Historical Perspectives on Law By: Patrick & Moritz

Agenda Early Legal CodesEarly Legal Codes Aboriginal InfluencesAboriginal Influences The French Influence: Civil LawThe French Influence: Civil Law The British Influence: Common LawThe British Influence: Common Law Adversarial Versus Inquisitorial Trial SystemsAdversarial Versus Inquisitorial Trial Systems Methods of AdjudicationMethods of Adjudication Trial by OrdealTrial by Ordeal Trial by Combat (Judicial Duel)Trial by Combat (Judicial Duel) Early Court SystemsEarly Court Systems The origins of the JuryThe origins of the Jury

Early Legal Codes One of the Earliest legal codes was written by Hammurabi (concept)One of the Earliest legal codes was written by Hammurabi (concept) -> code of laws that were in craved in stone-> code of laws that were in craved in stone -> the codes were insights into belief of social structure / severe punishments-> the codes were insights into belief of social structure / severe punishments Punishment was based on status in the community.Punishment was based on status in the community. Ex slave and free manEx slave and free man

Cont of early legal law “laws were in craved in stones and put in the middle of the town so every person con consult them”“laws were in craved in stones and put in the middle of the town so every person con consult them” 400 BCE jury was created and principals (man or women)400 BCE jury was created and principals (man or women) Unwritten laws were considered arbitrary – difference in peoples sentenceUnwritten laws were considered arbitrary – difference in peoples sentence Corpus Juris Civilis -> treated all the sameCorpus Juris Civilis -> treated all the same

Aboriginal Influences British and European settlersBritish and European settlers Established legal systems religious and social structuresEstablished legal systems religious and social structures HOW??HOW??

1714 Mohawk Onondaga Seneca Oneida and Cayuga join together to form a league of nations know as the Iroquois ( Haudenosaunee)Mohawk Onondaga Seneca Oneida and Cayuga join together to form a league of nations know as the Iroquois ( Haudenosaunee) 6 nations6 nations Great binding law—justice fairness more civil rightsGreat binding law—justice fairness more civil rights Restorative justice- offender must repair and restoreRestorative justice- offender must repair and restore

The French influences: Civil Law Adversarial trial system regularAdversarial trial system regular Inquisitorial trial system – judge = more active lawInquisitorial trial system – judge = more active law 1759 English settlers agreed to this1759 English settlers agreed to this 1774 Quebec was enrolled1774 Quebec was enrolled Only for that provice – criminal non constitutional mattersOnly for that provice – criminal non constitutional matters

British Influences Origins of Law Patrick Wallace and Moritz Steinbauer

Agenda British InfluencesBritish Influences Adversarial Versus Inquisitorial Trial SystemsAdversarial Versus Inquisitorial Trial Systems Methods of AdjudicationMethods of Adjudication Trial by OrdealTrial by Ordeal Trial by Combat (Judicial Duel)Trial by Combat (Judicial Duel) Early Court SystemsEarly Court Systems The Origins of the JuryThe Origins of the Jury

British Influences British law influence the Canadian law most significantlyBritish law influence the Canadian law most significantly William of Normandy conquered England in 1066William of Normandy conquered England in 1066 He modernized and changed the already existing legal system since the existing one was decentralized and various different customs and rules existed.He modernized and changed the already existing legal system since the existing one was decentralized and various different customs and rules existed.

Slowly a system of common law developed that helped standardize law and justiceSlowly a system of common law developed that helped standardize law and justice The current legal system was implemented by Henry II from The current legal system was implemented by Henry II from He established a group of judges that traveled around and would hear cases in all the villages and towns across England.He established a group of judges that traveled around and would hear cases in all the villages and towns across England.

They would hold meetings to discuss their different cases and come up with new laws for each situationThey would hold meetings to discuss their different cases and come up with new laws for each situation Those discussions by individual judges were written down and after that used by other judgesThose discussions by individual judges were written down and after that used by other judges This was the birth of “common law” which is the foundation of the English and Canadian legal systemThis was the birth of “common law” which is the foundation of the English and Canadian legal system

Adversarial Versus Inquisitorial Trial Systems Difference between Civil and Common LawDifference between Civil and Common Law They both use a different trial systemThey both use a different trial system

Adversarial Trial Systems In 1995 Bernardo trialed under the adversarial trial system of common law because he killed, kidnapped and sexually abused two underage girls.In 1995 Bernardo trialed under the adversarial trial system of common law because he killed, kidnapped and sexually abused two underage girls. He pleaded not guilty and didn’t have answer any questions neither did he have to enter the witness boxHe pleaded not guilty and didn’t have answer any questions neither did he have to enter the witness box He also did not need take part in a cross examination by the crownHe also did not need take part in a cross examination by the crown

This all was due to our adversarial system of justice.This all was due to our adversarial system of justice. Also it was entirely up to the crown to prove that he is guilty without reasonable doubtAlso it was entirely up to the crown to prove that he is guilty without reasonable doubt The defense ensures that the crown does not make a mistakeThe defense ensures that the crown does not make a mistake

Power of the Judge in our System And the judge makes sure that both sides “play by the rules”And the judge makes sure that both sides “play by the rules” Judge cannot call witnesses but can ask questions for clarificationJudge cannot call witnesses but can ask questions for clarification He determines the admissibility of evidenceHe determines the admissibility of evidence Instructs he juryInstructs he jury If there is no jury he is the one that makes the decision and the verdictIf there is no jury he is the one that makes the decision and the verdict

Inquisitorial Trial Systems Many European Countries and the province of Quebec use the principles of Roman law. (civil law only)Many European Countries and the province of Quebec use the principles of Roman law. (civil law only) They support the Inquisitorial SystemThey support the Inquisitorial System Here the accused has to answer questions from the prosecutor, his/her lawyer and also the judgeHere the accused has to answer questions from the prosecutor, his/her lawyer and also the judge In this system judges take the lead in making questionsIn this system judges take the lead in making questions They can insist and make the accused telling everything that might be related to the caseThey can insist and make the accused telling everything that might be related to the case The emotions, thoughts, and actions of the accused are all subject to questioning…The emotions, thoughts, and actions of the accused are all subject to questioning…

Adversarial Trial Systems Advantages – Disadvantages Opponents equally motivated to win present strong arguments, the truth will emerge.Opponents equally motivated to win present strong arguments, the truth will emerge. More antagonistic approach in which one wins and one losesMore antagonistic approach in which one wins and one loses Both sides have to be equally representedBoth sides have to be equally represented They only show evidence to their advantage and hide the one to their disadvantage = less truthThey only show evidence to their advantage and hide the one to their disadvantage = less truth

Inquisitorial Trial Systems Advantages – Disadvantages Impartial judges seek out the truth by asking questionsImpartial judges seek out the truth by asking questions The defendant has few rights and is not necessarily presumed innocentThe defendant has few rights and is not necessarily presumed innocent Trial is behind closed doors so the judge might be biased against one of the partiesTrial is behind closed doors so the judge might be biased against one of the parties

No system is perfect, and, in fact, both adversarial and inquisitorial systems have borrowed from each otherNo system is perfect, and, in fact, both adversarial and inquisitorial systems have borrowed from each other Each country has its own modified version of one of the bothEach country has its own modified version of one of the both

Methods of Adjudication This is also from British law and it determines the guilt or innocence.This is also from British law and it determines the guilt or innocence.

Trial by Ordeal One way to determine guilt or innocence was the ordealOne way to determine guilt or innocence was the ordeal So they injured somebody bandaged the wound and after some time they opened the bandage when the wound was gone god proves the person innocent, when the wound was infected god proves the person guiltySo they injured somebody bandaged the wound and after some time they opened the bandage when the wound was gone god proves the person innocent, when the wound was infected god proves the person guilty It was possible to dispute quilt by having a number of people swear an oath as to the innocence of the accusedIt was possible to dispute quilt by having a number of people swear an oath as to the innocence of the accused

Trial by Combat (Judicial Duel) Another way was that the accused challenge the accuser to a duelAnother way was that the accused challenge the accuser to a duel God would be on the side of the righteous party and there fore the victor would be innocentGod would be on the side of the righteous party and there fore the victor would be innocent Today in the adversarialToday in the adversarial trial system we have mental trial system we have mental instead of physical duels instead of physical duels

As religious devoutness decreased those methods disappeared.

Early Court Systems Soon the state realized that an offence is not only against an individual but against society. Therefore 3 new roots emergedSoon the state realized that an offence is not only against an individual but against society. Therefore 3 new roots emerged 1)Communal Court = located in a small community and lead local inhabitants 2)Manorial Tribunals 3)Royal Court System = was set up to administer the collection of taxes through the Curt of Exchequer

Other courts… Court of Common Pleas = handle civil mattersCourt of Common Pleas = handle civil matters Court of King’s Bench = dealt with serious criminal cases and was made up of various nobles appointed by the king (in Canada this is the Court of Queens Bench)Court of King’s Bench = dealt with serious criminal cases and was made up of various nobles appointed by the king (in Canada this is the Court of Queens Bench)

The Origins of the Jury This also has its roots in the British systemThis also has its roots in the British system Initially the jury where landlords listening to disputes over landInitially the jury where landlords listening to disputes over land By 1912 they started to hear criminal cases first they were just witnesses and sated their opinion about the caseBy 1912 they started to hear criminal cases first they were just witnesses and sated their opinion about the case Over time the jury became and independent check on the governmentOver time the jury became and independent check on the government A jury was free to reach a verdict based on the evidence rather than on fear of punishment or obtaining favour from those in authorityA jury was free to reach a verdict based on the evidence rather than on fear of punishment or obtaining favour from those in authority

Thank you for your attention! Yours Patrick and Moritz