History of Law

Code of Hammurabi, Mosaic Law, Napoleonic Code & Common Law

Beginnings of Written Law

The oldest known set of codified laws was the Code of Hammurabi which was developed by King Hammurabi of Babylon in 1754 B.C.E. Hammurabi had the 282 laws carved into stone pillars and displayed outside the temples to ensure that everyone was aware of their rights and obligations. The Code was established to create an equal society with a just and fair legal system for all citizens within the empire, however, all the laws had scaled punishment which were adjusted depending on social status. The Babylonian society's three main classes; nobles, freemen and slaves were valued differently and the latter two classes received very harsh punishments such as death, public whipping and limbs being removed while the nobles often only were required to pay financial compensation. The law of retaliation was unfair because the punishment was not proportional to the crime, instead compensation depended on the value of the class of the accuser therefore equality and justice was truly achieved only when both parties were equal in status. Additionally, there was no "distinction between a deliberate and accidentally" committed crime and the innocent were were often unfairly punished. "If a man killed a free-born pregnant woman, his daughter would be executed as retribution." Lastly, the codes were also not very effective during this era because as as much of the empire was illiterate, people were unaware of what the Code exactly stated.

Influence of Religion

The King stated in his prologue that he was commanded by the sun god, Shamash to create the laws and therefore going against the Code would mean committing a sin in the eyes of God. By linking faith and the legal system, it encouraged people to abide by the rules because not only were they obligated by society to follow the rules but the fear of upsetting God ensured people kept in check. The legal system was heavily reliant on religion when judges could not come to a verdict or the accused had no evidence or witness, they could be tried by ordeal as everyone believed that the Gods would protect the innocent. "If any one bring an accusation against a man, and the accused go to the river and leap into the river, if he sink in the river his accuser shall take possession of his house. But if the river prove that the accused is not guilty, and he escape unhurt, then he who had brought the accusation shall be put to death, while he who leaped into the river shall take possession of the house that had belonged to his accuser."

Examples of Laws


  • If any one is committing a robbery and is caught, then he shall be put to death..
  • If a man has destroyed the eye of a man of the gentleman class, they shall destroy his eye.
  • If he has destroyed the eye of a commoner, he shall pay one mina of silver.
  • If he has destroyed the eye of a gentleman’s slave, he shall pay half the slave’s price.

Eye For An Eye, Tooth For a Tooth!

Influence on Modern Society

Many of the key ideas about justice, retribution and creating universal set of laws origined from the Code of Hammurabi. Although many of the punishments were harsh and unjustified, the Code of Hammurabi was very advanced in aspects such as minimum wage, adoption, protecting the inheritance of women in case of divorce and racism did not influence the law. Additionally, there was evidence in the Babylonian society that the legal system presumed that all are innocent until proven guilty and both sides had the right to present their case before judges came to a verdict. The eye for eye principal still exists in modern society as punishments should be equal to the crime committed, however there are other ways to compensate in place of death or severe injury unless they commit a capitol crime.

Mosaic Law

Moses

According to the Book of Exodus in the Bible, God inscribed the Ten Commandments onto two stone tablets and presented them to Moses on Mount Sinai. Moses was the leader of the people of Israel and he helped them escape slavery in Egypt with the guidance of God. These laws of God were to be interpreted by Moses only and he had the right to pass judgement on disputes.

Ten Commandments

  1. Thou shalt have no other gods before me.
  2. Thou shalt not make unto thee any graven image, or any likeness of any thing that is in heaven above, or that is in the earth beneath, or that is in the water under the earth.
  3. Thou shalt not take the name of the Lord thy God in vain.
  4. Remember the sabbath day, to keep it holy.
  5. Honour thy father and thy mother.
  6. Thou shalt not kill.
  7. Thou shalt not commit adultery.
  8. Thou shalt not steal.
  9. Thou shalt not bear false witness against thy neighbour.
  10. Thou shalt not covet thy neighbour's wife.

Restitution

The Code of Hammurabi was centered around retribution which resulted in extremely harsh and sometimes unfair punishments. Mosaic Law utilized the "eye for an eye" principle, however introduction of restitution allowed for people to repent in situations where acts were accidentally committed. Unlike the preceding laws, Mosaic law "distinguished between an accident and a deliberate act."

Fear of God

As the Ten Commandments were told to Moses by God himself, people were extremely fearful of the consequences of going against the commandments as it means an act of defiance against God. Like in the Code of Hammurabi, offences were against a deity instead of only against society which was extremely effective in making people think carefully before committing crimes. The power of God is unimaginable and therefore one may be able to hide their sins from society but God knows all and will make sure justice is served.

Disadvantages

Hammurabi was the only one who could interpret and change the laws, likewise Moses was the sole legislator of the legal system and therefore people had very little say. As there was no democracy, everyone was forced to follow the beliefs of one person and were prohibited from protesting as it meant going against what God commanded. However, unlike the Code of Hammurabi, the Mosaic law did focus on protecting the innocent and administrating punishment for the guilty party only.

Punishments

  1. If he is penitent, he restores what he has stolen plus a fifth.
  2. If a thief cannot pay, he may be taken as a slave by the injured party until he has worked off the debt.
  3. “If anyone kills a person, the murderer shall by put to death at the evidence of witnesses, but no person shall be put to death on the testimony of one witness. Moreover, you shall not take ransom for the life of a murderer who is guilty of death, but he shall surely be put to death.”

Influence on Modern Society

The Ten Commandments greatly influenced Western legal systems and murder and stealing are punishable crimes under the law. However, most other commandments like honoring your parents are considered to be rules not laws in Western society. Multiculturalism has lessened the effectiveness of utilizing the fear of God as smaller percentages of the country's population are Christian and therefore less people are obligated to follow the commandments.

Napoleonic Code

The 1804 Napoleonic Code, also known as the French civil code, was established under the rule of Napoleon I. These laws were predominately codified statutes and unlike Common Law, these laws must cover all circumstances which leaves little room for personal interpretation by judges. Like the previous two legal systems, there is no democracy and therefore people had little say in the laws which governed them.

Key Ideas


  • šLaws only applied if published (like Code of Hammurabi) – no secret laws
  • šInquisitorial system – Each case independent, decision based on relevant statutes
  • šPrior cases do not influence new cases
  • šJudges are main investigators, they dominate trials
  • šUsed Meritocracy- power vested to individuals based on ability and talent
  • šAll male citizens are equal
  • šFemales subordinate to fathers and sons
  • šClear outlines on rights, ownership and how to acquiring rights

"Nature Intended Women to Be our slaves. They are our property."-Napoleon

Separation of Church and State

Unlike the Code of Hammurabi and Mosaic Law, Napoleon did not utilize religion as a way to persuade people to obey the codes. The Concordat of 1801 declared that Catholicism was the religion of the majority of the French but Napoleon strategically stated it was not the official state religion, thus maintaining religious freedom. Regulations on divorce and education was on longer in control of the church and the church had to give up claims on church lands seized during the French Revolution.

Divisions

šCivil Code(1804) – civil rights, property and obtaining rights

šCivil Procedure (1806) – laws of civil justice and civil trials

šCommercial Law (1807) – business laws (sales, trade)

šPenal Code (1810) – Crimes and Punishments

šCriminal Procedure(1810) – to prevent arbitrary arrest and excessive remand

Examples

  1. The husband alone has the management of the property in dowry, during the marriage.
  2. Whoever shall commit any public outrage against modesty, shall be punished with an imprisonment of from three months to one year, and a fine of from 16 to 200 francs.
  3. Whoever shall be guilty of false evidence, in a criminal matter, either against the accused, or in his favour, shall be punished with the penalty of hard labour for time. Nevertheless, if the party accused has been condemned to a penalty more severe than that of hard labour for time, the false witness who has deposed against him, shall suffer the same penalty.

Common Law

British Influence on Law

During the 4th - 10th century, the Anglo Saxons attempted to establish rules which were same throughout the land which was divided into shires, counties and towns. However, there was no equity as the law did not apply to the King or the Upper class. Laws were mainly unwritten and based on customs and traditions. Like in the Mosaic Law and Code of Hammurabi legal systems, trial by ordeal was utilized as people believed God would save the innocent. Trial by combat was extremely unfair as often it did not matter whether accused was guilty or innocent, it all depended on physical capabilities of both parties.

Mosaic Law Influence

The Holy Bible, especially the Ten Commandments in the Old Testament strongly influenced the Common Law system as a majority of people were Christians. The mentality of the society was influenced by the teachings of the bible which played a heavy influence on the type of laws created and what they stated (especially laws on homosexuality and adultery).

Feudalism

When the Duke of Normandy invaded England in 1066, he established the feudal system. The King was at the top of the hierarchy, followed by his appointed lords and knights and on the bottom of the pyramid were the serfs and vessels. The King gave Lords property in exchange for loyalty and tax payment which allowed for the nation to gain wealthy and more security due to growing army sizes. The King allowed the Lords to run their manors as they wished which made laws very inconsistent and often unfair as for the same crime, some owners were very lenient while others gave cruel and unjustified punishments. For the same crime, punishment could vary from small financial compensation to severe beating or death. To resolve the inequality, the King sent travelling judges to judge cases and make final decisions in a common way. As the judges made decisions based on previous decisions for similar cases, this established precedence. The laws were much more consistent and fair as judges were less bias and lawyers could give better predictions on the outcome of a case and then would advise accordingly. Although the laws still bias and unequal for all the classes, the legal system had taken an important turn and would continue to change and adapt as it tries to keep up with the changing society.

Civil Law Vs. Common Law

Civil Law

  • Laws are written down
  • Statute must cover all possible circumstances
  • Previous laws do not influence, judgement based on applicable codified statutes
  • Inquisitorial System
  • Judges play major role, lawyers only advise

Common Law

  • Uncodified
  • Adversarial system
  • Follows precedent - previous court case decisions recorded and utilized for help with future cases
  • Judges can interpret law to fit circumstances
  • More adaptable system as new laws aren't always required when things change, interpretation is just changed
  • Lawyers present evidence and judge makes final decision

Canadian Law

Most of Canada utilizes Common law due to historical connections with the English, however Quebec follows both Common and Civil Law. Although as the beliefs and values of society has changed with time, many of the laws have been modified and replaced but the fundamental bricks of the Canadian legal system can be credited to the British Common Law system. Quebec's private law on the other hand is very similar to the Napoleonic Code as they also have a civil code. Additionally, the rest of Canada does follow the Criminal Code of Canada which outlines offences against society and prescribes punishment.