B2 slides on comp. jud. culture. NOTE: the part on Islamic law is incomplete. Please feel free to suggest further points/development.

1. CL4 English Language
and Culture for Business
Module III B2
Comparative Judicial Cultures
Dr. Peter Cullen
www.cl4englishlistening.wordpress.com

2. A Comparative Approach to
Understanding Law
Why is a comparative approach useful?
to offer other models of law, challenging our own
to understand the structural contexts in which
our and other societies function
it is in our nature and tradition to investigate
each others’ legal traditions
Canon vs Common Law
Roman vs Germanic Law
A comparative approach allows better
understanding of differences between LAW and
RIGHT – fundamental to national unification

3. The Sources of Law and the
Comparative Approach
Law is created in tradition – it is a social accord
The structures applied to express this accord
generate differences in law from one society to
another.
The needs Law must meet
are different from society
to society
The languages used to
express these needs are
contextually defined
A comparative approach must consider the sources that
create law.

4. Legal Sources
Why is Law created?
How is Law created?
Law is created in society to establish, obviate and
enforce conditions and limits on human behaviour,
sanctioning violence and coercion to maintain social
respect for the law.
Law IS a social accord.
The Rule of Law

5. The Rule of Law
Aristotle: “The Rule of Law is better than the rule of any
individual”
Law should be universal
BUT
People don’t need to understand the rule
in order to follow it
Rules are not necessarily designed by Plato (left) and
Aristotle (right)
conscious intelligence debate the
nature of reason
(Raffaello)

6. The Creation of Law
Law may be created by perpetuated social behaviour
and enforced according to custom
i.e. Reciprocity, vendetta, feud
= oral tradition
The top of
the stele of
Hammurabi’s
Law may be created through Code
applied reason – necessitating its (Babylon
1792 BC)
dissemination in public knowledge
i.e. Constitutions, modern law = written tradition

7. Law and Legitimacy
Rules of social conduct require social legitimacy
Legitmacy takes many forms:
reciprocity accord
divine legitimacy
constitutional legitimacy
Law based on reciprocity is flexible
and changes as social needs change
Constitutional Law replaces the need
Moses with the 10
for divine legitimacy
Commandments

8. The Social Origins of Law
SOCIETY
Conscious
Conflicts
desires
STATE
enforces makes
Common Legislation
Law
LAW
Public Private

9. Codification of Law
The Constitution of the Roman Republic Mos Maiorum was a
body of customs perpetuated oraly in the Forum
Complex political structures require a universal
understanding of their legitimacy.
Empire – extension of political control beyond cultural
boundaries – consolidation of power
Writing gives a permanent or semi-permanent quality to
Law – it reinforces memory and proof.
Justinian I collected and standardised
centuries of Roman Law in the Corpus
juris civilis.
Justinian I – Codified Civil
Law in the Western Roman
Empire 529-534 AD

10. Canon Law and Scripture
Collection of texts (Canons) left by the Apostles after
the Council of Jerusalem (50 AD) including:
Acts of the Apostles which separated Christians (gentiles) from
Jewish Law (on circumcision and food) and organised:
Office and duties of bishops
The qualifications and conduct of the Clergy
The religious life of Christians
External administration (excomunication, synods, relations with
pagans and Jews)
The Sacraments
Gospels – recount the lives of the Apostles
367-419: Synod of Hippo, Councils of Carthage –
creating the works included in the New Testament.
St. Augustine presided over the later councils and
considered the Canon closed

11. Motivating Forces in Western Legal
Tradition
533 – 554 Justinian re-conquered the Ostragoth and
Vandal Kingdoms

12. Law vs. Right
Analysis of codified law became the principal subject of
medieval universities – Bologna formed in 1088 around a group
of masters in grammar, rhetoric and logic began teaching points
of the Corpus juris civilis
10° - 18° centuries – codified law is legitimated by divine
right of kings = bureaucratic centralisation of princely
power
English Civil war contrasts this.
Thomas Hobbes (1588-1679) Leviathan, De Cive, law is rational.
Social contract – legitimating factor in the English Civil War
John Locke (1632-1704) – Two Treatises on Government,
government must have the consent of the governed

13. Modern European Civil Codes
Napoleon’s conquest of Europe established this tradition in
modern terms – The Napoleonic Code (March 21° 1804
The Code is based on French
Revolution principles and aimed at
rationalising old aristocratic law =
pan-regional application
Applies the Declaration of the Rights
of Man (1789) to subjects
but did not apply to the Emperor Napoleon’s Empire:
France in dark blue
(self-crowned Dec. 2 1804) and sattelite states in
light blue

14. The Modern Italian Legal System
Problem – how to create law for a fragmented group of
independent regions
The Napoleonic Civil Code offered a tradition and formula
for super-regional administration – allowing for the unifying
presence of a king (house of Savoy)
The 1948 Constitution draws on Civil Code tradition.
Therefore – it creates rules through legislation that judges
must apply
But
It also reflected Christian ideals (DCs) and Communist
Socialist ideals (PCI) and contains a Bill of Rights – based
on natural law

15. Roman Law, Ecclesiastical Law,
Common Law
Today: Romano-Germanic countries base the
application of justice on the disposition of existing
law.
Question: the formalisation of tradition.
Western Europe and North American legal and
legislative systems are based on Roman,
Ecclesiastical, and Common law systems.
These systems represent traditions in themselves.
Roman law and Ecclesiastical Law share a tradition
British Common Law diverges from that tradition

16. The Law and State Formation
Today’s legal and legislative systems have been
formed over time
Western Europe: Application of the Civil Code
(adaptation of Roman and Ecclesiastical legal
tradition)
Britain, English speaking British Colonies, USA –
Common law tradition based on historical
compromises between ruler and subjects, since
1215 also affecting legislation as well as justice.

17. The Law and State Formation
What is a state?
How have they been formed?
States are formed by when the social accord is legitimately
applied in a territory or region and is recognised by other
combinations of social accord/territory
How to legitimate the application of the social accord?
force of arms – armies, garrisons, fortresses = high
competition (war, civil war)
force of custom – traditional affinities – low competition
force of law – communications-based appeal to internal and
external consensus requiring demonstrable experience =
moderate or possible competition

18. The Law and State Formation
States are, and create, instruments designed to guarantee
consenus
Authority Obligation Legitimacy
How do these systems
Oligarchy
create consensus?
Monarchy
Parliament
Republicanism Traditional authority
Dictatorship Legal authority
Communisim Charismatic authority

19. The Formation of British Law
1066 = disaggregate Saxon territorial tribes +
Danelaw
1066 -1215 = Norman/Angevin rulers at war – interested in
ensuring tax authority – Domesday book (10,000 Normans
governing 3,000,000 Britons
1166 Henry II uses royal writ to reign in control of his Barons
– writs are royal orders to come to a decision or pass the
case to the Royal Courts
1179 Magna Assisa – instead of trial by ordeal (duel) the
defendant and plaintiff could plea before judge and jury
1215 – Magna Carta = Barons impose council on King John I
This is intermittently applied in the following 400 years, but
becomes popular concept under the Stuarts

20. The Formation of British Law
Royal Courts: developed in early XII century
Exchequer = revision of accounts (from demesne to debt)
Court of Common Pleas = 1178 – 1215 at Westminster, high caseload
producing more Royal justice
Court of King’s Bench = decided on cases not covered in other
courts and particulalry upsetting the King’s Peace (public order)
The Stuarts: Catholic, Absolutist tendencies
James I was Religiously moderate (married a Protestant)
Charles I was less so – and always at odds with Parliament,
dissolving it 1629-1640
1642-1651 = Puritan faction in parliament arms, defeats
royalist supporters, executes Charles I and rules until
restoration of the Stuarts in 1661 under Charles II –
creating the constitutional monarchy system
1688 – the Glorious Revolution. William of Orange becomes
king – formalises the English Bill of Rights in 1689

21. The Formation of British Law
The basic tenets of the Bill of Rights 1689 are:
Englishmen, as embodied by Parliament, possessed certain
immutable civil and political rights. These included:
• freedom from royal interference with the law (the Sovereign
was forbidden to establish his own courts or to act as a judge
himself)
• freedom from taxation by royal prerogative, without
agreement by Parliament
• freedom to petition the Monarch
• freedom from a peace-time standing army, without agreement
by Parliament
• freedom [for Protestants] to have arms for defence, as allowed
by law
• freedom to elect members of Parliament without interference
from the Sovereign
• the freedom of speech in Parliament, in that proceedings in
Parliament were not to be questioned in the courts or in any
body outside Parliament itself (the basis of modern
parliamentary privilege)
• freedom from cruel and unusual punishments, and excessive
bail
• freedom from fines and forfeitures without trial

22. The Formation of British Law
Certain acts of James II were specifically named and declared
illegal on this basis. He believed in Absolutist monarchy.
The flight of James from England in the wake of the Glorious
Revolution amounted to abdication of the throne in 1688.
He attempted to retake England by invading Ireland, but was
roundly defeated by at the battle of the Boyne
Roman Catholics could not be king or queen of England since
quot;it hath been found by experience that it is inconsistent
with the safety and welfare of this protestant kingdom to
be governed by a papist princequot;. The Sovereign was
required to swear a coronation oath to maintain the
Protestant religion.
William and Mary were the successors of James.
Succession should pass to the heirs of Mary, then to Mary's
sister Princess Anne of Denmark and her heirs, then to any
heirs of William by a later marriage.
The Sovereign was required to summon Parliament
frequently

23. The Formation of British Law
British law focuses on procedure
Common Law (hundreds courts, JPs and law of the land
through the appellate court system)
Equity (remedies or corrections to Common Law where
common law is too rigidly procedural. Perogative of the
Chancellor of the Exchequer)
Equity = application of justice (moral law) when the
Common Law is not able to reach an adequate
decision regarding the trial. Equity court may not
innovate or create law. It derives from Canon Law
Common Law provides remedies as of right
(guaranteed by statute or precedent. Equity court
decisions are discretionary – the right

24. Equity
Equity maxims:
“He who comes to Equity must come with
clean hands”
the claimant must be beyond reproach
“Delay defeats Equity”
claimants must not wait too long before making a
claim

25. The Formation of British Law
Equity and Common Law balance the King’s justice – by the
end of the XVIII century – equity law had become a true
body of law
Common Law by the XVIII century looks increasingly to
precedent decisions to inform its justice. Year Books dated
back to approx. 1290.
1600-1615 Edward Coke compiles his “Reports” –
constituting a model for collection, explication, and use of
court decisions.
Parliament balances the King’s public policy by controlling the
purse and guaranteeing the Common Law against absolutist
centralisation
Constitutional Monarchy after 1688 avoided absolutism in
Britain
By the beginning of the XIX century, precedent tradition was
formalised as the “rule of precedent”

26. The Formation of British Law
The Judicature Acts 1873-1875
In terms of procedure, it had become possible and
desireable to register two “actions” – one in Common Law
court and one at Chancery
After 1875 – there is no real division between equity and
common law – but the question for the High Courts is to
decide which procedure best acts in competence
The Acts suppressed all previous High Courts, creating the
Supreme Court of Judicature
Equity court today – tends to preside over cases
involving written procedure:
Real property, trusts, companies, bankruptcy,
interpretation of hereditary right and wills
Common Law court today – tends to preside over
cases involving oral procedure = judge and jury
Penal law, contract law and civil responsibility

27. Open and Closed Systems of Law
Romano-Germanic tradition is a “closed system” =
each type of problem, at least in theory, can and
must be resolved through “interpretation” of existing
laws
The British or Common Law tradition is an “open
system” = it possesses a “method” that allows the
resolution of any type of problem without necessarily
possessing existing law to apply indifferently in all
cases
The British judge is responsible for adjudicating the
case in front of him or her – not for creating rules
that may be applied beyond that controversy. The
judge is obliged to respect prior decisions until
overturned by the Supreme Court.

28. The Rule of Precedent
Since medieval times legal arguments in important cases were
recorded and subsequently used by judges to provide
authority for specific rules of law.
1833 – the principle of binding precedent is articulated in the
case Mirehouse v Rennel
Application of precedent depends on the explication of the
ratio decidendi – and only if eminating from higher courts
and from the same court in a previous case.
Binding precedent is based on:
the hierarchy of courts
principles of identification
a system of law reporting

29. The Hierarchy of Precedents
European Court of Justice
House of Lords
Art. 177, Treaty of Rome 1957
Appeals – binding lower
courts but not itself
High Court Court of Appeal
Different disputes + appeals, new cases Appeals -Binding lower
courts AND itself
=
Family, Chancery, Queen’s Bench
Binding lower courts but not itself
Crown Court
County Court
Criminal – binding no one
Civil – binding no one
Magistrate’s Court
Ciminal, licensing – binding no one

30. Principles Identifying Binding
Precedent
Higher court decisions are binding on lower courts.
BUT
Only some parts of the judgement are relevant.
Ratio Decidendi
Judgements have two parts:
Obiter Dicta
Ratio Decidendi = material reason for the judgement
(these are binding)
Obiter Dicta = statements in the judgement that are
NOT essential to the decision
(these may MAY be binding if applied in superior courts)

31. Judgment
Judgments contain:
A statement of the material facts of the case
(questions of fact)
A statement of the legal issues and principles applied
to the decision (questions of law - Ratio)
A discussion of the legal principles reaised in
argument but not material to the decision (Obiter)
The final decision disposing of the case

32. Law Reporting
The system of law reporting in Britain is fundamental to
the documentation of legal precedent.
Law reporting falls into three periods:
the year books published between 1270 – 1530
1.
Private reporters such as E. Coke, Dyer, etc., 1535 –
2.
1865
The modern semi-official report series established by the
3.
Council on Law Reporting in 1865 – becoming the
Incorporated Council of Law Reporting for England and
Wales in 1870.
There are 4 series: Appeal Cases
Chancery Division
Queen’s Bench
Family Division

33. Cases Referred to by the Courts
Judges use specific terms to refer to case judgments, often
indicating the effect of those judgments on the case before
them:
Overruling - higher court decides lower court decision
wrong
Reversing – higher court reaches an opposite decision
Disapproving – higher court doubts lower court
decision
Distinguishing – lower court not bound as cases are
different
Departing (from) – court not bound as prior decision
per incuriam

34. Cases Referred to by the Courts
Affirmed – higher court confirms decision of a lower
court in a case
Applied – court considers itself bound by an earlier
decision
Approved – higher court states lower court decsion was
correct in a different case
Considered – court discusses a case (part. of = status
in hierarchy) but reaches no substantial conclusion
as to application

35. Islamic Legal Tradition
Founding document – the
revelations of the prophet
Mohammed (Mecca 570 – 632 AD)
written by him in The Qu’ran
– expressing the word of God
(orthodox) His teachings are
Expansion under the Prophet Muhammad, 622-632
universal and written. Expansion during the Patriarchal Caliphate, 632-661
Expansion during the Umayyad Caliphate, 661-750
Mohammed’s successors are called Caliphs (Kalifa) but they
are not considered prophets
Mohammed had made many alliances with tribal chiefs. When
he died – these threatened to dissolve as the chiefs
disputed the concentration of power in Medina.
After the death of Ali in 661, the decendents of Umayya (the
Umayids) came to power and moved the capital to
Damascus

36. Islamic Legal Tradition
Successors to the first 4 Caliphs split into two groups:
supporters of Ali (shi’at ‘Ali) – Caliph of Kufa and husband to
Mohammed’s daughter Fatima – the Shi’is moved moved
east into Iraq then Iran (680-740 AD) and resisted the
centralisation of Umayyad authority.
Supporters of his uncle Abbas (becoming Abbasids) – who
attempted to consolidate a single interpretation of the faith
by the power of the ruler. Beginning in Kufa – they
defeated the Umayyads (750 AD) and centred their power
in the new city of Baghdad.
Abbasid legitimacy was founded in it’s adherence to the
Qur’an and the right rules of conduct established by the
Prophet’s behaviour – the sunna
Religious specialists, therefore, were elevated to the post of
quadi (judge) – to decide conflicts based on emerging
Islamic law

37. Islamic Legal Tradition
The belief in unity inclusive of differences in legal opinion and
the importance of both the Qur’an and the practice of the
Prophet created a mode of thought known as Sunnism.
Different areas supported different religious community
leaders – the imams – who were people deemed worthy
under Qur’an scripture and the body of practice. The Caliph
was an imam – but others were recognised. Particularly
important in Shi’a communities that did not recognise the
central power of the Abbasids.
Extension of Islam promoted linguistic adoption of Arabic
among local populations – particularly through poetry and
the art of caligraphy.
By the 9° or 10° centuries AD (3° and 4° in Islamic calendars)
the Muslim world had taken shape – adopting
recongnisable features – the mosque, surrounded by
hostels and the seat of the Qadi

38. Islamic Legal Tradition
The Shari’a: the nature of human authority.
In the mid-8° century – questions arose around the nature of
the Prophet’s teaching.
What is the Qur’an?
How does God interact with mankind?
Problem – the Qur’an states that God is all-powerful and all-
knowing, but also that man was responsible for his own
actions and would be judged by God.
How is it that God permits evil, and then judges men’s evil?

39. Islamic Legal Tradition
Basic principles = The Pillars of Islam
The Mu’tazilis: The Qur’an is not only a text, but also a
methodology of approach. Truth may be found by reason
based on what is given in the Qur’an
The Sunnis: the Qur’an is divine and it and the practice of the
Prophet are the only basis for finding truth. The Qur’an is
the only basis for interpreting the Prophet’s actions.
995 AD. Al-Ash’ari – the Qur’an must be interpreted literally,
but can be partly justified by reason.
Problem: from the beginning – the Islam had both spiritual
and temporal duties.
Umayyads – Caliphs and Qadi’s dispensed justice and
administration while Muslim thinkers tried to unify human
acts under the judgement of their religion – creating a
body of thought called the hadiths on how the Prophet
behaved

40. Islamic Legal Tradition
Abbasids (mid-eighth century): the centralised, bureaucratic
state necessitated agreement on ways in which disputes
should be settled.
Al-Shafi’i (767 – 820 AD) stated that the Qur’an was the
literal word of God expressing commandments on:
Prayer
Alms
Fasting
Pilgrimage
No adultery
No wine
BUT
No pork
– the Hadiths were equally important and informed unclear
areas in the Qur’an. Neither could exclude the other and
both were infallible

41. Shari’a Law
Shafi’i: Ordinary Muslims must defer judgement to people
learned in religion to use their reason to explain what was
contained in the Qur’an and Hadiths – within strict limits.
Muslim scholars should procede by analogy (qiyas), finding
some element in the case that was similar to an element
found in a previous case.
This disciplined exercise was called ijtihad - and justifications
could be found in the hadith.
When general agreement was found as a result of this reason,
the consensus (ijma) held the status of unquestionable
truth.
Shafi’i held that this perpetuated general truth found in the
sunna – his successors held that the only valid ijma were
those of the scholars.
All interpretation (so all Law) was to be performed in Arabic.
Shi’is held that consensus was only valid if the Imam was
included.