Criminal Law vs International Law, Research Paper Example

Abstract

This paper discusses the American Law, its origins and its early influences. The details of the law and its categories are explained, and the diversity in different laws according to different states. It also goes into the rules of International Law, as well as the United State’s role in it. America’s role in the global community is explained, and how the United States has come to influence a lot of procedures when it comes to international laws. The researcher has delved into the problems towards the American Judicial system in regards to foreign citations of precedents are argued, and past examples are given and discussed; both sides of the argument are observed. Judicial systems of Europe, Liberia and Iran are used as examples in the analysis of the international due process.

Introduction

The American Law originated from the English system of the common law(Fletcher & Sheppard, 2005). This has largely changed over time and many different aspects of the American Law have changed since then. There have been new developments which have lead to the American Judicial system to being unique on its own. There have been other foreign influences in the creation of these specific American Laws; however the United States now as a superpower has been seen to be influencing the globe.

The American Law is complex and has many different parts which are codified and un-codified. Different laws and ways of governing fall into a number of different categories, sometimes these can be seen as conflicting one another(Fletcher & Sheppard, 2005). However, resolutions are found when looking at the United States Constitution which has the ultimate say in what is to be considered the result to a certain hearing.

The international law and the way the international community is developed plays a large role also in American Law(Wilson, 1988). With the United State’s active role in the global community, this cannot be overlooked. However, when it comes to being influenced by other countries in deciding court cases, another issue is raised.

The international due process is seen where the United States Court is to analyze whether if foreign precedent are to be used in the influence for judicial decisions. With America’s development in terms of a unique judicial system, it has still been argued whether or not the use of foreign citations when deciding a court precedent is a positive thing for the United States. It has been decided that judges have the power to derive meanings out of the Constitution and have the authority in running a courtroom however he or she pleased, with the use of foreign citation or not.

American Law

There are many levels to the United States law, and it comes in codified and un-codified forms; the most important form of this is the American Constitution, which is the federal government’s foundation(Fletcher & Sheppard, 2005). The United States Constitution is what sets out the guidelines for federal law. The law of the United States, on both state and federal levels, originated from the common law system of English Law, this was first put to use during the Revolutionary War. However, the United States has developed its own procedures and has incorporated its own type of civil law.

There are four different sources of the United States law. These are namely constitutional law, administrative regulations, constitutional law and the common law(Fletcher & Sheppard, 2005). Since the most important is the United States contradiction, it is made that no law should contradict anything written under the constitutional law. However, when this does happen, congress will enact a statue which conflicts with the United States Constitution; this is called constitutionality. The Supreme Court then may or may not find that certain conflicting law unconstitutional and declare it invalid.

The United States, along with other Commonwealth countries, are familiar with the common law which is the legal tradition of English Law. Like those of common law courts, the courts in the United States use the principle of stare decisis(Fletcher & Sheppard, 2005). This is where judges make the law, and not only apply the law to their court decisions; this makes decisions in the future possible precedent from decisions from past cases. There are different levels and types of American Law; they all fall under different categories and have their own certain procedures. These were developed over time and are what makes the United States unique; in how the law is handled.

Levels of Law

Federal Law

The Federal Law depends on the United States Constitution, this is what gives Congress the power to enact statues; these statues have been codified in the United States Code. A number of these statues give the executive branch agencies the power to be able to create some regulations which are then later published in the Federal Register. A number of lawsuits would use the federal law’s meaning and judicial interpretations of this meaning carry out a legal force which uses the principle of stare decisis(Fletcher & Sheppard, 2005).

State Law

America has different states with their own sets of state constitutions, state governments and their own state courts. These states retain their plenary power which gives them authority to make laws which are not covered by the Constitution, federal statues, or international treaties(Fletcher & Sheppard, 2005). Most states base their law on the common law of England. However, any laws of the state can be overruled when it comes into conflict with the Constitution; this has the ultimate power in decision when it comes to court.

Types of Procedures

The procedural law is where lawyers are to distinguish between procedural law, which is the control of courts and parties to legal cases, and sustentative law, which is what people believe is the law(Fletcher & Sheppard, 2005). This is divided into two different procedures:

Criminal Procedure

This law of criminal procedure in the United States is made up of a large overlay of federal constitutional cases from the past which are also made up of federal and state statues. This provides the foundation for law enforcement to operate their agencies as well as for prison systems to run their operations, also for criminal trials.

Civil Procedure

The civil procedure involves judicial proceedings between private parties regarding lawsuits. This has been adopted by 35 states in America; however each state has made their own modifications(Fletcher & Sheppard, 2005).

International Law

International Law refers to laws which run independent countries and their relationship with each other(Wilson, 1988). This is different from other forms of legal systems where it is concerned with places rather than the citizens of that place. This is where nations often observe each other as well as their relations and make bases for how they are to conduct. This may include: laws in regards to how international institutions are to function and laws which relate individuals to non-state entities which are concerned with the international community. The international law can fall under three different legal disciplines:

• Public international law – this governs the relationship of provinces and international entities which can be seen as an individual or as a group. These can include legal fields of international criminal law, the international humanitarian law, the treaty law and the law of the sea.
• Private international law – this is also known as the conflict of laws which address the issues of which legal jurisdiction a particular case should be heard, and which country’s law should be applied to the issue in the certain case.
• Supranational law – this is where laws of supranational organizations have special distinguishing quality in laws of nation states; this is when laws are not applicable when they come in conflict with the supranational legal system.(Wilson, 1988)

The sources where International Law is based on are the materials and processes of a country where the international community has developed(Bederman, 2001). This was largely influenced by a number of political and legal theories from across the globe. It was during the 20^th century that legal positives were recognized and that a sovereign state is allowed to limit its authority to act by consenting to an agreement in accordance to the view of the International Law(Bederman, 2001).

The International Due Process

The international due process is the analysis of to what extent the courts are to recognize foreign judgments (Carodine 2007). This started with the criticism and debate over whether or not the Supreme Court should rely on foreign precedent to interpret the United States Constitution. This analysis would require United States courts to be able to pass judgment on the overall political and judicial systems of other countries; these decisions would determine whether or not the systems are fair according to American standards. Courts have gone as far as labeling countries “civilized” and “uncivilized” (Carodine, 2007). The countries which are considered “uncivilized” are those whom largely violate the United States Constitutional norm.

The systems of the United Kingdom as well as France have been useful in the United States judicial system (Eastbrook, 2006). According to the due process analysis, the British judicial system is considered fair and just, and the American judicial system has been found to cite British sources in determining precedents in domestic cases. This has seen to be a violation of the separation of powers because it requires foreign policy in the court rooms (Grossman, 2000). However, the United States Court does not recognize any judgment which is considered to be unconstitutional.

There is great difficulty in showing a whole country’s flaws in its judicial system (Carodine, 2007). There is great concern when judging a country for its lack of fundamental fairness, and it’s quite hard to believe that there is such a country which no type of judgment can be considered worthy of American recognition. However, despite these large standards of gathering proof there are countries which did show to lack fairness. The courts of Iran and Liberia had judgments which failed to provide due process.

This was seen in the case of Bridgeway Corp. v. Citibank in Liberia where it was found that there was a refusal to enforce Liberian Judgment (Carodine, 2007). During the time the Liberian judicial system was found to have a high amount of instability and was plagued with unfairness. Bridgeway chose to move the trial to a New York state court for an American enforcement of judgment; however Citibank had removed the case to federal court later on. The case resulted in favor of Citibank with the holding that “as a matter of law, Liberia’s courts did not constitute a system of jurisprudence likely to secure an impartial administration of justice” (qtd. Cardodine, 2007).

Another example is the case of Bank Melli Iran v. Pahlavi. This case had refused to recognize Iranian judgment and its decision was made not very long after President Clinton “imposed tough economic sanctions in Iran” (qtd. Carodine, 2007). A report was made stating that Iran was continuing a state which sponsored terrorism, and there were no cases involving the recognition of human rights practices seen in their political system.

The use of International Law in the American Judicial System

There has been a rise in the use of international law in the judicial decisions in American Courts; specifically its views on humanitarian rights, which can be seen in European Court (Easterbrook, 2006). The nature of reliance is said to be changing; the Court in recent events has turned to foreign courts for support on key positions with regards to major rulings on social issues which are wholly domestic. This matter has changed how United States courts are looking at foreign precedents and how often they are done in increasing.

Throughout America’s history, the use of foreign sources to run courts and solve domestic constitutional questions has been rare(Fletcher & Sheppard, 2005). There have been a few cases that the court rejected the comparative law perspective to the constitutional decision-making. There was a specific case, Stanford v. Kentucky, where there was evidence in which it showed that other countries strongly opposed to the execution of minors, however the court emphasized that it is “American conceptions of decency that are dispositive for interpreting the Eighth Amendment”(qtd. Bederman, 2001). There were other several cases in which foreign ideas were rejected and other nations’ experiences with the same type of cases or the same issues were not well looked into.

Recently, however, the court has been turning to foreign sources for their use in supporting contestable propositions which may be found in the constitutional law. The case of Atkins v. Virginia, which was similar to that of Stanford v. Kentucky, the court reversed its’ perspective on the issue, and the sentence was preceded through the reliance of other nations(Easterbrook, 2006). It was stated that there was an overwhelmingly large disapproval throughout foreign sources in the social issue regarding the execution of mentally retarded offenders, and this practice was from then on found to be unconstitutional, which countries such as Britain and France would agree on (Grossman, 2000).

The case of Grutter v. Bollinger, there was evidence on the reliance of foreign sources with the result of the hearing which supported the proposition those race-conscious measures should last in court hearings to achieve their intended objectives(Easterbrook, 2006). Additionally, the case of Lawrence v. Texas which was in regards to laws which sanctioned certain intimate same-sex relationship conduct violated the constitution; the court had cited a British Parliament report, and the decision was based on the European Court of Human Rights, not the American.

Many may choose to agree or disagree with the results of the cases stated above; it is about the methodology of the issue, though not the result. There is an unmistakable trend in the American Court system in relying on foreign sources to resolve domestic constitutional questions(Fletcher & Sheppard, 2005). This may be in connection with the age of globalization, and how foreign ties are strengthening and deepening. This causes governments to interact more with each other in terms of facing challenges of their own. America has seen that there is much to learn from foreign countries.

American judicial reasoning should open up more to international law and let foreign influences play a part in some of the decision making. There are some areas of the United States Constitution where foreign and international law are made relevant; this is found by statue or treaty, by considerations of comity, through private commercial agreement of parties, or even principles of the common law (Grossman, 2000).

However, Grossman (2006) argues that courts may go too far with the reliance upon international, mainly European precedents in terms of resolving social issues; this poses a problem with the Constitution and can raise three issues:

1. The over-reliance of the American courts to foreign precedents may put judicial decisions in risk of compromising in the eyes of the American public. When judges are to rely too much on foreign sources the bases for judicial decision-making may be at risk of moving further from democratic accountability as well as popular acceptance. There is a danger with the reliance on foreign sources on precedents which may cause perceptions of judges to become out of touch with American culture(Easterbrook, 2006).
2. The over-reliance of these European precedents largely conflicts with the American history’s Constitution. The United States Constitution was made unique in its way of creating a federal government which has limited and enumerated powers. This was seen as breaking away from the European model of hierarchy; the American feudalism is a rejection of European values which were set at that time(Easterbrook, 2006).
3. The third problem is largely methodological. This is where the questions of what, why and how are asked. Judges have to clearly look at what country they are observing for foreign precedents, also why this was the case in that particular country, and how the precedents came around. This is very difficult when facing an American social issue because the diversity of culture with America as compared to other countries is large(Easterbrook, 2006).

The use of foreign sources for judicial decisions has its issues, yet it is being used widely in courts today for a reason. This reason is most probably more to do with globalization and America’s place in it. However, this practice does counter with the United States Constitution which is about human freedom and self-governance. These traditions should be embraced by the American Court system, yet also placed in well balance with foreign sources(Fletcher & Sheppard, 2005).

There are a lot of examples of foreign sources being used in the American Court system, as discussed above. The Justice of Supreme Court has been believed to be citing foreign authority ever since the nation’s birth; however these citations were very rare as compared to now(Fletcher & Sheppard, 2005). The objections to this practice were mainly because citations of such foreign opinions were hindering America as a nation to sever from ties to its colonial power(Easterbrook, 2006).

This can be useful, however, if the American Court system were to look into foreign sources of precedents and assess whether their results were poor or beneficial; this would be a good way of basing decisions (Grossman, 2000). Judges have ultimately the last word when the Constitution is a law. The challenge here is to come up with a theory to explain why judges can make decisions and their words are to be binding even with a lot of people in the United States disagree; this is very unfair seeing that you cannot vote a judge out of office.

If foreign citations may cause the public to lose faith in the American Judicial system, should they still be used? This is a hard question to answer, because there will always be mixed views on these foreign opinions(Easterbrook, 2006). It should be a matter of result, not methodology, in contrary to what was mentioned above.

Since judges are to make ultimate decisions, before looking into a foreign citation for a precedent, the results of that citation must also be observed. Additionally, the country from which the precedent originated is very important in deciding its relevance. All these must be looked into before deciding whether or not it is best for a foreign citation to be used for a court decision in the American Judicial system (Grossman, 2000). The public is concerned more with the results and the effectiveness of the precedents, not its methodology.

References

Bederman, D.J. (2001).International Law in Antiquity: David J. Bederman. Cambridge, England: Cambridge University Press.

Carodine, M.D. (2007). Political Judging: When Due Process Goes International.William and Mary Law Review 48.4 (2007)

Grossman, G.S.(2000). The Spirit of American Law. (Boulder, CO: Westview Press.

Easterbrook, F.H. (2006). Foreign Sources and the American Constitution.Harvard Journal of Law & Public Policy, 30(1).

Fletcher, G.P., & Sheppard, S. (2005).American Law in a Global Context: The Basics. New York: Oxford University Press.

Wilson, H.A. (1988).International Law and the Use of Force by National Liberation Movements. Oxford: Clarendon Press.