Comparative Legal Traditions Law - Essay Example

Comparative Legal Traditions Your name Course name Instructor’s name Date of submission Comparative Legal Traditions Judges in all countries interpret statutes wherever they make rulings on a case. The reading, comprehension, and application of a law to a particular case of necessity include its interpretation. In some instances the law is clear and presents no ambiguities or conflicts in interpretation. However, often times the law is unclear or ambiguous or it may make no sense in its literal application. This necessitates the provision of an ultimate body or system which offers interpretation of statutes and legislation. The interpretation of statutes in the People’s Republic of China varies to some extent from the interpretation of statutes as applied in Germany. With regard to the historical development of statutes, Germany is specifically different in that lawyers in Germany deem the codification of the Civil Code at the close of the 19th century as some type of divide between the events before and after it. German lawyers claim the Civil Code is comprehensive, enduring and exclusive in its character (Lane & Mikva 1997. pp 78-107). These characteristics can be observed in the style and form of the Civil Code. The era after 1900 saw the court decisions of previous years being considered outdated historical legal decisions which were subsequently used as part of historical interpretation of statutes1. According to Eskridge and Frickey (2006, pp.235-259), the large majority of judges in Germany adhere to the legal positivist school which normally adheres to a strict hierarchy in the interpretation of statutes. In Germany the Federal Constitutional Court has the say regarding what law sources should be employed in a specific case before a court. The German method of statutory interpretation usually is teleological as it usually does not consider historical precedent. The use of the teleological method in the German legal system may make people to be of the opinion that it is an exclusivist system. A closer study of the system though reveals that it may not be fundamentally different from other methods used by other Western states. Due to emerging issues and issues of modification of existing laws for instance, needed modification of the German Civil Code of 1900. German judges have in recent times been accused of using the interpretation and dynamic method to increase their influence and jurisdiction2. Statutory interpretation is fundamental in the use of the legal positivist method of statutory interpretation. (Jellum 2008, pp. 97) postulated elements which are deemed to be the most significant in the interpretation of statutes in Germany and other parts of the West. The four elements he identified were historical, grammatical, systemic and logical. The interpretation of statutes in Germany therefore involves the combination of the four elements in a seam less legal system. Due to the constant modification of law, there has been added a new element; goal interpretation. Interpretive directives can be looked at from three contexts: The linguistic context comprises of the semantic and syntactic directives, the systemic context consists of the consistency, hierarchical and completeness directives in the legal system while the socio political context looks at goals of law directives3. In the interpretation of statutory instruments uses various arguments such as linguistic arguments, systemic arguments, evaluative/teleological arguments and transcategorical arguments. Linguistic arguments comprise arguments from technical and ordinary meaning. Systemic arguments comprise arguments from harmonization of context, precedent, analogy conceptual-logical argument, arguments from relevant law principles and lastly historical arguments. Evaluative/ teleological arguments comprise arguments from substantive reasons and purpose. Transcategorical arguments are arguments from intention. Arguments from intention are usually transcategorical as there is a variety of ways to establish legal intention by the use of teleological, systemic and linguistic arguments4. According to the government of China, its judicial system is a socialist legal system. However, in spite of this assertion by the government, China’s legal system remains to a great extent founded on the Civil Law model. The Chinese constitution is the highest authority in China on all legal matters such as formulation and interpretation of statutes. Statutory interpretation in China is usually more a function of the judiciary which is organized in a hierarchical structure (Vermeer & Hooghe 2001, pp. 345-372). They range from the grassroots, intermediate, higher and supreme courts. The Supreme Court is the ultimate court in the Chinese judicial system5. China does not follow the principle of judicial precedent and magistrates are not bound by earlier decisions. Binding precedents in China are usually vested in the Standing Committee of the National People’s Congress, the Supreme People’s Procurate, the Supreme People’s Court and the state court in matters of national law. Government departments and local standing committees usually have jurisdiction in local law. The Supreme People’s Court reserves the right to provide judicial statutory interpretation which can be used as guidelines during court trials. These interpretations are for the most part enforceable nationally. A fundamental role of the Supreme Court in China is to offer guidance on statute interpretation. The interpretations of the Supreme Court are geared towards addressing two issues of concern. In the first instance, Chinese laws are usually short and general which could possibly lead to misinterpretations. This is compounded by the lack of judicial precedent hence the need for guidance. Secondly most of China’s law is relatively new and founded on unfamiliar models. The Supreme Court usually comes in to assist the lower courts with the interpretation of such legislation so as not to go against the objective of the law’s drafter6. It is a function delegated to the Supreme Court as it functions as a guardian of the people and the constitution. There are four systems which have been identified in the interpretation of Chinese statutes; provision, reply, interpretation and decision. An interpretation is usually employed when a legal interpretation is made to explain how to specifically apply a certain law or a particular issue or case. Provision is usually used in instances when it is necessary to put together opinions and norms for the administering of justice founded on the spirit of the law. Reply is a judicial interpretation made in response to the application of a High People’s Court or other inferior courts asking for direction on how a certain law is to be interpreted in a trial. A decision is usually formulated in instances when a legal interpretation is repealed or amended (Cross 2008, pp. 283). The Supreme Court usually has a variety of interpretations in regard to particular statutes. From the start of the second millennium an autonomous judiciary in Europe was not easily identified. Most of the time the judges and the whole judiciary was controlled by the ruler of the territory. Most of the times, the formulation and enforcement of legislation through court judgments did not have a big difference. Judges gave instructions to their subjects on dispute settlement according to how they understood the law in a personal viewpoint. The issuance of generally applicable decrees such as taxes and levies had a very small difference from judgments or laws as both had to be followed unquestioningly. During the 13th century the German royalty and nobles sent their sons to Italy to be educated in Roman law. On their return to Germany, they were qualified to work as civil servants in the principalities in performance of judicial activities on behalf of the ruler. Absolutism had a crucial role to play in subsequent development and continued to play a role up to modern times. German rulers through the judges had more control over the society as compared to other European countries. Judges were however to play the role of law interpretation as opposed to law making (Bell 2006, pp.148-149). In fact up to the 1850s, many Prussian judgments had to have the approval of the king. The independence of the judiciary gained by the Weimar constitution was however degraded by the Socialist and Communist movements of the post and pre world war eras7. The profession of a judge in Germany presents a relatively independent path of career progression. Because of this, the politicians have little say in every judicial appointment but rather only the higher appointments. The higher courts usually have precedent powers on the lower courts and are therefore capable of setting policy through their interpretation of laws. The mode of appointment to higher judicial offices has therefore come under criticism as being influenced by political appointments. According to Garner (2010, pp.156), the role played by the German judge has been deemed to be heavily apolitical. However, the German judge considers himself a civil servant in the business of interpreting laws and legislation. He usually does not let politics to interfere with the performance of his role and only makes laws wherein the legislature has not provided the relevant legislation. However, it is important to note that rules usually influence judicial decisions and as such the existence of rules based on the legislature would curb the chances of judges making political decisions to substitute those of the legislature. However the law system in Germany is not usually detailed which can leave loopholes to be taken advantage of by apolitical judges. However, only a few judges have the opportunity of influencing policy8. Judges usually play a variety of roles ranging from setting of precedents, legal reasoning, dispute resolution and interpretation of statutes. The settlement of disputes is often thought by many to an apolitical activity as the judge does not operate in a vacuum and hence has opinions of his own which gain expression in his judgments9. Decisions made under Socialist Nazi or Communist governments were usually tempered in bureaucratic language which tried though was not successful in concealing the real motives and inclinations of the judges. In Germany the concept of separation of powers does not have a strong history though in recent times it has quite gained currency. The judiciary, executive and legislature have clearly delineated roles which are enforced to the latter (Perdezioli & Guarnieri 2002, pp.197-215). Since the communist revolution, China’s judiciary was never considered as an independent institution from the government or the communist party. The People’ Republic of China started moving towards the establishment of a functional legal system in 1979 which was effected in 1980. The legal system is to a large extent consist of criminal law with an intricate mix of statutes and custom. The 1982 constitution holds the executive, legislature, judiciary and even the party leaders accountable to it10. In the last twenty years due to the dreadful experience of the Chinese Cultural Revolution and the drive for economic development, it has become important to China to undertake a restructuring of its judicial and legal systems. On one perspective, providing the people with basic security can aid in the maintenance of social stability while a legal system which elicits the trust of the people would offer a good foundation for the development of a market economy. In the same breath, rapid economic restructuring has led to serious social dislocation. Under the new open door policy and economic reform, the expansion of individual liberties and global contact has made people to expect more from the government in regard to the protection of fundamental rights and freedoms (Lingyuan & His-Chuan, 1990, pp.56-67). As a consequence of this reform in the legal system has become an urgent task in the resolution of expectations and disputes in the society. Subsequent to the establishment of the People’s Republic of China, the communist party abolished the Nationalist legal system and replaced it with a socialist system. This was followed by the adoption of the Organic Law of the People’s Courts in 1954 dividing the legal system into a system of four levels11. The anti rightist movement of 1956-1966 and the rectification movement of 1966-1976 stagnated the development of the Chinese legal system. From the late 70s to the present economic reconstruction became the basic aim of the communist party. The legal system was restructured under a large number of people’s courts. A great number of judges in China consider themselves soldiers of the state (Lingyuan & His-Chuan 1990, pp.85). They receive orders from the trial committees which are usually party-controlled. As decisions of promotions and salaries are usually influenced by these committees, judges are subsequently influenced by political machinations. Many judges are also party members who have been appointed and approved by the party. They are thus expected to toe the party line as if they were party officials. Article 126 of the constitution postulates the independence of the judiciary in the exercise of its functions12. Internal and external interference in judicial matters from the party is a common occurrence in China. According to Stanley (1999, pp.289), the independence of the court is curtailed as the officials of all the courts can be removed by the Party. The communist party also has power to nominate officials to head major positions in the judiciary. The reasoning behind such a move is that the Party represents the people in performing the functions of government and parliament. Under the Chinese system the office of judge is not secured and is expected to be influenced by political factors. The courts of the Chinese Republic also depend upon the funding of the government and as such the judgments delivered in those courts will to a great extent determine the amount of funding received13. In Chinese courts it is not the judges but rather the institution which have the authority of autonomous adjudication. Court judgments can be overturned or reviewed by the judicial committee and the president14. e existence of the Roman law stemmed the emphasis to train lawyers in the middle age Germany but their roles systems were not structured yet. Lawyers in Germany date back to the 14th century when they were defined as people who practiced the law profession. In the early days they were referred to as jurists as recorded in the Lehrdichtung. Their training at this time was rule-oriented. Their lessons were organized and administered in court inns under close supervision of persons with knowledge of the Roman law. For any person who wants to be a lawyer has to follow the civil service type of education system that offers general and not specialized type of law education which is argued to offer uniformity and practicality especially and ends up at the university where the candidates have to select from the wide range of fields and specialize.1 A student perusing law has to satisfactorily pass her examination as it is evidently hard for a law practicing firm to employ a student who did poorly. He/ she had to join other junior lawyers who are beginning to build their law firm name. The law education in Germany had to take 4 to 6 years. Further education for practicing lawyers is different as it is organized by lawyer professionals who have practiced the duty for a considerable period of time. They have to attend courses offered at either the German Lawyers Academy or the German Institute. Courses offered in this institution are lawyer practice oriented but have to be financed by the students themselves. An evaluation is given at the end of the course for one to attain the professional lawyer status. Other institutions offer lawyers with training in mediation mainly centered towards family law. (Sampford et.al, 1999) 15 Different roles are assigned to persons who have attained the qualification a private lawyer or more so called the attorney is in charge of examining witnesses and selecting them for a court hearing. The role of the lawyers since the 1960s to the present day German is greatly factored by the European Union through the European court system. This is evident as the bar to represent their shared interest was formed in the year 1960. A lawyer trained in Germany can practice law in any other European state but is bound to the law jurisdictions of that particular state he/she is in and is answerable to the bar formed to guard their rights. In German the Gesetz uber die Tatigkeit europaischer Rechtsanwalte in Deutschland (EuRAG) is the body in German that is in charge of the admission of foreign lawyers who want to practice law in Germany. The society only admits lawyers with proof of knowledge of the European law and evidence of continuous performance of law for practice in German law. Lawyers are not graded in Germany unlike other European and international states. They are divided in to two categories which are; attorneys and notaries. Attorneys work as consultants or litigators whereas the latter act as certifiers and verifiers of official and legal transactions. As a start the lawyers are to have an office in place where he will offer oral advice on legal matters to clients. They are to join an already existing law firm and function as an active notary. Lawyers play a role as administrators in state communities. They are also involved in the judiciary in prosecution as attorneys to represent the government in the position of a public prosecutor during criminal proceedings. In addition, they offer legal advices to organizations or individual persons on criminal and/or legal proceedings. Their roles in companies include certifying signatures on official documents and as advisors and witnesses in legal transactions. Lastly, lawyers in Germany are entitled to help in preparation and verification of wills. They are entitled with the responsibility that will documents are developed and interpreted according to the legal requirements. (Wolfgang, 1999) The lawyer profession in the People’s Republic of China dates back to 1979 when it was established. Since its inception, the government has experienced immense growth towards a regulatory framework that has been evident. It is evident that the government does not allow foreign lawyers to represent clients. May the 15th of the year 1996 witnessed the bringing into effect of the Lawyers law that is contained in the article 2 of the Chinese constitution. They are independent to the court as they belong to the clients. Lawyers in China are meant to represent their clients in court to protect them and as a legal requirement. All persons aspiring to be lawyers must attain certified qualifications and a legal license allowing him/her to practice law in the Chinese republic. An examination of certification is administered to individual candidates in accordance with the Chinese article 6 of the law. (China’s Law) The candidates ought to have completed three years of law education in college and/or having an undergraduate degree in the same. In addition to this, a valid candidate is required to fully complete one year of internship in a law firm and be of good reputation. People who are prohibited from holding any public office are not eligible for the position. (Changhang et al, 1997) All individuals performing internship activities are to be evaluated on his practices by the law firm in which he/she is performing the internship. Judicial authorities located in the provincial areas of the country in which the applicant is applying from are to evaluate and verify the application and issued with licenses if the requirements are met within 30 days. The judicial authority is also in charge of certifying of sites in which the judicial offices are established. The roles of lawyers include representing individual citizens or groups at their request, offering legal counseling to clients at their request, file client complaints and participation in mediation processes of their clients. Based on the nature of their work, lawyers are licensed to investigate as this is one of the ways through which they can acquire information to either offer enough defenses to their clients. They are allowed to access informational materials meet and converse with individuals their clients are accusing or use methods to acquire materials relevant to their cases within the law that they suppose will enable them represent their clients in the best way possible. Besides all this, the lawyers are to abide by the law in any activity they perform. They are not allowed to forcibly solicit or bribe for the purposes of acquiring information to represent their clients. (Jianfu, 1960) Every representation or performance of activities should be written and the terms and conditions for the same documented. They are not to meet presiding judges to cases they are involved as this will or may jeopardize the verdict of the same. They should refrain from abusing their clients by taking advantage of them since most might be unaware of the legal proceedings. They should not withhold helpful information in the view of protecting their clients and are entitled to obey court proceedings and laws.2 16 The lay judge and jurors is a bench of persons that are invested with the responsibility of deciding the innocent and the guilty parties in a judicial process. The foundation of the lay judges and juries in Germany is traced back when people of perceived dignified status and high level respected citizens were called upon to settle disputes presented before communities. People called upon to decide disputes had to have impeccable character and qualities of a decision maker. Religious institutions did not have an active role in disputes resolving but the stature was reserved to laymen and clerics who made judgments and kept records of the same. There are three models of court proceedings practiced in Germany. The inception of training of lawyers by the use of the Reception of the Roman Law and the Reichskammergrecht model establishment witnessed the gradual phasing out of lay people, bureaucratization and restructuring of the judicial system in Germany in 1945. (Lundmark, 2011) However, the lay people were gradually returned to the judicial system after the community began to question the supremacy of the ruler who was the main decision maker during the enlightenment period. The judges had to make rulings in the eye of the based on the decision of the ruler whom to many, was perceived to be having too much questionable authority. Training of judges was a priority as there was need to document and record the proceedings which were essential in case of a case review.1 17 The schoffengerichte model is also referred to as the lay judge’s court. In this model the lay people sit together with the judge and have a say in the court proceedings. They are entrusted with making decisions on the verdict in criminal cases and assessing the penalty for the guilty. It therefore implies that the verdict in this model is not left only as the prerequisite of the professional judge but a collective responsibility between the judge and the jury bench.2 The participation of the juror system is practiced by various countries including the USA, England and Sweden among others. The system is said to be transparent as it involves more than one person in declaring the verdict and in deciding the penalty for the guilty party unlike models which the supreme authority lies with the professional judge whose decisions in most cases are based on sympathy, emotions and empathy. The process offers legitimacy as each case is approached from the legal point of view thus not likely to be swayed by emotions or political will. In addition, the mode is perceived democratic as the jury has to vote to determine the verdict. All the diverging ideas and issues are shared by all the parties present to be able to come to a convincingly just solution. All the issues are analyzed critically with the aim of ensuring and facts placed to identify the guilty party. The models offers an opportunity for the professional judge to view cases or legal proceedings at a different angle and being able to act based on well and convincingly agreeable legal view. 18 In as much as the system has been praised as offering possibly best decisions on legal proceedings, it is viewed as empathetic towards the accused. The jury is only made to perform their functions in few selected cases as much require full professionalism that is earned through the training in law. Much of this requires the interpretation of laws that could appear complex based on the terminology and diction used to persons in the jury who were not professionally trained. The participation of citizens as lay jurors is based on the notion that the judicial system is not always fair. The lay persons in the judicial system of China are included in the collegiate bench. The collegiate bench which bears a minimum of three judges with people assessors. (Changhang et al, 1997) The bench is vested with powers to hear and declare verdict of criminal and public cases that are in the first hearing stages. They can also declare verdict of cases that require a second hearing or reexamination as well as administrative and those that have a sentence of death and need to be verified. The members of this bench are selected depending on the case thus are flexible in composition. A chief judge to head the bench is selected by either the presiding judge or the president. When declaring a verdict the highest vote wins if there are contradicting views on who should be guilty. All the opinions should be recorded for future verifications whether diverging or of uniformity. The process is democratic as it employs the discussion methodology to view both sides of the argument to come up with a conclusively legal judgment. The bench can overrule the decision of the presiding judge based on a majority vote on the verdict. (Cheng, 1957) It is perceived to have little interference as the bench is changed basing on the cases presented thus, different converging and diverging ideas of people of different views and mental abilities. The collegiate is however viewed to be dominated by individuals who in some cases give prejudicial ruling of judicial proceedings brought before them thus, abusing their dominance. In addition, the bench is mainly dominated by male representatives who make it impossible for female views to be aired. The collegiate bench is also just viewed as a public gimmick as much of the decisions are based on the ruling and the influence of the adjudication committee which consists of presidents among other senior judicial officials who bear a larger influence in verdict ruling. The adjudication section is further influenced by the national political views as the political leaders have a major voice in the appointments of officials to this bench. Lastly, the bench is viewed as a mode of strategy to cover up for the ill practices and corruption that exists in the judicial system as most functions are performed by state appointed officials. The two countries have a judicial system that gives room to public participation in judicial proceedings. The lay system in both countries consists of persons who have little or no formal training in law. Moreover, the lay persons are involved in interpretation and declaration of the verdict and have a hand in reversing previous decisions performed by the professional judges. In each case the judge chairs the hearings which culminate in to a voting process to declare the verdict. They are purely democratic as the views of either side are analyzed and put in to a legal test. Both countries view them as a way to help combat issues of corruption and usher in transparency, fairness and legitimacy due to the existence of diverging ideas and personality. However, the institutions are seen different as the German practices three models of which The Justice of the Peace model builds the capacity of participating jurors by basis of on job training. The Chinese mode unlike the German has members chosen basing on the type of cases unlike the later who tend to enjoy a security of tenure. They are all seen as entities that are aimed at eliminating the negative perception that the population has on the judicial system. In German, the idea of lay workers is viewed as outdated strategy that needs to be gradually phased out. (Lundmark, 2011) Bibliography Bell, J., 2006. Judiciaries within Europe: A Comparative Review (Cambridge Studies in International and Comparative Law). Cambridge, UK; Cambridge University Press Charles S., et. al., 1999 Educating Lawyers for a Less Adversarial System: New York; General Books LLC Cheng et al., 1997. An Introduction to Chinese Law. Beijing, China; New World Press Chen, H., 1957. An Introduction into the Legal System of The People’s Republic of China. Beijing, China; New World Press Cross, F., 2008. The Theory and Practice of Statutory Interpretation. Los Angeles, CA; Stanford Law Books Eskridge, E., & Frickey, P., 2006. Legislation and Statutory Interpretation (Concepts and Insights). Boston, MA; Foundation Press Garner, J., 2010. The German Judiciary. New York, NY; General Books LLC Jellum, L., 2008. Mastering Statutory Interpretation, Durham, NC; Carolina Academic Press Lane, E., & Mikva, A., 1997. An Introduction To Statutory Interpretation and the Legislative Process (Introduction to Law Series). New York, NY; Aspen Publishers Lingyuan, Z., & His-Chuan, T., 1990. China's legal system: a general survey. Beijing, China; New World Press Lundmark, T., 2011. Synopsis of Charting the Common Law. New York, NY; Aspen Publishers Pederzoli, P., & Guarnieri, C., 2002. The Power of Judges: A Comparative Study of Courts and Democracy (Oxford Socio-Legal Studies). New York, NY; Oxford University Press Stanley, L., 1999. Bird in a cage: legal reform in China after Mao. Stanford, California; Stanford University Press Vermeer, E., & Hooghe, I., 2001. China's Legal Reforms and Their Political Limits. New York, NY; Routledge Wolfgang, W.,1999. Lawyers Practices and Ideals. A Compartive view. 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