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Chapter Six-Comparative and Historical

JUST 401
STUDY
PLAY
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.