The Origins of Law

Jesus was Born

0

TodayHammurabi

2009 CE1400BCE1750 BCE

Greeks

350 BCE

Canada becomes a country

Moses

1867 CE

“BCE”Before the

Common Era

“CE”Common Era

Year 0

Muhammad

500 CE

FuturePast

Romans

These are all approximate!!!

Historical Influences

Hammurabi

Greek

Roman

British

French

Aboriginal

Our laws reflect British and French laws, which were influenced by

Greek and Roman laws, which were influenced by Ancient Kingdoms of

Mesopotamia (Iraq)

Codification

• Laws were not always written down.

• Earliest known codification of law: Code of Hammurabi

(app. 1750 BCE – 3700 years ago)

• 300 years later: Moses and the 10 Commandments

(app. ~1450 BCE – 3400 years ago))

The Rule of Law

• Hammurabi and Moses are early examples of The Rule of Law.

• A concept which suggests that for law to exist and function properly:

1. There has to be general recognition that there is a need for law.

2. No one is above the law. The law applies equally to everyone.

3. Your rights will not be taken away from you except in accordance to the law.

• Hammurabi: mostly commercial and business law.

• Moses: 10 commandments mostly criminal and family law.

• For other areas of law, people were still subject to the whims of leaders.

Greek Influences

Greek Democracy

The Greeks are considered to

be the first Europeans to

practice democratic

ideals in political and

legal systems.

• They practiced a Limited democracy:

• citizenship was limited to native born males over age 18.

• Women, slaves and foreigners excluded.

2 principles adopted from Greeks:

• Trial by Jury

• Citizen participation

The Romans

Roman Influences (app 400 BCE)

The RomansMany years later, the Romans came to ‘world’ power. They brought with them a strong sense of law.

The Law of the Twelve Tables: codified 450 B.C.E.

Inscribed on 12 tables (stone) and spread through the Roman Empire.

Expanded by the Roman Emperor Justinian, who produced the ‘Justinian Code’.

Most European countries have legal systems based somewhat on Roman Law.

From the Romans, Britain adopted:

• Presumption of Innocence

• The Rule of Law

• Lawyers

• Code

France

• France maintained a fully codified law.

• Largely due to the influence of Napoleon. (Napoleonic code)

England

• Although conquered by the Romans for a time, England did not develop a Roman style system.

• English had a combination of government dictated and Judge made law.

Common Law / Case Law vs. Statute Law

• Common Law: • In England, hundreds of years ago, the

King of England would declare that he owned all the land in the Kingdom.

• He would grant estates to ‘nobles’ or barons. (these nobles / barons would then support the king)

• The barons and nobles would lease land to lesser men in exchange for services.

• This all was referred to as the feudal system.

• Vassal – Servant• The King would lease his land to

vassals (his servants) and they would lease the land to vassals (servants to them)

• A baron would only have to answer to the king, but he would be responsible for all the people in his piece of land. (including legal affairs)

• In an attempt to bring consistency to the kingdom, the King established the Curia Regis (a traveling court), legal advisors to the king who would travel throughout the kingdom settling disputes. (a traveling court)

• The traveling court would establish a ruling and this ruling would be used in future cases of a similar nature.

• They would learn what was common among the cases.

• Were known as courts of common law.

• Court of equity was created for appeals from the lower common law courts.

Precedent

• prec·e·dent       n. ˈprɛs ɪ dənt; adj. prɪˈsid nt, ˈprɛs ɪ dənt/

• –noun 1.Law. a legal decision or form of proceeding serving as an authoritative rule or pattern in future similar or analogous cases.

• 2.any act, decision, or case that serves as a guide or justification for subsequent situations.

• In 1215, some powerful Barons forced King John to sign The Magna Carta.

• The Magna Carta established the rule of law.

• Still, the King had too much law making power.

• 1st Parliament was formed around this time (app.1250 CE or AD)

• Over time the Parliament gained full law creating power.

• The laws created by parliament were called ‘Statutes’.

Statute Law

• Any law passed by Parliament.

• As opposed to law that is ‘made’ by judges. (Even though, judges don’t really make laws...)

Common Law/ Case law

• The parts of law that have been ‘made’ by previous court cases/decisions.

• Cases…case law…

• Common law (as a system of law) is where the previous decisions become part of the law.

Civil Law• Civil law (as a system of law) refers to the

strict use of codified law from the Roman tradition.

This is not the same civil as in the area of civil law (private law: Tort, contract, family, labour…)

• Quebec is the only province to use this system.

• Quebec inherited it from France• France inherited it from the Romans.

• Civil law is based on written laws and is not bound by precedents.

• In any new case, statute law shall be applied.

Common law system Bound by Precedents

Civil law system Bound by Code

• Adversarial system

• The adversarial system (or adversary system) of law is the system of law that relies on the contest between each advocate representing his or her party's positions and involves an impartial person or group of people, usually a jury or judge, trying to determine the truth of the case.[1][2][3] As opposed to that, the inquisitorial system has a judge (or a group of judges who work together) whose task is to investigate the case.

• The adversarial system is generally adopted in common law countries. An exception, for instance in the U.S., may be made for minor violations, such as traffic offences. On the continent of Europe among some civil law systems (i.e. those deriving from Roman law or the Napoleonic Code) the inquisitorial system may be used for some types of cases.

• The adversarial system is the two-sided structure under which criminal trial courts operate that pits the prosecution against the defense. Justice is done when the most effective adversary is able to convince the judge or jury that his or her perspective on the case is the correct one.