Unit 3 Assignment

Unit 3 Assignment

[Writer]

[Institution]

Unit 3 Assignment

The legal system around the world comprises of different classifications and groups and considered to imperative for the apprehension of a comparative law. These groups are further divided into smaller subgroups primarily known as families of law. Across all the families, some terminologies and processes are common while some are entirely different based on history, traditions, norms, religion, cultural and mora-ethical qualities ADDIN ZOTERO_ITEM CSL_CITATION {"citationID":"TUEiZol8","properties":{"formattedCitation":"(D\\uc0\\u246{}lemeyer, 2010)","plainCitation":"(Dölemeyer, 2010)","noteIndex":0},"citationItems":[{"id":420,"uris":["http://zotero.org/users/local/OnfrXiA2/items/E4ZEQZ7K"],"uri":["http://zotero.org/users/local/OnfrXiA2/items/E4ZEQZ7K"],"itemData":{"id":420,"type":"book","title":"Legal Families","publisher":"Institut für Europäische Geschichte","author":[{"family":"Dölemeyer","given":"Barbara"}],"issued":{"date-parts":[["2010"]]}}}],"schema":"https://github.com/citation-style-language/schema/raw/master/csl-citation.json"} (Dölemeyer, 2010). Thus, a single issue can be entitled to extremely different treatment in these different families of law. The families of law in a legal system are civil law, common law, socialist and Islamic legal system ADDIN ZOTERO_ITEM CSL_CITATION {"citationID":"yG04JOpv","properties":{"formattedCitation":"(Dawkins & Server, 2014)","plainCitation":"(Dawkins & Server, 2014)","noteIndex":0},"citationItems":[{"id":417,"uris":["http://zotero.org/users/local/OnfrXiA2/items/NJMTG2XM"],"uri":["http://zotero.org/users/local/OnfrXiA2/items/NJMTG2XM"],"itemData":{"id":417,"type":"article-journal","title":"Families of Law","container-title":"The Encyclopedia of Criminology and Criminal Justice","page":"1-5","author":[{"family":"Dawkins","given":"Marika"},{"family":"Server","given":"JD Ronald"}],"issued":{"date-parts":[["2014"]]}}}],"schema":"https://github.com/citation-style-language/schema/raw/master/csl-citation.json"} (Dawkins & Server, 2014). For instance, a person who is prone commit assault or battery in different countries can face different legal treatment as sovereign nations follow their own defined distinct family of law. The major characteristics and general criminal process dealing with assault and battery will be different. The punishments and ethical concern that follow with it will also vary system to system.

In Australia, the common family of law system is followed in all its states including South Wales. A common law does not necessarily have to be a written constitution. The decisions by the judiciary are binding in nature and the verdict announced by the highest court of the state can only be overturned by the same court or by proper legislative process. Only few provisions are implemented onto legal contracts and there is extensive freedom for these contacts except for private consumers. Primarily, every action is permitted in the state if it is not specifically prohibited by the law. It is comparatively less prescriptive and government ensures the protection of its citizens ADDIN ZOTERO_ITEM CSL_CITATION {"citationID":"6PDDvT2r","properties":{"formattedCitation":"(Gobbo, 2019)","plainCitation":"(Gobbo, 2019)","noteIndex":0},"citationItems":[{"id":421,"uris":["http://zotero.org/users/local/OnfrXiA2/items/2BWXKPV9"],"uri":["http://zotero.org/users/local/OnfrXiA2/items/2BWXKPV9"],"itemData":{"id":421,"type":"article-journal","title":"The Practice of Comparative Law by the Supreme Courts of Australia and New Zealand","container-title":"Judicial Cosmopolitanism","page":"194-216","source":"brill.com","DOI":"10.1163/9789004297593_008","language":"en","author":[{"family":"Gobbo","given":"Maurilio"}],"issued":{"date-parts":[["2019",9,9]]}}}],"schema":"https://github.com/citation-style-language/schema/raw/master/csl-citation.json"} (Gobbo, 2019).

Australian law recognizes assault as an offence regardless of the extent of the crime. There are specific types of assault defined by Australian law; common, unlawful wounding, battery, aggravated assault or aggravated battery and sexual assault. The common assault is charged when any argument is accompanied with threats, insignificant physical contact, injuries, hitting, pushing, spitting or throwing an object on the other individual. The unlawful wounding charges are implemented if the assault leads to serious wounding and bleeding and aggravated assault in the case of grievous bodily harm. ADDIN ZOTERO_ITEM CSL_CITATION {"citationID":"L0H23vyu","properties":{"formattedCitation":"(BGS Law, 2015)","plainCitation":"(BGS Law, 2015)","noteIndex":0},"citationItems":[{"id":423,"uris":["http://zotero.org/users/local/OnfrXiA2/items/KRBK9VAZ"],"uri":["http://zotero.org/users/local/OnfrXiA2/items/KRBK9VAZ"],"itemData":{"id":423,"type":"post-weblog","title":"The Meaning of Assault Under Australian law","container-title":"BGS Law","abstract":"Assault is recognised under Australian law as an offence against the individual, irrespective of the seriousness of the offence. Also, Australian law prescribes various charges for the act of assault. The act of assault is always intentional and entails reasonable apprehension by the victim of immediate harm irrespective of whether the actual harm has occurred. In this light, the offence of assault may take place, for instance, when the perpetrator aims at touching, striking, moving or applying force without the victim’s consent, or when the victim’s consent has been obtained by means of fraud or duress. As the foregoing discussion","URL":"https://www.bsglaw.net/the-meaning-of-assault-under-australian-law/","language":"en-US","author":[{"family":"BGS Law","given":""}],"issued":{"date-parts":[["2015",3,20]]},"accessed":{"date-parts":[["2019",10,13]]}}}],"schema":"https://github.com/citation-style-language/schema/raw/master/csl-citation.json"} (BGS Law, 2015). The punishment for basic assault is 2 to 3 years imprisonment based on the intensity of the harm while for aggravated assault it is 3 years imprisonment which can also be extended up to 4 and 5 years ADDIN ZOTERO_ITEM CSL_CITATION {"citationID":"MVYrfccG","properties":{"formattedCitation":"(Makela, n.d.)","plainCitation":"(Makela, n.d.)","noteIndex":0},"citationItems":[{"id":425,"uris":["http://zotero.org/users/local/OnfrXiA2/items/KR7DHFNC"],"uri":["http://zotero.org/users/local/OnfrXiA2/items/KR7DHFNC"],"itemData":{"id":425,"type":"webpage","title":"Assault Charges SA","container-title":"Go To Court Criminal Lawyers","abstract":"Basic assault is committed in South Australia if you (without the consent of another person, being the victim) apply force to that person, or make physical contact with that person knowing they might not want you to.","URL":"https://www.gotocourt.com.au/criminal-law/sa/assault/","language":"en-AU","author":[{"family":"Makela","given":"Michelle"}],"accessed":{"date-parts":[["2019",10,13]]}}}],"schema":"https://github.com/citation-style-language/schema/raw/master/csl-citation.json"} (Makela, n.d.). The legal ethical obligations are considered seriously by the Australian Law Reform Commission to ensure the professional integrity ADDIN ZOTERO_ITEM CSL_CITATION {"citationID":"oiSaHeDC","properties":{"formattedCitation":"(Autralian Government, n.d.)","plainCitation":"(Autralian Government, n.d.)","noteIndex":0},"citationItems":[{"id":427,"uris":["http://zotero.org/users/local/OnfrXiA2/items/92NNZJUH"],"uri":["http://zotero.org/users/local/OnfrXiA2/items/92NNZJUH"],"itemData":{"id":427,"type":"legislation","title":"Legal ethical obligations, misconduct and discovery","URL":"https://www.alrc.gov.au/publication/discovery-in-federal-courts-alrc-cp-2/4-ensuring-professional-integrity-ethical-obligations-and-discovery/legal-ethical-obligations-misconduct-and-discovery/","number":"ALRC CP 2","chapter-number":"Discovery in Federal Courts","language":"en-AU","author":[{"family":"Autralian Government","given":""}],"accessed":{"date-parts":[["2019",10,13]]}}}],"schema":"https://github.com/citation-style-language/schema/raw/master/csl-citation.json"} (Autralian Government, n.d.). Australian community take the safety and protection of its citizens as an integral part of its legal system. This punishment according to their beliefs is accurate and I personally believe assault offenders should not go around that easily. They should pay for what they do and meanwhile in the imprisonment, they can look into their unethical and unjustified actions.

Italian constitution is based on Roman law which is commonly known as civil law. It consists of written constitution including specific codes and statutes that assimilate the codes and regulate the parts of law where there are no existing codes. The judiciary is independent of legislature and executives. The jurisdiction is entirely in the hands of magistrates and the judges cannot be dismissed. Italian legal system is enormously complicated and the judiciary system is confused by the controversies of different laws that date back to centuries ADDIN ZOTERO_ITEM CSL_CITATION {"citationID":"QSCx2MWR","properties":{"formattedCitation":"(Tushnet, 2017)","plainCitation":"(Tushnet, 2017)","noteIndex":0},"citationItems":[{"id":430,"uris":["http://zotero.org/users/local/OnfrXiA2/items/AD9FCS2H"],"uri":["http://zotero.org/users/local/OnfrXiA2/items/AD9FCS2H"],"itemData":{"id":430,"type":"chapter","title":"Comparative constitutional law","container-title":"The Oxford handbook of comparative law","author":[{"family":"Tushnet","given":"Mark"}],"issued":{"date-parts":[["2017"]]}}}],"schema":"https://github.com/citation-style-language/schema/raw/master/csl-citation.json"} (Tushnet, 2017). If an individual is arrested in Italy, he has no right to see a lawyer prior to a hearing before a judge though, he can mention the name of lawyer in writing and notify the local consulate for assistance. In the case of assault, the offender is imprisoned in for 3 months to 3 years based on the category and intent of the crime. In Italy, offenders also have to pay fines along with imprisonment. However, Italy does not use capital or corporate punishment against the crime ADDIN ZOTERO_ITEM CSL_CITATION {"citationID":"nDNQ5uSf","properties":{"formattedCitation":"(Manna & Infante, 2000)","plainCitation":"(Manna & Infante, 2000)","noteIndex":0},"citationItems":[{"id":429,"uris":["http://zotero.org/users/local/OnfrXiA2/items/297ZSDF7"],"uri":["http://zotero.org/users/local/OnfrXiA2/items/297ZSDF7"],"itemData":{"id":429,"type":"book","title":"Criminal Justice Systems in Europe and North America: Italy","publisher":"HEUNI, European Institute for Crime Prevention and Control, affiliated with …","ISBN":"952-5333-00-0","author":[{"family":"Manna","given":"Adelmo"},{"family":"Infante","given":"Enrico"}],"issued":{"date-parts":[["2000"]]}}}],"schema":"https://github.com/citation-style-language/schema/raw/master/csl-citation.json"} (Manna & Infante, 2000). The imprisonment in Italy is basically an attempt to emphasize on the rehabilitation within the prison system. The prisons in Italy are in very good condition and inmates are encouraged to study, work, play and perform their religious activities. They are even provided with incentives based on their good behavior ADDIN ZOTERO_ITEM CSL_CITATION {"citationID":"E5Mk7Uur","properties":{"formattedCitation":"(Voller et al., 2016)","plainCitation":"(Voller et al., 2016)","noteIndex":0},"citationItems":[{"id":431,"uris":["http://zotero.org/users/local/OnfrXiA2/items/TIKA9DF5"],"uri":["http://zotero.org/users/local/OnfrXiA2/items/TIKA9DF5"],"itemData":{"id":431,"type":"article-journal","title":"Health conditions of inmates in Italy","container-title":"BMC public health","page":"1162","volume":"16","issue":"1","author":[{"family":"Voller","given":"Fabio"},{"family":"Silvestri","given":"Caterina"},{"family":"Martino","given":"Gianrocco"},{"family":"Fanti","given":"Eleonora"},{"family":"Bazzerla","given":"Giorgio"},{"family":"Ferrari","given":"Fabio"},{"family":"Grignani","given":"Marco"},{"family":"Libianchi","given":"Sandro"},{"family":"Pagano","given":"Antonio Maria"},{"family":"Scarpa","given":"Franco"}],"issued":{"date-parts":[["2016"]]}}}],"schema":"https://github.com/citation-style-language/schema/raw/master/csl-citation.json"} (Voller et al., 2016). In my view this is a really good practice to give people the chance for brooding and redemption in such a supportive environment. The only wrong thing in this system is the inability of offenders to use their right to call a lawyer before the first judicial hearing.

Cuban law is governed by the civil law or the European Continental law which has been integrate in the socialist legal system. It is a rational system in which the civil laws are codified and provide more predictability for law violations. However, in Cuba, the freedom of expression is limited in both law and practice the policies of government cannot be challenged. The punishment for felony-equivalent crimes is a prison sentence for about one year along with fine of 300 cuotas ADDIN ZOTERO_ITEM CSL_CITATION {"citationID":"IbMGUbb3","properties":{"formattedCitation":"(Inter-American Commission on human Rights, 2000)","plainCitation":"(Inter-American Commission on human Rights, 2000)","noteIndex":0},"citationItems":[{"id":433,"uris":["http://zotero.org/users/local/OnfrXiA2/items/N4G29LMF"],"uri":["http://zotero.org/users/local/OnfrXiA2/items/N4G29LMF"],"itemData":{"id":433,"type":"report","title":"Chapter IV - Cuba","collection-title":"Human Rights Development in the Region","publisher":"Organziation of American States","URL":"https://www.cidh.oas.org/annualrep/99eng/Chapter4.htm","author":[{"family":"Inter-American Commission on human Rights","given":""}],"issued":{"date-parts":[["2000"]]},"accessed":{"date-parts":[["2019",10,13]]}}}],"schema":"https://github.com/citation-style-language/schema/raw/master/csl-citation.json"} (Inter-American Commission on human Rights, 2000). In Cuba, assault is considered as a felony crime and offenders are entitled to same or exceeding punishments based on the standard of the crime.

The assault offenders are prosecuted by provincial courts. Crimes with less serious circumstances are met with lesser punishments and prosecuted by municipal courts. The Cuban law is same for all, either the offender is a citizen or not, if he commits a crime on the land of Cuba, he will have to undergo the same prosecution procedure as the rest ADDIN ZOTERO_ITEM CSL_CITATION {"citationID":"GEiL5dDq","properties":{"formattedCitation":"(Michalowski, n.d.)","plainCitation":"(Michalowski, n.d.)","noteIndex":0},"citationItems":[{"id":432,"uris":["http://zotero.org/users/local/OnfrXiA2/items/4YZBJLRY"],"uri":["http://zotero.org/users/local/OnfrXiA2/items/4YZBJLRY"],"itemData":{"id":432,"type":"report","title":"World Factbook of Criminal Justice Systems - Cuba","publisher":"Cuba Bureau of Justice Statistics","URL":"https://www.bjs.gov/content/pub/pdf/wfbcjsc.pdf","author":[{"family":"Michalowski","given":"Ray"}]}}],"schema":"https://github.com/citation-style-language/schema/raw/master/csl-citation.json"} (Michalowski, n.d.). This treatment with the felons seem ethically right and is not over or under the standardized punishment of the assault. However, the offenders and general public should be able to voice their concern and beliefs for bringing reforms in the government policies and legal system.

Iran’s constitution is governed by Islamic legal system. It is based on Qur’an and countries of Islamic faith follow its instruction and principles of life of Muhammad in formulating their criminal law and the procedural system. It utilizes religious writings and it implies that Islamic law is the divine law. In a legal context, Sharia is used as reference and is the basis of legal system in Islamic countries ADDIN ZOTERO_ITEM CSL_CITATION {"citationID":"jkkWGU3z","properties":{"formattedCitation":"(Dawkins & Server, 2014)","plainCitation":"(Dawkins & Server, 2014)","noteIndex":0},"citationItems":[{"id":417,"uris":["http://zotero.org/users/local/OnfrXiA2/items/NJMTG2XM"],"uri":["http://zotero.org/users/local/OnfrXiA2/items/NJMTG2XM"],"itemData":{"id":417,"type":"article-journal","title":"Families of Law","container-title":"The Encyclopedia of Criminology and Criminal Justice","page":"1-5","author":[{"family":"Dawkins","given":"Marika"},{"family":"Server","given":"JD Ronald"}],"issued":{"date-parts":[["2014"]]}}}],"schema":"https://github.com/citation-style-language/schema/raw/master/csl-citation.json"} (Dawkins & Server, 2014). Iran follows the same legal procedure and according to this system, there is no private or public distinction in the lives of the believers of this faith. This law governs all aspects of their lives and has some notoriety due to its sanctions for being stoned or amputations.

In Iran, the definition of assault and battery is damaging or breaking someone’s limbs or even disabling it and causing him a permanent illness or loss of bodily functions. Under Islamic jurisprudence, the concept of Qisas or Diyat can be implemented in this case both the parties can come to an agreement of equal punishment or blood money and resolve the matter outside the higher court. If not, the matter proceeds to formal prosecution system in courts and the offender can be sentenced from two to five years of imprisonment ADDIN ZOTERO_ITEM CSL_CITATION {"citationID":"EwSdl084","properties":{"formattedCitation":"(Iran Human Rights Documentation Center (IHRDC), 2013)","plainCitation":"(Iran Human Rights Documentation Center (IHRDC), 2013)","noteIndex":0},"citationItems":[{"id":435,"uris":["http://zotero.org/users/local/OnfrXiA2/items/JV2X8PZM"],"uri":["http://zotero.org/users/local/OnfrXiA2/items/JV2X8PZM"],"itemData":{"id":435,"type":"chapter","title":"Book Five","container-title":"Islamic Penal Code of the Islamic Republic of Iran","collection-title":"5","author":[{"family":"Iran Human Rights Documentation Center (IHRDC)","given":""}],"issued":{"date-parts":[["2013"]]}}}],"schema":"https://github.com/citation-style-language/schema/raw/master/csl-citation.json"} (Iran Human Rights Documentation Center (IHRDC), 2013). I believe this is an extremist punishment for cases of assault. This type of legal system restricts people from implementing their rights and takes away their liberty to challenge the policies and prosecution system.

Northern Cheyenne follows the thousands of years old governing system. The governance in a post-Indian Reorganization Act is maintained by people of Cheyenne by accepting to adapt two constitutions and governments. One of them is their traditional legal system while the other one is Western-based system ADDIN ZOTERO_ITEM CSL_CITATION {"citationID":"RZ35eel4","properties":{"formattedCitation":"(Elk & Sheldon, 2010)","plainCitation":"(Elk & Sheldon, 2010)","noteIndex":0},"citationItems":[{"id":440,"uris":["http://zotero.org/users/local/OnfrXiA2/items/YY5GWUI2"],"uri":["http://zotero.org/users/local/OnfrXiA2/items/YY5GWUI2"],"itemData":{"id":440,"type":"article-journal","title":"Northern Cheyenne Tribe: Traditional Law and Constitutional Reform","container-title":"Tribal Law Journal","page":"12-18","volume":"11","author":[{"family":"Elk","given":"Spotted"},{"family":"Sheldon","given":"C."}],"issued":{"date-parts":[["2010"]]}}}],"schema":"https://github.com/citation-style-language/schema/raw/master/csl-citation.json"} (Elk & Sheldon, 2010). According to Northern Cheyenne law and order code, the definition of assault is purposely harming another individual and causing bodily injury by hitting, pushing or by a weapon. It also includes the insulting or provocative kind of physical contact or knowingly pointing a weapon towards another individual either it is loaded or not. It is a Class B offense. However, the aggravated assault includes serious bodily injury with or without a weapon or apprehension of serious harm and is a Class A offense.

According to the tribal code, any offender of Class A or Class B can be subjected to imprisonment, fines, labor or combination. Non-Indians who commit a crime are excluded from the tribal reservation for a time period of three times of the length of time in which he could be incarcerated for the Class B offense. In case of Class A offence, the non-Indians are excluded from the tribal reservation for period not more than year years CITATION NOR13 \l 1033 (NORTHERN CHEYENNE TRIBE, 2013). The criminal activity that has occurred in the region, the pursuit and arrest of the offender will take place within the boundaries of State of Montana are entitled to be returned back to the Northern Cheyenne Reservation.

References

ADDIN ZOTERO_BIBL {"uncited":[],"omitted":[],"custom":[]} CSL_BIBLIOGRAPHY Autralian Government. Legal ethical obligations, misconduct and discovery. , Pub. L. No. ALRC CP 2.

BGS Law. (2015, March 20). The Meaning of Assault Under Australian law. Retrieved October 13, 2019, from BGS Law website: https://www.bsglaw.net/the-meaning-of-assault-under-australian-law/

Dawkins, M., & Server, J. R. (2014). Families of Law. The Encyclopedia of Criminology and Criminal Justice, 1–5.

Dölemeyer, B. (2010). Legal Families. Institut für Europäische Geschichte.

Elk, S., & Sheldon, C. (2010). Northern Cheyenne Tribe: Traditional Law and Constitutional Reform. Tribal Law Journal, 11, 12–18.

Gobbo, M. (2019). The Practice of Comparative Law by the Supreme Courts of Australia and New Zealand. Judicial Cosmopolitanism, 194–216. https://doi.org/10.1163/9789004297593_008

Inter-American Commission on human Rights. (2000). Chapter IV - Cuba. Retrieved from Organziation of American States website: https://www.cidh.oas.org/annualrep/99eng/Chapter4.htm

Iran Human Rights Documentation Center (IHRDC). (2013). Book Five. In 5. Islamic Penal Code of the Islamic Republic of Iran.

Makela, M. (n.d.). Assault Charges SA. Retrieved October 13, 2019, from Go To Court Criminal Lawyers website: https://www.gotocourt.com.au/criminal-law/sa/assault/

Manna, A., & Infante, E. (2000). Criminal Justice Systems in Europe and North America: Italy. HEUNI, European Institute for Crime Prevention and Control, affiliated with ….

Michalowski, R. (n.d.). World Factbook of Criminal Justice Systems—Cuba. Retrieved from Cuba Bureau of Justice Statistics website: https://www.bjs.gov/content/pub/pdf/wfbcjsc.pdf

Tushnet, M. (2017). Comparative constitutional law. In The Oxford handbook of comparative law.

Voller, F., Silvestri, C., Martino, G., Fanti, E., Bazzerla, G., Ferrari, F., … Scarpa, F. (2016). Health conditions of inmates in Italy. BMC Public Health, 16(1), 1162.

BIBLIOGRAPHY