ch7- courts and legal professionals

Comparative Criminal Justice 5th Edition Chapter 7: The Courts and Legal Professionals Adrianna Hughes University of Scranton Learning Objectives: Chapter 7 Describe the roles of the four categories of legal professionals in developed societies Explore the differences between bureaucratically and politically oriented organizations Compare similarities and differences that occur in court structures and legal professions in our model nations Describe the major forms of supranational courts available in the world today Explain the advantages and challenges of supranational courts Comparative Criminal Justice Systems 5th Edition Judicial Independence Comparative Criminal Justice Systems 5th Edition Whatever the reality of court operations in a society, most people can agree that a court should have two basic characteristics to function properly Judicial independence- a principle that holds that courts and judges are bound to the law and should make decisions without being under the influence, direct or indirect, of other governmental or political agents. In authoritarian states, the independence of the judiciary is often nonexistent. Judges on the side of those in power merely enforce the law of the ruling party or leader in power. Pure judicial independence is an ideal that hardly exists, even in the United States there is blatant political influence. Judicial Impartiality Judicial impartiality- somewhat tied to judicial independence. It is a broader concept that calls for judicial authorities to treat parties in court as equals. “Equality before the law,” is a cherished precept of modern justice systems. A judge who distinguished among plaintiffs based on race, religion, or creed would not be practicing judicial impartiality. Comparative Criminal Justice Systems 5th Edition Actors in the Legal Profession Comparative Criminal Justice Systems 5th Edition Adjudicators- professional judges or magistrates who are authorized to hear civil, criminal, and other cases, including in appeals courts, Make dispositions in a court of law. Lay judges and magistrates are persons who perform the same functions as professional judges but are not considered career members of the judiciary. Advocates- are expected to be partisan and a lack of zeal in pursuing the interests of their clients is a serious violation of the norms of this category of legal actor. legal representatives, who present the evidence and the arguments that allow adjudicators to make their decisions. work for the state or the criminally accused. Advocates working for the state are called prosecutors or procurators, although their roles vary considerably from country to country. Like adjudicators, advocates are subject to economic, social, and political pressures that affect their work Actors in the Legal Profession Advisors -akin to the paralegals in the United States. Many are legally trained individuals who work outside the courtroom to advise and instruct individuals who have legal problems or needs, both civil and criminal. They handle a large proportion of the paperwork that is necessary for the functioning of large bureaucratic societies: wills, contracts, tax analysis. Legal advisors are also the first point of contact in criminal cases. They do investigations and advise clients prior to the start of formal adjudication processes. The position of advisors is often seen as less prestigious than that of advocates because they do not handle cases in the public arena. But in reality they handle many of the same legal tasks Comparative Criminal Justice Systems 5th Edition Actors in the Legal Profession Legal Scholars- play an important role in shaping the law and clarifying meaning. Legal scholars often work behind the scenes, doing the research and writing opinions. Their role has been much large in Civil and Islamic Law countries. Comparative Criminal Justice Systems 5th Edition Current Event Read the following article and state your personal opinion about the current state of the legal profession within the United States. What are the four actors in the legal profession discussed in chapter 7? Discuss how some of these actors and the how they can be used to provide less expensive legal advice to the everyday person. http://www.cnn.com/2012/11/23/opinion/hadfield-legal-profession/index.html?iref=allsearch Comparative Criminal Justice Systems 5th Edition Career Paths of Legal Professionals Comparative Criminal Justice Systems 5th Edition Bureaucratically Oriented Systems Found in Civil Law Systems Has the general characteristics of a rational bureaucracy Hierarchical in nature Entry into the organization is based on merit alone Employees of the organization are highly trained for specific tasks Students interested in law follow university programs that emphasize both a general liberal education and specific training in the code law After graduation- some go on to careers in public administration, business, or other non-legal fields Those who continue legal training must chose among training to be a judge, attorney for the state, or an attorney in private practice Career Paths of Legal Professionals Politically Oriented Systems Based on non-rational factors such as appointment by the people Generally cannot divorce themselves from the people they serve Although trained in the law, usually are not prepared for the specific tasks they might face Ex: model countries- England, China, Saudi Arabia( lesser extent) Comparative Criminal Justice Systems 5th Edition Current Event Read the following article and discuss which kind of legal system is portrayed. Is it more aligned with a bureaucratically oriented system or is it more closely related to a Politically oriented system? How is it similar to each system? How is it different? http://www.nytimes.com/2013/01/23/world/middleeast/israel-votes-in-election-likely-to-retain-netanyahu.html?ref=world&_r=0 Comparative Criminal Justice Systems 5th Edition Types of Courts Courts of limited jurisdiction- handle minor criminal cases and may also conduct preliminary hearings for cases that will be handled at the next level of courts Courts of general jurisdiction- major trial courts that have jurisdiction over any cases involving criminal law and sometimes civil law Intermediate appeal- handles appeals from lower courts Courts of last resort- those that are authorized by law to hear the final appeal on legal matters Comparative Criminal Justice Systems 5th Edition England Courts of last resort Supreme Court of the United Kingdom (formerly House of Lords) Courts of Intermediate Appeal Court of Appeals and High Courts Appeals for criminal and civil cases Courts of General Jurisdiction Crown Courts- criminal cases High Courts- civil cases Courts of Limited Jurisdiction Magistrates Court Criminal cases Country Courts Civil cases Comparative Criminal Justice Systems 5th Edition England Comparative Criminal Justice Systems 5th Edition Legal education and training Solicitors- 3 year university law degree, serve an apprenticeship with a solicitor for two and a half years, or attend college of law for one year and then serve a four year apprenticeship Barristers- three year law degree from a university, membership in one of the Inns of Court, one year apprenticeship under the supervision of a junior barrister France Courts of last resort- Court of cassation Courts of intermediate appeal- Courts of appeal Courts of general jurisdiction- Assize courts Courts of limited jurisdiction- Tribunaux d’ insance: police and correctional Legal Training and Education Baccalaureate degree, three year law degree, one year for Master of Law, three year apprenticeship, and must pass national exam Germany Courts of Last Resort Bundesgerichtshof- federal court of justice and Bundesverfassungsgericht: constitutional questions only- federal constitutional court Courts of Intermediate Appeal Oberlandesgerichte Courts of General Jurisdiction Landgerichte- try major criminal and civil cases and hear appeals from amtsgerichte courts Courts of Limited Jurisdiction Amtsgerichte- hear criminal and civil cases at the local level Legal Education and Training Undergraduate degree, three and a half year education, apprenticeship, and national exam Comparative Criminal Justice Systems 5th Edition China Court of Last Resort Supreme People’s Court Court of Intermediate Appeals Higher People’s Courts Courts of General Jurisdiction Intermediate people’s courts Courts of Limited Jurisdiction Basic People’s Courts Legal Education and Training Entrance exams, 4 year undergraduate program, 3 year graduate law education, two additional years of legal work, national bar exam, and approval by the Ministry of Justice Comparative Criminal Justice Systems 5th Edition Japan Comparative Criminal Justice Systems 5th Edition Courts of Last Resort Supreme Court Handles criminal and civil appeals and constitutional questions Courts of Intermediate Appeal High courts: criminal and civil Courts of General Jurisdiction District courts( major cases) criminal an civil Courts of Limited Jurisdiction Summary courts(minor courts); criminal and civil Legal Education and Training Undergraduate degree including two years in legal studies, national bar exam, then 18 month apprentice training Saudi Arabia Comparative Criminal Justice Systems 5th Edition Courts of Last Resort Supreme Judicial Council Courts of Intermediate Appeal Courts of Appeal Courts of General Jurisdiction High Courts (formerly Kubra Courts) Courts of Limited Jurisdiction First Degree Courts Legal Education and Training Five year secondary education at religious school then attendance at a Shari’a institute Supranational Courts Today Comparative Criminal Justice Systems 5th Edition International Court of Justice(ICJ) Longest running and most permanent supranational court Located in the Hague Has 15 judges- no more than one from any one country Also known as the world court Dual role: to settle legal disputes submitted to it by 192 member states and neutral parties in accordance with international law; and give advisory opinions on legal questions on legal questions referred to it by international organizations Decisions are binding; no appeal available Supranational Courts Today Comparative Criminal Justice Systems 5th Edition European Court of Human Rights(ECtHR) Allows individuals, or nongovernmental organizations to bring complaints against a European State to a judicial body after they have been denied relief in their national courts International Criminal Tribunal for Yugoslavia(ICTY) –deals with the atrocities committed during conflicts. Created in 1993, located in the Hague International Criminal Tribunal for Rwanda(ICTR)- established for the prosecution of persons responsible for genocide and other serious violations of international humanitarian law committed in the territory of Rwanda Supranational Courts Today Comparative Criminal Justice Systems 5th Edition International Criminal Court Established by the Rome Statute International treaty binding only on those states that formally express their consent to be bound by its provisions Located in the Hague Court is not a part of the United Nations- but it maintains a cooperative relationship with the UN Judges may impose a prison sentence, fines, or forfeiture of proceeds from crimes committed United States has not ratified the treaty International Criminal Court Reasons to implement such a court Crimes under international law that go unchecked hinder international peace, fuel instability, and can lead to long- term armed hostilities and war. International criminal law cannot be effective unless it is enforced systematically and on a regular basis International instability should not be able to dictate that international law is relative Individuals who commit crimes in violation of international law should always be punished, and this principle should take precedence over other factors such as politics, administrative convenience, or historical accident. Ad hoc tribunals such as the ICTR and ICTY are created retrospectively and with some discretion, leaving open the question as to whether the criminals will always be prosecuted or punished. Creation of a permanent court would symbolize the international community’s determination to enforce international law universally Comparative Criminal Justice Systems 5th Edition International Criminal Court Reasons Against: Role and powers of the prosecutor The court is limited to exercising jurisdiction only if the state or territory is a party to the Rome Statute, and it relies heavily on the cooperation of states to fulfill its functions. Fear that very powerful countries, such as United States, would be vulnerable to prosecution by an International Court. Comparative Criminal Justice Systems 5th Edition Challenges of Supranational Courts Among the key issues of concern are cost effectiveness, logistics of implementation, and political influences. It is estimated that from 1993 to 2015, when most of them are proposed to close, the international community will have spent nearly 6.3 billion, which leads many to question whether the effectiveness is worth the incurred cost. Supranational courts do not have their own police force able to gather suspected criminals and bring them to the respective courts for prosecution. Probably the biggest obstacle for supranational courts is their inability to gain full political support of key member states. The United States, Russia, and China all do not support the International Criminal Court. Comparative Criminal Justice Systems 5th Edition Jurisdiction of Supranational Courts The United Nations as the only international body of power in the world and with support of its member states and the security council, provides the initial legal jurisdiction Various international courts gain legitimacy and power through the application of international laws that have been developed over time in the form of conventions and treaties Jus cogens- fundamental norms are recognized on the international level as having status superior to other norms Comparative Criminal Justice Systems 5th Edition Current Event Read the following article and discuss the jurisdiction of the international criminal court, how and why it was created, and your opinion on setting up a criminal tribunal in Syria. What are examples of other ad hoc tribunals that were discussed in chapter 7? http://www.nytimes.com/2012/04/05/opinion/an-arab-war-crimes-court-for-syria.html Comparative Criminal Justice Systems 5th Edition