ORIGINS OF LAW

ORIGINS OF LAW

Learning Goals:• Understanding how laws were

created and how they have evolved over time• Needs of society change over time

History of Law• in early societies local customs and beliefs

were the law• there were no written laws, laws were

passed by word of mouth• eventually, society became too complex

requiring too many laws for people to remember

• it became necessary for society to write down their laws

The Influence of Religion• religion was an important factor -- fear of

wrongful action, advice, and punishment were often determined by “God”

• priests were extremely powerful -- they were the link to the supernatural

• a division of power developed between rulers and priests

• some societies the leader/ruler was also the religious power -- Pharaoh

Evolution of Canadian Law

Local customs and beliefs were law * based on common sense * passed on to future generations by

word of mouth.

1760 BC - Code of Hammurabi

Mosaic Law- (First 5 books of the Old Testament)

Roman Law – Western Europe including France Introduced legal profession of lawyers

Justinian Code (534 C.E.)Byzantine Emperor Justinian codified 1000

years of Roman Laws

Napoleonic Code (1804)

England – King WilliamFeudalism (1066)

Precedents English Common Law

Case Law

Magna Carta 1215 -Established the Rule of Law

1265 – First Parliament1689 – Bill of RightsCanadian

Law

Code of Hammurabi• he was the King of Babylon – 1730 BC• laws were becoming more complex and

numerous• realized that justice was impossible unless

the citizens understood the law• Code of Hammurabi - outlined all the laws

and had them carved in columns of stone• first written laws organized in categories• concept of retribution – the punishment

should fit the crime (an eye for an eye)• http://www.youtube.com/watch?v=oDALXORbtR4

Excerpts from the Code3. If a man has borne false witness in a

trial, or has not established the statement that he has made, if that case be a capital trial, that man shall be put to death.

195.If a man has struck his father, his hands shall be cut off.

196.If a man destroy the eye of another man, they shall destroy his eye.

197.If a surgeon has operated…..and has made him lose his eye, this hands shall be cut off

Mosaic Law

• Mosaic Law is set out in the first five books of the Old Testament and includes the 10 Commandments

• Moses became the judge of disputes• eye for eye a tooth for a tooth philosophy

for punishment• more humane than Babylonian Law

(considered intent)• punishment required restitution – the

offender repaying the victim for goods

Excerpts from Mosaic Law• 21:15 Whoever strikes his father or his mother

shall be put to death.• 21:17 Whoever curses his father or his mother

shall be put to death.• 23:1 You shall not utter a false report. You shall

not join hands with a wicked man to be a malicious witness

• 22:1 If a man steals an ox or a sheep, and kills it or sells it, he shall pay five oxen for an ox, and four sheep for a sheep. He shall make restitution; if he has nothing, he shall be sold for his theft.

Greek Law

• perfect society – all male citizens were free and equal before the law

• they created a system of trial based upon ‘man’ being judged by his follow citizens

• male citizens of Athens were the only people able to be jurors – only men could bring a case to court

• guilt or innocence was determined by solid or holed metal discs

Roman Law• law was so complex – legal scholars were

used to interpret the law – first lawyers• Justinian – Roman Emperor (approx. 500

AD) – created the Justinian Code which was a publication of a collection of laws to govern the empire

• these laws form the foundation of Western European law of today (since the Romans conquered most of Europe

The Codes are comprised of 901 articles covering the following “books” (topics):• Justice and the law• The law of nature• Free men and slaves• Marriage• Adoption, Guardianship and the Emancipation of Minors

(free of parents/guardians)• Trusts, Wills, Succession (Estates) and Intestacies (no legal

will)• Property Rights including Servitudes (interest/benefit in

ownership), Usufruct (right of enjoyment), Usucapion (take Possession of), Gifts,

• Obligations (Contracts) and Delicts (Torts)• Partnerships and Mandates• Over-Eager Litigants (involved with lawsuit)• A brief appendix on “Criminal Trials”

The beauty of Justinian’s Institutes lies in its logic and simplicity. Here are some sample articles, taken from the Birks-McLeod 1987 translation and Cumin's translation of 1854:

• “The commandments of the law are these: live honourably, harm nobody; give everyone his due.

• "The main classification in the law of persons is this: all men are either free or slaves. Slavery ... makes a man the property of another, contrary to the law of nature.

• “The offspring of slave women are born slaves. Equally he is born free if his mother is free and his father a slave.... It is enough for the women to be free at the time of birth though a slave at conception.

• “A Roman law marriage is a marriage between Roman citizens.... Males must have reached puberty. Females must be sexually mature.

• “The Julian Act on the Suppression of Adultery ... puts to the sword not only those who treat with contempt the marriage of others but also those who dare to indulge their unspeakable lust with males.

Roman Law• 1804 after French Revolution, Napoleon

revised French law which had been based on Roman law and the Justinian Code.

• These revisions and new set of civil laws was called the Napoleonic Code, or the French Civil Code.

• Napoleon conquered much of Europe, so the Napoleonic Code became a model for many European countries.

• It’s the basis of Quebec’s civil law today

England – Feudalism• In 1066, William, Duke of Normandy (now

France), invaded and conquered England King William

• King William introduced the system of government called feudalism (go into more detail in British Influence on law)

Review of the History of Law• Hidden history: Law & Order