RESEARCH ESSAY: LEGAL SYSTEMS COMPARISON ASIGNMENT INSTRUCTIONS
OVERVIEW
This final essay assignment brings together all the information covered during the session. To compare different legal systems, you must understand the history and development of each system. Now that we you have studied each of these systems, comparisons can begin. This assignment hones your research and writing and sharpens your analytical skills by requiring you to compare the characteristics of different legal systems, rather than simply listing those characteristics.
INSTRUCTIONS
For the final essay, examine the legal system that your government follows (your federal or state government). Compare this legal system with 2 other systems that have been covered this session in the following order:
• Address 2 benefits of the legal system that your government follows, as well as 2 challenges.
• Address 2 benefits of another legal system covered during this course, as well as 2 challenges of that legal system.
• Address 2 benefits of another legal system covered during this course, as well as 2 challenges of that legal system.
• Finally, propose a solution to at least 1 of the challenges that your system currently faces, this proposed solution may appear either immediately after the benefits and challenges of your system, or at the end of the essay.
Your essay must be 5–6 pages in current Bluebook format and contain at least 5 scholarly sources in addition to/other than the course textbook and the Bible. Wikipedia does not count as a scholarly source. Include headings for clear organization. Cover Pages will not count toward the page total, and your citations should be in-text citations (not footnotes, endnotes, reference pages, etc.).
Note: LL.M students must add an additional 2500 words of writing in their final paper. This is a Pass/Fail component of this assignment. This is not required of the JM students.
Note: Your assignment will be checked for originality via the SafeAssign plagiarism tool.
The American judicial system implements a common law system since its court relies upon precedents and case laws in its adjudication. Common law originated in England, and its basic principle is the use of judicial decisions that have already been made to ensure uniformity in legal matters. The Talmudic and Islamic legal traditions rely on individual duty to God and Allah. Both are written versions of oral laws that set standards for individuals who practice the laid down rules. The Talmudic legal tradition refers to the written version of Jewish oral law, while the Islamic legal system refers to the written version of Muslim oral law. Common, Talmudic, and Islamic legal traditions both have benefits and challenges inherent in their practice in society.
The most significant benefit of common law is its adaptability to varied conditions in jurisdictions worldwide. Common law can respond to unforeseen cases and circumstances in real life. Common law thus supplements legislature since it is impossible for legislators to account for every possible issue in society when drafting laws. Common law is more flexible in responding to changing social issues in varied geographical areas (Craig, Garmestani, Allen, Arnold, Birgé, et al., 2017). Institutions responsible for changing laws may take years to decide on the change needed, while judges implementing a common legal system can change the law while reviewing the case. Courts are a common legal system that is not bound by procedural bureaucracy regarding the legislative process, thus change laws faster to adapt to the evolving situations. Courts must give a verdict on any case they are assigned; therefore are liable to change the law once a relevant issue arises. The courts in common law can fill the gap left by the legislature when these situations occur. This flexibility in adapting to various conditions, geographical or social, allows for the growth and development of common law.
The second strength of common law is the method of adjudication. First, the development of concepts avoids large generalizations regarding abstract principles. The development of principles proceeds from a known fact of preceding cases upwards to form a new law. The preceding cases act as a point of reference rather than starting from abstract perceptions. The second aspect of the method of adjudication involves the position of judges. Common law is derived from doctrines of precedents based upon rationalized decision-making and varied fact-finding methods. Precedents are cases decided by a cohort of judges in conjunction with independent legal professionals. The strength of common law is that the judge’s contribution to the legal system survives them. The method of adjudication in common law emphasizes balancing clashing interests and coming up with a just outcome, not just a qualified opinion.
One weakness of common law is the difficulty in sustaining the relevancy of the court’s decisions. With numerous cases being handled every day, courts may decide cases on the same subject simultaneously but lack a proper coordination channel regarding their opinions. This phenomenon leads to different court verdicts on the same subject since each judge has the liberty of interpreting the law according to his or her reasoning. This results in different regions implementing different rules regarding the same issue. Another weakness of common law is that the law can only be changed, ex post facto after the fact or event arises (Sokol, 2019). The courts are obligated to wait for new cases to arise to make or amend the laws, a rare occasion. The court’s jurisdiction is constrained to the cases they are handling. They cannot formulate laws anticipating future events or change laws on their independent accord. In some cases, precedents may be obsolete and require reforms, but the implementation of change is subject to presenting a relevant case that offers the chance to amend the laws.
Different verdicts on the same subject matter occur as there are no stipulated guidelines for following precedents rather than adherence to similar facts about a case. Judges have the liberty to decide whether the attributes of a case are different or identical based on precedent; this may lead to the clashing of judicial verdicts. The proposed recommendation for this common law challenge would be to enact statutes to cover ambiguous common law precedents to ensure coherence with a legal narrative. The enactment of specific laws limits the court’s role on unclear legal issues, thus ensuring uniformity to law practice. The legislation supersedes the previous common law doctrine; therefore, judges are bound by the new legislation instead of precedent case laws.
The most significant benefit of the Talmudic legal system is that it derives its laws from one defined source, the Torah. The codification of rules derived from a single source allows for uniformity in interpretation and application without variations. The interpretations of the Torah are entailed in the Talmud. The Talmudic legal tradition contains the premises of Halakha law that decrees all aspects of life for Jews in their daily activities. Halakah law is derived from the Talmud. The Talmud is based on the Torah through its two major versions, the Mishnah and the Gemara. The Mishnah is the unedited version of oral law based on the Torah, while the Gemara is the record of Rabbinic commentaries based on the Mishnah. This illustrates the uniformity of Talmudic legal tradition since the Halakah laws and their interpretation through religious leaders and Rabbis are all based on one book. The Talmud is a practical book on how to live since it covers every imaginable topic of human life.
Another strength of the Talmudic legal system is its accuracy in rulings. A case brought under the Talmudic legal system is adjudicated by a three-judge panel and not merely a single judge. The application of three judges to a specific case is used as a check and balance system against bias that is often illustrated by one judge’s rulings since the accused and the judge are all members of one community (Ho, 2019). The three judges deliberate on the matter and come up with a conclusive verdict free from personal bias. In addition, the Halakha law has strict guidelines regarding the acceptance of evidence in court. There is no circumstantial evidence accepted in court or the recognition of self-incrimination. The mandated evidence entails two eyewitnesses’ testimonies who have firsthand information regarding the defendant. The accuracy in the rulings also emanates from the features of the Talmudic legal system preference of mediation over litigation.
The challenges of the Talmudic legal system include being based in isolated communities and a lack of flexibility throughout its existence. The Talmudic legal tradition is practiced chiefly by the Jewish community, an example of an isolated society. The interaction of the Talmud is also partly restricted to the ultra-orthodox Jews who receive a stipend from studying the book. Before the internet age, the Talmud was only read by men and limited to women as its study by women was deemed best unnecessary. Israel has the largest population of Jews globally; thus, the application of the Talmudic legal system is limited to the country’s geographical location. This lack of universal usage makes it difficult for those practicing the legal system to lack integration with other distinct systems. The Talmudic legal system derives its authority from the Babylonian version of the Talmud drafted in the 5th century C.E. The text is mainly unchanged, thus points to a lack of flexibility to handle outsiders in an increasingly social world ((Friedman, 2018). The lack of change in the interpretations and enforcement may lead to the legal system becoming obsolete.
The Islamic legal tradition allows for the dual implementation of Islamic law and secular law under one system of governance. The majority of Islamic states have a dual system where the government is secular, but sharia law is practiced concurrently (Simmons, 2020). The Islamic legal system is dynamic since the holding of cases depends on whether the person practices Islamic law. The duality system serves two functions; it provides flexibility in an ever-changing culture and leads to the maintenance of Islamic legal tradition. The adaptation of the Islamic legal tradition is influential in its continued relevance and existence in the contemporary world. The duality of the Islamic legal tradition allows those practicing the Islamic faith to continue keeping the Islamic law tied to their religion without experiencing change from external influence. Muslims are granted the freedom of choice to bring familial and financial disputes in sharia law.
The Islamic legal tradition also has a legal hierarchy that rationalizes the legal exercise, enabling a simplified judicial system. In some systems, the judicial system allows judicial verdict reviews, albeit under precise and limited conditions. The verdict review is done by the issuing judge or a court of higher authority. In addition, there is an elaborate judicial process where the court of chief judge serves as a court of review for the decisions of local judges.
The challenges of Islamic legal tradition include different interpretations and the unchanging nature of the legal system. The Muslim community is divided along sectarian and ideological lines. Globally, Islamic law is understood and applied in varied ways based on individual interpretation of the sacred texts. Islamic legal tradition contains various schools of jurisprudence, each distinct in its interpretation and application of the sharia law (Alwazna, 2016). There are two significant schools of thought: Sunni and Shia tradition, which differ in governance approaches and the imposition of complete sharia criminal law. The differing schools of thought operate independently regarding the interpretation of the sacred texts concerning the design, formulation, and implementation of sharia law. There is no consensus on several religious issues; thus, each group has its distinct view. This lack of uniformity leads to perplexity in analyzing the legal system and its integration into the western legal context.
The primary sources of Islamic legal tradition, the Quran and Sunna, have remained unchanged from their conception to date. The Quran is considered the most sacred and crucial source of Islamic law. It contains revelations that prophet Muhammad received from Allah in the form of oral dictation. The Quran is written in Arabic and is uniform throughout the Muslim world. It entails the codification of human life approaches and is set out in 6,666 verses. According to the Muslim tradition, the Quran dates between years 610 and 632. The secondary source of Islamic legal practice is the Sunna which consists of sayings, actions, and approbations of the prophet Muhammad during his lifetime. The Sunna was compiled in the 8th century C.E. These two sacred texts have never been changed to conform to evolving generational issues such as abolishing harsh punishments encompassing stoning and beheading.
The American judicial system implements common law in its judicial process. The Talmudic legal system is implemented mainly by the Jewish community while the Muslim community follows the Islamic legal system. The comparison of the three legal systems indicates the inherent benefits and challenges specific to each system. In the common law system, the proposed solution regarding the use of legislature to cover ambiguous common law areas shows its superiority to the other legal systems. Talmudic and Islamic legal traditions are rigid in their changing of the laws.
Alwazna, R. Y. (2016). Islamic Law: Its sources, interpretation, and the translation of it into laws written in English. International Journal for the Semiotics of Law-Revue internationale de Sémiotique juridique, 29(2), 251-260.
Craig, R. K., Garmestani, A. S., Allen, C. R., Arnold, C., Birgé, H., DeCaro, D. A., Fremier, A. K., Gosnell, H., & Schlager, E. (2017). Balancing stability and flexibility in adaptive governance: an analysis of tools available in U.S. environmental law. Ecology and society: a journal of integrative science for resilience and sustainability, 22(2), 1–3. https://doi.org/10.5751/ES-08983-220203
Friedman, H. H. (2018). Talmudic ethics and its reliance on values rather than rules. Available at SSRN 3221295.
Ho H.L. (2019) The Fair Trial Rationale for Excluding Wrongfully Obtained Evidence. In: Gless S., Richter T. (eds) Do Exclusionary Rules Ensure a Fair Trial? Ius Gentium: Comparative Perspectives on Law and Justice, vol 74. Springer, Cham. https://doi.org/10.1007/978-3-030-12520-2_9
Simmons, B. A. (2020). Islamic Law and International Law: Peaceful Resolution of Disputes. By Emilia Justyna Powell. New York, NY: Oxford University Press, 2020. Pp. xiv, 314. Index. American Journal of International Law, 114(4), 791-796.
Sokol, D. D. (2019). Rethinking the Efficiency of the Common Law. Notre Dame L. Rev., 95, 795.
U.S. Founding Documents and Court Systems
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