COMMON LAW AND CIVIL LAW INTERACTIONS: THEIR EFFECT ON MIGRANTS WITHIN THE AMERICAS

SILVIO VICTOR DOBRY, Fordham University

Abstract

This study explores the perceptions of Hispanics born and reared under a civil law system currently living in the New York City area with its common law and its accompanying system of criminal justice.^ The study includes (1) a review of socio-historical and juristic literature of Anglo-American and Latin American law; (2) a review of theoretical literature relevant to the research question; (3) secondary analysis of official data descriptive of Hispanic involvement in criminal justice in New York as delinquents or victims; and (4) in-depth interviews conducted with Latin American migrants currently living in the New York metropolitan area, contrasted with North Americans who have spent some time living in Latin America.^ Latin America derives its civil law from Spanish and Portuguese traditions. The United States derives its common law from England. The paternalistic "state imposed rationality" and "the pursuit of truth" inherent in civil law; and the "state of nature", stare decisis (precedent) characteristic of the "accusatory-adversary system" of common law have basically remained constant. Each system displays the different concepts of the relationship between society and the individual which help account for the dissimilar criminal justice systems. Some issues have become clear: first the social control mechanisms provided in civil law countries are perceived as more effective in shielding individuals and their possessions from common crimes; second, the perceived certainty of punishment in civil law, is perceived as having a powerful deterrent effect. Issues of security versus the protection of individual rights in either system are discussed.^ Secondary analysis of official data, and interviews pointed to the difficulties encountered by Hispanics in negotiating the common-law based criminal justice system in New York City, difficulties reflected in higher sentencing patterns, higher level of crime victimization and lower granting of parole. Socio-cultural differences arising from the common-law system act as impediments to Hispanics' socio-economic integration in the United States. The study found that special efforts are needed to familiarize Hispanics with the common law in general, and the American criminal justice system in particular.^ The study identified specific areas for further research. Research implications are clear: culture, including legal tradition critical for understanding an array of issues associated with migration between nations when different legal systems are operative. ^

Subject Area

Criminology|Ethnic studies

Recommended Citation

DOBRY, SILVIO VICTOR, "COMMON LAW AND CIVIL LAW INTERACTIONS: THEIR EFFECT ON MIGRANTS WITHIN THE AMERICAS" (1987). ETD Collection for Fordham University. AAI8714579.
http://fordham.bepress.com/dissertations/AAI8714579

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