Unit One: Foundations of Law L. Gerber

The Law and Society Chapter 1 L. Gerber

Law in Our Lives 1.1

What if? People could do whatever they wanted, whenever the wanted, to whomever they wanted, however they wanted, and where they wanted?

ANARCHY: A state of disorder in society, resulting from a lack of government authority.

Rules vs Laws Rules: ´Rules apply only in specific context. ´Rules are not enforced by the courts Laws: ´Apply to all society ´Are enforced by the courts. All laws are rules, but not all rules are laws

What is Law? Laws are essentially a set of rules, but there are 3 main characteristics that make laws different from simple rules: Laws are a set of rules established and enforced by government. Laws are mandatory. Laws involve consequences.

Law: the regulation of life in society, based on principles of reason and fairness.

Functions of Law Laws… Establish rules of conduct Provide a system of enforcement Protect rights and freedoms Protect society Resolve Disputes

Rule of Law A principle of justice stating that: 1) law is necessary to regulate society. 2) that law applies equally to everyone. 3) That people are not governed by an arbitrary power. First, the Rule of Law means that individuals must recognize and accept that the law is necessary to regulate society. Secondly, it means that the law applies equally to everyone, including people in power, such as heads of states and politicians. Finally the Rule of Law means that no one in our society has the authority to take away our rights except in accordance with the alw.

Law and Morality Law and morality are connected Often a society’s laws are a reflection of the morality of it’s citizens. Morality and laws change as a society’s attitudes and moral standards change. Some laws are morally charged. What is “morality”?

Morality: a system of values that outlines concepts of right and wrong, as well as good and bad behaviours.

Law and Justice Justice is characterized by 4 concepts: 1)The idea that we should treat like cases alike and different cases differently. 2)We consider a law unjust if it discriminates on the basis of irrelevant characteristics 3)Justice should be impartial; laws should be applied regardless of a person’s position or financial status. 4)We expect the law itself to be just in that it conforms to society’s values and beliefs.

Some of the divisions and classifications of law we will be talking about through the course include…..

Divisions of Law In Canada, the law is divided into two basic types: substantive and procedural. Substantive Law: laws that outline a person's rights and responsibilities; further divided into Public and Private Law. Procedural Law: legal processes that protect and enforce our rights.

Public Law There are 3 types of public law: Criminal Law: outlines offences against society and their punishments. Constitutional Law: outlines the structure and powers of governments. Administrative Law: outlines the relationship between citizens and government agencies.

Private Law Also known as Civil Law; there are 5 types: Tort Law: a person is held responsible for damage caused to another; "tort" is Latin for "a wrong". Family Law: deals with the various relationships of family life (e.g. marriage) Contract Law: outlines requirements for legally binding agreements. Property Law: outlines relationship between individuals and property. Labour Law: outlines relationship between employers and employees. We will be talking about these in more detail as we go through the course

Historical Roots of Law 1.2

Laws have been around since humans began to interact as groups or societies. Laws were initially based on common sense, and passed down from generation to generation.

There was often a clear hierarchy to the law, from the Gods, through the Kings, on through various others in society, to the slaves (or whomever was) at the bottom of the social structure. Many great civilizations have influenced present law.

Laws of early civilizations had many things in common. Laws of these civilizations were generally based on property rights, slavery, the treatment of women and children, family relationships and responsibilities.

Early History of Law In ancient societies, local customs and beliefs made up the law. Customs were not written down and instead were passed on by word of mouth. As populations increased, laws became more complex and codification became necessary. Codification: a written collection of laws

Timeline 1792-1750 BCE- The Code of Hammurabi ( Babylon; present day Iran and Iraq) 1380 BCE- Mosaic Law 1280-880 BCE- The Great Law of Manu; Indian laws transmitted through oral tradition (India) 400-BCE- Athenian Law 350 BCE- Code of Li-K’-vei (China) 100- CE Roman Law

Code of Hammurabi Code of Hammurabi, c. 1750 BCE: One of the earliest records of written law. King Hammurabi of Babylon codified nearly 300 laws in columns of stone codified the rules and penalties for every aspect of Babylonian life from the ownership of property to the rights of adopted children. This code based punishment on retribution (an eye for an eye) and restitution (payment to the victim of a crime.)

Code of Hammurabi The laws reflected a patriarchal society in which the wealthy were given more protection than the poor. Distinction was not made between accidental and intentional.

Mosaic Law Mosaic Law, c. 1240 BCE: Based on the Ten Commandments; first five books of the Bible Bible states that Moses received these laws from God on two stone tablets.

The Ten Commandments Thou shall have no other gods before me. Thou shall not make idols. Thou shall not take the name of the Lord your God in vain. Remember the Sabbath day to keep it holy, Honour your father and your mother. Thou shall not murder. Thou shall not commit adultery. Thou shall not steal. Thou shall not bear false witness against your neighbour. Thou shall not covet.

Mosaic Law Mosaic Law was more concerned with punishing a deliberate behaviour than an accidental act of harm. The Ten Commandments were more likely to punish the guilty party than to permit the shift of punishment to a person of lesser status. Care for the poor was also expressed in Mosaic law.

Administration of Justice Protection of Property Protection of the Person Code of Hammurabi: 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, then he shall be put to death, If a man has stolen goods from a temple or a house he shall be put to death, and he that received the goods shall also be put to death, If a son has struck his father, his hands shall be cut off. If a man strikes a man’s daughter, and brings about a miscarriage, he shall pay for the miscarriage. If that woman dies. his daughter shall be killed. Mosaic Law: You shall not utter a false report. You shall not join hands with the wicked to be a malicious witness. If a man steals an ox or a sheep and kills it, or sells it, he shall pay five oxen for an ox, and for sheep for a sheep. Whomever strikes his father or mother shall be put to death, whoever curses his father or mother shall be put to death.

Greek Law Our modern jury system can be traced to Greek law Early Greek society valued input from its citizens; democracy developed there. This led to the development of juries. Juries were utilized to determine guilt and sentences. They were very large; ranging from 201- 1001

Roman Law Roman Law provided us with the idea that: Laws must be recorded and written down. Judges are not alone in interpreting the law. Legal advice could be sought from the forerunner of the modern day lawyer. The Romans established the twelve Tables= on of the first legal codes in Roman Law.

Roman Law Roman law is now the foundation of modern day law Justinian’s code established the basis for criminal and civil law in present day legal systems around the world. Justinian’s code emphasized equality, and formed the basis for civil and criminal law for several centuries.

Influences on Canadian Law 1.3

Early British Law When the Romans left Britain around 410 CE, the Britons turned to God to determine guilt or innocence. They utilized various methods including: Trial by Ordeal Trial by Oath Helping Trial by Combat

Evolution of Law Magna Carta, 1215: English noblemen forced King John to sign this document that established the rule of law - that all people, including the king, had to obey the same laws; no one was above the law.

Feudalism In 1066, King William of England introduced a feudal system. Under this system, the king owned all of the land and divided most of it among his lords or noblemen. The Lords had their own servants, or vassals. If a vassal broke the law, their Lord could punish them however they saw fit. Punishments were inconsistent and unfair. The British have had the greatest influence on Canadian law. Early British law was not always fair or just. The Feudal System gave Kings absolute power to judge their people.

Law was based on the concept of “divine right”- that monarchs and their successors derived their power to rule from God, and therefore were only accountable to God.

By the 12th century, people rose up against this form of law. King Henry II’s solution was to reduce the power of the monarchy, and this eventually led to the present day system of British and Canadian law.

Common Law King Henry sought consistency and fairness. He established courts known as Assizes, and appointed judges to travel throughout England to resolve disputes. Cases with similar facts were decided in the same way. The idea of “stare decisis” was developed. This meant that the decision of one court would apply to a similar case in another court.

If a judge issued a verdict in a new case, that decision became the standard for similar future cases - precedent. The system of law based on past legal decisions is known as common law or case law.

Rule of Law This legal principle was recognized in the signing of the Magna Carta of 1215. The rule of law states that the law applies equally to all persons. The Magna Carta also introduced the writ of habeas corpus – a document that is used to determine whether or not someone is being legally detained.

Rights & Revolutions In the 18th century, two significant revolutions took place that contributed to the development of human rights. 1) American Revolution, 1775 U.S. broke away from British rule and issued the Declaration of Independence in 1776. In 1791, the U.S. Bill of Rights was added to the American Constitution, which is still their basis of civil rights and freedoms.

Rights & Revolutions 2) French Revolution, 1789 Influenced by the ideas of liberty and equality in the American Revolution, the French rose up against their king to end feudalism. A National Assembly was set up with members who were elected by citizens. The concept of "nation-states" came out of these revolutions.

Influences Our legal system has been influenced by all of these earlier legal systems. Canadian law has been strongly influenced by British law. The Napoleonic Code influenced civil law- Quebec. The idea of an impartial jury is a cornerstone of our legal system, and for that we can thank the Greeks. We have the Romans to thank for the idea of lawyers.

Aboriginal Law Aboriginal law is now finding its place in the Canadian court system. The Great Binding Laws of the Iroquois Confederacy from 1450 which outline the rights and responsibility of people in areas of adoption, emigration, treason and succession have influenced Canadian law. Aboriginal principles of justice can be found in modern civil rights documents.