Legal Systems And Corporal Punishment In Different Countries

According to Reichel, “today legal scholars identify three or four legal traditions (some call them legal families)”. They are the following: Common, Islamic, and Eastern Asia traditions. Among the countries which represent them we can find U. A. E. , China, England. Common legal traditions are represented in England. China can be named the representative of the legal traditions of East Asia. Islamic legal traditions can be observed in the UAE. The above mentioned countries are the leading ones in representing legal traditions. First, we need to define the term - legal tradition. According to Tetley, we can define a legal tradition not only as a set of rules of law about contracts, corporations, and crimes, but as something deeper, involving sense a reflection of that tradition. ” In other words, it is a set of deep-seated, traditionally determined notions of the nature of law, the role of law in society and the state, the legal system proper functioning and organization, and how law is or should be studied, formed, enhanced, applied and taught. Thus, legal tradition is used to link the legal system to the culture of each country. Common law appeared in England in the 11th century as the legal tradition. The principles of common law take the greatest part in reported judgments of the higher courts, which can be related to specific fact situations which arise in disputes that courts have adjudicated.

Common law is the basis of private law in the following countries: UK, US but only in 49 states and in some Canadian provinces as all of them were earlier British colonies. In addition to England and its former colonies, several legal systems have been transformed into common law traditions: the Panama Canal Zone, Arizona, Guyana, California, Florida, Texas and other former Spanish possessions, New Mexico. Justice is an important feature of common law. In England, there has long been a practice of direct appeal to the king or his chief legal administrator, The Lord Chancellor. The legal tradition of East Asia combines a unique combination of influences, both religious and secular. Japan was the first country to modernize its legal system. This country has done so based on the experience of the West, using parts of the French, but mostly German Civil code.

Traditional Chinese law gave way to Westernization in the last years of the Qing dynasty. This was expressed in six codes of private law, based mainly on the Japanese model of German law. Today Taiwanese law retains the closest relationship to the codifications from that period. The reason for it was the split into nationalist system of Chiang Kai-shek and communist system of Mao Zedong. Soviet socialist law heavily influences nowadays legal infrastructure of the People’s Republic of China. Administrative law works to the detriment of private law rights. However, today, thanks to the process of rapid industrialization, China is carrying out reforms in the field of economic rights. The new Treaty code of 1999 was a departure from administrative law. Moreover, after fifteen years of negotiations, China joined the world Trade Organization in 2001. The definition of law in Islam differs from other legal systems. It is not perceived positively in comparison with the law in other countries. Although many predominantly Muslim countries have adopted positive laws modelled on European civil law systems, Islamic Jurisprudence continues to regulate legislation in areas such as marriage, divorce, child custody and inheritance. There are also rules of law that are all relevant in the context of the discussion of trafficking. Thus, it is of great importance for the society to differentiate details of legal traditions in different countries. According to United Nations, Islamic law has a divine basis that makes it different from common and civil law systems. Therefore, civil law system can be observed as the “derivative” from judicial decisions in legal systems of UK and US that makes it different from Islamic law.

Rather, Islamic law is characterized by divine nature. Islam is an Arabic word that means "submission" or "submission to the will of God. " The law of Muslims can be named differently, but the most commonly used one is Sharia that is equivalent to the ways of leading people. There are four main sources of Sharia, which are being discussed further. The first and primary source is the Koran, the holy book of Islam. “The Koran, which is considered to be the literal word of God, was revealed to the Prophet Muhammad as a guide for human behavior and social relations. ” As such, the laws of the Quran regulate religious duties as well as legal relations, or legal transactions. Islamic law distinguishes between ibadat (“committed obligations”) and Muamalat ("legal relations"). Ibadat includes the five pillars of Islam, or religious obligations, while Muamalat includes Family law (divorce, marriage, child custody, wills and inheritance), torts, property law and contracts; the crimes and punishments law; and the war and peace law. Among more then 6236 verses of Quran at least 500 consist of legal rules on different aspects of law: criminal law, common law, family law, inheritance law, etc. As stated in the Quran, 5: 48: "we made for you a law, so follow it. " The second source of Islamic law is hadith (also called Sunnah), which consists of the acts and words of the prophet Muhammad, which were recorded by his followers after his death. The authority of the Sunnah, also known as the traditions of the Prophet, stems from the prophecy of Muhammad proclaimed in the Quran, 4:59: “whoever you believe, you should obey God and his messenger. ” As we see, the Sunnah gives us the explanation of Koran’s General precepts and provisions. The base for this was formed using the traditions of the Prophet, which were collected during the life and experiences. Thus, we can distinguish two types of Sunnah: Sunnah by words and Sunnah by deeds. The ijma, or consensus of Islamic scholars, is the third source of Islamic law.

The consent of Muslim lawyers or the Muslim community is the rule of law. The fourth main base of Islamic law consists of Qiyas, which is reasoning that uses analogy to implement precedents which were made by the divine texts to new problems. To apply qiyas, there must be four elements: asl or original subject; far, or a new subject; illah, or a common cause in both; and imaging hukm, or a rule derived from qiyas. There are so many sources, which influence Islamic law, but “consequently, sources of law in Islam are based on two texts (the Koran and the Hadith), a declaratory authority (ijma) and a means of interpretation (qisas). ” In case of conflict between these sources, there is a procedure to be followed. Prevail material sources or the binding texts (the Quran and Sunnah). Otherwise, an explanation may be required. A comparative aspect of the work is the existence and application of the death penalty, regardless of whether the deprivation of liberty is more rehabilitative or punitive. There are different ways of applying the death penalty. The most widely used Western methods are lethal injection, electric shock and hanging. Yet in some countries, the death penalty is carried out in the form of execution and beheading.

Punishment is applied mainly for the most serious crimes, such as treason or murder. The use of the death penalty and its legality have been steadily declining since the early 20th century, but many countries still use it. Although abolished in the UK in a few Commonwealth countries, there is still the death penalty and the judicial Committee of the private Council in London remains the highest appellate body for these cases. In the 1500s, eight capital crimes were officially defined, including murder, treason, theft, robbery, arson and rape. In accordance with the murder Act of 1752 a person convicted of murder must be hanged within 48 hours. The public hanging was stopped by the prisons act of 1868. The children and youth act of 1933 prohibits the application of the death penalty to persons under the age of 18 at the time of the Commission of the offence. In April 1948, the house of Commons voted to suspend the death penalty for five years, but this decision was reversed by the house of lords. In 1965, the murder Act abolished the death penalty for all crimes except piracy with violence, arson in the Royal docks and treason. This was confirmed in 1969 after a five-year review of the act. The 1998 law on human rights has incorporated the European Convention on human rights (ECHR) in UK law, banning capital punishment for murder except "in time of war or of imminent threat of war". In January 1999, the Minister of the interior, Jack Straw, signed the sixth ECHR Protocol which formally was abolishing the death penalty in peacetime. In December 1999, the second optional Protocol of ICCPR was ratified by the government. This was followed by the ratification of Protocol 13 in 2002, which allowed the total abolition of the death penalty in the UK, including the war period. Many believe that the death penalty is a violation of the right to life guaranteed by the ECHR and the ICCPR. At the ethical level, opponents of the death penalty argue that the death penalty is nothing more than state-sponsored murder, which is as morally reprehensible as the crime itself.

There are also concerns about the irrevocability of punishment, given the possibility of the fallacy of the criminal justice system. While many groups oppose any reintroduction of the death penalty, its reinstatement remains popular among the public. Those who advocate its re-introduction, refer to natural justice and its value as a deterrent. However, this apparent public support is not reflected in the political establishment, and any movement for re-imposition of punishment is unlikely to survive a vote in the house of Commons. Indeed, despite three "free" votes over the past 20 years, MPs rejected all calls for its restoration.

Moreover, the death penalty was clearly contrary to the current international legal obligations of the United Kingdom. In November 2010, the UN General Assembly again called for a moratorium on the use of the death penalty. Noting the regional initiatives and ongoing national debate on the death penalty, the UN called on States to limit the use of the death penalty in order to reduce the number of crimes for which it can be applied, as well as "to introduce a moratorium on executions with a view to abolishing the death penalty". States that have abolished the death penalty are encouraged not to reintroduce it. The draft resolution was adopted by 107 votes to 38, with 36 abstentions.

In October 2010, the coalition government launched a new strategy for the "global abolition of the death penalty". The main goal is: a further increase in the number of countries that abolished the death penalty, or countries with a moratorium on the death penalty. Moreover, further restrictions on the death penalty use in countries that retained the death penalty and reduce the number of executions in order to follow the compliance with the minimum standards of the EU in the countries that retained the death penalty. The government States that it intends to work towards these goals through three main channels: the UN and the EU and bilateral initiatives. Foreign Minister Lord Howell acknowledged that the death penalty still persists in 22 Commonwealth countries. He agreed that this was "a matter of serious concern" and stated that the government would continue to work towards the abolition of the death penalty. According to Amnesty international (2011), after a decade of progress in abolishing the death penalty, countries that continue to use the death penalty are becoming increasingly isolated. Over the past 10 years, 31 countries have abolished the death penalty in law or in practice. However, China continues to support the death penalty. In 2010, Amnesty international was unable to confirm full data on the use of the death penalty in China, although it had some information. According to Salil Shetty, Secretary General of Amnesty International, he discussed China to be the one which wants to take the leading world positions in economics, finance and development, however, it take the lead in death penalty, executing the amount of people which isn’t executed by any other country in the world. Amnesty international's investigation reveals that hundreds of documented death penalty cases are missing from the national online database of the court. Although initially this base was seen as a “decisive step towards openness". This base is regularly announced as evidence that the country's judicial system has nothing to hide, but in fact, it is not. Database of China contains only a small fraction of the thousands of death sentences, which, according to the organization "Amnesty international", are submitted annually in China, which reflects the fact that the Chinese government continues to maintain almost complete secrecy as regards the number of people sentenced to death and executed in the country. Information related to the death penalty in China is considered a “state secret”. Amnesty International has discovered public news reports in which at least 931 people were executed between 2014 and 2016 (only part of the total number of executions), but only 85 of them are found in the state database. The database also does not list foreign nationals who have been sentenced to death for drug-related offences. Although the media reported at least 11 executions of foreign nationals. There are also numerous cases involving “terrorism” and drug-related crimes. As a result, we can see that China is a world leader in executing people even death penalty gets in contradiction with international legal standards.

In the case of the United Arab Emirates, the authorities have refrained from carrying out executions. According to the laws of the Emirate, the death penalty is provided for many crimes, and the only way of execution is execution. The current law theoretically permits the death penalty for the following crimes: treason, espionage, murder, successful suicide, arson resulting in death, acts of indecent conduct leading to death, import of nuclear material / waste into the state environment, perjury, adultery, apostasy, blasphemy resulting from erroneous execution, rape, armed robbery, kidnapping, terrorism, sodomy, homosexuality, drugs and entry into the Islamic state of Iraq and the Levant, although death sentences are often commuted to life imprisonment. Foreign nationals and UAE nationals may also be executed for crimes.