Historical Development of

Law

ANCIENT TRIBAL SOCIETIES

small bands of hunters; few people developed standards of behaviour that would allow them

to live in peace with each other few rules; not written down; passed on by word of mouth no official punishment; fear of being outcast common punishment

Babylonian InfluenceBabylonian Influence

Developed over thousands of years- first known written law- Code of Hammurabi - King Hammurabi,1728 - 1686 BCE

a. Advanced society- unique laws to control / guide- derived from the Gods- directing Hammurabi

Dealt with:- administrative / domestic / criminal issues- administrative / domestic / criminal issues

- laws directed towards - laws directed towards childrenchildren

Hammurabi and Shamash – God of Justice

King Hammurabi many laws came into effect because Babylon had become a

successful trading centre – a complex society – and many people traveled through the area

too many laws for people to remember the King had the laws carved into stone pillars and placed

in the centre of the temple where everyone could see them

But… these laws were very harsh they followed the “eye for an eye” principle e.g. “If a man has struck his father, his hand shall be cut

off.”

too severe no distinction between a deliberate and accidental act sometimes the innocent were unfairly punished e.g. “If a man kills the daughter of another man, then

his daughter shall also be killed

The Problem…

Egyptian Influence religion was important in earlier societies; people lived in fear of

disobeying their gods for many centuries, the ruler and the priest (or religious leader) operated

independently of one another around 3000 BCE religion and government came together the pharaoh served both roles and was seen as the link between the gods

and the subjects people had a religious duty as well as a civic duty to obey the laws

- highly developed society (a) Pharaoh descendent of gods

- word was law(b) the laws of ancient Egypt were at least partially codified (c) Egypt: first court system

- overseers: aristocracy / priests (d) no legal advocates – parties presented arguements(d) no legal advocates – parties presented arguements

Egyptian law

Ma'at - symbol of truth, order, balance and justice

Egyptian Criminal Law

Pharaoh decided most important cases or appointed a special commission with full authority to pass judgment

Punishments: stolen or embezzled goods – return goods with fine twice their value corporal punishment – 100 strokes by cane; in more serious cases

bleeding cuts added or branding (sign of permanent dishonour) exile to Nubia or Western Oasis sent to labour in distant mines or quarries mutiliations (hands, tongue, noses, ears) capital punishment (on a stake, burnt alive, drowned, decapitation)

Hebrew or Mosaic Law (1500 B.C.E.)

based on : The Ten Commandments God presented these laws to Moses on top of Mount Sinai

(according to the Book of Exodus in the Bible). These laws were the laws of God, given to Moses who had

the right to interpret them and rule on disputes; people had little input

Still the :eye for an eye” principle

Better legal situation because: laws were less harsh compared to preceding laws

under the Code of Hammurabi punishment was now directed at the guilty and

protected the innocent

Also: distinguished between an accident and a deliberate

act there was a real relationship between obedience to

the law and one’s relationship with God

Greek Influence

Draco – 620 BCE• lawgiver – homicide 1st known written law• reputation of being extremely severe with his punishments• death penalty

Solon – 549 BCE• created many new laws• kept exile as punishment for homicide as Draco had• created 4 categories of law

• Tort• Family• Public• Procedural

Law givers were not rulers or kings – appointed officials whose job was to write laws

Courts and Judicial SystemGreek Courts• cheap and run by amateurs• officials paid little and trials completed in a day• no lawyers and no official judges• normal case – 2 litigants arguing their case; audience or jury vote for one side ; vote either guilty or innocence; then vote on punishmentAreiopagos• homicide court• made up of former archons or magistrates – court officials• Eleven – 11 member board of archons – in charge of prisoners & executions

right to arrest any criminal denounced to them could execute any criminal caught in the act (ep autophoro)

• split into 4 types of courts ruled over by 51 members - ephetai Prutaneion – tries cases of death caused by animal or inanimate objects Palladion – involuntary homicide & killing of non-citizens Delphinion – justifiable homicide Phreatto – while in banishment for involuntary homicide – charged with murder or intent to cause harm

Dikastic Courts heard every kind of case public prosecutions = graphe = a written indictment private prosecutions = dike = prosecution had power to decide the law, the facts & pass sentence potential dikastes – must be full citizens, at least 30 years old 6000 fully qualified citizens took oath normal case – dikastes = 500 members

Private cases 200 to 400 verdict – vote for one or the other no appeals decision final

Roman Influence

Roman Empire replaced Greek power as society grew, there was a need for more laws so…. there was a need to train people who could learn about the laws,

and to interpret them these were the forerunners of our LAWYERS the Emperor at this time, Justinian, simplified and organized the laws.

They were codified in the JUSTINIAN CODE

Twelve Tables (451 – 449 BCE) the earliest written legislation of ancient Roman law 12 bronze tablets displayed in central place

Justinian Code (527-565 CE) written under direction of Roman Emperor

Justinian (483 – 565 CE) set foundation for modern legal system code divided into 4 parts

The Institutes The Digest The Code The Novels

punishment – more humane “community services” introduced

Christian Influence British Influence

Romans occupied Britain for about 400 years (still some influence in law) Romans left and the Anglo-Saxons invaded Britain

Anglo-Saxons (4th – 10th centuries) Established the same rules throughout the land Land was the most valuable item in this society Land was divided into: 34 shrines or province

Shire courts – met twice per year; decided about land titles Divided into: Hundreds of counties

County courts – met once per month; tried serious criminal offences Made up of: Towns

Town courts – met three times per year to deal with local offences

Laws were, for a long time, unwritten, and were based on: CUSTOMS and TRADITIONS Common Law but no equity: law for all common people but didn’t apply to the

upper class or the king

Norman Influence 11th Century

William I (1066-1087) Ten Articles of William the Conqueror

Intent: clarify his position as conqueror outline his position on certain legal issues introduced feudalism first reference to trial – Wager of law → combat

3 distinct courts: Baron, Church, King 3 institutions developed

Oath helper Sheriff Writ

In situations where guilt or innocence was undecided by the courts, a direct appeal was made to God.

It was believed that if a person was subjected to a physically painful or dangerous test, God would intervene and thus determine the guilt or innocence of the accused: TRIAL BY ORDEAL

Trial by Combat: Fight with accuser

Trial by Water: Accused bound and thrown in pond. If accused floated, was considered

guilty and executed. If accused sank, was considered innocent and presumably rescued

Trial by Hot Irons: Burns infected = guilty

Trial by Bread and Cheese: Speaks clearly = not guilty

In all trials, God protects the innocent Used Compurgators – someone who testifies in favour of or vouches for another

By By 11th century, COMMON LAW was established traveling judges went form shrine to shrine and attempted

to decide similar cases alike or in a COMMON way Common law establishes PRECEDENT which is a principle

used today.

Henry I (1100 -1135)

Henry II (1154 – 1189)•growth of common law & streamlining of legal procedures

HistoryHistorya. a. William the ConquerorWilliam the Conqueror (1066) (1066)

- developed Anglo-Saxon law- developed Anglo-Saxon law

(1) (1) Reeve of the ShireReeve of the Shire (12 (12thth century) century)- King’s enforcement officer- King’s enforcement officer- police / judge / executioner- police / judge / executioner

(2) (2) Developed an accusatory systemDeveloped an accusatory system

- 12 freemen appointed- 12 freemen appointed- made accusations- made accusations- became our jury of 12- became our jury of 12

HistoryHistoryb. b. Roman civil lawRoman civil law

- integrated with English traditions- integrated with English traditions

(1) (1) King’s courtKing’s court- dealt with common law- dealt with common law- criminal and civil matters- criminal and civil matters

(2) (2) Church courtsChurch courts- dealt with canon law- dealt with canon law- family and church matters- family and church matters

HistoryHistory (3) (3) England: canon law / civil lawEngland: canon law / civil law

- developed into ‘common law’- developed into ‘common law’- King Henry VIII- King Henry VIII

(a) Judges replaced sheriff as court (a) Judges replaced sheriff as court officialofficial

- traveled throughout a Shire- traveled throughout a Shire

(b) Judges made law(b) Judges made law- decisions became common- decisions became common- followed each other’s rulings- followed each other’s rulings- became known as “common law”- became known as “common law”

History History c. c. Landowners / aristocratsLandowners / aristocrats

- based rules on king’s law- based rules on king’s law- nobility revolted - nobility revolted

(1) (1) Magna CartaMagna Carta – 1215 – 1215- Great Charter (Latin)- Great Charter (Latin)

(2) (2) Established laws of EnglandEstablished laws of England

(3) (3) US ConstitutionUS Constitution- modeled after Magna Carta- modeled after Magna Carta

HistoryHistory(4) (4) 1818thth century England century England

- becoming an industrialized society- becoming an industrialized society- new business / technology- new business / technology- new laws to manage- new laws to manage

(a) United States of America(a) United States of America- struggling - struggling - to form a new government- to form a new government

3.3. Law in the new AmericaLaw in the new America

HistoryHistory- common law of England- common law of England- adapted to Continental United States- adapted to Continental United States

a. a. Principles of common lawPrinciples of common law- still in effect- still in effect- left intact where did not interfere with - left intact where did not interfere with

state /state / federal law (1990s)federal law (1990s)

(1) (1) Never legislatedNever legislated- accepted practice by the courts- accepted practice by the courts- have codified common law- have codified common law

HistoryHistoryb. b. FederalismFederalism

- federalist form of government- federalist form of government

(1) (1) Union of statesUnion of states - under a federal government- under a federal government

(2) (2) Two or more levelsTwo or more levels

(a) Federal(a) Federal- provides certain services- provides certain services- protection / taxes / - protection / taxes /

representationrepresentation

HistoryHistory(b) State(b) State

- provides certain services- provides certain services- highways / schools / taxes - highways / schools / taxes

(c) Local(c) Local- provides certain services- provides certain services- garbage / fire / taxes- garbage / fire / taxes

(3) (3) Based on common lawBased on common law- unwritten law- unwritten law- follow precedent / make up new law- follow precedent / make up new law

HistoryHistory(a) Doctrine of Stare Decisis(a) Doctrine of Stare Decisis

- “- “let the decision standlet the decision stand” ”

(b) Unwritten laws that were appealed(b) Unwritten laws that were appealed- became “- became “case lawcase law””- which is written law- which is written law

4.4. Articles of ConfederationArticles of Confederation- first governing document- first governing document- combined 13 colonies- combined 13 colonies- into a loose confederation- into a loose confederation

HistoryHistorya. a. RatifiedRatified

- March 1, 1781- March 1, 1781

b. b. Replaced by the ConstitutionReplaced by the Constitution- June 21, 1788- June 21, 1788