An Introduction to Comparative Legal Models of Criminal Justice

Cliff Roberson, Dilip K. Das

• Publisher: Routledge
• Year: 2016
• ISBN:
  9781498746298
• Edition: 2
• Topic: Law
• Subtopic: Criminal Law
• Index: Law

Updated to reflect changes in the criminal justice systems in several countries, An Introduction to Comparative Legal Models of Criminal Justice, Second Edition explores and illustrates the idea that a country's legal model determines the character of its police, corrections, and legal system. It focuses on how law shapes policing, including how it

Chapter 1

Introduction to the Study of Comparative Legal Models

Chapter Objectives

After studying this chapter, you should understand or be able to explain the following issues and concepts:

• The difference between the civil law and common law legal models
• The comparison between the legal models of the major legal systems
• The difference between the natural and positive law approaches
• How common law and civil law developed
• How the law functions as an instrument of control
• The meaning of the concept “rule of law”
• The primary functions of the major court systems

Key Terms

Civil law: The law of Continental Europe, based on an admixture of Roman, Germanic, ecclesiastical, feudal, commercial, and customary law. European civil law has been adopted in much of Latin America as well as in parts of Asia and Africa.

Common law: That body of law and juristic theory originated, developed, and formulated in England.

Comparative criminal justice: The study and evaluations of national criminal justice system in comparison with other nations.

Comparative jurisprudence: The study of the principles of legal science through comparison of various systems of law.

Ethnocentrism: The tendency to regard one’s own group and culture as intrinsically superior to all others; regarding one’s own race or ethnic group as superior.

Exegetical system of teaching: Teaching by using an explanation or commentary on the meanings of text.

International crimes: Acts that are considered to be crimes against the peace and security of humankind.

Islamic law: The expression of Allah’s commands for Muslim society; in application, this constitutes a system of duties that are incumbent upon Muslims by virtue of their religious belief.

Jurisprudence: The philosophy of law or the science that treats the principles of positive law and legal relations.

Jus gentium: The law of nations; the law that natural reason has established among all individuals and that is equally observed among all nations.

Natural law: The law of nature or natural law that is said to be discoverable by the light of nature or by abstract reasoning.

Positive law: A specific law or statute that has been enacted or adopted by the proper authority of a government.

Precedent: The use of a prior court decision as authority for an identical or similar later case involving a similar question of law.

Religious law: The model of law that refers to the notion of a religious system or document being used as its legal source.

Rule of law: The rule of law implies that every citizen is subject to the law, including the lawmakers themselves, and that no person, not even the queen, is above the law.

Socialist law: The law developed in Russia after the communist seizure of power in 1917 and imposed throughout the Soviet Union in the 1920s; it is based on the concept of public ownership of the means of production and subordination of the legal system to the Soviet Communist Party.

Transnational crime: A crime that involves, directly or indirectly, more than one nation.

Introduction

There are about 192 independent nations or states in our world. So, it is impractical to study the criminal justice systems of all 192 nations. Accordingly, we will divide the systems into major types and review each major type. Independent nations or states refer to units of people who are organized into political and sovereign states. By sovereign state we are referring to a state that is an internationally recognized unit of political authority. Some nations, such as the United States, are organized into one nation with multiple “states.” When we refer to states in this text, we will be referring to sovereign nations, not subordinate states.

A nation’s criminal justice system is influenced by its legal system. Generally, legal systems of the world can be classified as one of five basic systems: civil law, common law, socialist law, religious law, and customary law (combinations of these). However, the legal system of each country is shaped by its unique history and so each nation incorporates individual variations.

The comparative study of criminal justice is the academic study of the criminal justice arrangements of various nations. Comparison as a study approach is relatively new when associated with other types of justice studies. Few studies of comparative justice were conducted prior to the 1980s, although there wer...