International and Comparative Courts and LawyersCRIM 405.003Prof. Andrew Novak

Agenda• Definitions

• United Kingdom• France• Germany• China• Japan• Saudi Arabia

• International Criminal Court

Definitions• Legal Pluralism: Where more than one legal

system, body of law, or court system exist in a jurisdiction.• Distinguish: Legal hybrid, where a country does not have

a single dominant historical legal tradition.

• Court: Venue for the resolution of disputes• Court of limited jurisdiction: Authority is over only specific

segment of disputes, separated by value, subject matter, or type of litigant.• Court of general jurisdiction: Trial court with presumptive

authority over all other claims, usually the vast majority of them.• Courts of first or intermediate appeal: Usually one level

above trial court.• Courts of last resort or final appeal: Second or last level of

appeal.

Definitions (Part 2)• Adjudicators: Judges or magistrates who make

dispositions in court; may be professional or lay.• Appointed in common law world and Latin America by

executive, legislative, or higher judicial officers (or increasingly by independent commissions).• Elected in many United States states as a result of the

Progressive movement of the early 20th century.• Career civil servants in most civil and Islamic law

countries, in which a judge self-selects his or her career path.

• The distinction among advocates (presentation in court), advisors (legal advice and preparation of documents), and scholars (legal research) is much more important outside the U.S.

United Kingdom• Typical court system for UK and most former

British colonies:• Magistrate’s courts (low-level criminal cases)• High or superior courts (courts of first instance for serious

crimes, and appeals of low-level crimes, called “Crown Courts” in UK)• Court of Appeal and often Supreme Court

(intermediate/final appeal)

• Legal Profession: Bifurcated• Also bifurcated in South Africa, Ireland, 2 Australian

states.• Barristers: Courtroom advocates who can appear before

judges.• Professional association is called a Bar Association• Apprenticeship called “pupilage” and includes ancient

Inns of Court• Solicitors: Attorneys who provide legal advice• Professional association is called a Law Society• Apprenticeship called “articles of clerkship”

United Kingdom (Part 2)• Judges• Formerly appointed by Lord Chancellor; today appointed

by Judicial Appointments Commission (same is true in many former British colonies) in an effort to broaden the demographics of the judiciary• No legislative confirmation or vetting by bar association

• Prosecutors• Unlike U.S., separation of law enforcement and

prosecution is a recent development; until 1980s, police served as prosecutors and hired their own barristers to argue in court• 1985: Parliament created the position of “Crown

prosecutor” (like U.S. attorney) to enhance quality of prosecutions• Crown Prosecution Service is headed by Director of Public

Prosecutions

France• Court system of France (and typical of former

French colonies)• Minor crimes go to:• Police courts (tribunaux de police): misdemeanors

(contraventions)• Correctional courts (tribunaux correctionnels): serious

misdemeanors (délits)• Felony cases go to courts of assize (cour d’assise)• Appeals to Courts of Appeal and then to Court of

Cassation.

• Judiciary and Procurators• Requires law degree and attendance at National School

for the Judiciary in Bordeaux. Following course of study one becomes judge or procurator.• Rarely possess experience as practitioners, and render

abstract and brief rulings.

France (Part 2)• Lawyers: Avocats must possess a license in law

from a university law school, followed by examination.• Certified law graduates serve a three year apprenticeship• National Bar Council founded in 1992 to regulate

profession• Legal profession is recently fused: all lawyers known as

“avocats” and can appear in court, give legal advice, and prepare legal documents

• Legal Education• Undergraduate curriculum is generally liberal arts with a

legal concentration• Must enter a one-year professional law course following

graduation. Includes internships and is followed by apprenticeship.

Germany• Court system• Minor criminal cases: Amtsgerichte• Major criminal cases (and appeal of minor ones):

Landgerichte• Appeals to Oberlandsgerichte (intermediate appeals

court) and then to Federal Court of Justice (Bundesgerictshof).• Remember: Germany well-known for its many specialized

courts and for Federal Constitutional Court which hears pure legal disputes.

• Verdicts at trial by majority vote of panel of professional judges and lay judges.

• Like France, legal education is undergraduate, so focus is not practical. Apprenticeship and examination required.

China• No legal profession during Cultural Revolution;

reestablished in 1982. Increasing professionalization and independence.

• Judges• Continues to be a shortage of legally-trained judges, but new

judges today need a bachelor’s degree• Judicial selection for court presidents is carried out through

election by peoples’ congresses; other judges appointed by court• High rate of corruption

• Lawyers• Three years of college education, bar exam, 1 year

apprenticeship• People’s assessors: Citizens selected as lay judges (“mass line”)

• Legal Education• Large number of universities and practical institutes

Japan• All legal professionals are trained in law, receive a

law degree, pass a national bar exam, and continue 18 months of study at the Legal Training and Research Institute

• Legal profession small for an industrialized country

• Moving toward American-style graduate legal education; today, need bachelor’s degree to enter law school

• Judges and Procurators• Bureaucratic, like France: Select judge or procurator

career track during school; judicial candidates selected by the court.

• Lawyers• Same training as judges and procurators. Stigma toward

lawyers.

• Saiban-in: Lay assessors in judicial decisionmaking (like a jury)

Saudi Arabia• Qadi• Traditional Islamic judge, served at pleasure of political

authority• Decisions were in personal judgment; no court hierarchy• Schooled in Islamic law and consulted Islamic scholars

during proceedings

• Court system of Saudi Arabia• Islamic courts: First-degree trial courts, courts of appeal,

High Court• Secular courts: Board of Grievances (recently renamed

Administrative Court), Supreme Judicial Council

• Modern judges• Must hold degree from one of the Sharia colleges or

universities in the Kingdom. Depend solely on own reasoning, not precedent. Tend to be conservative, since all are religiously-trained men.• Judicial Academy established in 2000 to improve

decisionmaking

International Criminal Court• Permanent international tribunal created in 2002• Prosecutes four crimes• Genocide (systemic destruction of a group)• Crimes against humanity (government policy or toleration

of widespread or systemic attacks on human dignity)• War crimes (violations of the laws of armed conflict)• Aggression (unlawful use of military force)

• Court can get cases in one of three ways• State party can refer a case (Uganda, DR Congo, Central

African Republic, Mali)• UN Security Council may refer a case (Darfur/Sudan,

Libya)• Prosecutor can initiate investigation (Cote d’Ivoire, Kenya)

ICC (Part 2)• Three component parts• Judicial Division (adjudication of cases)• Pre-trial chamber• Trial chamber• Appeals chamber

• Office of the Prosecutor• Fatou Bensouda of Senegal

• Registry• Administrative aspects of criminal prosecution: legal

aid, victim protection, etc.