Comparative Criminal Justice

SystemsSUBSTANTIVE LAW and PROCEDURAL LAW

IN THE FOUR LEGAL TRADITIONS

CHAPTER FIVE

Reichel

QuestionsHistorically, we know that in common law countries

judge-made law, based on custom, was the foundation of (unwritten) criminal law.

How has the concepts of content, context, and time

affected this premise in Scotland and the U.S.?

Have expanding populations and increased heterogeneity had an effect? If so, how?

Substantive LawCommon Law

Rely on statutes (codes), enacted by the legislature, to express substantive law. The Supreme Court is the final arbiter.

Civil Law

Every crime and every penalty must be embodied in a statute enacted by the legislature.

Socialist Law

Codes reflect Imprecision over specificity.

Islamic Law

Codes reflect three categories: 1) crimes against God (hudud); 2) crimes which require retaliation by the victim or victim’s family; and, 3) acts condemned by Shari’a or Sunna.

Question

How are public law

and private law distinguished?

Adjudicatory Process

The Adversarial system

versus

The Inquisitorial system

The fundamental aim of both is to find the truth.

Legal Traditions and the Adjudicatory Process

Common Law

Adversarial

(Accusatorial)

Civil Law

Inquisitorial

Socialist law

Inquisitorial

Islamic Law

Mixed

The Adversarial System

The adversarial system is characterized by a set of legal procedures used in Common Law

countries to determine the truth during adjudication whereby the prosecution and

defense counsel compete against each other while the judge insures fairness

and adherence to the rules.

The Inquisitorial System

The Inquisitorial system found in both Civil Law and Socialist Law countries is characterized by

extensive pretrial investigation and interrogations that are designed to ensure that no innocent person

is brought to trial; i.e., an official inquiry. A trial continues the investigative process with a

procedurally active judiciary and passive lawyers.*

* Under Socialist Law, an agent of the police or prosecution takes the investigative role.

Adversarial and Inquisitorial Systems

Adversarial

Accusation

Judge as referee

Emphasis on trial stage and rules of procedure to ensure a fair trial.

Judiciary restricted in investigatory and adjudicatory process

Defendant is neither required nor expected to cooperate. Prosecutor is responsible for burden of proof.

Checks and balances among courtroom participants – shared power.

Inquisitorial

Inquiry

Judge as inquisitor

Emphasis on screening phase and factual guilt.

Judiciary directly involved

Defendant is expected (although not required) to cooperate during investigations and at trial.

Judge has the power to investigate and to decide outcome of the case.

Questions

Does the adversarial system emphasize procedure over substance?

Is there greater diversity among nations in terms of procedural criminal law than on

issues of substantive law?

Judicial Review

The process by which governments are held accountable to the law and the fundamental

values of a nation.

As a result of judicial review, the rule of law can be achieved because the government,

like its citizens, is made accountable.

Models of Judicial Review

Concen-trated

Concen-trated MixedMixed

DiffuseDiffuse

Judicial Review

Judicial Review

Questions

Does either the diffuse model or the concentrated model belong to any one legal

tradition? Explain.

Are there countries without judicial review?

If so, which legal traditions do they represent?