Chapter Six-Comparative and Historical

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JUST 401

Social and Cultural Anthropology has its focus on_but it is associated with the study of_

whole human cultures and preliterate cultures

Ethnographic approach

The understanding of behavior in context through the participation of the investigator in the situation being studied

Why use ethnographic approach?

To understand the culture as a whole

Llewellyn and Hoebel looked at

trouble cases to identify the law of the Cheyeene.

Llewellyn and Hoebel determined that law is

social control-winner and looser

Is law a cultural universal?

Its controversial

Eskimo Drum Court

drummers battle for a resolution over a dispute

The dozens

disputants hurl insults at each other while being egged on by onlookers-solve disputes

Llewellyn and Hoebel's findings

Cheyenne-law declared by tribal leaders.

American Indians today

poor, alcoholism, child abuse, suicide, unemployment

American Indian Movement

started in 1968. Militiant group dedicated to challenging the oppression and historical theft of Indian lands. Conflict with laws and agents of the feds

The truth behind the treaties (Indians and the Europeans)

Indians didn't understand the law the same way Europeans did which lead them to be taken advantage of. Europeans violated the treaties.

Allotment

policy that broke up most of the Indian reservations into private holdings to control and integrate them so that non-Indians won't be subjected to control

Tribal sovereignty

more direct control of Indians over their affairs

The problem with law over the Indians?

which law prevails? Indians or American? How much should the government interfere with their affairs?

To deal with which law prevailed, the act of 1924

they are subject to the same laws as citizens besides minor crimes and other civil matters occurring on reservations, where tribal courts have jurisdiction

Consequence of everything-Indians

Identity crisis, some concerned with practical gain rather then the tribe.

Ethnocentric tendencies

glorifying one's own system of law

Whats good about comparative law?

Overcomes ethnocentric tendencies and it reinforces that law reflects and influences the society of which it is a part

Civil Law

legal system in which legislative codes are central;statutes

Where Civil law

Europe, Latin America, former Soviet Union, African parts, Asia parts

Problem with Civil Law

dictators, parties follow statues rather than judge based law

Emphasis for Civil Law

collected statutes or statutory codes

Lawyers Role for Civil Law

Secondary to judges at trial

Lawyers Cred for Civil Law

Undergrad, apprentice, exam

Judges role in Civil Law

Central

Judge Civil Law

direct trial, develop truth result, manage the trial in aggressive ways

Judges appellate role Civil Law

Error correction

Judges cred-Civil Law

Civil Servants, undergrad, and slection to system

Civil law can also be called

Code Based or Roman

Civil Law-Attorneys

Attorneys are second to judges

Civil Law influence

European, Roman, Customary, Canon, law of merchants, monarchical

Codification

The act of codifying or arranging in systematic order

Canon Law

Roots to divine law as decreed by the Pope and other Church Authorities, was applied to Christians

Cannon law was important in

Western laws of marriage, inheritance, property, contracts, crimes, torts, and rules of judicial procedure

Common Law rooted in

England

History of Common Law in courts

People were educated but the judges weren't literate and were taught law in oral tradition

Common Law-where

British Commonwealth and the US

Emphasis of Common Law

Judges-made precedent and statutes

Lawyers role in Common law

central role, especially at a trial

Common Law-Lawyers cred

law school and bar exam

Judges role in trial Common

like umpire

Common Law-Judges appellate role

find law

Judge history in Common Law

former practicing attorneys

Attorneys Common Law

Attorneys are heroes

US court system goes along with

Common Law

Socialist law-who uses it

China

Emphasis on Socialist law

Role of the party is greater and above the law

Socialist law-Lawyers role

Secondary to party

Lawyers cred-Socialist

undergrad party membership

Judges role in trial Socialist

few trials, procedural adjudication less important

Judges appellate role Socialist

appeals are rare

judges cred socialist

undergrad, civil servant, party membership

Socialist characteristics

popular tribunals and show trials

Popular tribunals(Socialists)

law will fade away, compare to intuitive concept of justice and Danwei, reflected the workers. Administering justice in accord with communism

Show Trials (Socialists)

asserted purpose to educate the workers

Idealistic view of law (socialists 1st dimension)

Marxist, socialistic, revolutionary

traditional view of law (socialist 2nd dimension)

indigenous legal norms and traditions of the country in question have not been abolished but have been adapted by the new regime

3rd dimension socialist (pragmatic view of law)

conditions of modern industrialized nations and international commerce imposed demands for certain legal norms and procedures

instrumental interpretation marx

Marx holds the view that capitalist ownership class directly controls lawmaking and law-enforcing

Structural interpretation Marx

law is seen as autonomous which means it is not controlled by the capitalist ownership class but is oriented toward the survival of the capitalist system

point of communist regime

abolish all law and legal institutions and to replace those with popular tribunals

show trials

public trials to show people who is boss!

Quick summary of the Russian Revolution

government had all the power and so did the popo.

Who did show trials?

Russia and China

Islamic Law-emphasis

religion and religious leaders

Lawyers role in Islamic Law

secondary to religious leaders

Lawyers cred in Islamic law

religious training

Judges role in trial islamic law

secondary to religious leaders

Appeals court in Islamic law

appeals are rare

Judges cred in Islamic law

Religious training

The influences on American Law

Europe, Colonists, American revolution, need of change in the capitalist economy, cultural values, immigrants, Bible, Charter, codes, Constitution, English common law, Civil Law

John Noonan

Masks of the law

Constitution and slavery

Slavery wasn't mentioned in it, America missed that opportunity to move forward earlier, and it staged the Civil War

Dred Scott vs. Sandford-what was the fight?

Dred Scott traveled with his master to a free state-Minnesota- and then returned to a slave state-MIssouri

Dred Scott vs. Sandford-What did Roger Taney decide?

decided that Dred Scott couldn't be free because he wasn't a citizen

13th Amendment

free slaves

14th Amendment

all citizens have the right to equal protection and due process

Right after the 14th amendment came

Jim Crow Laws

Jim Crow Laws

Blacks were given second class citizenship and imposed segregation

Plessy vs. Ferguson

Separate but equal

Brown vs. Board of Education result

end of segregation

What led to the Brown vs. Board of Education decision

social and behavioral science studies stating the damaging stuff of segregation on black schoolchildren

Brown vs. Education-How did people react?

Didn't like it so hence the civil rights movement

Civil Rights Act of 1964

no more segregation and discrimination

The question associated with the contextual perspective?

What does law mean in extreme circumstances?

Queen v. Dudley and Stevens

Dudley and Stevens charged for Murder

Equal Rights Amendment

everyone has equal rights regardless of their sex

Immutable characteristics

innate qualities (such as sex or ethnicity) or unalterable for other reasons (such as the historical fact of a past association, occupation or status)

Manumission

formal act of freeing slaves

Pluralism

A condition or system in which two or more states, etc., coexist.
A form of society in which minority groups maintain their independent cultural traditions.

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