LAW AND SOCIETY

Rule of Law A three part principle of justice:

Individuals must recognize and accept laws are necessary to regulate society.

The law applies equally to everyone.No one in society has the authority

to exercise unrestricted power to take away our rights except in accordance with the law.

Law and Morality Laws for the most part reflect our

collective community standards. Laws based on morality suggest the values, attitudes, and beliefs that citizens hold in common.

Individuals and groups who do not share these moral values are free to speak out publicly and try and change the law.

Law and Justice All cases are the same should be treated

the same and different cases differently. Laws are unjust if they discriminates on

the basis of irrelevant characteristics. Justice should be impartial. Laws should conform to society’s values

and beliefs.

Historical Roots of Law:Hammurabi’s Code

One of the earliest code of laws is the Code of Hammurabi.

Hammurabi was the king of Babylon and during his reign he codified or recorded the laws and penalties for every aspect of life in his kingdom.

Many of Hammurabi’s laws were based either on retribution or restitution.

Code of Hammurabi(excerpt)

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

If anyone opens his ditches to water his crops, but is careless, and the water

floods the fields of his neighbour, then he shall pay for the loss.

If a man takes a wife and she is seized by disease, and if he then desires to take a second wife, he shall not put away his first wife. But he shall keep her in the house and support her as long as she

lives.

Code of Hammurabi(excerpt)

If a man has a debt to repay, he can give his wife, son, or daughter as labor for three years to repay the

money If fire breaks out in a house, and someone who comes

to put it out takes the property of the master of the house, he shall be thrown into the same fire.

If a man has destroyed the eye of another free man, his own eye shall be destroyed.

If a builder has built a house for a man, and the house falls in, he shall replace all that has been destroyed; if it kills the householder, that builder shall be slain. If it kills the house owner's son or daughter, the builder's

son/daughter will be put to death.

Historical Roots of Law:Mosaic Law

One of the greatest influences on our law is biblical or Mosaic Law.

These laws , now commonly called the Ten Commandments, were written 500 years after the death of Hammurabi.

They punished the deliberate action more than an accidental act of harm.

Mosaic law was more likely to punish the guilty party than allow a person of high status to shift punishment to a person of lesser status.

A major difference was that in Mosaic law care for the poor was expressed as people were commanded to leave a portion of their crops for the poor to harvest.

Historical Roots of Law:Greek Law

The earliest form of democracy was born in Ancient Greece. Citizens were required to vote, take part in the military and serve jury duty.

The earliest jury can be traced to the Greek city of Athens as far back as 400 B.C.

The largest Greek jury consisted of over 6000 members.

Historical Roots of Law:Roman Law

There were two basic principles of Roman Law: 1) The law must be recorded 2) Justice could not be left in the hands of judges alone to

interpret. The earliest Roman law code was known as the 12

Tablets. It was compiled by a committee of 10 men around 450 B.C. The tablets promoted the public prosecution of crimes,

enacted a system of victim compensation, and protected the lower class.

The laws became so complex as the Empire increased in size that it was common for people to seek legal advice from people who specialized in the law.

Emperor Justinian of the Byzantine Empire commissioned 10 men to study and clarify the 1600 books of laws.

These were reorganized and would become known as Justinian’s Code which would form the basis of modern day justice.

Historical Roots of Law:Justinian’s Code

Emperor Justinian who ruled from 527 to 565 A.D.

After the Revolution in France in 1789 a man by the name of Napoleon Bonaparte gained power.

He reorganized the legal system in France making the law more accessible to the public.

As Napoleon conquered countries in Europe he brought with him his new legal system which regulated not only criminal issues but civil issues such as property, wills, contracts, and family law.

Historical Roots of Law:The Napoleonic Code

Influences on Canadian Law

Canadian law reflects many aspects of Mosaic, Greek, Roman and French law, but the greatest influence on our legal system is England.

As Canada was once a colony of England we have inherited many of England's laws and traditions.

Early British Law: Until close to 410 A.D. Great Britain was

under Roman law. However after the fall of the Empire Roman laws gave way to local customs and traditions.

Trial by Ordeal: In this situation the accused was to undergo torture and guilt or innocence was determined by the outcome.

Trail by Oath Helping: Used in less serious cases; the accused could get friends to swear on the Bible that he or she was innocent.

Trial By Ordeal

Early British Law: Trial by Combat: The two

parties involved in a dispute would engage in a duel (swordfight). It was believed that God was on the side of the person who was truthful and therefore the winner would be proven right.

Although in our present legal system there is no physical fighting it is based on the same principle of adversarial justice.

Early British Law:The Feudal System

During the Middle Ages Kings believed that their power was given to them by God which placed them “above the law”. This concept was known as “Divine Right”.

In the feudal system in England each British lord was in control of a parcel of land (a fief) and everything and everyone in it was considered his property.

Each lord ruled his land differently handing out justice as he saw fit. This would lead to discrepancies in the legal process across England.

Early British Law: To deal with the differences across his country, King

Henry II appointed judges, called assizes, to travel the land settling disputes.

Theses assizes however had no codified law to judge by so they relied on their own common sense and local traditions.

After a period of time they noticed similarities in cases and began to record judgments to help them and others deal with similar situations. This was the basis for case law or common law.

Each time a decision was made it created a precedent or a standard which to go by. After time people began judging on precedent or earlier decisions of similar cases. This was known as stare decisis.