LWZ112 Comparative Legal Systems

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LWZ112 Comparative Legal Systems

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LWZ112 Comparative Legal Systems

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Course Code: LWZ112
University: Charles Darwin University

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Country: Australia

Question:

Demonstrate a highly accurate and comprehensive knowledge of the relevant law, and a high ability to analyse and apply the law and other relevant material to answer the question asked; demonstrate originality or flair; work is interesting, exciting, challenging, well read or scholarly.
Every piece of information that does not come from the problem, or from the student’s own life experience, is footnoted, regardless of whether the information isparaphrased or quoted directly. The footnotes contain appropriate legal authorities. The formatting of the footnotes follows the Australian Guide to Legal Citation exactly. Pinpoint citations are used whenever possible.
Compare the sources of authority in three legal systems: Soviet Legal System, Modern Legal System of Kazakhstan and Modern Legal System of Russia. How are they similar and how are they different?

Answer:

Differences and Similarities:
The Soviet Law also known as the socialist law was developed in Russia. It is worthwhile to refer here that, the important features of the Soviet Law were implemented after the Russian Revolution of 1917 came into effect. As a result of the emergence of the new government system, the elected officials of the government were replaced by the leaders of their own. In modern era, under the Soviet Union, there is an existence of two independent legal systems. However, each of the legal systems was functioning independently in correspondence to each other without bearing single resemblance to the other. The Soviet Union Legal System is such that it is considered to be arbitrary and repressive. This is due to the reason that, from the very beginning the Soviet Legal System has been punishing the critics during that particular regime. On the other hand, the Modern Legal System of Russia has been has been enacting, enforcing and adjudicating the disputes arising among the communities and the institutions in modern era.
It is noteworthy to mention here that the Soviet Legal System and the Modern Legal System of Russia can be differentiated in the context of arbitrary process and political grounds. In this regard, mention can be made about the Soviet Legal policy that has been confronting and differentiating these two legal systems for a long time. It is worth mentioning that the nature of the cases is such that they do not necessarily fall into a single legal system. Instead there is an existence of grey area of uncertainty which unexpectedly takes the shape of a political character. Therefore, Soviet Legal Policy has emphasized upon creating a bridge between these two legal systems- the Soviet Legal System and the Modern Legal System of Russia. In such process, the Soviet Legal Policy has created a statutory framework for the efficient functioning of each of the legal systems mentioned above. It is worthwhile to mention here that the Soviet Legal System represented a repressive legal system and was limited by the application of law and other established procedures. It is worth noting that, the material interests and subject-matter of the first and second legal system may not always coincide. It is evident that, from the very beginning, the Soviet Legal System was totally aware of the existing political conflicts and attempts. On the other hand, the Modern Legal System of Russia has formulated regulations for the purpose of mediating these conflicts. The Modern Legal System of Russia has provided an opportunity to witness the terms depicted in the contracts and divergence existing between the two legal systems. as a result of such varying interest of the bureaucracies; there have been changes in legal administrative system and maintenance of law and order. This is due to this reason; there has been a shift of power from one legal system to another.
Therefore in order to emphasize upon the similarities and differences between the Soviet Legal System and the Modern Legal System of Russia; it is important to pay heed on the process of policy making in regard to the historical background and the structure of Soviet law and legal system of Russia. Traditionally, the Russian Legal System belongs to the civil legal system that has been derived from the rules, practices and principles of the ancient Roman System. There are some similarities between Soviet Legal System and the Modern Legal System of Russia as well. This is because the fundamentals of the Soviet Legal System are quite familiar with the Legal System of Russia. However, the Legal System of Russia is very much accustomed with the common legal system. After proper examination of the fundamentals of the Soviet Legal System, there has been determination regarding the fact that whether the characteristics of the civil-legal systems are uniquely similar to that of the Soviet legal system. Furthermore, mention can be made about the existence of parallel legal system in Russia. It is noteworthy to mention here that, there is no existence of parallel laws within the purview of Russian Legal System; rather a large part of the Russian legal heritage has been occupied by the Soviet in the year 1917.
According to the perspective of the modern scholars, the civil law system of the Soviet Legal System encouraged autocracy to the large extent; while the common law system of the Modern Legal System of Russia promoted the subject-matter of democracy. In this regard, it is important to mention the principles of the common and civil legal systems. The common legal system comprises of “Rex no debet esse sub homine sed sub Deo et Lege” which means that “the kind should not serve under the patronage of any man, but under the rule of law and God. The principle of civil legal system is based upon the concept of “Quod principi placuit legis habet vigorem” which means that “the will of the sovereign can apply the force of the law”. The Soviet Legal System was based upon the civil legal system and as a result of this, greater authority was entrusted upon the state officials which the common legal system failed to do. It is worth mentioning that, the civil legal system and the common legal system differ from each other in regard to the origin of laws. The Modern Legal System of Russia follows the common legal system which is dependent upon judge made laws based on the previous decisions. However, in the case of Soviet Legal System, the legal principles are as a result of the official enactments on the part of the executive and the legislature.
It is worthwhile to refer here that, during the period of the Soviet, the Modern Legal System of Russia was held to be a socialist law. After the downfall of the Soviet Union, the Modern Legal System of Russia was regarded as the civil legal system. In modern context, the legal system of Russia has been considered to be a civil procedural law which is a mix of both common law and civil legal system. In this context, discussions can be made in regard to the civil law system of the Soviet Legal System. In such process, much importance has been given to the official reports and documents and in this regard, the administrative authorities are entrusted with discretionary powers. From the very beginning, the Soviet Legal System has displayed various unique characteristics that have been derived from the socialist economy of the USSR reflecting within the ideology of Marxism-Leninism.
It is important to refer here that, the legal approaches on the part of the legal system of Russia can be referred to as normative and positivist. However, the Soviet legal system has been considered to be dogmatic and unrealistic. In spite of all these, the similarities are based upon the fact that the modern Russian Philosophy of Law has been under the influence of the Soviet Theory of the State and the Law. Therefore, in this part distinctions can be made in regard to the theory and philosophy of law. It is worthwhile to refer here that, in the year 1870; the Theory of Law has replaced the natural theory of law. According to the principles of the official doctrine, there could not be any law without the existence of the state. The Soviet Legal System and the Modern Legal System of Russia can be differentiated in regard to the existing discrepancies between the law and the act of the legislation. However, it can be observed that during the period of Soviet Legal System, the application of socialist laws were not criticized by the individuals on the ground that these socialist laws do not comply with the natural law of the land.
The Soviet Legal system introduced certain new ideas and regulations however; these ideas were not implemented properly merely on the fact that, the new concepts and ideas on the part of the Soviet Legal System which were quite dogmatic and in ideological. As a result of this, the traditional approach on the part of the Soviet Legal System has been widely criticized by many critics on the ground of unconstitutionality. Due to this reason there has been dissolution of the Soviet Union which led to the discussion of a valid distinction. The legal approach on the part of the Soviet Legal System was criticized because of the fact that these were non-realistic, dogmatic and primitive. Modern legal system of Russia has initiated new rules and regulations which do not comply with these traditional and primitive laws however; most of these laws were adopted from the traditional legal system of the Soviet.
It is evident that, the modern Russian philosophy of law has formed under the great influence of the Soviet Theory of the State and law. However, in recent era, with historical changes and changes in political and scientific trends of the country, much emphasis has been laid upon the emergence of modern trends, ideas and personalities.
How are the Soviet legal System and the modern legal system of Russia different from the legal system of Kazakhstan?
From the very beginning, the legal system of Kazakhstan has been established in regard to the traditional system of the continental, Roman-Germanic family of laws. As a result of this the legal system of Kazakhstan is totally different from that of the legal system of the Soviet Union and the modern legal system of Russia. However, there are some similarities with the legal system of Kazakhstan with that of the modern legal system of Russia because it has been greatly influenced by the theory of legal practice of the Russian Federation. In this regard, it has been revealed by the Constitution that, the existing legal system of Kazakhstan has included constitutional norms and legislative frameworks as well as the normative degrees of the Constitutional Council.
It is evident that, ratified treaties and international agreements have been given much priority over the existing domestic laws. As a result of it, these laws were enforced directly in regard to the international agreement. In this regard, it is worthwhile to refer here that, the legal system of Kazakhstan can be considered to be similar to the modern legal system of Russia in the sense that, the existing normative legal acts within it has been maintaining the constitutional guarantees from the beginning. In this context, the legislative and the normative legal acts of the legal system of Kazakhstan has been broadly divided into administrative, constitutional and procedural laws. The legal system of Kazakhstan has been established in such a way that judges is given the absolute power in law making. The administrative courts and the tribunals are given the power to make decisions while the authority to preside over the court has been entrusted to the judges and the jury acting on the behalf of the court. In this regard, it is worthwhile to refer here that, due to this reason; no other administrative and political bodies are allowed to perform the duties of the judges on their behalf. The execution of the judicial power is only vested on the judges. The judges were independent and could apply the laws accordingly which was not prevalent during the legal system of Soviet and modern Russia.
It is worthwhile to refer here that the legal system of the Soviet and modern legal system of Russia is such that it can create a system of control in modern society. In this process, the methods and the system of rulemaking and enforcement shall reflect considerably. As a result of introduction of new procedures in law and rule making; the mechanism bodies on the part of the States have been optimized and standardized. The legal system of Kazakhstan has paved the way for the implementation of various methods of legal reasoning and monitoring for the purpose of allowing the opinion of the public in the course of legal policy making. It is important on the part of the regulatory bodies to carry on scientific examinations of the draft regulations with the determination of specific criteria. These have been possible with the advent of the Kazakhstan legal system. The legal system of Kazakhstan was different from that of the two abovementioned systems of law on the ground that, it has initiated new approaches for the purpose of providing accounting of financial, economic, social and political implications regarding the existing regulations. However, in spite of all these, it is necessary to introduce scientific expertise on the application of international drafts and treaties of the Republic of Kazakhstan.
The legal system of Kazakhstan is composed of codified laws. With the advent of legislative strengthening and the subject-matter of consolidated law, the concept of legal regulation has taken new and complex attire. In regard to codification of law, the systemization of law should be formulated in such a manner   that the issues in the existing areas of law should be necessarily addressed. In the areas involving homogenous social relations and in areas where codifications cannot be applied without efficient regulations; adoption of codes should be presided by enforcement practices with efficient monitoring, evaluation and analysis of systematic basis. The legal system of Kazakhstan is such that the legal system clearly depicted in the Constitution regarding the foundations of economic and political freedom formed on the basis of rule of law. As a result of which, there has been creative initiative on the part of the law makers with the modernization of ancient era.
During the era of the legal system of Kazakhstan, economic growth and business reached at a considerable height which ultimately led to the formation of the legislation of the country. The legal system of Kazakhstan became the foundation of the country’s legal system which was dynamic but somehow non-uniform in nature. Mention can be made regarding the fact that, in a modern era, there is a requirement to address the underlying multiplicity and the existing cumbersome in the legislative frameworks. However, the legal system of Kazakhstan has specified dictates for the purpose of uplifting the economic interests of the country. It is known to all that in a modern society, in the existence of complex legislative frameworks, the implementation of new interests can be carried out through the application of formal mechanisms.
In the conclusion, it can be stated that it is important to implement new legal frameworks by replacing the age old traditional legal system. However, it is important to keep in mind that new laws can also be adopted from old ones. In spite of all these it is important to improve the level of legal technique with proper determination of the existing state regulations. There is a need to develop uniform reform policy which the legal system of Soviet failed to introduce however; it was attempted by the legal system of Russia. Therefore a uniform legal policy can be formulated in regard to the short and long term prospects of the Kazakhstan legal system.
References:
Abdikerimova, Aynur A. “Contemporary Development Trends in Administrative-Legal Relations in the System of Administrative Justice.” International Journal of Environmental and Science Education 11.11 (2016): 4782-4789.
Allison, Roy. “Russia and the post-2014 international legal order: revisionism and realpolitik.” International affairs 93.3 (2017): 519-543.
Cooley, Alexander. “Countering democratic norms.” Journal of Democracy 26.3 (2015): 49-63.
Gans-Morse, Jordan. “Demand for Law and the Security of Property Rights: The Case of Post-Soviet Russia.” American Political Science Review 111.2 (2017): 338-359.
Gilligan, Conor. “Fake Crime and Real Punishment: How a Weak Judiciary Has Held Back Development in Russia.” (2017).
Nelken, David. “Post-Soviet criminal justice and comparative criminology.” Theoretical Criminology 19.2 (2015): 289-295.
Sattorova, Mavluda. “The Constitutional Systems of the Independent Central Asian States: A Contextual Analysis.” (2018): 686-690.
Solomon Jr, Peter H. “Post-Soviet criminal justice: The persistence of distorted neo-inquisitorialism.” Theoretical Criminology 19.2 (2015): 159-178.

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