Our Legal Heritage

Law and Civilizations

• Laws in the form of community enforced rules have existed since people began to interact.

• Most were based on common sense and passed on by word of mouth.

• As populations grew and laws became more complex, the need to record laws in writing increased.

Code of Hammurabi (1792-1750 BCE)

• One of the earliest known sets of recorded laws, written by King Hammurabi of Babylon

• He codified, or recorded, the rules and penalties of every aspect of Babylonian life.

Code of Hammurabi

• Laws reflected a patriarchal, male-dominated society

• Higher members of society would be punished, however women or slaves actually receive retribution

• No distinction was made between an accident and a deliberate action.

Code of Hammurabi

• Many of the laws were based on RETRIBUTION- an eye for an eye type of justice

• Other laws focused on restitution, meaning a compensation payment would be made to the victim.

An Eye for an EyeMany of the ancient laws were based on an “eye for an eye” philosophy to ensure that justice was done and that no vengeance was exacted by the parties who had been wronged. Which of the following laws reflect this philosophy?

• If a man knocks out the teeth of his equal, his teeth shall be knocked out.

• If a builder builds a house for someone, and does not construct it properly, and the house which he built falls and kills it owner, that that builder shall be put to death.

• If anyone hires oxen, and kills them by bad treatment or blows, he shall compensate the owner, oxen for oxen.

• If anyone is committing a robbery and is caught, then he shall be put to death.

Mosaic Law (1250 BCE)

• One of the greatest influences of modern law in Canada in biblical law

• Also known as Hebrew Law or Mosaic law, these laws are often referred to as the Ten Commandments

• Recorded in the Book of Exodus

Mosaic Law (1250 BCE)

• Basic principles are similar to the Code of Hammurabi yet the laws had evolved

• Law was more concerned with punishing deliberate actions instead of accidental acts of harm

• Punishment focused on the offender and not someone of lesser status

Greek Law (400 BCE)

• First form of democracy was born in Greece

• Greek law promoted citizen involvement in running the country

• Voting and Jury Duty were both major responsibilities for citizens

• Sentencing was also democratic

Roman Law (450 – 100 BCE)

There were two basic principles to Roman Law:

1) The Law must be recorded

2) Justice could not be left in the hands of judges alone to interpret

• Roman laws were codified and could be revised when necessary

• The Twelve Tablets dictated the law of England and is considered the foundation of modern law

• The practice of having a legal advisor who specializes in law first occurred

The Twelve Tablets Promoted:• Public Prosecution of Crimes• A system of victim compensation• Protected the lower classes from the

ruling classes

Women, however, were not mentioned as they were not

considered persons!

Justinian’s Code (527- 565 CE)

• Byzantine Emperor Justinian I commissioned the clarification and organization of Roman Law

• A new body was completed in addition. This was called Justinian’s Code.

• It formed the basis for civil law.• The word “justice” comes from his

name.

Napoleonic Code (1804)

• The Napoleonic Code’s non-technical style made laws accessible to the public

• Also known as the French Civil Law• Regulated Civil matters such as

property, wills, contracts, and family law.

Key Vocabulary

Codified: Laws which are arranged and recorded systematically

Retribution: Justice based on vengeance and punishment

Restitution: Payment made by the offender to the victim of a crime.

In medieval Europe and England, people were very religious. Everyone assumed that God would protect people from harm. So, when a legal case was hard to decide, the judge would sometimes order a new trial to be "decided" by God.

Way Back When…

Trial by ordeal: This “trial” required a person to undergo torture to determine guilt or innocence.

Example:Trial by fire (hot iron) Trial by water

(If the accused sank, the verdict was innocent, but the accused often drowned before being rescued. An accused person who floated on the water was pronounced guilty because water was considered a symbol of

purity that had rejected the accused.)

Trial by Oath Helping: (often used for less serious offences) This required friends of the accused to swear on the Bible indicating that he or she was innocent. If the friend(s) agreed to do it, then the accused was freed. Sound easy? No! People feared that God would punish them if they lied under oath, so they wouldn’t chance telling a lie!

Trial by Combat: determining guilt or innocence by having the parties fight a duel. It was thought that God would be on the side of the innocent party and that the innocent man would win.

In Canada, extending or accepting a challenge to fight a duel is a criminal offence that carries a penalty of imprisonment for up to two (2) years.

Purging by Water(Trial by Ordeal: Page 25)

“Unfortunately many innocent people ended up either confessing or dying because of the ordeal.”- Explain.

Important Term

Habeas Corpus: a court order designed to prevent unlawful arrest by ensuring that anyone detained by police is charged within a reasonable amount of time.

Consider This!Adil breaks into a neighbor’s home and steals some goblets and jewellery. Adil blames a friend for the crime. The friend has now been charged with a crime for which he may be put to death.

1. If Adil is caught telling lies about his friend, what, according to Babylonian law, will happen to him? Would this behaviour be an offence in Mosiac Law?

• According to Babylonian law, since the punishment for theft from a neighbor was death, then the punishment for false accusation of theft was also death. According to Mosiac Law, giving false testimony was forbidden, so Adil’s behaviour would be considered an offence in Mosaic Law.

2. The judge who hears the case against Adil’s friend finds him guilty. Later he changes his mind about his verdict. What would happen to this judge according to the Code of Hummurabi? Would the judge be punished in Mosiac Law?

• The judge would probably be publicly removed from the judge’s bench for life. Under Mosiac Law, an accidental act of harm (mistake in judgment) was not as great as a concern as punishing a deliberate action. Therefore, the judge would not likely be punished for a mistake in judgment.

INFLUENCES ON CANADIAN LAW

LAW 12

Early British Law

• during Roman rule imposed Roman Law• after Roman rule Britons turned to God to

identify guilt or innocence– trial by ordeal– trial by oath helping– trial by combat

• adversarial system• divine right = concept that monarchs had divine

right/power to rule – accountable to God only

Common Law• as legal disputes increased – King Henry II

authorized travelling courts– assizes = travelling courts– circuit judges – travelling judges for assizes

• case law = cases decided on recorded decisions from previous cases

• common law = English law system – based on case law – common to all people

• stare decisis = Latin for ‘to stand by the decision’• rule of precedent = applying earlier decision to

current case with similar circumstances

Legal Reforms

• English system of assizes became too complex and difficult to control

• angry barons pressured to enactment of Magna Carta– …was a charter of political and civil rights

• key aspects of Magna Carta:– based on Rule of Law – finally monarchs didn’t

have all the power– habeas corpus = court order designed to

ensure that anyone detained is charged before a court within a reasonable amount of time

Aboriginal Law

• aboriginal law mostly oral – not recorded

• Great Binding Law = the constitution of the Iroquois Confederacy– first significant recording of Aboriginal law– outlined rights, duties, and responsibilities

of the people

• Aboriginal law continues to influence modern Canadian law