Historical Sources of Law What do they offer us today?

Code of Hammurabi Circa 1780 B.C. Hammurabi was king of Babylon Codified laws (282!!) Retribution- Getting back/ Punishing, Eye for an eye!

Code of Hammurabi Restitution – payment for – monetary / goods / services (economic) No distinction between accidents and deliberate actions Societal Hierarchy existed at that time BUT the laws were there to protect the weak as well. Examples on p. 17/18 in text!

Mosaic Law Biblical/Hebrew Law Ie. Moses and The Ten Commandments Murder, adultery, theft, worship Distinctions were made between deliberate actions versus accidental acts Care for the poor important (ie. crops/harvest) Prevents the strong from overpowering the weak. “Punish the guilty party!”

Greek Law Based on democratic ideals – the people decide (citizens!!) majority… The roots of the jury system stem from the Greeks (400 B.C.) The people also decided the SENTENCE!!!! Citizenship was restricted! (Women, children, aliens, slaves)

Roman Law Law MUST be RECORDED/WRITTEN Codified as well Able to be changed Judges alone should not decide or interpret the law Foundation of modern law

Roman Law Public prosecution Victim compensation (Restitution) Protected the weaker as well Patriarchal/hierarchal society Legal adviser (Lawyers) stem from Roman Law

Justinian’s Code Reorganization of Roman law ( 529 CE) To strengthen the split and declining Roman empire (Byzantine & Western Roman Empires) Emperor Justinian I 10 men to study, clarify and reorganize the 1600 books of Roman law

Justinian’s Code Called Justinian’s Code, after Emperor Justinian I Codified Law Inspired the concept of “justice” Formed the basis for “Civil Law” (Between 2 or more people)

The Napoleonic Code After French Revolution Emperor Napoleon Bonaparte Created a new code of laws to unify France (1804 CE Napoleonic Code (French Civil Code)

The Napoleonic Code Regulated mostly civil matters (wills and estates, family, contract and property matters) Popularized and spread through many European countries. Non-technical, easy to understand and accessible Samples:See Figure 1.12 (p.23)

Other Laws in History Their influences

Trial by Ordeal “the test of innocent or guilt!?” A semi-magical method or test used to determine guilt or innocence going right back to pre-historic times.

Trial by Ordeal Ancient ritual of determining innocent or guilt. Accused would have to perform some barbaric, dangerous or potentially fatal act. The outcome of the act would determine innocent or guilt. Only used when Lord or Judge was incapable of determining innocent or guilt based on witnesses and evidence presented.

Trial by Ordeal Only used when punishment would have been death penalty. Premise is that God would save the person if innocent, hence guiding in the decision of innocent or guilty. Very religious era. Priest present, accused allowed to participate in religious activity and rights etc. Abolished in 1215 CE by Pope Innocent III.

The ordeal of fire where the suspect had to carry a bar of red-hot iron in his hands while he walked nine marked paces. (or for/after a certain time period) No burns = Innocent Burns = Guilty / Hang Promptly! A variation was licking red-hot iron with the tongue or, sometimes, the suspect had to run barefoot over nine red-hot ploughshares.

The ordeal of water where the accused was thrown into water and if they sank, they were declared innocent, but if they floated, they were guilty and taken out and hanged - a sort of no-win situation!

The ordeal of water This Ordeal was used for ordinary people. The accused man had to plunge his arm into boiling water. If the skin was unharmed when he removed it, it followed that he must be innocent as God had protected him.

Trial by Oath Helping People who knew the accused Swear an oath on the Bible Agreement = Innocent Easy to do??? (lying under oath) Fear of retribution by God!

Trial by Combat Two disputing parties Duel God on the side of the innocent! What about the weak???? Fair??? Smarter individuals hired someone STRONGER to do the duel! Similar to today’s “Adversarial System”

The Feudal System The ruler or King was the law! He had divine rights or powers Powers passed down by God and passed on to successors They were above the law! Answerable only to God

The Feudal System The feudal system instituted by King William (England): Divided the land into parcels and given to nobleman Controlled everyone & everything on that piece of land. Different treatment by different nobleman. Different punishments/penalties for similar offences! Fairness, Justice????? People revolted (12th. Century) & Henry II changed the system to reflect the system today in Canada.

Common Law King Henry II’s answer to unfairness Traveling judges(circuit judges) and courts (assizes) Still no consistent or codified body of law Judges own “Common” sense and principles of justice Similar problems noticed, judges applied the same decisions

Common Law Records of cases now being kept, known as case law or common law Each case with different circumstances created a precedent for judges to follow Principle of “stare decisis” – latin for “stand by the decision” Today known as the RULE OF PRECEDENT Fairness established!!??