LS 308 Unit 3 Assignment

LS 308

The good old friend named Joe, who is quick tempered, is accompanying his friend on a two-month vacation across several countries and continents. Since the friend, Nate, knows that Joe can act irrational, he wants to research the laws from these destinations. What is important for Nate to know is the law of each sovereignty and how it is implemented. All of this will be discussed along with the view points of law from each nation and what category their laws could be classified under. The first stop on the itinerary is sightseeing in Australia.

AUSTRALIA

Australia’s type of law is like that of the United States, in that it is guided by the principles of common law. As defined by Barkan, a common law system is one that depends on the rules that are made through case law and precedence. (2009) Essentially, the biggest characteristic for this type of law is the fact that it is based on judicial decisions and how the laws are interpreted through this. The main difference between Australia’s common law and that of the United States is the use a constitution or bill of rights that guarantees certain individual rights. Although, Australia does not have these documents, it has been imposed through precedence that a certain level of fundamental rights is guaranteed to the citizens of this country. (Common law rights, human rights scrutiny and the rule of law, 2013)

In this nation, all criminal offenses are sent to a magistrate court for initial review of the case. If this court decides that the criminal offense is too horrendous for them to judge upon, the case will be sent to a higher court, such as District or Supreme Court. This process is called a committal. (Criminal cases in the Magistrates Court, 2019) But if the magistrate court decides to hear the court, there are several ways the accused may proceed. Like the United States, the accused then can ask for a continuance, or they may plead guilty or not guilty. In the case of an assault charge, the accused may also choose which court hears the case.

When examining the criminal offense of assault, the biggest factor is the damages that occurred to the injured party. In Australia, there are five different types of assault that the accused may be charged with. These include: common assault, unlawful wounding, assault causing bodily damage, assault causing serious bodily harm, and sexual assault. (The Meaning of Assault Under Australian Law, 2015) All of these have different consequences and penalties, ranging from fines to imprisonment. For example, if Joe gets into a fight and gets charged with common assault, his penalties have a maximum of two years of imprisonment, but more than likely he would be fined.

Conflict resolutions in Australia are like those used in the United States, in that such methods as mediation and arbitration are used. These are better known as ADR, Alternative Dispute Resolutions. These processes are deemed ethical because it allows both parties to discuss and negotiate what they see fair to both sides. Communities with processes like this are typically supportive because they know that these means of resolutions help the judicial system to keep focused on the more important topics.

ITALY

The legal system in Italy is one that is based on the fundamentals of civil law. Unlike the United States and Australia, this family of law depends on statutory law and regulations. While nations like the United States also have civil law, it is not the foundation for the legal system like Italy. The main characteristic of nations that have this kind of legal structure is the role that judges play. Judges in these nations essentially follow the written codes and laws, while rarely overturning these laws, where in common law nations, the judge plays the biggest role in determining law. On the other hand, judges in this system play a key role in the investigative nature of the accused. Unlike the adversary model that common law nations follow, this system relies on an inquisitorial model. This means that essentially the judge is the trier of facts without there being any attorneys involved. Other key differences between these types of law is the education and experience of the judges and juries are rarely used in the courtroom. (Barkan, 2009)

The criminal element of this system is governed by the Criminal Code, which defines the laws for criminal activity, and the Code of Criminal Procedure, which sets the guidelines in how the accused may be investigated. (Ardiani, 2013) All criminal charges in Italy start in the Court of First Instance. These are judged by ordinary first instance judges, in cases that are considered minor, only one of these judges preside. In more serious charges, the Court of Assizes will handle the case. These courts have a three-judge panel. If Joe was to get into a fight in Italy, his crime would be defined as a misdemeanor or a felony. Assuming he did not severely injure the other party, this would be classified as misdemeanor, in which Joe could expect to serve a minimum of five days in jail, with the maximum being three years. Also, he could expect to be fined a sum of money but not more than 1,032 €. (Ardiani, 2013)

Although mediation has been established in this nation for a long period of time, the idea of arbitration is new. Under a Decree created in 2014, this was given as an option for those involved in disputes. (Broccoli, 2014) Like the other systems that use these kinds of conflict resolutions, the ethics behind these are to provide a fair, just attempt to settle issues. The view of the public usually tends to be positive, because it is seen as an avenue in which the workload on the judicial system is lessened. Also, these ways to settle disputes is fair because it allows each party to agree on what they believe is fair and if this compromise cannot be met, there is no legal obligation for either party to settle.

IRAN

Iran is the next destination. The legal system used in this country is one based on theocratic law. This is defined, by Barkan, as a system that is “heavily dependent on religious beliefs.” (2009) Islamic Law or Shariah Law, as it is better known as, must be abided by the rules and laws that are developed in this nation. There are four main areas in which this law effects the individuals living under it. Those being: one’s relationship to the state, one’s relationships to others, religious practices, and everyday acts such as personal hygiene. Using the theocratic system of Islamic law severely limits one’s individual freedom, especially freedoms like those of religious views.

The biggest difference between this system of law, compared to the others, is how one’s criminal offense is punishable. Under this structure there are three classifications in which a criminal offense is categorized. These are: Hadd, Qisas, and Tazir. (Barkan, 2009) The category an assault would be placed is under Qisas, which is considered retribution. Under this classification, Joe could expect to only pay monetary damages to the party that injured during the altercation. (Qisas, 2019) Other crimes that are included in this category are: murder, involuntary killing, and intentional physical injury. In the more severe case like murder, the family of the victim may wave retribution for monetary damages instead.

When viewing this legal system from an outside perspective, it could be difficult to identify the ethics being used to support the ways of which issues are resolved. This is because they could be viewed as unfair and unjust. For example, an individual from the western world would be puzzled to why a resolution to an adultery case could result in a stoning death. But from the perspective of someone who resides in this nation, this could be viewed as something that should occur, based on the principles in their religion. Something else that sets these kinds of nations apart from nations like the United States is the trier of facts. In some criminal cases in Iran, the community can convict and punish the accused. This would never occur in a nation that is considered common law or civil law.

CUBA

The country of Cuba is next on the list. Since this nation is a Communist country, the law used is termed as socialist law. The major characteristic of a socialist law nation is that one person or regime has the power to implement any laws and punishments that they see fit. This form of law could be considered the most oppressive to its citizens because of the way the legal system is used. Dictators, or the leaders of these nations, can use the legal system as a tool to keep control of their regime. While most of Communists countries have judicial system, Cuba was a bit different, as it used popular tribunals instead. (Michalowski, n.d.) These people in the tribunals were individuals that were part of the community. But after some years of using this method, what was considered laws was too widespread throughout the country. With policy changes on a national level, brought forth a more formal process and was less focused on the people’s law.

Much like the United States, Cuba now has multiple layers of courts that are used for various reasons. The biggest difference is the individuals used to determine judgement in these courts, especially on the municipal level. This court has two lay judges and one professional judge. The biggest issue with this is that the lay judges are typically uneducated in the field of law, as they normally consist of peasants or field workers. (Cuban Legal System, 2019) Again the classification of Joe’s crime would depend on the injures that were sustained. Felonies and misdemeanors are the categories in Cuba. If Joe was convicted of a misdemeanor, his sentences could include imprisonment for up to one year and a monetary fine.

The ethics behind any socialist law nation are usually viewed as negative. This is because one person oversees the entire country and that its people do not have any other choice for that position. With there only being one political party in these countries, the citizens must abide by their rules and laws, whether they agree with it or not. With the views and ethics of the public essentially not making a difference, these countries are ruled with the ethics of one person. If they find it ethical to execute individuals because they protest their government, then that is what will happen. Viewing this as a resident in this country, their perspective is more than likely that this should not occur.

NORTHERN CHEYENNE

The last stop on this trip is the reservation of the Northern Cheyenne. On this federally granted land, the tribe of the Northern Cheyenne can establish their own system of rules and laws. This kind of legal system is structured under traditional law, which is defined as a system that relies on customs and unwritten rules. (Barkan, 2009) Since the culture of the individuals living there is the biggest influence on their daily lives, the laws developed are more pursuant to these beliefs. The main characteristic of this kind of legal system is that it tends to be more group oriented than to focus on individuals. What effects the group is more important than what happens to the individual.

The criminal process on this reservation is like the others, in that there are different courts based on a hierarchy. One major difference is that the employees of the courthouse are members of the tribe and live on the reservation themselves. Since the places who practice this type of law are generally small, this makes the interactions between the parties to be more personal. If Joe was to get in trouble at the reservation, the Tribal Court would not be able to pursue charges. This is because of precedence set by Oliphant v. Suquamish Indian Tribe, 435 U.S. 191 (1978) In this case, the Supreme Court decided that reservations and their legal systems have little control over non-Indians. More than likely what would happen to Joe is that he was asked to leave the reservation.

This kind of law could be considered the gentlest from an ethics viewpoint. Because of its emphasis on customs, the ethics used are less punishment based and more based on reconciliation. Out of the before mentioned types of law, this is the most supported because everyone involved is from one community and it affects everybody.

References

Barkan, E. S., (2009) Law and Society: An Introduction. Retrieved from https://purdueuniversityglobal.vitalsource.com/#/books/9781269325561/cfi/6/2!/4/2@0:37.6

Common law rights, human rights scrutiny and the rule of law, (2013) Retrieved from https://www.humanrights.gov.au/our-work/rights-and-freedoms/common-law-rights-human-rights-scrutiny-and-rule-law

Criminal cases in the Magistrates Court, (2019) Retrieved from http://www.legalaid.qld.gov.au/Find-legal-information/Criminal-justice/Criminal-court-process/Criminal-cases-in-the-Magistrates-Court

The Meaning of Assault Under Australian Law, (2015) Retrieved from https://www.bsglaw.net/the-meaning-of-assault-under-australian-law/

Ardiani, V. (2013) A brief introduction to Italian criminal procedure. Retrieved from http://www.avvocatoadriani.com/index.php/en/a-brief-introduction-to-italian-criminal-procedure

Broccoli, G. (2014) New Alternative Dispute Resolution (ADR) Method in Italy. Retrieved from http://www.mondaq.com/italy/x/360410/Arbitration+Dispute+Resolution/New+Alternative+Dispute+Resolution+ADR+Method+In+Italy

Qisas, (2019) Retrieved from http://www.oxfordislamicstudies.com/article/opr/t125/e1931

Michalowski, R. (n.d.) World Factbook of Criminal Justice Systems: Cuba. https://www.bjs.gov/content/pub/pdf/wfbcjsc.pdf

Cuban Legal System, (2019) Retrieved from http://www.authenticubatours.com/cuba-travel-resources/legal-system-cuba.htm