The contemporary society can be described as a multi-layered system that functions effectively due to the existence of multiple institutions regulating its development and cooperation between all individuals. The Justice system belongs to these fundamentals as it guarantees protection to people. Regarding the increased complexity of relations in the modern world, there are civil and criminal laws that exist to differentiate various cases and introduce appropriate punishments for lawbreakers not insulting their basic rights and preserving the chance to integrate with the society in the future. That is why it is critical to realize the differences between these two laws existing in the justice system.
Civil and criminal law are two separate entities that have certain regulations and appropriate punishments for various offenses. The first one deals with a set of behaviors or actions that injure an individual or another private party, organization, or corporation (Erstad, 2018). Such cases involve property damage, breach of contract, negligence, or malpractice (Legal Aid Society, n.d.). Criminal law presupposes the work with acts that are considered a threat or offense against the public, society, and the state, even if victims of the wrong behavior are individuals (Erstad, 2018). Murders, assaults, and thefts are investigated by criminal law.
Both civil lawsuits and criminal trials rest on the idea that all sorts of crimes should be proved to avoid injustice and other failures. However, there is a significant difference in the standards that comes from the severity of offenses and punishments provided for them.
Civil cases traditionally presuppose lower standards of proof, such as the preponderance of the evidence (Legal Aid Society, n.d.). It means that a court considers a crime using the idea that some act is more probable to occur in a certain way than not (Erstad, 2018). Regarding criminal law, all crimes should be proved using credible evidence and solid facts because of the existing presumption of innocence (Erstad, 2018). These differences impact the work, of course, significantly.
In criminal courts, the government is the main accuser. It files a case against a person for committing a crime who is called a defendant (Reid, 2016). During the process, the government must provide evidence proving that a defendant is guilty beyond a reasonable doubt (Legal Aid Society, n.d.).
If the guilt is proven, he/she will be provided with the punishment and imprisoned. Otherwise, in civil court, one party sues against another party because of the existence of a particular problem between them; organizations, business agencies, and companies can also become parties (Erstad, 2018). If an individual loses a civil case, he/she might be obliged to pay a fine or return a particular property (Legal Aid Society, n.d.). Civil law does not presuppose imprisonment.
Finally, there is a critical difference between capital and non-capital offenses that should be considered while speaking about courts. The capital offense is determined as a serious crime that can be provided with the death penalty as an appropriate punishment; usually, the term is applied to murders (Reid, 2016). At the same time, non-capital crimes presuppose less severe penalties because of their nature. Regarding the client’s case involving her son breaking the front window of the restaurant, it can be considered a non-capital offense that will not presuppose a lengthy punishment.
Altogether, there is a significant divergence between civil and criminal law as they deal with different cases resting on their severity. The suggested offense can be considered a non-capital one as the boy broke the window of the restaurant, which is not a serious crime. Regarding the information provided above, the restaurant may file a case against him, but only a fine will be considered an appropriate punishment for this incident.
Hong Kong’s legal proceedings (and law in general) are based on nomocracy. The concept simply means that the rule of law is the supreme authority in the land. The rule referred to in this case defines the behaviour of individuals in a given society. The law is contained in Hong Kong’s basic legal structure. It is the document that serves as the constitution of the People’s Republic of China.1 The legal system used in this country is similar to those used in the Commonwealth nations. However, the case is different in the People’s Republic of China. In this country, the legal framework varies with those used in other parts of the world with regards to ‘akin’. The variation is brought about by the influence of socialist laws and Marxist ideologies on Chinese society.2
There are various legal statutes used in Hong Kong. They include, among others, criminal, civil, constitutional, and administrative laws. In this paper, the author will dwell on criminal and civil cases. The two are some of the major laws used in Hong Kong.
According to Young, the difference between the two laws is pinned on the objects pursued by the legal frameworks.3 The aim of a given law is either to redress or to punish. To this end, it is noted that the fundamental objective of civil law is to redress. Such a goal is achieved by compelling the wrongdoer to compensate the affected individual. On the other hand, criminal law is used to punish the culprit. It does this by providing a strong inducement for reformation. The objective is to prove to the public that wrong deeds will always be punished.4
Criminal Proceedings in Hong Kong
Overview
In Hong Kong, a criminal prosecution can be initiated individually. However, in most cases, it is the Secretary of Justice who initiates a formal criminal hearing. There are two things that this official must consider before putting into motion a formal prosecution. First, they must ensure that there is strong evidence that will make the case stand in a court of law. Second, the secretary must ensure that the case benefits the society as a whole.5 To this end, the officer should make sure that the proceedings are not carried out to benefit one individual. Rather, they should improve the welfare of the community.
There are a set of rules involved in the prosecution process. After collecting enough evidence, the case is then presented by the secretary to an impartial court. The accused is given an opportunity to defend themselves during the court proceedings. After hearing, the court is expected to determine whether the defendant is guilty or not. Depending on the outcome, the legal authority will provide adequate remedies and appropriate orders to address the issue. Such remedies may lead to a procedural law, substantive ruling, or judgment.6
Specific Cases
A perfect example of a criminal case is State vs. Carol Chung. In this case, Carol Chung was accused of drug trafficking. She was arrested in Hong Kong Airport with 52 grams of cocaine. She claimed that it was a medicine she was given in a clinic in France to treat a mental condition. Her husband had abandoned Chung and her children. She informed the authorities that the cocaine was meant to help her cope with job and children following the breakdown of her marriage.
Chung was arrested and charged with one count of trafficking in dangerous drugs, namely cocaine. The offence was contrary to s4(1)(a) and (3) of the Dangerous Drugs Ordinance Cap 134. Chung’s barrister addressed the judge and requested the client to be charged on the basis of the first account of her arrest. The lawyer insisted that the drug was for her own use to help her cope with life. The judge refused to grant the request made by the barrister. Instead, the lady was sentenced to 8 years imprisonment.
There are many options available in addressing Chung’s case. Some of them are analysed below:
Principle of Presumption of Innocence
In relation to this provision, Chui asserts that every person is assumed to be innocent until proven otherwise.7 In this case, the judge or the Secretary for Justice bears the burden of proof. The burden is always in the hands of the prosecutor and not the accused. The latter may decide to remain silent. In addition, they may request for writ of habeas corpus. The individual charged with a given offence may also demand for their right of bail. In some instances, the defendant may plead with the court to exercise their right to self-incrimination during the procedural process. All of these are the various options that Chung can choose from.8
To implicate the accused, the evidence must fulfil the element of beyond reasonable doubt. On the other hand, this principle of beyond reasonable doubt must be consistent with the presumptions made in the charges preferred against the offender. In this context, Chung should be given an opportunity to defend her innocence and to comment on anything brought before the court against her.9
The presumption is very crucial in any case. The same is made evident in the R v Oakes [1986] 1S.C.R. 103 case. The case of Edwin Oaks shares some similarities with Chung’s charges. The presumption protects the accused in different ways. The fundamental liberty and human dignity is preserved under this element. The gravity of the consequences of criminal offences is devastating. Among others, criminal misconducts can lead to loss of physical liberty. They can also result in social stigma and ostracism from the society. In light of these consequences, the presumption element must ensure that the accused is subjected to a fair trial until they are proven guilty beyond reasonable doubt.10
The principle of presumption is accorded recognition in both government and public domains. Various statutes confirm this assertion. One of them is Hong Kong’s Bill of Rights Ordinance. Under article 11(1), the constitution provides that any person charged with a criminal offence is presumed innocent until proven guilty. Chung can pursue this channel to avoid being taken into police custody.11
In article 5(4) of the Hong Kong Bill of Rights, an accused has the right to ask for writ of habeas corpus. The bill addresses the issue of those persons who are denied their rights, especially when in custody. Such individuals can take legal action against the authorities in a court of law. In this context, the court has to release the accused without delays. The offender can only be incarcerated if the detention is made lawful. Chung can exploit this alternative. She can argue on the basis of the first account. To this end, they can try to convince the courts that the cocaine was for medication purposes.12
A writ of habeas corpus is also referred to using a different name. Some analysts regard it as the great writ. It simply means “(the accused) may have the body to face scrutiny or cross-examination”. The great writ is a usually a court order. It permits a prison officer to release a prisoner and present them before a court. The power is bestowed on the court officials under the Magistrate Ordinance (MO) act section 79(1). It is also contained under the Police Force Ordinance (PO) act section 53(3). Chung can apply this argument on the grounds that she was unlawfully detained by the courts.13
Civil Proceedings in Hong Kong
Introduction to Civil Law
Civil procedure or litigation is a legal process that is significantly different from criminal proceedings. The process involves the resolving of contractual disputes and breach of relationships. In civil law, proceedings can be instituted by the government against a person or a private corporation. The legal procedure may also be initiated by an individual against another. According to Wilkinson and Cheung, civil cases are easier to discharge compared to criminal proceedings.14 Unlike in criminal cases, standard of proof in civil processes is based on balance of probabilities. The regulations involved are found in the Rules of the High Court (RHC) and Rules of the District Court (RDC).15
Examples of Civil Proceedings
In Hong Kong, guidelines for civil cases are prescribed in 0.1A, r.1, RHC/RDC, and r.1(e). The guidelines are especially efficient in settling contractual disputes. For the sake of proportionality, a cost benefit analysis can be obtained from iRiver Hong Kong Ltd v Thakral Corp (HK) Ltd CACV 252/2007. In this case, the court expressed regrets that the parties did not engage in mediation before taking legal action against each other. The first course of action in case of disputes should involve engaging in mediation.16
A perfect example of a civil case is the one of Wizard Co. v Paul Wu. The accused was a photographer. They were alleged to have engaged in a breach of contract after they were contracted to provide professional photographs for all of Wizard Co’s 2012 marketing literature. The trial ended well and Mr. Wu was asked to pay HK$ 6.5 million to the complainant. The payment included damages, interests, and costs. However, 28 days down the line, Mr. Wu had not complied with the court order. An enforcement action was required to make him make the payments.
Enforcing Civil Law
There are various avenues used to enforce this legal framework. In light of this, a number of remedies can be adopted by one party in a situation where the other individual has failed to meet their obligations. Such courses of actions exist regardless of whether or not a deviation from the contract gives rise to a right to rescind. In this context, the injured party was Wizard Co. The company had the right of action of damages. In many contractual relationships, a payable sum is provided in case there is a breach by one of the parties. In this case, however, there was no such providence. It is important to note that different contracts result in unique and special forms of remedies. A case in point is Buther v Wolfe (1997) 1 FLR 334. Under such circumstances, costs can be agreed upon after negotiations if the defendant feels that they are too high.17
With regards to these remedies, Mr. Wu failed to honour the court obligations. According to Yuan, this amounts to contempt of court on the part of the defendant.18 Yuan asserts that such a conduct is an act committed by a person in wilful contravention of the authority or dignity of a lawful court. In addition, the action impedes and frustrates the court in the process of exercising its mandate. There are two kinds of contempt, which are also evident in Hong Kong civil proceedings. The first includes those commissions made inside the court (summary). The second category involves violations taking place outside the court (plenary). The latter requires prior notifications to the defendant before punishment is meted out.19
The defendant in this case was given 28 days to comply, but he failed to honour the court orders. Further investigations revealed that the amount of money that was in the possession of Mr. Wu, both in cash and in form of property, was about HK$36,940,000. A similar scenario occurred in the legal matter involving Kessler v. Commonwealth, 18 Va. App. 14, 441 S.E.2d 223 (1994). During the proceedings, the court found the defendant in civil contempt after failing to comply with the judgment passed by the court. The accused refused to pay for child support even after being ordered to do so.20
In his defence, Mr. Wu has the right to file evidence that validates his refusal to pay the fines. Some of the proof that can be deduced includes lack of notice that orders the defendant to comply. In addition, non-compliance may arise from inability to conform on the part of the accused as a result of circumstances beyond their control. In such a scenario, the order may be rendered null and void. The same happened in the case involving Street v. Street, 24Va. App. 14, 480 S.E.2d 118 (1997). In this matter, the case was overturned and the defendant did not have to pay the fines.21
It is clear from the above discussions that civil contempt is a criminal offence in itself. Consequently, it requires a standard proof. The need for proof beyond reasonable doubt is evident in the ruling made by Lord Denning M.R. In Re Bramblevale Ltd. (1970) 1 Ch. 28 at 137, the judge asserted that failure to satisfy a judgment is a crime. It may lead to imprisonment, meaning that the prosecution must prove it effectively. There are instances where the defendant fails to convince the court about their failure to comply. Under such circumstances, possible sanctions are implemented. The proceedings are stipulated in 0. 45, rr. 1(1) and 5(1)(a) of the Rules of the Supreme Court (RSC).22
In the matter highlighted above, it is important to apply possible sanctions to secure the fines. There are various options that the court may use to deal with the offender. They include imprisonment and committal of directors and officers. However, Mr. Wu is not listed in any directorate post in Hong Kong. His assets may be sequestrated to secure the fines. A number of precedents provide grounds on which costs and sanctions can be applied. One of them is the case involving Town Planning Board v Society for Protection of the Harbour (no.2) (2004) 2 HKLRD 95 and (CFA).23
Sanctions for contempt of court are applied on the basis of the provisions contained in the Magistrate Ordinance. In common practice, a person is committed until obedience is achieved. In Cap 227 of MO, guidelines for imprisonment are provided for failure to pay fines. Incarceration is viewed as sine die and not a fixed term. For instance, obstinate contemnors may complete their term in prison without non-compliance to the initial court order. As such, judgments should not be made to achieve this. Such legal experts as Rogers are of the opinion that this clause should be abolished in the future.24 Rogers asserts that civil contempt proceedings are meant to attain compliance and not to punish the contemnor. The case involving Director of Building and Land v Shun Fung Ironworks (1995) 2HKLR 501(PC) is an example of this. In this legal matter, the court sought assistance for sanction purposes (Cap 227 s 67 of MO).25
Conclusion
In this paper, criminal and civil proceedings in Hong Kong were analysed. In the former, standard of proof is an important element as far as culpability is concerned. For instance, the defendant in case one explained that the cocaine in her possession was for medicinal purposes. However, the judge ruled against this explanation by sentencing her to 8 years in prison. Various options, including bail, have been explored in efforts to overturn the ruling. The second case involved a breach of contract. The defendant was fined HK$ 6.5 million as a result. However, the accused failed to obey the court order. To achieve compliance, Mr. Wu was charged with the offence of contempt of court.
Bibliography
Becker, L, The 2011 guide to litigation & dispute resolution, Euromoney Institutional Investor, London, 2011.
Chan, P, Hong Kong civil procedure, 7th edn, Sweet & Maxwell Asia, Hong Kong, 2009.
Chui, W, Understanding criminal justice in Hong Kong, Cullompton Willan, London, 2008.
Fisher, MJ & DG Greenwood, Contract law in Hong Kong, Hong Kong University Press, Hong Kong , 2007.
Gaylord, MS, D Gittings & H Traver, Introduction to crime, law and justice in Hong Kong, Hong Kong University Press, Hong Kong, 2009.
Hardinge Stanley Giffard Earl of Halsbury, Halsbury’s laws of Hong Kong, Thomson/West, Hong Kong, 2011.
Jackson, M, Criminal law in Hong Kong, Hong Kong University Press, Hong Kong , 2003.
Lau, D, Civil procedure in Hong Kong: a guide to the main principles, Sweet & Maxwell, Hong Kong, 2010.
Mau, SD, Hong Kong legal principles: important topics for students and professionals, Hong Kong University Press, Hong Kong, 2006.
McFadden, D, Hong Kong civil procedure, Sweet & Maxwell, Hong Kong, 2012.
Rogers, M, Hong Kong civil justice reform practice manual, Sweet & Maxwell/Thomson Reuters, Hong Kong, 2009.
Wilkinson, M & C Booth, The student guide to civil procedure in Hong Kong, LexisNexis, Hong Kong, 2002.
Wilkinson, M & E Cheung, A guide to civil procedure in Hong Kong, 4th edn, LexisNexis, Hong Kong, 2011.
Young, S, Hong Kong criminal law handbook, 3rd edn, LexisNexis, Hong Kong, 2008.
Yuan. M, Recognition and enforcement of foreign judgments in civil and commercial matters in the PRC, Hong Kong, Macau and Taiwan, Hephaestus, Groningen, 2007.
Footnotes
MS Gaylord, D Gittings & H Traver, Introduction to crime, law and justice in Hong Kong, Hong Kong University Press, Hong Kong, 2009.
ibid.
S Young, Hong Kong criminal law handbook, 3rd edn, LexisNexis, Hong Kong, 2008, p. 33.
ibid, p. 44.
Gaylord et al., p. 24.
W Chui, Understanding criminal justice in Hong Kong, Cullompton Willan, London, 2008, p. 45.
ibid, p. 46.
ibid.
Hardinge Stanley Giffard Earl of Halsbury, Halsbury’s laws of Hong Kong, Thomson/West, Hong Kong, 2011.
M Jackson, Criminal law in Hong Kong, Hong Kong University Press, Hong Kong , 2003, p. 14.
ibid, p. 25.
SD Mau, Hong Kong legal principles: important topics for students and professionals, Hong Kong University Press, Hong Kong, 2006, p. 26.
Young, p. 72.
M Wilkinson & E Cheung, A guide to civil procedure in Hong Kong, 4th edn, LexisNexis, Hong Kong, 2011.
L Becker, The 2011 guide to litigation & dispute resolution, Euromoney Institutional Investor, London, 2011, p. 53.
Wilkinson & Cheung, p. 43.
M Wilkinson & C Booth, The student guide to civil procedure in Hong Kong, LexisNexis, Hong Kong, 2002,
M Yuan, Recognition and enforcement of foreign judgments in civil and commercial matters in the PRC, Hong Kong, Macau and Taiwan, Hephaestus, Groningen, 2007, p. 45.
ibid, p. 31.
D McFadden, Hong Kong civil procedure, Sweet & Maxwell, Hong Kong, 2012, p. 58.
D Lau, Civil procedure in Hong Kong: a guide to the main principles, Sweet & Maxwell, Hong Kong, 2010, p. 94.
MJ Fisher & DG Greenwood, Contract law in Hong Kong, Hong Kong University Press, Hong Kong , 2007.
P Chan, Hong Kong civil procedure, 7th edn, Sweet & Maxwell Asia, Hong Kong, 2009, p. 24.
M Rogers, Hong Kong civil justice reform practice manual, Sweet & Maxwell/Thomson Reuters, Hong Kong, 2009, p. 39.
The absence of Construction (design and management) regulations 2007; part IV or similar enactment to address the welfare of employees and impose certain obligations on the contractor resulted in the loss of many lives which otherwise could have been saved. The dam claimed the lives of an estimated 112 people. However, only 96 of them are reported to have died. The toll does not include those whose death was caused as a result of heat, heart stroke, etc. (www.wikipedia.org).
The construction (Design and Management) regulations 2007; part IV imposes obligations on the part of the constructor pertaining to the health and safety of employees in construction sites. In the Hoover dam case, safety measures were not taken to ensure the safety of the people working at the site. Sec.25 (10) of the act provides that, “every contractor carrying out construction work shall comply with the requirements of regulations 26-44 in so far as they affect him or any person carrying out construction work under his control or relate to matters within his control”.
Sec.30 (1) of the Construction (Design and Management) regulations 2007 further provides that “so far as is reasonably practicable, explosives shall be stored, transported and used safely and securely” (office of public sector, UK) subclause (2) of the same section further goes to say “without prejudice to Para (1), an explosive charge shall be used or fired only if suitable and sufficient steps have been taken to ensure that no person is exposed to risk of injury from the explosion or from projected or flying material caused thereby” (ibid). This section protects the workers from any danger they might be exposed to while undergoing construction work. Most workers in the Hoover dam died as a result of carbon monoxide. This sub-section imposes responsibility on the constructor or his agent to ensure that no such explosives or emissions are at the site while construction takes place.
Further sec.35 provides that the contractor must take every case possible to prevent any act of drowning from taking place during the course of construction. The section further stipulates that the contractor must as far as is practicable minimize such risk. This was not adhered to in Hoover dam construction. It is known that the first person to die in Hoover dam construction J.G. Tierney, a surveyor died as a result of drowning. Proper care was not availed in order to ensure his safety even after when the contractor was aware of the danger at the site.
The civil attempt by workers to sue the company using civil law may not yield the proper outcome i.e. justice. Civil law is wide enough to cover specific provisions which could impose liability on the part of the contractor. However, this was the only law available at that time to rely on. The legal principle under civil relied on here was a strict liability. This rule has been best illustrated in the case of Rylands v. Fletcher (1886) LR 3HL 330, where Blackburn J. held that “the rule of law is that the person who for is on purpose, brings on his land and collects and keeps there anything likely to do mischief if it escapes, must keep it in his peril, and if he does not do so is prima facie answerable for all the damage, which is the natural consequence of its escape (ibid). The claimants (workers) of the Hoover dam case relied on his principle. However, the principle is scanty enough to meet the outcome (justice).
In their case, the evidence presented here was the emission of carbon monoxide substance which killed many workers even though it was disputed by the contractor. In their defense, they submitted that the cause of several deaths as a result of pneumonia and not carbon monoxide as claimed by claimants. Even though pneumonia would have been the cause, still the contractor had to be held liable since he failed to provide for safety at the site, by ensuring temperature and weather protection were adequately provided for. Sec 43 (1) of the Act provides that, “suitable and sufficient steps shall be taken to ensure, so far as is reasonably practicable, that during working hours the temperature at any place of work indoors is reasonable having regard to the purpose for which that place is used”. This section imposed a duty on the contractor to ensure that the lives of workers are not put in danger arising from adverse weather conditions at the site. Further evidence was given by one claimant; Edkraus who said that due to poisoning substances at the site he suffered impotence. The outcome of the case was no compensation was made to claimants. Judgment was harsh since it didn’t reflect the proper administration of justice. However, the deficiencies were due to a lack of proper statute protecting the rights of workers of this nature.
The two health and safety regulations current in English law that could have saved the situation in the USA if they were enacted there are; Health and safety at work Act 1974 and Workplace (Health, Safety, and Welfare) Regulations 1992. The latter Act would have provided for proper equipment, devices, and system (Sec. (1). The former Act imposes specific duties and obligations of employers at the site in ensuring that the welfare of employees is adequately addressed and their working conditions are proper. These two statutes would have saved the situation.
The provisions of inspectors have made the employers improve the place of work for their employees by ensuring that there is enough space, light, work equipment, and devices at the workplace. Failure to provide this imposes criminal liability on the employer. These arrangements have been effective because of the implications that come with the violation of this provision. Employers can be sent to jail and also a fine be imposed on them. These liabilities are heavy on employers who have no other alternative except to follow what the law stipulates. The inspectors work is to inspect the place of work and submit the report to relevant authorities. Their report is important because it addresses the welfare of employees in terms of health and safety.
Bibliography
Partington, M. 2008, An introduction to the English legal system, Oxford University Press. Web.
The Canadian civil law handles differences that crop up amongst individuals within the society. It also involves personal disputes in business contracts, property ownership and obligations owed to family members. A Canadian civil action or lawsuit occurs when a person (the plaintiff), takes a legal action against another person (the defendant), concerning a personal dispute. In such instances, the plaintiff is required to provide evidence to the judge or jury beyond any reasonable doubt that the defendant indeed has a liability. In case the plaintiff provides enough evidence to support his or her case, in most instances, the court demands that the defendant pays the plaintiff a given amount of money as a form of compensation for the damages experienced by the plaintiff.
In this particular case, the plaintiff is the man who got into ‘The Happy Hour Sports Bar’ in a drunken state and demanded for a beer, while the defendants are Bertha, the bar attendant as well as the owner of “The Happy Hour Sports Bar. In our case, the plaintiff filed a notice with the court which contained the name of parties involved in this case, indicating the initiation of a lawsuit. This was done under personal injury law which is a branch of tort law covering any damage done to a person, ones rights, reputation or even assets. The plaintiff filed pleadings with the court containing the claim and accusations that he had against Bertha and the bar owner. In his claims, he demanded for compensation for the serious head injuries that he suffered from the push by the bar attendant in his attempt to buy beer.
On their part, the defendants replied to these claims when they filed a statement of defense with the court. In this statement, Bertha argued that it was against the bar’s regulations to sell beer to any customer who disturbed the peace of other customers. According to her, what she did was within her duties as the regulations set by her employer required that any customer who caused disturbances is supposed to be sent out. She also recorded that the man’s head injuries were only as a result of a mere accident but not her intention. These sentiments were also supported by the bar owner in his statement.
As a Canadian judge, I would invite both parties for a pretrial conference at the chambers and allow them to discuss the dispute, while still attempting to find out if the parties are likely to settle their dispute out of the court. If such a possibility does not exist, I would then set the date of trial.
With regards to the trial, it is clear that the Canadian law requires bar owners to handle their customers in an appropriate manner. However, this does not excuse the customers to behave in a reckless manner. From the evidence presented by both parties in this particular case, the plaintiff came in a drunken state and acted in a manner that was likely to disturb the peace of other customers which rendered the bar attendant to send him out as stipulated by her occupational regulations. She even made an effort to call a cab to take the customer home, something that indicated that she was acting in the customer’s best interests. When the plaintiff came back for the second time, the bar attendant had to send the customer away for the second time. However, she seemed to have used unnecessary force this time, as a result of which the plaintiff fell and was seriously injured. For this reason, the defendant’s act breached her duty and therefore, she, together with the bar owner should take the responsibility to clear the plaintiff’s hospital bills. The fact that the plaintiff did not obey the defendant’s regulations has led to an apportionment of the fault, and has therefore reduced the damages considerably.
In the contemporary world, there is a great variety of legal systems that exist in different countries. A country’s legal system is a result of its political and historical development, as it reflects the core values of the state. For instance, a variety of Middle Eastern countries follow Muslim law due to the significant impact of the Islamic religion on all aspects of governance. Due to extensive international cooperation, it is crucial for international law students and practitioners to understand the different legal systems used in different areas of the globe. The JuriGlobe site (n.d.) provides a useful overview of international legal systems. There are four types of law included in the JuriGlobe (n.d.) overview: civil law, Common law, customary law, and religious (Muslim and Jewish) law. Also, although a lot of countries adhere to a single legal system, many countries use mixed legal systems (Reichel, 2013).
Common law is the first type of law addressed in the JuriGlobe. It is based on English Common law and is based on judicial precedent (Reichel, 2013). The precedent system means that the court decisions are made based on previous cases and decisions and not on written laws. The United States, Australia, United Kingdom, Canada, and Ireland all follow the Common law legal system. One advantage of the common law, as opposed to other systems, is that it promotes fairness of court decisions. Statutory laws passed by the government might not apply to all cases, which is why addressing past decisions in similar situations allows viewing each precedent separately. On the other hand, the precedent system complicates the court process, which might increase the efficiency of the judiciary.
One of the most popular legal systems in the world is civil law. It is used in European and South American countries, as well as in Russia, Kazakhstan, Turkey, Thailand, and others. Civil law is also called the Roman law, as it largely based on the legal system used in ancient Rome (JuriGlobe, n.d.). The civil law gives precedence to written law, which means that it relies on a set of codified principles (Reichel, 2013). Such practice allows for a systematic support of the law, as the court decisions depend solely on the written principles and not on past precedents or the jury. This, in turn, allows for a simpler and clearer legal process than in common law, enhancing the court’s effectiveness. In the U.S. legal system, on the other hand, more value is given to past cases and decisions, which makes the law more flexible and adaptable to sociopolitical changes.
Another common legal system is religious law. JuriGlobe (n.d.) addresses Muslim law specifically, as it is the most common version of the religious law. Muslim law is practiced in Afghanistan, Maldives Islands, and Saudi Arabia and is part of mixed legal systems in Egypt, Iran, UAE, Pakistan, and many other countries of the Middle East. Jewish law is another version of religious law, which is used as part of a mixed system in Israel. Jewish courts are also present in America under the Beth Din of America (BDA), which helps to accommodate for the needs of Jewish citizens (Broyde, 2012). As opposed to the U.S. Common law, religious legal systems are based on religious doctrines, and the decisions are made by the court based on the appropriate religious values and rules (Reichel, 2013). The major limitation of such system is that it is only applicable to the members of the same religion, and cannot be used in multicultural communities.
FInally, customary law is the fourth legal system addressed by the JuriGlobe (n.d.). Customary law monosystems are rare and only apply to Andora, Jersey (UK), and Guernsey (UK). However, customary law is part of mixed legal systems of China, South Korea, Japan, Taiwan, and Switzerland. Customary law is based on traditions. Although it might seem somewhat similar to the American precedent system in terms of its reliance on past cases, is not formally accepted as the sole law of the country and can only be applied to a small number of communities with a long history of traditions and customs (Reichel, 2013). One significant disadvantage of customary law is that traditions used as a basis for court decisions are not formally accepted, which means that they can be illegal and unfair to subjects.
Overall, I believe that the best legal system is the one that suits the country’s sociopolitical context. Even though the common law is successfully used in the United States, it might not be as effective in other countries, such as South Korea or Japan due to the cultural and political differences. Moreover, some countries might require a mixed legal system to ensure a comprehensive approach to court procedures or to accommodate a wide variety of cultures and communities. For instance, the proposed adoption of a common law code in China can potentially enhance the country’s judicial system and eliminate many procedural issues (Capowski, 2012). Therefore, it would not be possible to define a universal legal system that would be successful in all countries of the world.
References
Broyde, M. J. (2012). Jewish law courts in America: Lesson offered to Sharia courts by the Beth Din of America precedent. New York Law School Law Review, 57(1), 287-311.
Capowski, J. J. (2012). China’s evidentiary and procedural reforms, the federal rules of evidence, and the harmonization of civil and common law. Texas International Law Journal, 47(3), 455-504.
JuriGlobe. (n.d.). World legal systems. Web.
Reichel, P. L. (2013). Comparative criminal justice systems: A topical approach (6th ed.). Upper Saddle River, NJ: Pearson Education, Inc.
Owing to diversity in individual character, it is very hard to manage people without use of correctly drafted and recommended set of doctrines. These doctrines help to guide practices and solve problems not only in local settings, but also in international scenarios.
Since time memorial, these set rules have been the main guiding principles on individual practices, hence helping to shape societal, economic, and political orientations of different communities. This is because depending on a specific society’s treasured values and living patterns, there exists extensive variations in laws that mange their practices and activities.
In this regard, it is important to note that, laws vary according to areas of implementation or use, which sometimes depend on societies’ religious beliefs. Laws are generally a set of policies, which authorities use to manage or govern its citizens. They are main determinants of the nature of relationships that exist not only between individuals and organizations, but also between different communities within an area.
In many countries for laws to be valid, they have to be assented by the president of that nation or leaders of that specific community. Although this is the case, before lawmakers present such laws for assent by top leaders, the laws have to pass through a scrutiny system, mostly conducted by members of parliament, congress, elders or set up community leadership organs (Beale and Talon pp. 3-9).
Formulation and use of laws is a practice that has been there since time memorial. For example, during Middle Ages individuals considered most governing laws as divine, hence their application followed principles of divine will. The past Byzantium societies also had laws; however, theirs were a little bit different because they coined both sacred and worldly laws. Another community that had a unique form of laws is Western Europe; it had clear differentiations between its secular and sacred law (commonly called the cannon law).
Law has five main classifications namely: civil, public, natural, criminal, and internal law. It is important to note here that, individuals never apply a single classification of law in governing and solving problems whenever they arise, but rather they coin different sections of these laws to formulate workable solutions. This paper will discuss concepts of civil and Sharia law. In addition, it will compare these laws in terms of their principles and application as pertains to different scenarios and societal issues.
Sharia Law
Majority of religions follow spiritual precepts, hence determining the practice that believers of that religious community follow. Some religious rules are so rigid to levels that, if members of those specific communities go against them they face very harsh punishments, as specified in statutes of those specific laws.
Sharia is a religious law that dictates practices of all Islamic believers. In addition to directing Muslim believers, Sharia’s code of ethics dictates practices in most Islamic communities and countries. These laws clearly define acceptable practices in marriage, divorce, living beliefs, business dealings and other moral conditions encountered by members of the Islamic religion.
It is important to note that, although Sharia law manages most practices in Islamic believers, sometimes they affect other civilians of such nations. This is because in areas where Sharia’s set of rules find wide application, its influences are many on the patterns or ruling, criminal, and personal status laws.
Sharia law primarily originates from the Islamic holy book: the Quran. However, it is important t note that, some sections of the Sharia law find their foundation from the Islamic sayings book; the Sunna. These two books carry the Islamic teachings and sayings of Prophet Mohammed addressed to all Muslim believers internationally (Vriens p.1).
History of Sharia Law
Sharia laws came into existence after the death of Prophet Mohammed back in the year 1632 CE. These laws came into being as Muslims extended their rule to some sections of the horn of Africa and east China. Sharia’s adoption was as a result of respect that Muslims accorded Mohammed before and after his death. This is because they considered and still consider him the most virtuous or righteous person on earth. Due to this respect, Muslim clerics recorded and wrote down most of Mohammed’s sayings, speeches and summons in books called Hadith. These books later became the main source of information that helped Muslims draft the Sharia law.
Owing to diversity of practices by Muslims civilians in areas they occupied, Muslim leaders formulated mechanisms of reconciling these practices, hence leading to the adoption of the Hadith readings; common thing among the Muslim society. The adoption of the Hadith led to the emerging the currently existing schools of thoughts namely: the Hanafi, Maliki, Jafari, Shiite, Hanbali, and the Shafii. All this schools have titles originating from Muslims who first gave out ideas they deal with.
Depending on sections of the Sharia their originators obtained them from, these fields have different implications on Islamic practices. In addition, due to differing ideological thoughts of these schools, there application also varies in terms of areas of jurisdiction or country. For example, the Taliban and the citizens of Saudi Arabia use the Hanbali School, whereas the Sunnis use the Hanafi (Vriens p.1)
Previously (before the 19th century), Muslims used a non-codified law, but in the wake of 19th, century the first form of Sharia codified law emerged in the Ottoman Empire. Muslims named this first form of codified law the Ottoman Empire’s Mecelle Code, a practice that has undergone many transformations to form the currently used coded Sharia law. Although this law currently faces much opposition due to arguments that, it is hash, most Islamic countries use its ethics and customs in judging acts of its citizens (Shahin pp. 14-56).
Civil law
Civil law unlike, Sharia law is not religion based, however they share one common goal: achievement of a peaceful society that thrives within specific standards and conditions. Achievement of peaceful co-existence of individuals is never an easy task owing to the fact that the society carries individuals with different qualities, political orientations, and social lives.
Owing to this fact civil law tends to ignore all individual’s sole qualities, hence defining boundaries, which all individuals must base their daily practices. This law’s main goal is to solve fights that may occur among different individuals or organizations as concerns property ownership, economic exchanges and disputes that may require compensations.
That is, civil law’s main aim is to provide a set of laws that all judges must follow in trying to ensure courts achieve justice. Examples of disputes solved by civil war include accidents, property ownership, and family issues. This form of law follows almost same principles as the Roman law, whereby it defines principles of providing solutions to disputes considered complex to solve using common knowledge.
Depending on specific countries, the main source civil law is the legislature, hence making the court system to have special practitioners who help in solving civil cases. In addition, this law makes court procedures inquisitive, hence not controlled by precedents.
This form of law is the oldest as compared to other laws globally, owing to fact that, it traces its foundations to colonial times, when Europeans transformed most forms of traditional civil laws (Merryman and Perez-Perdomo pp. 4-12).
History of Civil Law
Primarily this law’s system derives its principles of application from the Romanian law, specifically the Corpus Juris Civilis used by emperor Justinian. Most practices in Rome emphasized growth of legal systems that were strong and just, hence development of strong legal systems.
Past Roman law was in a form of legislation commonly referred as “the law of twelve tables”. Later as the complexity of legal cases increased, judicial officers added views of law intellectuals. As times changed and the complexity of cases advanced, under command of the Byzantine Empire judicial officers combined all law resources, which included the Theodosian code and all scholarly works as concerns legal issues to form a new law; the Justinian law. This law became the main basis of handling all legal issues.
Although the Justinian law was limited to the eastern section of the Roman Empire, this never prevented the law from spreading because by mid the 11th century, Italy revived its use. Its revival led to introduction of colleges that taught on concepts of this law, which up to today find wide application in legal cases. In addition to evolution of the Justinian law, other laws such as the Cannon and the merchant’s custom have greatly contributed to the development of currently existing civil laws.
For example, combination of these three laws led to the formation of the Jus Commune; an international law used mostly by Europe. As time advanced this also underwent very many transformations, which have resulted to codification of the present civil law. Examples of past codifications that have contributed to the development of present civil law include the civil code, penal code, code of civil procedure, commercial codes, and the code of criminal procedure (Civil law p.1).
This codification of laws marked the onset of the present codes adopted by different countries, hence the movement from the multi-national Jus Commune to present unique national legal structures. It is important to note that, colonization also acted an important in the spread of civil law, for through it colonizers propagated their values and forms of laws on countries they colonized.
Most nations that use the Justinian code also use the real provisions as specified in its laws, although little variations exist in terms of reference to past decisions made on cases handled by their courts. For example, in the U.S. for judges to solve any civil cases, they have to refer to decisions made on akin past cases.
Types of Civil Law
Courts use civil laws in cases where cases to be solved demand compensations as the main remedy of their solution. For example, consider a case like divorce; owing to complexities associated with this type of case, it demands application of civil laws on involved parties, hence formulation of solutions that do not favor any side. Common types of civil laws are; Contract law; family law; tort law; intellectual property law; and business law (Missouri Bar p.1).
Contract law finds wide application in cases where agreements are involved. Courts mostly use the contract law where there is contention between objects or subjects of agreements. For example, incase individuals insured their cars against fire, but something different destroys it, an individual can sue the company for compensation, owing to the fact that one had paid insurance premiums.
A second common form of civil is the tort; a law that deals with neglected objects, which cause harm, hence the need for owners to cater for all used expenses and other losses incurred in dealing with the situation. A third type of civil law is the family law, which finds wide application when it comes to family matters. Courts use this law to determine the custody of children and other family possessions after marital problems such as divorces.
The last form of civil law is the intellectual property law, primarily concerned with copyright rights, trespass rights and other claims as concerns personal belongings.
It is important to note that, although this laws deal with different concepts, their core aim is compensation of wasted resources for example time, money, and investments.
Types of Sharia Law
Shari law primarily has three injunctions namely: an injunction concerned with Islamic beliefs; an injunction dealing with spiritual advancement and reform; and an injunction concerned with external behaviors of individuals. All these three injunctions deal with different concepts within the Islamic religion ranging from basic human living virtues to Allah’s (God’s) qualities, writings, and judgments. These three classes off injunctions combined results to two types of Islamic law namely: Transaction law and Devotional law.
These two main divisions deal with different concepts of the Islamic belief, primarily determined by goals they are supposed to achieve in individuals. Devotional law’s main aim is to build well-built individuals spiritually. That is, this law determines practices that individuals can embrace to guarantee them nearness to God. It specifies practices such as Hajji, Zakah, and obeying of covenants, which individuals must adopt in their daily lives in order to offer appreciation to Allah, hence call for more blessings; eternal life.
On the other hand, transaction law is a form of law that governs worldly practices, which individuals should embrace. According to the law, gaining of worldly possessions is necessary for they are indications of Allah’s blessings. This law’s primary motive is to control human activity for the common benefit of sole individuals and the entire Muslim community. This law has two main branches namely: personal and commercial law (Islamic law p.1).
Comparisons between Sharia and Civil Law
Although these two forms of laws fight to ensure judicial systems are just and fair, hence provision of solutions to many existing human problems, they have some differences in form of application and their provisions. To start with, the main clear difference between these two forms of law is; Sharia law follows Islamic doctrines where as civil law has no connections to any religious belief.
Sharia bases most of its legal principles on Prophet Mohammed’s teachings in the Quran and Sunnah, whereby civil law’s provisions use concepts related to peaceful human existence; ethical principles that are universally accepted and formulated.
Secondly, many lawmakers can change or make changes to Civil laws of a nation depending on the jurisdiction country, a case different from Sharia laws, which are unchangeable. It is necessary to note at this point that both civil laws and Sharia laws vary depending on the application country (Hassim p.1).
To almost all countries regardless of its; religious affiliation, there exist a set of civil laws governing its citizenry as concerns agreements, a factor that makes civil law a common thing globally as compared to Sharia law, which is used in only Islamic countries.
The acceptance of these two forms of laws varies depending on the application region. That is, because these two forms run parallel to each other, it is very rare to find a country that has adopted both because of varying ideological differences. For example, Sharia law prohibits any act of homosexuality, a practice legalized in some countries. Hence, whenever a case occurs in a country that has adopted these two forms of law, chances of conflicts are high depending on which religion is strong (Badr pp.188-194).
As most law researchers argue, Sharia law is very “rigid” and harsh as compared to common civil laws. This is because depending on circumstances surrounding a case, courts can flex civil laws to fit such cases; a practice that Sharia law lacks.
In addition, depending on the type criminal offense committed, some punishment as specified by Sharia law are very harsh and in-human for example chopping of hands in robbery with violence cases (Fernandes p. 1).
In terms of fairness and gender balances, regardless of an individuals gender, civil laws guarantees all individuals equal rights, hence courts base their judgment on available evidence leading to passing of proportional judgments.
To some extent, Sharia law is gender biased in terms of penalties and passing of judgments. For example, according to provisions in Sharia law, punishments for women involved in adultery is stoning; a sentence that court never passes on men.
Although differences exist between these two laws, law practitioners in these two fields must undergo extensive trainings depending on area of specialization. In addition, they must be members of recognized law societies within that community of application. In addition, these two forms of law have many other common provisions and influences on each other depending on the nature of cases.
Conclusion
In conclusion, although many variations in terms of provisions in these two forms of laws vary, it is necessary for practitioners in the field of law to always ensure they are fair in passing judgments. In addition, regardless of one’s religious affiliation, there is need for establishment of a common law that will serve all individuals with due respect.
Works Cited
Badr, Gamal. Islamic Law: Its Relation to Other Legal Systems. The American Journal of Comparative Law 26 (2) (1978): 187–198. Print.
Beale, Hugh and Tallon, Dennis. English law: consideration. Oxford: Hart Publishing, 2002. Print.
Civil law: Historical development. History. 2010. Web.
Hassim, Unes. Explaining the concept of Sharia law. Helium. 2010. Web.
Islamic law. Discover Islamic project. 2010. Web.
Merryman, John and Perez-Perdomo. The civil tradition: an introduction to the legal systems of Europe and Latin America. 3 rd Ed. Stanford: Stanford University Press, 2007. Print.
Missouri Bar. Civil library of the Missouri Bar. 2010. Web.
Shahin, Omar. The Muslim family in western society: a study of Islamic law. Indiana: Cloverdale Corporation, 2007. Print.
Vriens, Laurens. Islam: governing under Sharia. 2009. Web.
There are two legislative traditions that are very widespread in many countries; in particular one can speak about the common and civil law systems. This paper is aimed at discussing the similarities and differences between these approaches.
Furthermore, one should show how these differences can affect the work of many companies, for instance, American firms that operate at an international level. On the whole, it is possible to argue that the difference between these systems can create significant challenges for many businesses.
First of all, one should remember common law system is based on the premise that courts have a right to develop rules or principles that regulate some aspects of human activities. This issue is particularly relevant if one speaks about such aspects as contracts or tort litigation (Cross 181).
Close attention should be paid to the so-called precedents or the decisions took by judges in the past (Schubert 88). These professionals have to rely on precedents when they need to address similar cases or disputes. Nevertheless, these people can also adopt new rules if they see that existing legislation is not sufficient for resolving a particular problem.
This is one of the main peculiarities that should be kept in mind. In contrast, civil law system is based on the collected and ordered set of regulations and rules that were adopted by the government (Cross 181). The main issue is that courts are only allowed to interpret existing regulations.
In other words, they are forced to operate within certain limits. Nevertheless, they do not usually have the opportunity to introduce new rules. This is one of the main differences that one can identify. These discrepancies can affect both individuals and organizations when they have to live or operate in a new legal environment.
Nevertheless, one should not assume that these approaches have nothing in common. For example, in each of these systems criminal activities are evaluated according to the statutes that cannot be altered by a judge (Cross 181). Furthermore, even in common law traditions, judges have to follow certain principles while interpreting existing precedents or identifying new ones (Antoine 44).
Apart from that, the decision of the supreme courts in civil law countries can sometimes have binding power. This is one of the issues that should be taken into consideration by organizations and individuals.
The companies that are based in the United States can encounter several challenges while operating at an international level. These organizations are accustomed to common law tradition, and sometimes, it is difficult for these firms to work in a different legal environment.
This is one of the main issues that be taken into account by business administrators. For example, one can mention such a company as Apple that was forced to make its online store compatible with mp3 players manufactured by their competitors (Norwegian Consumer Council. 1).
Provided that this company had been operating only in the United States, it would have been easier for them uphold their rights. Yet, Norway is a country with civil law tradition and the judges working in this country have to adhere to certain codified regulations. This is one of the examples that one can provide.
Furthermore, one can mention about the difficulties faced by Google when it began its operations in China. This corporation was forced to comply with existing laws regarding free speech and censorship. These restrictions could have violated the main values of this company.
This is one of the reasons why this corporation decided to move to Hong Kong in which common law system is adopted (Miller 183). In this legal environment, this organization can better protect itself from the intrusion of the government. Overall, such difficulties are faced by other American firms.
These cases suggest common law system can actually create an unfair advantage for some organizations, especially if one is speaking about local producers. This argument is particularly relevant to the case of Apple since this organization was forced to give away its competitive advantage to some of its key rivals.
Nevertheless, while evaluating common and civil law traditions, one should not overlook the political culture of a country. For instance, a civil law system can be rather effective in fully democratic countries. Nevertheless, this model can function very poorly when it is used in a totalitarian or autocratic state. This is the main argument that should be taken into consideration.
These cases indicate that common and civil law systems differ in several ways. One should focus on the opportunities that are available to judges. In the common law tradition, they are enabled to act as legislators who can introduce new rules by setting precedents. In contrast, civil law tradition implies that the decisions of these professionals should be based on existing statutes.
They have to operate within certain limits. This difference can profoundly affect the work of American companies that are accustomed to common law legal tradition. However, the differences between these traditions can be better described by looking at the political system of various countries.
Works Cited
Antoine, Rose-Marie. Commonwealth Caribbean Law and Legal Systems, London: Routledge, 2008. Print.
Cross, Frank. West’s Legal Environment of Business: Text and Cases: Ethical, Regulatory, International, and E-commerce Issues, New York: Cengage Learning, 2007. Print.
Miller, Roger. Business Law, New York: Cengage Learning, 2011. Print.
The United States of America justice system has the responsibility of enacting legislations and law to facilitate the delivery of timely justice to its citizens. Civil litigation is a federal government civil dispute registration method that involves solving/seeking solution to issue through the court system but giving representing lawyers a chance to defend their clients. In the United States, civil litigation takes place in normal courts however it is strictly guided by formal and exhaustive rules of civil procedures; one rule that has been adopted in the system is civil discovery in the procedure and process of civil cases administration.
Advantages of civil discovery
Under the new system, a compliant is given the chance to offer such information or supporting documents from any sources. With the allowed mechanism, someone can be able to prove his case beyond doubtful doubts as is required by law. On the other hand, there is emphasis on offering justice as it is and the court when making decisions has all materials required for the case. Civil litigation system offers disputing parties a chance to seek solutions to their disputes in court without necessary following the traditional court system. With such an allowance, they are able to get solution faster than the case would have been in normal courts. Although the litigation process takes place in normal courts, it has to follow certain procedures to enforce discipline and satisfaction of the parties. In the event the parties agree before the process is over, they are at free to stop the process at no cost on their side. Another advantage with the court system is on setting precedence, when a case has been determined; it improves the court rules and legislations. The richer the country is in its rules and legislations, the better the judicial system administered in the economy.
Disadvantages of civil discovery
Although the method is simple, straight forward, and easy to administer, the government has not taken the initiative to have other court rooms to increase the capacity of the existing ones. With this, the court system has become congested and delayed, justice has started to trickle in the system. The precedents set by the system have been challenged, not to be binding as ruling is made on case basis; with the challenge of precedent, it becomes difficult for the court system to depend on the system for improvement and development of court laws. Although the cases handled by civil litigation are civil in nature, they include environmental laws, employment laws, and domestic matters; the line between civil and criminal laws is thin to define. The volume of matters that can fall under civil litigation are increasing, coupled with lack of clear definition, the court system becomes challenging to administer.
Parties in dispute may have different definition of civil and criminal cases thus creating confusion and conflicts when determining the court systems to adopt. The difference and ambiguity in law delays justice and erode confidence in the United States justice system.
The duration and time taken to gather information to support a case is much to the point that it can be distorted or the time taken before delivery of justice lengthen. Although the main consideration of the legislation is to ensure what prevails in the community, it leads to delayed justice in the end.
Gender equity has been a challenge to implement in every sector of the economy. Despite the efforts that have been put in place to ensure that gender equity is achieved, men find great favors than women in very many areas. Sports sector is one of the areas where gender equity has not been attained.
It should be noted that women sports activities are not taken seriously in many countries of the world. Much emphasis is placed on men sports activities given the fact that sports is seen as a masculine activity which women cannot be able to favorably engage in. Male sports activities are well funded, have adequate facilities and are properly advertised than female sports.
The enactment of Title IX law was seen as a great step towards achievement of gender equity in several areas including sports. Nevertheless, a lot still needs to be done in order to have fairness. The challenges that face implementation of the law should be dealt with.
Title IX is a federal law in the United States of America which was enacted in 1972. The law illegalizes discrimination of people on the basis of sex in any educational program that is supported by the federal government. The law was enacted to ensure that female students have equal opportunities in sports just as their male counterparts.
It is important to note that women are not only disadvantaged in terms of sports participation, but also in administration due to lack of opportunities to train for these careers (Gavora, 2002). It is very unfortunate to note that 40 years since the enactment of Title IX, women are still discriminated against in sports related activities.
Among the factors that hinder successful implementation of Title IX is prejudice and stereotypes that have been associated with female sports. Women are made to think that sports especially athletics is a masculine activity. Consequently, women who are engaged in sports activities are said to be unattractive thus they cannot get married.
Moreover, there has been a misconception spread by various people that women who participate in various sports have reduced chances of giving birth. In this regard, women themselves become a stumbling block in the implementation of Title IX.
Another factor that hinders implementation of Title IX is lack of sponsors for women sports. While male athletes easily get sponsors, women find it very difficult to get sponsors. This is due to the fact that it has been assumed that men athletes easily win and they are well rewarded.
As a result, women teams lack the necessary resources to facilitate their participation. On the same note, women do not have training facilities that can enable them to train effectively. Moreover, many women are not willing to be involved in physical activities (Rosner & Shropshire, 2011). In this regard, it becomes very tricky for coaches to get women that are physically fit to be trained as athletes.
Therefore, even if educators would want to be fair to women, it becomes difficult because women are not ready. On the same note, women will want to have fellow women as their coaches. This will enable them to have freedom of expression during training sessions thus enhancing their confidence. Unfortunately, there are very few women coaches in sports. In this regard, though women are not prevented from participating in athletics, they find it difficult to join and get trained by men who will not understand them.
Fairness has been a nightmare in sports. Male dominate every section of sports. They form majority of participants, coaches and even administrators. It is important to note that there have been increased efforts not only from women activists, but also from other social organizations to ensure that fairness in sports is achieved. Unfortunately, this has not been met due to various factors.
To begin with, there has been masculine supremacy in the sports field with men dominating almost every section. In this regard, the need to maintain status quo has kept women out of question whenever selection is done.
On the same note, people have a tendency of using connections to get into positions of leadership in most sectors of the economy (Northouse, 2009). In the sports field also, people favor those who are close to them or those with whom they have something in common. Women lack the essential connections that will enable them get selected to participate or even climb the ladder to administrative positions.
Moreover, horizontal segregation is quite common in the sports field. People still have the perception that women cannot properly run sports departments. Consequently, women have been segregated when it comes to hiring or even selection of participants in sports sector (Rosner & Shropshire, 2011).
Men choose other men and train them thus limiting the opportunities available for women. Furthermore, sports sector is viewed to be a demanding masculine field which requires somebody who has enough time to train. Unfortunately, society takes women to be people who should take care of children and thus do not have enough time for physically demanding activities.
Lack of women sport administrators has also hindered achievement of fairness. Women are given few opportunities as management interns in sports compared to men. As a result, women always lack the experience that is required for administrative posts. The hiring process is also biased in favor of men thus limiting chances of women advancing. Unlike men, women lack the necessary motivation and support whenever they decide to join sports.
Due to lack of opportunities to be trained, women lack the necessary training required to join administrative positions in sports. It should be noted that it is not only women who face challenges in their endeavors to be sports administrators. The problem of getting opportunity to join management internship is common to men and women alike.
On the same note, the problem of connections is rampant and it makes many people to miss vital opportunities (Moran, 2004). Similarly, it is difficult to get the necessary mentorship which is crucial in motivating people. Since many administrators are men, male participants are favored.
Culture is another factor that causes unfairness in the sports field. Though people will argue that culture is not very influential in the United States, it should be noted that U.S. is a country with people from diverse cultural backgrounds. Consequently, culture cannot be left out of any discussion. Group work is very vital in sports and implementation of decisions involves consensus and commitment from group members.
Participation of team members in day to day activities is crucial for success. Unfortunately, this attributes are not of much importance in some cultures. Women are regarded lowly and men do not respect their opinion. In this regard, women are not given opportunities to compete on the same level as men or even access management positions.
It is important to note that discipline and time management are crucial in sports (Gavora, 2002). However, some cultures take women to be very poor managers of time. This reduces the probability of men being willing to cooperate with women in sports. This poses a big challenge to sport administrators.
Achievement of gender equality in sports is therefore an issue that requires addressing. Women also need resources and the support that is accorded to men in various sports activities. Women need to train just as men in order to effectively compete in various competitions. On the same note, in order to enhance quality of women sports, facilities used should be advanced. Nevertheless, some people argue that focusing on increasing resources of women will jeopardize men opportunities.
It is crucial to point out that this is a wrong notion. To begin with, providing women with pitches to train will not interfere with opportunities available for men. Women can easily use the same facilities with men in training with some few adjustments like changing rooms. When the number of men using the same facility increases, nobody’s opportunity is hindered. Consequently, opportunities of men cannot be hindered if women join men in using the same facilities (Rosner & Shropshire, 2011).
On the same note, women need their benefits for participating in various sports activities to be increased. Conspicuously, benefits that women receive are far much lower than those paid to their male counterparts. If federal money allocated to female sports is increased, then benefits paid to women can be increased.
It is quite crucial to note that this will in no way reduce the amount of benefits paid to men. Women can also be motivated to join not only athletics, but also other sports activities. Motivation can be achieved through mentorship, having more women to be administrators of women sports as well as giving women necessary support.
People should also be encouraged to increase their enthusiasm in women sports. If women get more people cheering their sports, they will be psychologically and emotionally persuaded to join different sports activities. Once again, it should be noted that this will in no way interfere with the opportunities of men to advance their talents (Northouse, 2009).
In administration of Title IX, people should ensure that equity is maintained. The law was meant to maintain equity and not to favor anybody in any way. Therefore, if I was in a position where I am required to administer the law, providing equal opportunities would be my main aim.
Women need to participate in various sports just as men. The idea that there are some sports which are masculine is misplaced and should not be allowed. Female gymnasiums should be well equipped just as those of men. This will ensure that female students get enough training that will increase their confidence when they are participating in different sports activities.
Another important thing regarding the implementation of Title IX is ensuring that female sports receive enough funding. Funding has been a great hindrance as far as providing opportunities for women is concerned. Most of the time only men teams receive funding from various sponsors. As a result, they are able to purchase the necessary equipment and even join various competitions which enable them to prepare adequately.
On the contrary, women teams get very minimal financial support. In many occasions, women teams have to buy their own uniforms as well as other equipment. Moreover, the teams will have to cater for their transport to various competitions (Moran, 2004). This financial difficultly not only affects performance of women, it also demoralizes them from working hard on improving their talents.
On the same note, women need motivation to join various sports activities. This can be achieved through having mentors. Consequently, it would be vital to have women as coaches of women teams or at least more women in administrative positions in women teams. This will encourage women to join sports since they will be assured that there are people who will understand them.
Moreover, administration of the law will require civic education on the available sports opportunities for women. Making women aware of what is available for them will increase their participation. Most importantly, discrimination of any kind should be done away with.
To ensure that women get their fair share in sports, it is important to have a level competing ground. Research has proven wrong the claims of people that women are not good in some fields. Women are able to do what men can do (Northouse, 2009).
Right from the point of funding various sports activities, gender equity should be the guiding factor. Women should have same opportunities as men so that they can improve the quality of their sports. It is not yet late to know that Title IX has not met its objectives. Therefore, more should be done to ensure that the law is fully implemented.
References
Gavora, J. (2002). Tilting the Playing Field: Schools, Sports, Sex. New York: Encounter Books.
Moran, A. P. (2004). Sport and Exercise Psychology: a Critical Introduction. London: Routledge.
Northouse, P. G. (2009). Leadership: Theory and Practice. Thousand Oaks: Sage publishers.
Rosner, S. & Shropshire, K. (2011). The Business of Sports. Sudbury: Jones & Bartlett Publishers.
Law can be described as a set of rules and guidelines enforced by public bodies, which have been mandated with the responsibility. In the past, laws were originally made by governments, but contemporarily, laws are made and enacted through parliament. Law shapes the social, political and economical aspects of a given country and are divided into two major categories which are; Criminal laws and Civil laws (Fletcher 10).
Criminal law deals with acts that cause intentional harm to any specific individual and contains the punishments that are to be enforced if anyone broke any of the set rules. On the other hand civil law deals with any kind of disputes that may erupt between two private parties or acts that can cause harm to others.
With reference to the above given question, this paper will analyze the current legal system and discuss three areas of civil law that I would change and also three areas of civil law that I would retain. In addition to that, this paper will discuss three areas of criminal law that I would change and also three areas of criminal law that I would retain if am in a position to do so. This paper will also discuss three trends in the law i.e. civil and/or criminal that I believe will be important during the next year.
Civil law deals with disputes that may emerge between individual and organizations with the victims being compensated. Civil law courts are the kind of courts that deal with disputes between individuals and organizations. They deal with cases such as negligence by individuals and family disputes.
There are several major areas of civil law which include; actions against the police, benefits and tax credits, clinical negligence, community care, consumer affairs, debt, money and tax, education, employment, family, housing, immigration and nationality, personal injury and public law (Fletcher 200). One of the areas of civil law that I would change includes community care. Community care refers to services that are offered to the sick, elderly and people with disabilities. This is because when this group of people has any kind of problem with any individual or any organization, there are limited places that they can give out their issues to be addressed.
You may find that these people do not have a place to turn to in times when they need help in that whenever a problem occurs they are always alone. Some of the individuals and organization take advantage of this situation and abuse these people. The main reason why they do so is because they know very well that nobody will be there to assist them whenever they need assistance (Gross 76). The government has launched a website by which these cases can be address but you find that the level of education of this people is low in that they do not know how to operate a computer so as to report these cases via the internet.
If I was to change anything in this area of civil law, I would start by creating centers in the township level to deal with these kinds of cases which are becoming a common occurrence these days. I would then create more care home that will care and protect the elderly and the sick from organization that are only there to take advantage of the situations. I would also create home based school for the disabled so as to train them on how to use computer and how to report cases via the internet (Gross 201).
The other area of civil law that I would change is employment. This area offered advice on a couple of employment issues such as unfair dismissal, discrimination and disputes over pay and conditions. The employment act guarantees every employee quality working conditions and payment according to the work done. Some employers are taking advantage of the vulnerable youth and make them work for less pay with very poor working conditions.
The government has set up centers that cater for the complains that the employees bring forward and work on them. The government does not does not do enough when it comes to acting on the complains that the employees bring forward thereby making employees feel humiliated. If I was to change anything in this area of civil law, I would create unions that the employees would join which would be mandate with the task of making sure the grievances of the employees are catered for to the fullest.
These unions would be registered with the government and would forwards the grievances of the employees on their behalf and make sure that the government works on these grievances in time (Gross 205). I would also create centers that would cater for the grievances of employees who have either been harassed by their employers or have been unfairly dismissed from their duties by their employers. In addition to that they will also be dealing with employers who go against the employment act and will always make sure that the working conditions are favorable for the employees.
The other area of civil law that I would change is clinical negligence. Clinical negligence refers to claims for damages by individuals or organizations to public or private medical practitioners. Medical practitioners have developed a habit of neglecting patients who either do not pay enough or are unable to pay their bills. Some of the medical practitioners have a habit of working very fast so as to attend to other patients in turn getting more money but in the process of their working fast they neglect minor issues that make patient either sicker or even lead to death.
The government has put in place mechanism that enable individual with any kind of complains against medical practitioners to bring them forwards so that they can be worked upon. Most of the patients who have been neglect by these practitioners do not know where to direct their complains and in turn leave the matter. If I was to change anything in this area of civil law, I would create more awareness to the general public on where to direct their complaints regarding medical practitioners. I would also open centers in the townships to cater for such complains brought forward by the patients.
The first area of civil law that I would retain is actions against the police. This is because the government has created enough public awareness with regards to this area and has opened up centers in the townships that deal with cases of police harassment and any other complain about the police. The other area of civil law that I would retain is education (Murphy 20). The government has done enough awareness to parents on how to deal with cases of bullying, special needs or school exclusion of their children and how they can report cases with regards to this area.
The other area of civil law that I would retain is family. This is mainly because the government has done enough when it comes to the breakdown of relationships and the custody and maintenance of children. The government has created children’s legal centers and divorces courts that are mandated to deal with these cases.
Criminal law is a set of laws that deal with crime. The areas of criminal law include; aggravated assault, rape, burglary, drug offenses, fraud, federal cases, robbery, sexual violence, election violations, drunk driving and restraining orders (Murphy 15).
If I was to change any area in criminal law, I would start by changing sexual violence. Sexual violence has become a common occurrence and many sexual offended victims are always afraid of reporting the cases to the police because they feel that no action will be taken on their behalf. If I was to change anything I would create enough centers within the townships and hire experienced staff to cater for the cases of sexual harassment.
I would also conduct a massive campaign aimed at emphasizing on the need to report sexual harassment cases. I would also create very harsh punishments for offenders in this law, which may include life imprisonment. I would also make sure that there enough counselors who will be able to counsel these victims accordingly for them to be able to cope with life (Murphy 25).
The other area of criminal law that I would change is drug offences. The main reason is because to stop this vice we have to be able to stop the main suppliers of these drugs. I would create enough rehabilitation centers in the townships to be able to cater for the majority of people who are into drug and substance abuse. I would make sure that the police capture the main culprits of this vice and that they are prosecuted according to the law. I would also make sure that the special branch of the police that is mandated with the task of making sure that our streets are drug free is enforced and well equipped to be able to do their job without any interference from any individual to be able to read the streets of this killer vice.
The other area of criminal law that I would change is fraud. Many individual and organizations are engaging themselves with fraud either willingly or unwillingly in that they are able to get money through fraud. These individuals know that the government has not made any steps in trying to stop fraudsters. If I was to change anything in this area I would employ the skills of university graduates in that they are able to come up with new developments that are able to counter fraud. I would also create a special branch of the police that will be mandated to deal with fraudsters and punish them accordingly.
The first area of criminal law that I would retain would be rape. The government has put in place very strict measures that deal with rape cases. The government has created centers where the victims can report their cases which can be dealt with accordingly. The government has also put a set of punishments for the offenders and which are very strict according to the law. The other area of criminal law that I would retain would be drunk driving. This is because the government has made it clear that it is illegal to drink and drive and has put forth very strict punishments for the culprits of this offence. The government has also promoted the campaign against drunk driving with an aim of being able to reduce the cases of drunk driving.
The last area of criminal law that I would retain would be aggravated assault. The government has put in places measures that ensure that these cases of aggravated assault are dealt with accordingly. It has also put in place very harsh punishments for the offenders of these criminal offences that will deal with the culprits. When it comes to the trend in the law, some major factor are going to determine the law processes. Some of the major factors include social networking. Social networking has the potential to changes the practice of law by the use of social medial such as facebook, twitter and YouTube. They are changing the whole perspective of how they locate and question witnesses and how they manage their careers. Social networking is being used by these legal professional to advertise and promote their law firms.
The other major factor that will determine the law making process is the E-discovery. This is where all the files are computerized thereby making it easy for them to access information whenever necessary and use them at their own disposal. In addition to that another aspect that is going to affect the law making process is globalization whereby law firms are expanding their businesses across the borders. In the process of expanding they will collaborate with foreign counsel and form intercontinental mergers thereby erasing the geographical boundaries in the scope of law practice.
Works Cited
Fletcher, George. Basic Concepts of Criminal Law. London, UK: Oxford University Press, 2008. Print
Gross, Hyman. A Theory of Criminal Justice. London, UK: Oxford University Press, 2005. Print
Murphy, Jeffrie. Forgiveness and Mercy. London, UK: Cambridge University Press, 2010. Print