Post on 19-Jan-2016
The Historical Development of Law, Rule of Precedence and Legal
Reforms
Mr. Menla
CLN4U
Historical Roots of LawLaws are commonly found in numerous
civilizations throughout the worldThey eventually were enforced through word
of mouth, but because of increased contact and advancement in technology – laws become more complex and so they needed to be codified (written)
Many of the ancient laws that were once practiced helped shape Canada’s present legal systemGreat Laws of Manu Code of Li K’vei
• These were laws that were established in India and were passed orally from one generation to the next
• These were established in China
• They were written and dealt with issues relating with theft, robbery, prison and arrest
Restitution Retribution
• Restitution: Punishment which requires offender to pay the victim or society back for harm or loss caused by crime (Def.)• E.g.
Community Service
• Retribution: Punishing an offender for revenge or to satisfy public that offender has paid for crime (Def.)• E.g.: Capital
Punishment or life imprisonment
Restitution vs. Retribution
Impact on Canadian SystemPerjury is outlawed
Perjury: The offense of willfully telling an untruth in a court after having taken an oath or affirmation (Def.)
Babylon/Code of Hamm
When King William came to Power in England in 1066, he declared himself as, “The Law” and had absolute power using the concept of Divine Right Divine Right: Monarchs and their successors derived their power to rule
from God and were accountable only to God. Hence, they were above the law (Def.)
William instituted a system of land ownership, known as Feudal System1. This divided England into districts of lands, which had different
districts being controlled by different Noblemen2. Everything within that district (land, citizens, animals, peasants)
belonged to the respected Nobleman3. Each Noblemen judged and sentenced only those under his district
authority4. Some Noblemen were fair and reasonable - while others were harsh and
unjust Penalties for similar offences naturally differed from village to village
5. There were: 1) No rules of evidence and 2) No thought of the rights of accused
By 12th century, peasants rose up against these irregular treatments and so King Henry II reduced power of Monarchy, which lead to establishment of current laws
The Feudal System
As time went on during and following the Feudal Age, Judges began to notice similarities with regards to legal problems they encountered
They agreed that similar cases should face similar consequences
This led for Case Law to be establishedCase Law: A method of deciding cases, based on
recorded decisions of similar cases (Def.)E.g.: All convicted murders should face the death penalty and
all thieves should face imprisonmentCase Laws were then eventually passed and were
accepted as Common LawCommon Law: It developed in English courts. It relies
on case laws and is common to all people (Def.)Public found law established to be genuine and fair
Common Law
Common law allowed for Rule of Precedent and Stare Decisis (To Stand by Decision) to be established and practiced amongst all Judges in EnglandRule of Precedent: Applying a previous
decision to a case that has similar circumstances (E.g. Any Murderer should face automatic death sentence) (Def.)
Stare Decisis: It required all Judges to stand, support and apply any decision that has been made by a previous Judge regarding a similar situation (Def.)
Rule of Precedent and Stare Decisis
Since Judges began to take a leading role in establishing laws for all sorts of cases, the citizens began to question the monarchy’s “Divine Rights”The Barons of England brought a document to John, which
forced him to accept it In 1215, King John signed Magna Carta, which limited the
power of the Monarchy. This helped establish:1. Individual basic right2. It recognized Rule of Law3. Habeas Corpus (You Must Have the Body)
Rule of Law: It gave everyone (including monarchs) equity before the law (Def.)
Habeaus Corpus: It is a court order that is designed to prevent unlawful arrest by ensuring that anyone detained is charged before a court within a reasonable time (Def.) It is a basic component of the Magna Carta Its purpose is to secure the release of people who are unlawfully
imprisonedThis historic right is so fundamental, that it is found in Canada’s
current Charter of RightsThe Magna Carta was also called, “The Great Charter”
Legal Reforms
The 13th century saw the rise of English ‘parliament’ (“talking together”)
Not formalized - rubber stamp for king, but opportunity for barons
CONSULTATION - roots of rule by the people1689, parliament passes Bill of Rights
Institution for the peopleInforms Canadian Charter
Impact of English Laws on Canada
Those governed in 400 BCE in the Roman Empire and parts of North Africa
Their main features consist of:1. Formed the Catholic Church2. Just War theory:
A. War is morally justifiable based on set criteria B. differentiated between initiation & conduct in-
warC. Defensive purposes, restore peace
Significance of Laws:1. Religious emphasis
From the 11th century onward, it had an enormous impact on the height of Medieval Europe
2. All people sin, need relationship with God
St. Augustine Laws
Impact on Canadian System:The mixing of church and state
This argued that education was means to an end. This being God
Up to the 18th century, schools were all religiously affiliated in CanadaUsually Catholicism was practiced in
schools QuebecUnusually Protestantism was practiced in
schools in Ontario and the rest of Canada
St. Augustine Laws (Cont’d)
Homework
➔Magna Carta (Video)➔Pg. 30. – Q.2-4