Comparative Legal Traditions in the US - Essay Example

Comparative Legal Traditions Your name Course name Instructor’s name Date of submission 1) There is usually quite some bit of disagreement between lawyers and legal experts concern the legal autonomy of a legal system from other disciplines such as politics and religion. This is usually so in terms of the diverse variation that is usually found among the various legal systems of the world. Of the legal systems of the world the Arab or Middle Eastern systems vary to a great extent in regard to their autonomy from other related disciplines as compared to Western systems. In this regard I would like to contrast the legal systems of the United Arab Emirates and the United States of America. In the United States, lawyers tend to feel that the legal system is more inclined towards less content neutrality than in the United Arab Emirates. This view in the US can be linked to the veracity of the natural law tradition of the US coupled with the effects of the legal realism movement upon the legal system particularly in teaching (Leiter, 2007, pp.56). In the early 19th century, legal practice in America was not so much developed which led to academics turning to the long established German traditions which perceived law as a Science1. The three fundamentals of this view were that law is a distinct discipline just like Mathematics or linguistics, law is composed of discernible, definable and logical concepts which can be applied in a deductive process, public law is separate from private law and hence private law is neutral2. The United States made use of conceptualism otherwise referred to as formalism. Conceptualism is a concept which postulates that there exist legal concepts derived from logical reasoning in every potential case. Justices in the United States though while taking due consideration of logical principles also took into account fundamental freedoms and rights which are constitutionally protected such as respect for private property, liberty and contract. The main thrust of conceptualism is that a legal rule can possibly be logically obtained from the concepts without taking into consideration the injustice or justice that could result from that rule (Kearns et al. 1999). The conceptualist seeks to create a system of rules that is devoid of value or political judgments for instance subjective justice3. The United States system has been heavily influenced by utilitarianism which states that justices should be subjected to continuous utilitarian improvement. This has made the American legal system to be more fluid and less neutral in order to serve the utilitarian dictates of its population. The justices in the United States it can be argued are therefore more likely to be more influenced by other disciplines such as politics and, religion and public opinion as they are expected to tailor their judgments according to utilitarian concepts. Utilitarian concepts are usually a function of public opinion and not necessarily utilitarian in the best sense of the word. Judges in the United States would therefore be seen as less autonomous as they seek to fulfill the dictates of utilitarianism as opposed to traditional legislative interpretation which required the use of the case law and precedence4. Judges acting on the concept of utilitarianism would be subject to political and mass ideology. By adopting the utilitarian approach the law of the United States can be said to more of interdisciplinary than autonomous. This is however different in arguments of constitutionality. In American law, any ruling or rule against the constitution is null and void. This makes the autonomy of the legal system to be to some extent regulated by the provisions of the constitution. The constitution is however a product of interdisciplinary action of politics religion and business and hence reference to it by the legal system is a reference to an interdisciplinary source (Wacks, 2009, pp.323-29). The United Arab Emirates has a legal system which is to a great deal different from the United States legal system. The UAE is a loose confederation of seven emirates each with its own systems. Each emirate usually sets up its own rules which lead to minor variations in the legal systems. Upon the formation of the UAE, it was established that Sharia law is the primary though not the only source of legislation within the UAE5. The Sharia law consists of the Sunnah which are the works and sayings of Islam’s prophet Muhammad and the Quran which is the divine revelation of Allah. Jurisprudence in the UAE in addition allows for secondary sources which consist of analogical deduction, consensus, and reason (Cotran, 1996 .pp.65). A notion wrongly held by non Muslims is that the Sharia concerns itself only with religious and ritualistic matters. Nothing could be further from the truth as the Sharia is concerned with nearly every aspect of human life and existence in the society for instance, banking, succession issues, contracts, and property in addition to social and family issues. The Sharia legislation categorizes human conduct into conduct which is forbidden, discouraged, neutral, recommended and lastly obligatory. The civil code of the UAE as issued in Federal Law No. 5 of 1985 can possibly be taken to be the fundamental law of the United Arab Emirates which apply in cases where there exist no particular laws that says otherwise or where the particular law is silent on the matter. The civil code’s first three articles have important provisions concerning the Sharia law’s role in the legal system of the UAE. The first article of the civil code postulates that if there exists no provision in the law, the judge ought to rule according to Islamic Sharia. The article then goes ahead to offer guidance on the manner ion which reference to Sharia should be made. It lists the order of precedence according to which the Islamic schools of jurisprudence ought to be considered by the judge6. From this method of making of judgment it can be deemed that the autonomy of the legislation is to some extent given over to instruments of academic thought and religion as shown by reference and precedence of different schools. The precedence of schools of thought is to a great extent influenced by political thought and religious ideology. The second article postulates that the principles and laws of Islamic jurisprudence are to be referred to in the making, comprehension and interpreting of the provisos. The third article of the civil code postulates that public order includes issues related to lineage and inheritance, marriage, sovereignty, issues of trade, movement of wealth, legislation concerning private property and principles upon which the society is founded in a manner so as not to clash with the ultimate provisions and elemental doctrines of Islamic Sharia (Tamimi et. al. 1998, pp. 435). UAE law as such takes into consideration issued of public order in the formulation construction and interpretation of the Sharia. As such the autonomous nature of the laws is put to the question as public order usually brings in issues of politics such as sovereignty and social issues such as marriage and inheritance. There are four fundamental principles of Sharia law that are inherent in the UAE legal system; Islamic Sharia is a principal though not the only source of law, in cases where the UAE Law has particular provisos, the courts are to effect the provisions, the court is to rule according to Sharia if there is no provision regarding an issue to be determined and lastly the courts have to depend on standards of Islamic legislation in the making and interpreting of law in the UAE. The legal system of the UAE can as such be said to have a degree of autonomy as it derives its law mainly from the Sharia. On the other hand it can be argued that sourcing from the Sharia makes it less autonomous as the Sharia is a religious book and the legislation of the UAE is therefore tempered with religious undertones (Cotran, 1996. pp.33). 3) Different legal systems ultimately have different systems due to divergent training methods and differences in roles played by the system. The judiciary system of a country is usually affected to a great extent by the role played by the judges and the training of the judges who make the rulings on behalf of the legal system. From the early times it was a difficult task recognizing an independent judiciary in the then countries of the world. In most of the cases, judgments were made, interpreted and enforced by the rulers according to their personal conceptions. The rulers and their representatives who were usually the noble class issued decrees and judgments which were separated by a very thin line7. The basic requirement for one to be appointed a judge is usually a bachelor’s degree and work experience as a lawyer. There are approximately forty states in the US which permit non lawyers to practice but in a limited jurisdiction8. For persons wishing to be federal administrative law jurists it is a requirement that they be lawyers and pass a competitive exam which is usually offered by the United States Office of Personnel Management. For some hearing officials and state administrative judges lawyership is not a requirement9. Orientation programs for elected or appointed judges are to be found in all the states (Pohlman 1993, pp.185). The National Judicial College, Federal Judicial Center, National Center for State Courts and the American Bar Association offer training for the judicial personnel. Training and continuing education classes take up to three weeks. A majority of the states require their judges to undertake continuing education whilst serving on the bench. The training of a judge who has to be appointed or who has been appointed is a very critical matter. In the United States, it is usually the norm that the highly respected and lawyers of integrity are deemed fit for judicial duty. This is because these lawyers are considered to be knowledgeable in matters of the law as opposed to less known lawyers (Marcus 1992, pp.487-503). This is usually informed by the assumption also that good lawyers usually have a good grasp of case law and would offer better guidance on issues of the law10. In the United States, the appointment to the office of judge usually varies according to the level that the judge is in. The lower courts such as the District courts and magistrate courts normally have their judges appointed by members of the political class who are in office. The higher courts such as the Supreme Court and the federal courts have their judges appointed by the president and the senate respectively with presidential nominations subject to senate approval. The appointment of judges by the political class is sometimes seen as a coup against the people as the political class will in some instances not necessarily pick the best candidate but a candidate to serve their interests. The magistrates of the lower courts who the general public have a say of putting into office through elections are usually bound by precedent from the higher courts whose judges they have no part in appointing11. In the American legal system the judge is usually seen as being subject to parliament although only if parliament has made the necessary rules. The judge in the US can make laws by setting precedent and interpreting precedent. US judges however lack the jurisdiction to overturn an executive order or a statute on the grounds of unconstitutionality. During the course of the trial the judge of the court will normally adopt the stance of one of the lawyers before him in issuing judgment on a case. The role of the judge is to determine which of the two advocates has more legal ground on his case than the other and make judgment on those grounds (Berger 1997, pp.45-60). The situation in the UAE is to some extent quite different to the situation in the USA in relation to the training and role of the judges of the courts. The issue of the independence of the judiciary brings to the fore the issue of accountability and professionalism of the institution of the judiciary. In systems which are founded on the principles of checks and balances rather than the principles of separation of powers, it is more likely than not that the various arms hold each other accountable (Authors 2006, pp.97-120). In the UAE, there is the practice of the separation of powers principle similar to what most Arab nations pertain to12. As a result of this, the executive in the UAE do not have a need to obtain the confidence of the judiciary or the legislature. In the UAE judges are usually appointed by Emiri decrees. Most of the judges in the UAE are foreign trained non nationals who must however be trained in Sharia law and the accompanying statutes and legislations13. The judiciary in the UAE is composed of two branches which are the Federal Courts and the Sharia Courts. The judges of the Federal Court generally have power of appeal and can also overturn the rulings made by the lower courts. Judges usually provide services in form of interpreting the law and passing down judgments. The judges in the UAE do not have the power to declare the constitutionality or the constitutionality of executive or legislative decrees. As opposed to the situation in the United States the justices of the UAE do not have the powers of enforcement of their rulings or judgments as the clear separation of powers clearly delineates this as a function of the executive(Jones et al. 2009, pp.251-267). Judges are therefore there to offer guidance on how the law is to be constructed, implemented and interpreted. In the UAE unlike in the US the election of judges by popular vote is generally considered an insult to the noble profession14. The discussion of public participation in the election or appointment of judges or the appointment of non professional jurists or a system of jury is looked down upon by the UAE. Although most appointment in the UAE judiciary are deemed carte blanche as a result of them being on the whim of an Emiri decree, the judges are required to have some form of training and proficiency in various aspects of the local statutes and legislations of UAE law as well as the Sharia law. In this regard the judges must be graduates of recognized Sharia colleges. Judicial training in the UAE usually consists of two stages. The first stage is the training in the Sharia College. The second stage is the training undertaken in the training academy and judicial institution which is geared towards enhancing the corporate image and professionalism of the judges (Jones et al. 2009, pp.169). As the UAE has up to very recently had its judicial corps full of expatriate judges it has become necessary to educate and train new judges as the expatriate judges retire or leave the country. The UAE offers opportunities for continuing education for judges through the judicial training institutions although these programs are of late hampered by the need to educate and train new judges15. Continuing education is just as important as training if not more in that it develops the corporate image of the trainees and builds a sense of responsibility. In this regard the UAE has set aside considerable funding for continuing education for judges. 4) The participation of lay people who are not lawyers in judicial proceedings can be traced to the German “Thing” whereby the nobles and respected citizens of the town were called in to help resolve disagreements. Due to the status and stature of these laymen they were deemed to be worthy dispensers of justice (Levy 2000, pp.94-96). In the United States the earliest form of laymen dispensing justice was the institution of the justice of the peace which was an institution inherited from Great Britain. The Justice of the peace was usually the sheriff or headman in a village or hamlet who is usually elected and serves to resolve minor issues in that community. He also referred serious offences to the higher courts in the land. Justices of the peace or sheriffs received substantial training while on the job on matters of the law16. The USA also adopted the system of using lay judges otherwise referred to as juries in the prosecution of criminal offences. Juries are people who are not legal experts who are called in to make judicial decisions on the innocence or guilt of the accused in a way that is autonomous personally and institutionally from the professional judicial officers. While the use of juries is still strong in other Western countries, its application has diminished somewhat in the USA as defendants can nowadays elect to waive the right to a jury and let the judge rule on a case17. In cases where the jury has elected to send down the defendant on the basis of one or several charges, it is the duty of the presiding judge to appraise the evidence in order to ascertain if the jury had in its possession ample evidence on the elementals of the crime; as except in cases of a not guilty verdict, it is in the power of the court of appeal and the presiding judge to set aside the judgment if there is proof it was not supported by sufficient evidence (Gobert 1998, pp109-115). The institution of lay judges has a difference in different systems in the degree to which juries may impose their opinion over that of the presiding judge. In the USA, in cases of criminal proceedings, the presiding judge has no say whatsoever in the verdict that is handed down by the jury. The function of the judge is merely to guide proceedings, ensure evidence is provided to the jury and hand down the sentence if the jury returns a verdict of guilty. Juries in the United States usually have a limited power over the kind of sentence that is to be imposed upon the convict18. There are three justifications which are usually brought forward in the justification of the involvement of jurors in judicial proceedings especially in criminal cases. The first reason is that the participation of lay people strengthens democratic standards by lending the judicial process legitimacy and transparency. Secondly, the involvement of lay people enriches judicial proceedings by incorporating life experiences, justice, freshness, and humanity to the judicial process resulting to decisions which are fundamentally better. Thirdly, the participation of lay people acts as a check on the excesses of the state. This is evidenced by the fact that jurors may and often times declare defendants not guilty in spite of what may be deemed as great proof of guilt. The institution of the jury while said to enrich the judicial process has sometimes been criticized as not really achieving the objectives it is supposed to achieve. Juries find the accused not guilty in nearly two thirds of cases they rule on (Vidmar 1999, pp.72). This would not have been the case if professional judges were ruling on the cases. The improvement brought about by the jury has been termed as too minimal yet too expensive19. The United Arab Emirates generally does not incorporate the use of lay people in its judicial system. However there are a few exceptions to these rules which are entrenched in the UAE constitution. For instance the Emir has power to pardon or overturn a death sentence which is appealed unto him although he is not a jurist20. But by and large the closest that the UAE has in terms of having lay people in judicial proceedings is the use of experts who are usually experts in specific fields. Experts though rarely consulted or present in the court are usually consulted on matters which do not have application in the law or have no precedent or are matters of international law21. Experts are usually chosen from a list which the court usually keeps for reference as in most instances names suggested by any party may arouse suspicion from the other party and thus hinder the judicial process. In the instance of lack of agreement on the expert to be appointed, it is the prerogative of the court to appoint an expert from its list (Ballantyne, 1998, pp.81). It is a requirement that the expert comply with the procedures outlined in the federal laws concerning experts22. Some of these procedures include arranging and attending meetings with the two parties and if possible their advocates and keeping a record of the discussions in the meetings. After the preparation and filing of his report in court by the expert, the two defendants and plaintiff are offered a chance to air their views concerning the report on a day set aside for the purpose. Although the court usually adopts the findings and recommendations of the expert, the court is not in any way bound to rule according to them (Hudson 2008, pp.297-300). The purpose of the expert is to offer independent advice. Legal experts are not allowed into the court to give their oral submissions and the independent expert is not questioned by the court or either of the parties. After the presentation of the report by the expert, the two parties are offered a chance to give their views and comments on the report also done through written submissions. In some instances the court may deem that the issue may require further research the issue is referred back to the expert for clarification. It is also in the discretion of the court to appoint another expert to make another report23. 5) Statutory lawmaking in the United States is different from that of England in three critical ways. The foremost of these is the decision in Marbury v. Madison of 1803 which saw the American courts start to participate actively in putting in place checks on the constitutionality of legislation. Judges play an important role in acting as the guardians of the constitution by making interpretation on the implications of various statutes and legislations by the various government and quasi government agencies. The second difference concerns the large number of jurisdictions in the US which has been responsible for the transfer of statutes across states. Efforts at unifying statutes are also another point of divergence as the British system was under one legislative system. According to Bennion (2002 pp.70), The American codification movement of the 19th century was evidence of dissatisfaction with the inability of the law to respond to the changing needs of society. All of the fifty states were in a race to make themselves more business conducive than the others which was counterproductive as all the fifty states put in place statutes and legislation in a random manner24. The United States as it adheres more to the realist school of thought rather than the legal positivist school tends to be more flexible in the interpretation of statutes than the UAE. The judges in the American legal system are given more leeway in making their decisions due to issues of dynamism and taking into consideration of the changing needs of the society. Interpretation of statutes in the USA therefore tends to be less rigid or follow precedents to a lesser degree25. The higher courts such as the Supreme Court usually have greater leeway in the interpretation of the statutes and the provisions of the constitution. The lower courts are required to a greater extent to adhere to precedents set by the higher courts in delivering and interpreting statutes. The interpretation of statutes in the United States is however tempered with the large number of statutes in the Union States which results to a large number of interpretations (Eskridge 1994, pp.421-24). Judgments delivered in other states therefore tend to affect and influence the judgments of other states in the Union though the judges in the other states are not bound by judgments of other states if the laws of that particular state are not similar to the particular state26. According to Mccormick (1991 pp.23-45), the interpretation of statutes in the USA is usually a corporate affair whereby there exists a hierarchy which is followed not only in the formulation but also in the interpretation of the law. The traditional hierarchy in the US from the bottom to the top is; local ordnances, state agency regulations, state statutes, state constitutions, federal agency regulations, federal statutes and at the top, the United States Constitution. The interpretation of any statute in the United States usually follows the hierarchy which is usually enforced by the courts. The interpretation of any statutes whether formed by local ordnance or the legislature is usually a function of the courts. While the judiciary is the ultimate organ in the interpretation of the law, the legislature has the power to supplement and even overrule the judges’ decisions if they do not relate to issues of the interpretation of the constitution. Thus, the judges play a very critical role not only in the interpretation of the statutes but also in the maintenance of the hierarchy of interpretation of the law. In the United Arab Emirates, the Sharia law is the core source of statute law and legislation; this undoubtedly means that the interpretation of these statutes and laws is also highly tempered with the Sharia. The legislation of the UAE however is also a mix of European and Islamic concepts founded on the civil code of Egypt of the 20th and 19th century27. Civil law systems to a great extent depend on a constitution and statute law and comprehensive codifications of these. In the UAE, the influence of case law and precedence which is usually apparent in civil law systems is very minimal being replaced by specific commercial and civil codes (Amanat 2009, pp.278). Though this has developed structured and comprehensive legal systems, it has also led to inflexibility and rigidity in the system. While the Sharia is definitely a great influence in the interpretation of the UAE statutes, to insinuate that it should govern judicial decisions is to make reference to a process rather than to specify a result. This is due to the fact that the Sharia has a variety of interpretations each according to the different schools which differ on a number of legal interpretations. The law of the UAE however provides a guide for the interpretation of its statutes by providing a hierarchical system of the schools of thought which should be adhered to in the interpretation and making of judicial decisions28. The Sharia is based on the universal concepts of equity and justice which in most instances leads to results that would also likely be reached in Western courts. According to Amanat (2011 pp. 543),The interpretation of the Sharia is but to some extent similar yet different to Western courts. For instance the Sharia endeavors to establish intent in the parties to a contract. However, the interpretation of statutes between the two systems would be different. A judge in the UAE would for instance release a party to a contract from performing his obligations due to reason of frustration of purpose or changed circumstances whereas American law would probably bind the party to their obligations in the contract29. The judges of the UAE operate under a civil law system in which statutes are the chief basis of law and judicial decisions. Apart from the Sharia and the Civil Code, the judges may interpret and make judgments according to consensus, analogical deduction, and reason30. During the training and the appointment of the judges, they usually swear to uphold the principles of Islamic law and their conscience. Thus the judges are free to use their own conscience in the interpretation of statutes. The UAE legal system does not have the doctrine of binding precedent as each case is judged based on its own facts and merits. The facts and rulings of previous cases however serve as a guideline in the interpretation and judgment of similar cases. Thus in the interpretation of law, it is important to take into account not precedent, case law or statute law but how the particular statute may be interpreted in this context31. The supreme court of the UAE in Abu Dhabi referred to as the court of Cassation is the highest court in the land. It is the highest court of appeal for all the lower courts. The Supreme Court has jurisdiction over the determination of constitutionality of laws at both the federal and local level. In the determination of the constitutionality of legislation, the Supreme Court is charged with reviewing all legislation arising from the emirates and the federal level (Hefner 2011, pp.76-80). Bibliography Amanat, A., 2009. Shari'a: Islamic Law in the Contemporary Context. Los Angeles, CA: Stanford University Press. Authors, M., 2006. 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