ls308: law and society unit 3 seminar unit 3 discussion review of unit 2

LS308: Law and SocietyUnit 3 Seminar

Unit 3 Discussion

Review of Unit 2

Confidential & Proprietary • Internal Kaplan Use Only.

Review of Unit 2

Understanding Law & Society

Unit 2:•Examine the definitions of law and the existence of law

•Assess the reasons people obey the law

•Assess the various explanations proposed by scholars for the existence of law)

•Evaluate the various contemporary perspectives on law and its implications for society

Unit 3: Families and Types of Law

Families and Types of LawThis week we will discuss the major world legal systems, which are generally grouped into five families. The families of law are:

-Common law-Civil law-Theocratic law-Socialist law -Traditional law

Common Law

Common law systems are found in Great Britain and its former colonies, including the United States and Canada. The common law originated in Britain in the eleventh century after William the Conqueror became king in 1066 after the Battle of Hastings. Common law emphasizes case law, or law made by judges through their rulings. However, no nation is purely a common law nation, as no nation relies solely on case law to the total exclusion of statutory (legislative) law and other types of law.

Common Law

The reliance on case law makes precedent—the reliance on past judicial decisions in reaching a new decision—a hallmark of the common law tradition. Another hallmark is the adversary system, in which attorneys for the opposing sides are said to rigorously contest the evidence in pretrial proceedings and in trials themselves.

Common Law

Among common law nations, two features of the U.S. legal system stand out today. The first is the concept of judicial review, the principle that appellate courts may overturn legislative statutes and invalidate executive actions if they are deemed to violate constitutional standards. The second feature is the jury.

Civil Law

Civil law is a name given to the family of law founding the nations of continental Europe and in many of their former colonies. Civil law nations rely primary on written, detailed codes, or collections, of law that have their origins in ancient Rome and the 1804 Napoleonic Code.

Civil Law

Judges in civil law nations have less power than their common law counterparts to change the law, in large part because civil law codes are so detailed. The major role of civil law judges is merely to interpret the legal codes; the judges typically do not overturn laws, nor do they “make” law as common law judges sometimes do.

Civil Law

Civil law systems rely on an inquisitorial model. Judicial review is unknown in civil law nations, and the jury plays a much more minor role in their legal systems than it does in common law systems. While being less stable than common law systems, civil law systems do typically respond faster to changing societal conditions than do common law systems.

Civil Law

Civil law governs private transactions among individuals and organizations. A violation of a civil law is called a tort. Civil law differs from criminal law in several respects. For example, when a tort occurs, it is up to the aggrieved party rather than the state to seek legal redress.

Theocratic Law

Theocratic law, also called sacred law, is a system of law that relies heavily on religious belief. Islamic law, or the Shariah, is the major type of theocratic law in the world today. This law includes rules about four areas of public and private life:

Theocratic Law

(1) the individual’s relationship to the state; (2) the individual’s relationship to other individuals; (3) religious practices; and (4) practices such as parenting and personal hygiene. Three types of crimes are listed in the Shariah, Hadd, Qisas, and Tazir. The principles underlying all these rules derive from the sacred book of Islam, the Koran.

Theocratic Law

Jewish law, or the halakhah, plays an important official role in Israeli public and private life, and consists of 613 commandments, or mitzvoth, included in the Torah. The Talmud consists of the Mishnah and the Gemara, the latter being the rabbis’ commentaries that interpret and explain Jewish law. In Israel today, rabbinic courts handle cases involving matters of: (1) dietary laws; (2) the Sabbath; (3) Jewish marriage, divorce, and burial; and (4) conversion to Judaism.

Socialist Law

Socialist law refers to the legal systems of Communist nations. Historically Communist nations used their legal systems for the repression and elimination of their political opponents. China’s government today wields a brutal criminal justice system to repress its opponents and to control crime. Cuba’s legal system has received considerable attention under Castro and his popular tribunals that are used to handle disputes.

Traditional Law

Traditional law refers to law that relies primarily on unwritten rules and customs. This family of law is found in traditional societies primarily studied by anthropologists. In general, these societies share certain related characteristics, including:

Traditional Law

(1) the are relatively small; (2) people within such societies tend to know one another very well and value close relationships; (3) one’s status in such societies is derived more from ascribed rather than achieved statuses; (4) most have preindustrial economies; and (5) such societies are fairly homogenous.

Criminal Law

Criminal law in the U.S. distinguishes felonies, misdemeanors, and violations or infractions. For an act to be proven a crime several elements must exist, one is criminal intent. Other elements include the act must be prohibited by criminal law, concurrence, causation, harm, and most importantly, here must be an actual act.

Criminal Law

Major legal defenses to criminal responsibility include: (1) accident, mistake, or ignorance; (2) duress; (3) self-defense; (4) entrapment; and (5) insanity or other diminished capacity.

Executive Orders

Executive orders refer to laws passed and actions undertaken by the executive branch of government. Several types of executive orders exist: (1) proclamations; (2) the establishment of task forces; (3) orders to create or reorganize executive branch departments and agencies; and (4) orders that change governmental policy or undertake governmental action to address an issue or problem.

Administrative Law

Administrative law refers to the rules and regulations of administrative and regulatory agencies. Regulatory agencies perform both an enforcement and judicial function.

Making Distinctions

A number of other important distinctions in types of law are presented in the text. These include statutory versus case law, public versus private law, and substantive law versus procedural law. A related distinction is made between substantive justice and procedural justice.

Military Law

The U.S. military has its own legal system as outlined in the Uniform Code of Military Justice. Critics say that military law can be arbitrary and unfair because of the power given to military commanders and because military defendants lack some of the rights and protections their civilian counterparts enjoy. Critic also say that the military sometimes hides or minimizes the importance of crimes and other transgressions committed by military personnel.

Native American Law

Native American law is an example of traditional or customary law. Indian reservations have their own laws and so are in effect legal enclaves within our nation. In general, Native American law favors compromise solutions and reconciliation and restitution.

International Law

International law governs the relationships among the nations of the world and among organizations with international dealings. It consists of treaties and agreements signed by various nations and acts passed by the United Nations and other international bodies.

International Law

Two major problems threaten to limit the effectiveness of international law. One is that the International Court of Justice (located in the Hague, Netherlands) has no effective way of enforcing its verdicts. Secondly, many nations have refused so ratify the Rome Statute and thus have not agreed to be bound by the Court’s verdicts.

PRACTICE QUESTIONS

Practice Question # 1

Which of the following is not identified as one of the families of law?•common•socialist•structuralist• theocratic

Answer to Practice Question # 1

Correct Answer: c (p. 56)

Common law nations are ones with ____ law, or law made by judges through their rulings.

- criminal- treatise- charter- case

Correct Answer: d (p. 58)

Reflecting its British colonial origins, the United States follows the common law tradition with one exception—

- Louisiana.- California.- New Hampshire.- Indiana.

Correct Answer: a (59)

Customary law is also known as _________ law- theocratic- traditional- civil- administrative

•Correct Answer: b (p. 70)

_______ law governs private transactions among individuals and organization,

- Civil- Common- Status- Criminal

•Correct Answer: a (p. 75)

__________ law refers to rules and regulations that govern the behavior of the organizations falling under its jurisdiction.

- Structural- Administrative- Statutory- Discretionary

•Correct Answer: b (p. 79)

The armed forces in the United States have their own legal system. True or False?

•T (p. 82)

A key year in the development of _____ law was 1066 when William the Conqueror became King of England after the Battle of Hastings.

•Correct Answer: common (p. 56)

A key event in the development of common law was the signing of the ________ in the year 1215.

•Correct Answer: Magna Carta (p. 57)

_________________ law refers to the body of law passed and enacted by Congress at the federal level and legislatures at the state level.

•Correct Answer: Statutory (p. 80)

Unit 3 Discussion (3 of 4)

Families and Types of LawDiscussion Scenario:

In 1994, American Michael Ray, then 18 years old, was sentenced to be “caned” for theft and vandalism he allegedly committed in Singapore. His sentence of 6 lashes with a cane was a routine court sentence in Singapore. The nation follows a common law legal system, which has been adapted to reflect deep values, history, and culture.

How might this sentence be handled differently if Ray’s crime occurred in a Civil Law Country? Under a theocratic system?

To what extent should tradition, history, and cultural nuances affect the legal system?

Unit 3 Discussion

Families and Types of Law

Extra! Extra!

•Visit the web site of the American Tort Reform Association and review the “About ATRA” page.

• http://www.atra.org/

ls308: law and society unit 3 seminar unit 3 discussion review of unit 2

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