation of lay judges or people's assessors. Minor criminal cases are heard beforea single judge, but more serious cases come before a panel of one to threeprofessional judges and two to four people's assessors. The people's assessorsare laypersons who have reached age 23 and are eligible to vote.
Inaddition to its formal justice system, China is recognized as having anespecially well-developed system of informal justice. In fact, the informalsystem is so integral that it sometimes operates alongside the formal system.The public security committees operate in this capacity at the policing leveland the people's mediation committees (PMCs) perform the informal role at thecourt level. China's constitution requires each urban neighborhood and eachrural village to have a PMC. In addition, PMCs can be established at workplaces,schools, and other institutions.
Althoughthe PMCs serve the socialist ideology very well, they have historical ties toConfucianism and the belief that moral education through mediation is the bestway for communities to resolve conflict. The PMCs operate under the guidance oflocal governments and local people's courts. PMC members are elected by thepeople living or working in the PMC's jurisdiction. When a conflict arises, theparties can ask that a mediator get involved. But the PMC does not need to waitfor an invitation. Because the mediators live in the community, they usuallyhear about problems early on and can respond quickly.
Bycategorizing the world's legal systems as falling into one of four legaltraditions, comparative justice scholars are encouraging us to benefit fromothers' experiences, broaden our understanding of the world, and combattransnational crime. They are, in other words, helping us realize the benefitsof comparative study as described at this chapter's start.