Exam 2 Flashcards
(135 cards)
1
Q
What is a legal system?
A
attitudes, values, and norms regarding the nature and role of law
2
Q
What is a legal tradition?
A
the values and norms that underlie a legal system
3
Q
How can legal systems be classified?
A
common, civil, socialist, islamic
4
Q
What is the most dominant legal tradition in the world today?
A
civil law
5
Q
How does Wigmore’s legal system classification look like?
A
grouped into 16 systems
6
Q
What are features of the Egyptian legal system?
A
1) source of law and justice was divine
2) codes to direct citizen behavior
3) judicial system to handle disputes
7
Q
What is the source of law of the Egyptian legal system?
A
divine (the pharoah rules with divine authority coming from the Sun God Osiris through his son Horus)
8
Q
What are the characteristics of the Mesopotamian (Hammurabi) legal System?
A
1) contained the Code of Hammurabi
2) “an eye for an eye, a tooth for a tooth”
9
Q
Why is the Code of Hammurabi relevant?
A
first written code, written crime and punishment
10
Q
What makes the Chinese system different?
A
moral force and the rule of reason, rather than the adherence to the strict legal rules
11
Q
What are characteristics of the Hebrew legal system?
A
- started with Moses recording the first 5 books of the bible (Torah/Ancient Law) on two tablets of stone
- the Hebrew Bible (includes Torah) and the Talmud (guide to civil and religious laws)
12
Q
What is the source of law in the civil law tradition?
A
written code
13
Q
What are the key aspects of the development of civil law?
A
1) Roman Law: The Law of 12 Tables and Corpus Juris Civilis
2) Canon Law: law of the catholic church
3) codification
14
Q
Why is the Law of Twelve Tables important?
A
1) public persecution of crimes
2) system for an injured party to seek compensation
3) law must be written
15
Q
What is Corpus Juris Civilis?
A
1) laws pertaining to family, property, torts, and contracts
2) referring to the law itself rather than its precedents
3) forbade legal commentaries
16
Q
What is Canon Law?
A
law of the Catholic church
17
Q
What are papal letters?
A
publication or announcement issued directly by the Pope or by an official delegated by him.
18
Q
Why is codification important?
A
allows laws to be gathered together in groups which can be bound in a law book
19
Q
What is the source of law in the common law legal tradition?
A
customs
20
Q
What are the 3 key subtraditions of common law?
A
1) feudal practices - royal courts
2) custom
3) equality
21
Q
What was the role of royal courts and how did judges in those courts make legal decisions?
A
judges in conventional cases based their decisions on a combination of common sense and local norms and laws
22
Q
Why is the Constitutions of Clarendon important?
A
- listed customs in practice
- judges at royal courts expected to follow legal custom
23
Q
What is precedent, or stare decisis?
A
custom identified by reliance on people and through reference to several cases
24
Q
Why did the equity courts develop and which official from the king’s court was in charge?
A
over time judges saw themselves as bound by the common law rather than the desires of the king. The chancellor was in charge
25
Does the dual court system still exist in England and Wales?
no
26
What is the source of law in the socialist legal tradition?
principles of the socialist revolution
27
What is socialism and what are its key characteristics?
1) Socialism: characterized by the absence of classes and by common ownership of the means of production and livelihood
2) Russian Lw
3) Marxism-Leninism
28
What is the interplay between customary and codified law in Russian legal history?
the law should reflect the will of the monarch, but customary laws applied to cases in which the monarch has no interest
29
What are the consequences of Marxism-Leninism on the legal system?
1) new laws not enacted for 5 years
| 2) law is subordinate to policy developed
30
Is the requirement of specificity satisfied for common law?
Yes, the expectation was that everyone knew the custom
31
What is the traditional classification of common-law offenses?
felonies, misdemeanors, and treason
32
How would the actual cases be classified based on the modern classification?
arrestable or non-arrestable
33
Why is Scotland specific?
- relies on justice and judge-made laws
| - Scottish High Court has the right to create new crimes
34
How does substantive criminal law look like in civil law traditions?
- codification in the form of the penal code
| - the code contains general provisions and a systematic list of crimes and punishments
35
How do the French classify offenses?
1) crime (serious felonies)
2) delit (less serious felonies/misdemeanors)
3) contravention (violations)
36
How do the Germans classify offenses?
1) verbrechen (felonies)
| 2) vergehen (misdemeanors)
37
How is the approach towards crimes in the socialist law systems different from the one used in civil law systems?
principle of codification used, but definitions ambiguous
38
What was the definition of crime under the Soviet regime?
"any socially dangerous act or omission which threatens the foundations of the Soviet structure"
39
What was the Chinese Code?
192 articles divided into 2 sections (general and special)
40
How could crimes be classified in the Islamic law countries?
1) hudad
2) quesas
3) ta'azir
41
What are hudad crimes and give an example
- crimes against god
| ex: drinking alcohol in public
42
What are quesas crimes and how are they different from hudad crimes?
- private wrongdoings, crimes such as assault and murder
| - prosecution is brought by victim or heirs, do not have specific punishment (settled privately)
43
What is diyya?
a compensation for a felony
44
What are ta'azir crimes and what is an example?
crimes prohibited by the Qur'an and Sunna that are not specifically subject to punishment, such as eating pork
45
Who is in charge of the prosecution of ta'azir crimes?
discretionary
46
How does the adjudicatory process in adversarial systems look like?
- free and open contest
- compared to a game in which both sides are trying to win and a neutral ref decides 2 things: whether they are playing by the rules, which side wins
47
What are some key characteristics of the adjudicatory process in adversarial systems?
1) free and open contest
2) typically trials not proceeded by any official investigation or prep of evidence
3) most advantages are on the side of the accused
4) oral and public trial (jury)
5) vast majority settled through guilty pleas -> no trial
48
What safeguards does the system have in place to prevent abuse of the adjudicatory process in adversarial systems?
1) cross-examinations of witnesses
| 2) power is not concentrated, but dispersed
49
How has the traditional adversarial process changed?
- creation of a professional police force and of a public prosecutor to investigate the commission of crimes, compile evidence, seek authority to prosecute, and actually conduct the criminal proceeding on behalf of the state
- move towards the inquisitorial system
50
What is specific about the inquisitorial process and is it the same as the Spanish Inquisition?
- through an "official inquiry" or a continuing investigation conducted by an active judge
- different than Spanish Inquisition
51
What are the basic stages in the inquisitorial process?
1) investigative phase
2) examining phase
3) trial
52
How has the traditional inquisitorial process changed?
- reforms in the investigative and examining phases
- defendant can be questioned during the examining phases and at the trial; cannot be sworn and may refuse to talk
- trial cannot be averted by a guilty plea
53
What is the impact of a confession in adversarial systems?
no more controversy and the case proceeds to sentencing
54
What is the impact of a confession in an inquisitorial system?
just another fact added to evidence
55
What are the specifics of the criminal procedure in the socialist countries?
- derived from criminal procedures in civil law countries
- pretrial process completely controlled by the prosecutor or the police
- judge's role is active while attorney's is passive
56
Does Islamic law predetermine the details of the criminal procedure?
no its up to the country and its legal system
57
What is judicial review?
checking the constitutionality of criminal rules and the actions by government agents
58
What is the Rechsstaat and what are the steps in achieving it?
rule of law
1) establish or recognize some fundamental values
2) write them down (constitution)
3) establish procedures that would challenge the constitutionality of the laws
59
What are the models in accomplishing judicial review?
concentrated, diffuse, and mixed
60
How is the concentrated model different from the diffuse model?
concentrated: issues of constitutionality addressed by a specific state agency
diffuse: control of constitutionality is assigned to the entire judiciary
61
What countries would be examples of diffuse and concentrated models?
diffuse: USA
concentrated: Germany
62
Which countries use the mixed model of judicial review?
Brazil
63
What are the problems in achieving judicial review in the Islamic and socialist countries?
Islam: there is no third step
socialist: the law is not viewed as an absolute value, rather it is subordinate to policy (rule of law is absent by design)
64
Define the police
UN: "public agencies whose principal functions are the prevention, detection, and investigation of crime, and the apprehension of alleged offenders"
65
Why do some countries have higher raters of police personnel per 100,000 than others?
-consequence of crime rates, level of economic development
66
What factors does Bayley use to classify countries based on their police?
1) centralization of forces
| 2) number of forces
67
Where would the Nigerian police fit under Bayley's classification?
centralized single system
68
How is Nigerian police organized?
- led by Inspector General of Police w/ 6 assistants
- 12 zonal commands
- each zone includes 2-4 states
69
What are the tasks of Nigerian police?
maintaining law and order and protecting life and property through the federation
70
Where would the Japan police fit under Bayley's classification?
decentralized single system
71
What is the organization of police in Japan?
1) National Public Safety Commission (supervises NPA)
2) National Police Agency
3) local police (perform actual police work)
72
What are koban and chuzaisho?
koban: urban areas
chuzaisho: rural areas
73
Where would the France police fit under Bayley's classification?
centralized multiple coordinated
74
What is the organization of police in France and characteristics of each agency?
1) Police Nationale: operates in urban centers
| 2) Gendermerie Nationale: rural areas, national security
75
Where would the German police fit under Bayley's classification?
decentralized multiple coordinated system
76
What is the organization of police in Germany?
1) state police
2) Schupo (municipal)
3) Kripo (plainclothes)
4) Bepo (officers in training)
5) Federal Border Police
6) Federal Criminal Police Office (investigations)
77
Where would the Spain police fit under Bayley's classification?
centralized multiple uncoordinated system because of overlapping jurisdictions
78
What is the organization of police in Spain?
1) Guadria Civil (rural, highways)
2) Cuerpo Nacional de Policia (urban areas)
3) Policia Municipal (municipals can create own police)
79
Where would the Mexico police fit under Bayley's classification?
decentralized multiple uncoordinated system
80
What is the organization of police in Mexico?
1) federal
2) state
3) municipal
81
Where would the USA police fit under Bayley's classification?
decentralized multiple coordinated
82
What is confidence in the police and why is it important?
crucial for good police-community relations
83
What do results of the studies say about the level of police confidence across the world?
1) victims from countries in transition (CIT) less likely to report their victimization to the police than victims from established democracies (ED)
2) for victims from CIT, not reporting more likely to be driven by police-related reasons
3) victims from CIT were less satisfied with their reporting experience than victims from ED
84
Which legal tradition is most likely to yield high levels of confidence to the police?
civil law
85
What is police misconduct?
police officer who commits an act or omission of a violation of rules or codes of ethics
86
What are the forms of police cooperation?
- exchange of information
- joint operations
- training of police personnel in other countries
- participation in international conferences/seminars/meetings
- international publications
- cooperation in obtaining equipment
- international research projects
- mutual holiday visits
87
What is Interpol and what is its mission?
"to be the world's preeminent police institution in support of organizations, authorities, and services whose mission is preventing, detecting, and suppressing crime"
88
What kinds of services does Interpol provide?
1) a unique global communication system
2) a range of criminal databases and analytical services
3) proactive support for police operations around the world
89
How is Interpol organized?
1) General Assembly
2) Executive Committee
3) General Secretariat
4) National Central Bureaus
90
What is Europol's mission?
"to improve police cooperation between the EU member states to combat terrorism, illicit traffic in drugs, and other serious forms of international crime"
91
What kinds of services does Europol provide?
1) exchange info between member states
2) obtain, collate and analyze info and intelligence
3) notify the proper authorities of the member states without delay of info
92
How is Europol organized?
1) Management Board
2) Directorate
3) national units
93
What is the Schengen Convention and why is it important?
goal to provide unhindered travel among member states with assurance of strict identity controls at airports, sea ports, and land borders for travelers arriving from countries outside the EU
94
What is the Euro Warrant?
1) eases extradition process between EU countries
| 2) own nationals are no longer exempt from surrender to another country
95
USA compare police confidence
civil slightly below, common we are above slightly
96
What does it mean that the law in Russia is viewed as artificial?
-written law not part of Russian mentality -> law viewed as something arbitrarily done by an autocrat
97
Why is Islamic legal tradition different from the other 3 traditions?
Islam regulates all aspects of a person's life
98
What is the source of law is Islam?
-divine
99
What are the primary components of Islamic law?
1) The Shari'a
2) Witnesses and Oaths
3) Extensions of Islamic Law (mazalim courts)
100
What are the primary sources of Islamic law?
1) The Shari'a
2) Allah's revelations
3) the Qur'an
4) the Sunna
101
What are the secondary sources of Islamic law?
1) qiyas
| 2) ijma
102
Why are witnesses and oaths a key element in the Islamic legal systems?
1) The holy books specify the number of witnesses/oaths
2) plaintiff carries the burden of proof
3) party may challenge the other to take an oath
103
What are mazalim and why did they develop?
- non-Sharia courts
| - developed as a way to resolve criminal and civil cases
104
How is flexibility provided in Islamic systems?
mazalim courts
105
What does the police integrity survey tell us about the extent of police integrity?
great variation, some regions more likely to be corrupt (Africa, Latin America, some of Europe)
106
What is the most frequent Interpol notice?
red
107
What are the 2 small Japan police boxes?
Koban and Chuzaisho
108
What is the legal tradition of Finland?
civil
109
Does Finland have a death penalty?
no
110
What is Finland's police system?
single, centralized
111
What is Finland's judicial review?
concentrated, has a Constitutional Committee
112
What is Brazil's legal tradition?
civil
113
Does Brazil have a death penalty?
yes
114
What is Brazil's police organization?
multiple, decentralized uncoordinated
115
What is Brazil's judicial review?
mixed, Supremo Tribunal Federal + all courts
116
What is South Korea's legal tradition?
civil, common, confucians
117
Does South Korea have a death penalty?
yes
118
What is South Korea's police organization?
single, centralized
119
What is South Korea's judicial review?
concentrated, has a constitutional court
120
What is South Africa's legal tradition?
civil, common, traditional
121
What is South Africa's police organization?
single, centralized
122
Does South Africa have a death penalty?
no
123
What is South Korea's judicial review?
concentrated, has a constitutional court
124
Who plays the role of the accuser in Adversarial systems?
the state in a continuation of private investigation
125
Who plays the role of the accuser in Inquisitorial systems?
the state, in a substitution for private vengeance
126
How is truth determined in Adversarial systems?
free and open competition
127
How is truth determined in Inquisitorial systems?
through an official inquiry or continued investigation
128
Where does the power lie in Adversarial systems?
shared by prosecutor, judge, defense, jury
129
Where does the power lie in Inquisitorial systems/
concentrated in the judge
130
How active is the trial judge expected to be in Adversarial systems?
very passive
131
How active is the trial judge expected to be in Inquisitorial systems?
very active
132
What is the level of cooperation expected from the defendant in Adversarial systems?
none
133
What is the level of cooperation expected form the defendant in Inquisitorial systems?
expected but not required
134
Does the guilty plea prevent the trial in Adversarial systems?
yes
135
Does the guilty plea prevent the trial in Inquisitorial systems?
no
