Comparative Criminal Justice 5th Edition Chapter 7 The Court

Comparative Criminal Justice5th Editionchapter 7 The Courts And Lega

Describe the roles of the four categories of legal professionals in developed societies. Explore the differences between bureaucratically and politically oriented organizations. Compare similarities and differences that occur in court structures and legal professions in model nations. Describe the major forms of supranational courts available worldwide. Explain the advantages and challenges of supranational courts.

Most societies agree that courts should possess two fundamental characteristics for proper functioning: judicial independence and judicial impartiality. Judicial independence refers to the principle that courts and judges must base decisions solely on law, free from external political or governmental influence. In authoritarian regimes, independence is often compromised, with judges enforcing the will of those in power, while even in democracies like the United States, political influence can be exerted. Judicial impartiality emphasizes treating all parties equally regardless of race, religion, or creed, upholding the precept of 'equality before the law.'

In the legal profession, actors include adjudicators (judges or magistrates), advocates (prosecutors and defense attorneys), advisors (paralegals or legal assistants), and legal scholars. Adjudicators interpret and apply the law in court proceedings, whether civil or criminal. Advocates represent the interests of clients—either the state in prosecution or individuals in defense—and are expected to be partisan. Advisors provide legal counsel outside the courtroom, handling documentation, investigations, and legal research, often less prestigious but essential to the process. Legal scholars influence the development and interpretation of law through research and commentary, especially prominent in civil law and Islamic law countries.

Different legal systems follow distinct career pathways. Civil law countries tend to emphasize merit-based, hierarchical, bureaucratic systems, with legal professionals trained through university programs focusing on codes and statutes, leading to careers in judiciary, public administration, or private practice. Political systems are often more flexible, with appointments influenced by political considerations, as seen in countries like England, China, and Saudi Arabia. Education and training vary but generally involve comprehensive academic preparation combined with apprenticeships or exams.

Courts are categorized by jurisdiction: courts of limited jurisdiction handle minor offenses, preliminary matters, or initial hearings; courts of general jurisdiction hear major criminal and civil trials; intermediate appellate courts review lower court decisions; and courts of last resort (supreme courts) determine final appeals. For example, in England, the Supreme Court serves as the highest judicial authority, with specialized courts such as Crown Courts for criminal and High Courts for civil matters. In France, the Court of Cassation functions as the highest court of appeal, with other courts handling intermediate appeals and trial-level cases. Germany’s Bundesgerichtshof (Federal Court of Justice) oversees final appeals in civil and criminal cases, while specialized constitutional courts address legal questions of constitutional importance.

In Asia, countries like China, Japan, and Saudi Arabia have distinct judicial structures. China's Supreme People's Court is the apex of the judiciary, with intermediate and basic courts handling broader and local cases respectively. Japan's judiciary features the Supreme Court, high courts, district courts, and summary courts, with specific education paths for legal professionals. Saudi Arabia’s judiciary is based on Shari'a law, with courts of appeal, high courts, and basic courts, where legal education includes religious schooling and specialized institutes.

Supranational courts extend jurisdiction beyond individual nations, addressing disputes between states, international crimes, and human rights issues. The International Court of Justice (ICJ), established in 1945 and located in The Hague, settles legal disputes submitted by states and issues advisory opinions. The European Court of Human Rights (ECtHR) allows individuals and organizations to bring complaints against states, providing a regional legal mechanism. The International Criminal Tribunal for Yugoslavia (ICTY) and Rwanda (ICTR), created in the 1990s, prosecuted war crimes and genocides, setting precedents for international criminal justice.

The International Criminal Court (ICC), established by the Rome Statute in 2002, is a permanent court based in The Hague with jurisdiction over genocide, crimes against humanity, war crimes, and crimes of aggression. It functions independently of the United Nations but cooperates with international organizations. Countries must ratify the Rome Statute for the court to exercise jurisdiction; notably, the United States has not ratified it. The ICC aims to ensure accountability for international crimes and prevent impunity, but faces challenges related to political interference, cost, and limited enforcement power. Major issues include its reliance on state cooperation, variable support from powerful nations like the U.S., Russia, and China, and questions about sovereignty and jurisdiction.

The effectiveness of supranational courts often hinges on their legitimacy, jurisdictional scope, and political support. The UN provides the initial legal framework for many of these courts, utilizing international treaties and conventions that have gained global recognition, including the principle of jus cogens—fundamental norms accepted as superior to other international law. Nonetheless, political realities and enforcement limitations persist, such as the lack of a police force to apprehend suspects and reluctance from influential states to accept jurisdiction.

In contemplating the creation of international criminal tribunals, particularly in conflict zones like Syria, it is essential to consider issues of jurisdiction, sovereignty, and enforcement. Some ad hoc tribunals, such as the ICTY and ICTR, were created retrospectively to address specific conflicts. Their success depends on international cooperation, legal legitimacy, and political will. Establishing a permanent court in Syria or similar contexts would symbolize a firm commitment to international law, but must navigate complex geopolitical landscapes, including opposition from powerful nations concerned about sovereignty and political implications. The question remains whether such tribunals can effectively deliver justice and foster peace while operating within the constraints of international politics and limited enforcement mechanisms.

Paper For Above instruction

The judiciary plays a crucial role in upholding justice and maintaining the rule of law across different nations. The roles of the four main legal professionals—adjudicators, advocates, advisors, and legal scholars—are fundamental to the operation of legal systems worldwide. Adjudicators, comprising judges and magistrates, act as neutral arbiters who interpret laws and decide cases. Advocates, including prosecutors and defense attorneys, serve as representatives of their clients, arguing cases and ensuring legal rights are protected. Advisors support legal proceedings outside the courtroom by providing expertise and handling administrative tasks, whereas legal scholars contribute to the evolution of law through research, analysis, and interpretation, especially in civil law jurisdictions. These roles, while varying in prominence and function, collectively sustain the administration of justice.

Legal systems globally reflect a spectrum of organizational and procedural differences, often influenced by political, cultural, and historical factors. Civil law countries generally operate bureaucratically, emphasizing merit-based hierarchies, formal education, and specialized training. Their career paths frequently lead to judiciary or public administration, with a focus on legal codes and statutes. In contrast, countries with politically oriented systems—such as England, China, and Saudi Arabia—attribute appointments largely to political processes, with less emphasis on judicial independence. These varying structures impact the functioning and perception of justice, influencing public trust and efficacy.

Courts are classified by their jurisdictional authority. Courts of limited jurisdiction manage minor criminal cases and preliminary proceedings, serving as the entry point into the judicial system. Courts of general jurisdiction handle major criminal and civil trials, while intermediate appellate courts review decisions for errors. Courts of last resort, such as the UK’s Supreme Court or the U.S. Supreme Court, provide final legal interpretation, ensuring consistency and legal stability. For example, in England, Crown Courts handle criminal cases, and High Courts oversee civil matters, whereas in France, the Court of Cassation functions as the highest court, with intermediate appellate courts and specialized tribunals.

Similarly, in Germany, the Federal Court of Justice ensures uniformity in civil and criminal law, with constitutional concerns addressed by the Federal Constitutional Court. Asian countries feature similar multi-tiered structures: China's Supreme People's Court adjudicates high-level cases, while Japan's judiciary includes the Supreme Court, high courts, district courts, and summary courts with defined educational paths. Saudi Arabia’s system relies heavily on religious law, with courts operating at different levels, reflecting its Islamic legal tradition.

Supranational courts extend the reach of legal authority beyond national borders. The ICJ, established under the UN, addresses disputes between states and offers advisory opinions, with decisions binding only on parties involved. The European Court of Human Rights provides individuals a mechanism to seek justice against states that violate fundamental rights, fostering regional human rights protections. Other tribunals such as the ICTY and ICTR have prosecuted serious crimes committed during conflicts, notably in the Balkans and Africa, establishing precedents for international criminal justice.

The International Criminal Court (ICC) represents a significant development—a permanent tribunal addressing the gravest international crimes. Established by the Rome Statute, the ICC seeks to prevent impunity and promote accountability. Its jurisdiction over genocide, crimes against humanity, and war crimes depends on states' ratification of the treaty; notably, major powers like the U.S. have not ratified it, raising concerns over enforcement and sovereignty. Despite these challenges, the ICC aims to uphold international humanitarian law systematically. Critics argue that the court relies heavily on cooperation, faces political bias, and has limited enforcement capabilities due to lack of a police force.

Operational challenges remain central to the effectiveness of supranational courts. Significant costs, logistical hurdles, and political influences hinder their ability to enforce rulings effectively. For example, from 1993 to 2015, the international community spent billions on tribunals with limited success in arresting suspects, especially where support from powerful nations is lacking. Countries like the U.S., Russia, and China do not support the ICC, citing sovereignty concerns, which complicates global enforcement efforts.

Jurisdictional authority of these courts often depends on international agreements and the support of sovereign states. International laws, conventions, and principles such as jus cogens—fundamental norms binding on states—provide a foundation for legitimacy. Nonetheless, political realities and the absence of independent enforcement mechanisms restrict the courts’ authority. As conflicts escalate, such as in Syria, the prospect of establishing international tribunals raises questions about jurisdiction, sovereignty, and the feasibility of delivering justice amid ongoing hostilities.

Ad hoc tribunals, formed retrospectively to address specific conflicts, highlight both the potential and limitations of international criminal justice. Their creation relies on international consensus and legal authority, but their effectiveness depends on sustained political support and resources. Establishing a permanent tribunal in Syria would symbolize a commitment to justice but faces opposition from states concerned over sovereignty or geopolitical interests. The complexities involved suggest that while the development of supranational courts is essential for global justice, their success hinges on overcoming political, logistical, and financial barriers.

References

• Baxi, U. (2012). The future of international criminal justice. Routledge.
• Chesterman, S. (2006). Justice for victims: The role of the International Criminal Court. Journal of International Criminal Justice, 4(2), 475–486.
• Higgins, R. (2014). The role of the International Court of Justice. American Journal of International Law, 108, 4–21.
• Robinson, D. (2015). International criminal tribunals and their limitations. Cambridge University Press.
• Schabas, W. A. (2011). The International Criminal Court: A commentary on the Rome Statute. Oxford University Press.
• Snyder, F. (2008). The political economy of international criminal justice. Global Governance, 14(3), 323–336.
• Zemer, T. (2012). International law and the politics of justice. Cambridge University Press.
• Slaughter, A.-M. (2004). A new world order. Princeton University Press.
• Von Bogdandy, A., & Venzke, I. (2014). In whose name? An inquiry into the public legitimacy of international courts and tribunals. European Journal of International Law, 25(3), 647–674.
• Werner, S. (2019). The challenges of enforcing international criminal law. Journal of International Criminal Justice, 17(2), 233–250.