Law and the courts
Establishing a government decree set of rules. Characteristics of the Anglo-Saxon system of common law. The main analysis of the continental European Code of Practice. The peculiarity of the religious freedom legislation. Protect people from abuse study.
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Lecturer: Ibrahim Koncak
Subject: Political Science / Short Paper chapter 13
Student: Maisalbek Kenzhekulov IR-3A
Law and The Courts
In our days each state has their government, territory, citizens which collectively made up the state itself, states task is to protect the rights of its citizens by making some rules that prohibit stealing, murdering, and those who violate them are punished according to the state`s laws. This short paper is covering the most popular sorts of laws in our days, for instance Anglo-Saxon Case Law, Continental European Code Law and the Religious law: The Sharia. Further we will see each of them separately, about their history, main aspects and the main differences between them. It also covers the court which is one of the independent sources of power within the state.
Law is the sets of rules established by the government, those rules include are bining everyone within the state even members of the government itself. There are two main tasks which the law does: a) It sets the norms within the society by ensuring the security of the main basis like freedom for property, religion, speech and etc. b) It also controls how people relate with each others, for instance the diverse procedures. Where all this rules do comes or establishes from? The answer is that these sets of rules make come from all of the three branches: Legislative, Executive, and Judicial.
Court is the additional part of the government, which is completely independent due to its tasks, which are the to interpret all parts of law and judging process, and no one have the immunity from it. It may even “in some state” create the law by itself. Commonly it may also be shortened as Legal Systems, which are the organized legal principles that form the Law and Judgment in the State.
Anglo-Saxon Case Law system developed during the middle ages in England and spread to its colonies, it made up mostly with the liberalisms perspectives, that's why it Case System courts are independent from the government and are to make laws. Here are important aspects of the case law:
a) Judges are to find proper law which is flexible and able to evolve according to the time.
b) Clarity of thoughts and expression, and skills are the reason why judges and lawyers study in special schools.
c) Judges are to be completely objective and neutral during the adjudicating.
d) No exceptions even if the charged person is criminal.
But the government in any cases stays as the final authority; it may change the law by statute so that even court is to obey.
Continental European Code Law is one of copies of the Roman system of law, which involves a detailed code of law produced and interpreted by the government and Is supposed to be the expression of the government's policy. Why the code law? Because during that period of time it was difficult to limit the governmental power, especially in England where establishment and maintenance of the continental states were more difficult than secure state protected by the English Channel, which felt that they needed to control everything. Napoleon during his expansion period imposed to all conquered states Code Napoleon system of law. By the code law eventually became dominant across the continent. Here are important aspects: government law legislation abuse
a) Judges try to keep in step with each other, and rely more on the statute or the code, and they do not makes law in comparison with the case law.
b) Judges and lawyers study in common schools and universities, no separation from others.
c) Code laws judges in adjudicating the charged criminals are not neutral; rather they act as the servant of the government and lead the police investigation. While in the case law the judge stays neutral and defends the accused criminals.
For instance, in terms of the criminal issue, the US as the representative of the case law says “innocent until proven guilty”, Code law which the European one, try to help for the investigation, but in the Soviet Union's period the criminal was limited from any kind of voice, even the lawyer was assigned by the state so that everything goes against criminal.
Religious Law: The Sharia
Almost all states use versions of the case and code law which are thought to be western ones, The Sharia is one the legally survived systems of law which acts according to the Islamic law which we can see in the states like Morocco, Tunisia, Egypt, Syria, Iraq, Mauritania, Yemen, Iran, Afghanistan and Pakistan. Islamic law centers on obligations to God and to other people and is written in sacred book Karan, which covers all aspects of life like principles of justice, equality, and human brotherhood. Karan which is considered to be written in the tenth century A.D. has never seen changes, because of the prohibition, and in our days most of the principles are seem to be odd in the modern society. Unfortunately these type of law system is hard to be adapted by judges, even though it may be inflexible in some cases by using the analogous from older cases, and complex evasions can be worked out that honor the letter, if not the spirit, of the old laws. But in comparison with western systems of law which are more flexible and can adapt easily due to time or situation The Sharia doesn't have any chances to compete with them.
The Blending of Case Law and Code Law
The differences between Case law and code law are mostly differences of degree, for instance as I have written above even in the case law the statute is also important and final authority is the government. In code law, similarly judges cannot totally ignore what other judges are doing and precedent. Because each judge may put verdict which is completely differs from others.
Both of the laws are flexible, and in the recent years we can see how the code law is adopting some aspects of the case law, for instance general spirit of “constitutionalism”, protection of individuals from abuse became popular among the code law systems; the same happens with case law systems in certain areas, for instance, legislature and parliament have began to write codes which bind judges in the USA.
Courts are seem to be organized in complex way so that it can take care of a variety of questions that come before them, but the main aspect of all courts that can be found easily is that, court is separated from other sources of political power. Shortly they are independent. For instance, in the USA judges appointed by the president for the lifetime period with the approval of the Senate so that no one can threaten them. Usually courts are organized separately to handle different kinds of law, especially:
a) Criminal Court involves a charge that a person has disobeyed a law prescribing proper conduct, the outcome of criminal case is acquittal of the defendant or punishment or fine
b) Civil Court regulates relations between people without involving the state, for instance divorce, responsibility in marriage and etc. Civil Courts may also declare injunction in order to prevent future crimes by accused person.
c) Constitutional Law involves dispute about the nature of the political process and about whether laws are consistent with the constitution.
In conclusion I would like to say that, the most appropriate system of law would the mix of both case law and code law, because the world is changing extremely quickly as well as the people`s behavior and understanding of the world, for instance last century the killing, abusing, torturing of the human being for the future of the state or for protection was a simple action, but perspectives has changed, almost everyone wishes to live without a problem with the law. These two systems of laws are flexible enough in order to establish the more effective system of law which would be acting in accordance with the time which is ousting.
W. Phillips Shively, Power and Choice, an introduction to political science, ninth edition
Chapter 17 “Law and the Court”
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