History of Law

Magna carta
Figure 1.--The Magna Carta (Great Charter) was aocument the English barins forced King John to sign recognizing their rights (1215). It limited the power of the monarchy by law and protected their feudal privileges. It was an important step in the long process of developing rule by constitutional law. At the time, parliaments were veung founded all over Europe. The Magna Carta laid the foundation of the English parliament (1265). There is no contemprary depiction of the event, but many modern depictions. We are not sure who the illustrator here was.

The history of law is essentially the history of civilization. Even primitive socities have law, although they are not written down. They may be largely traditions. As more sphisticated socities developed with the advent of agriculture, an actual legal code was required to resolve complicated legal questions concerning business and property. The Babylonian king Hamarabi finally made the first step toward a written code. This was a huge step as law based on a written code was less arbitrary and more fair to all concerned. One of the great gifts of Rome was that of law. Roman law played a major role in the eventual emergence of the West. The classical tradition was lost for centuries after the fall of Rome. The Islamic legal system or shria based on the Koran was in the 7th century a progressuve development. The problem with Islamic Law is that Muslims see the Koran as God's final relevation to man and beyond question. Thus with a medieval foundation that can not be questioned are amended, there is an inflexibility in Islamic law making adjustment to the modern world difficult if not impossible. . Emerging from the European Medieval era was English common law, England's great gift to America and its other colonies. English common law was a necessary comcomitant of capitalism which allowed the West to create the modern world. France had nothing like English common law. Louis XIV famously said, "I am the state". Napoleon is one of the great military geniueses of all time and committed to autocracy, but his great achievement was the Code Napoleon which for the first time presented France with a modern legal system. The importance of law is often forgotten in our modern world, but there is a strong correlation between economic prosperity and the rule of law.

Agriculture

As more sophisticated socities developed with the advent of agriculture, an actual legal code was required to resolve complicated questions concerning business and property. Writing had the same impetus. Records had to be kept, both by the state to assess taxes and by individual doiung business. All of this was not necessarey for hunter-gatterer peoples, but agricultural peoples developing civilization were another matter.

Hammurabi's Code (about 1750 BC)

The Babylonian king Hammurabi was the greatest of the Babylonian kings. Babylon was the world's first great metropolis and it is no accidebnt that it was here that the world's first written law code emerged. Of all Hammurabi's remarkable achievements, none is more important than is code of law. The actual provisions may seem extrtemely harsh to the modern reader, but te fact that they were written down and posted was a critical stepin the development of civilization. All the more so in that large numbers of peope even in the 20th and 21st centuries do not live in societies in which a written law code governs natinal life. Hammurabi's code is the earliest-known example of a ruler proclaiming an entire body of law to his people in written form. The 282 laws were written by scribes arranged in orderly groups on 12 tablets. This allowed the public to read and study the laws. They thus could understand what the state expected of them. Hammurabi had his Code carved upon a black stone pillar 8 feet high and placed in a public place. It begins and ends with pleas to the gods. The first written law coide was a huge step in the advancement of ciilization. Law based on a written code was was a system the public could undrstand and was less arbitrary and more fair to all concerned than law depensed at the whim of individuals.

Mosaic Code

A marble bas-relief of Moses is one of 23 reliefs of great historical lawgivers in the chamber of the U.S. House of Representatives in the United States Capitol. Many Court Houses throughout the United States display the 10 comabdments. This was an early example of codified written law. It is not enirely clear just when the Torah first appeared in either the oral or written tradition. It must have followed Hammurabi's Code, While not first, the Old Testament with the rise of Christianity helped transmit the Mosaic Code to Europe and Christendom. It influenced both codification of Roman Law and Catholic Cannon Law, both major influences on the development of European legal codes.

Roman Law

One of the great gifts of Rome was that of law. Roman law played a major role in the eventual emergence of the West. Of all the great inheritances of Roman civilization, none were more important to Western Civilization that the heritage of Roman law. And today the imprint of law is one of the primary forces that mark the Western world. Roman law developed for about a milenia. The earliest Roman law was secretly administered as the law of the privileged classes. Over time it became the destinctive basis of civilized life throughout te Empire. Roman jurisprudence evolved into a legal system based on natural-law theory as the fundamental test of the reasonableness of positive law. The first major step toward a sophisticated legal system was the law of the Twelve Tables (449 BC). The cilmination of Roman lrgal development was Emperor Justinian I's Corpus Juris Civilis of (about 530 AD). Roman law, as preserved in Justinian's codes continued to be practiced in the Eastern Roman or Byzantine Empire until its fall (1453). The classical tradition was lost for centuries after the fall of Rome to the Germanic invaders and Huns. The Eastern Empire did not fall to the Barbarians. Thus it was largely through the Eastern or Byzantine Empire that Roman legal practice was passed to continental Europe during the medieval era.

Medieval European Law

With the fall of Rome in the West, many new threads appear in Europeam law. Because of the Churchg, Roman law was not lost, but secular law, such as it was was dominated by many different trends and inflkuences and different systems developed within what was once the Roman Empire. Becase of the importance of the Church, Roman law would eventully reassert itself. The medieval era is more known for lawlessness than law, but much of our modern legal systems developed out of medieval legal traditions. An exceotion was Soviet Law which was essentially state lawlessness and a factor in the demise of theoviet Union. The long arc of legal development began with Magna Carta during the medievl era was restraints on arbitrary government and the development of legal protections for the individual. Soviet Law esentially returned to the centuries old legal system of arbitary law by rulers, but with the terifying power of the modern state.

Islamic Law: Sharia

The term Sharia simply means Islamic law. Sharia is derived from the Koran and other Islamic holy works and precendents. Some Muslims view Sharia as the body of Islamic law established in the past, especially before the 19th century. How a time time can be set on law has no basic in the Koran and seems difficult to justify intelectually. As a result, other Islamic scholars view Sharia as a changing body without any set chronological limits. The essential difference between Sharia and Western secular law is that the separation of church and state in the West. Sharia developed in the Medieval caliphate where as it was a theocracy there was no destinction between religion and state, the Caliphate was an Islamic state. Sharia regulates both public and private relations and merges government, law and religion. Goverments in the West have stopped attempting to dictate religion to its citizens and thus have developed secular law. This is not the case in the Islamic world where other religions to various degrees are supressed. With the rise of Fundamentalism in the Islamic world there has come increasing pressure for the implementation of Sharia. This presents problems for non-Muslim people. And because sime Muslims believe that Sharia is now a fixed body of law based on Islamic works before the 19th century, the penalties are in some cases draconian if not barbaric. Quran 5:38 for example percribes a punishment of cutting off a thief's hand.

Chinese Law: The Great Tang Code (624)

Emperor Ko-tsu enacted a set of laws, to be revised every two decades, laying a foundation that spread throughout East Asia (Korea and Japan) and endured into the Ming dynasty -- nearly a millenium. This made him one of the great law givers of history. The Tang legal reforms built on the Sui legal code. It has been described as the 'Confucianisation' of Chinese law. It was the culmination of a slow process of incorporating the Confucian views of society into the law codes. The result was the great Tang Code of 624. It set out what all great law codes do, a clear simple-to-understand set of laws. The code established what was permitted in Tang society and what was crininal. And it spelled out what the punishments were for violating the law. This meant that the law and judgements were not arbrtrary. The punishment was based on what you did, not who you were. The laws and punishments were codified. The Tang Code is regarded by many scholars as a model of legal precision and clarity. Three basic departments were established to create policies and laws. They were to be administered by six ministries (personnel administration, military, finance, rites, justice, and public works). The law was so clearly stated and so in coformity with Chinese thinking and values that even the dynasy that overthrough the Tang, retained their legal system. An kmprtant reason for the Tang lgal code was the novel idea that good government should include a prvision for education. The Tang unlike many rulers believed that a well-educated public was not a threat to authority, but rather, a solid foundation for a stable, prosperous society.

American Colonial Law

English common law was the basis for law in the American colonies. Each of the colonies had colonial charters. And following the English example were governed by governors appointed by the Crown and colonial legislatures basefd on the Britisjh Parliament. This was the system that developed with only limited direction fom th monarchy or parliament in sharp contrast to the panish colonial system to the south. The colonies were established at a time that Parliament and the monarchy were vying for control and thus only limited attention was given to the colonies (16th centyry). After the Ftench and Indian War (1756-63), Parliament began to rethink the relationship, primarily for fiscal reasons. They found the colonies, however, resistent to any changes. Just before the Revolution, Sir William Blackstone, published The Commentaries on the Laws of England ( Clarendon Press, Oxford, 1765-69). This was a basic compendium of English Common Law. It was divided into four volumes: 1)rights of persons, 2) the rights of things, 3) private wrongs, and 4) public wrongs. Blackstone's Commentaries became widely used in America both before and after the Revolution (1776-83). And much of the statutes enacted into law by the American states is based on English common law expressed by Blackstone. The sole exception is Louisiana which was influenced by the Napoleonic Code.

American Constitution (1789)

The Constitution is the first important written plan crafted to establish a new republic. Madison came to the Convention armed with a carefully developed plan which came to be called the Virginia Plan. Madison's role at the Convention has resulted in him being seen as the "father" of the Constitution. It was conceived to limit the powers of the Federal government by creating three independent braches of government, in part a reflection of American experience with what the founders considered to be King George III's unfettered executive power. Guaranteeing power to the states further limited the power of the Federal Government. There were many inperfections in the Constitution, including a failure to address slavery. There were also limits on democratic government. The fact that even in 2002, President Bush was relected with fewer votes than Vice President Gore is a reflection of these limits. The new Constitution was hotly debated throughout America after the Convention approved it. Dpite the imperfections, it was as Franklin observed, as close to perfect as could be achieved. Madison and Hamilton argued for its ratification in a brilliant series of political essays now called the Federalist Papers. The principal concern threatening ratification was fear--fear of the political unknown and dangers of both democratic rule and the political unknown. One noted scholar writes, "The Constitution was written not by hard-nosed, conservative political bosses determined to reverse the meliorist enthusiasm of the early years, but by idelaists ... who had come to recognize, reluctantly, the need to create the dangerous instruments of centralized power." [Bailyn]

Code Napoleon

Louis XIV famously said, "I am the state". Napoleon is one of the great military geniueses of all time and committed to autocracy, but his great achievement was the Code Napoleon which for the first time presented France with a modern legal system. While history focuses on his military campaigns, The Code Napoleon was surely the most important and enduring aspect of Napoleon's regiome. The legal system he inherited varied in each French province. He saw the need to replace this patch-work and inconsistent legal system with a national, standardized code for the French nation. Before addressing the legal confusion, he addressed the French fiscal system which was even more decrepit. He reformed the French taxation system and indoing so increased the imperial income by almost 700 million francs annually. The taxes included an income tax and a series of levies on goods (wine, tobacco and salt). He then capped his fiscal reforms by creating the Bank of France. Napoleon did not personally play a role formulating the new laws. Instead he appointed a commission (1801). There were 2,281 laws suggested. Napoleon did not personally revuew many before the Council of State debated them. It is an this point that Napoleon aplied his considerable administraytive skills. He proceeded to implemented a wide range of national laws which became known collectively known as the Civil Code or the Code Napoleon. The laws comprised the Codes of Civil Procedure, Commercial Law (1807), Criminal Procedure (1808), and the Penal Code (1810). The central tenet Code Napoleon was that every French citizen was equal before the law. Thus Napoleon institutionalized the central tenat of the Revolution. A Cabadiab reader tells us, "The Napoleonic code is also used to some extent here in Quebec. Most major criminal laws, however, are those of all of Canada."

Soviet Law

A reader writes, "I remember being shocked in 7th grade in our Civics class. The discussion was about democracy. One boy got up and said the only 'true' democracy was the Soviet Union. There were gasps around the class. The civics teacher said 'Ah yes, every one has the vote, every one has to vote; one man, one vote for one man. Think about it.' There was thoughtful silence." The whole evolution of Western law was to protect the individual, both his property and his rights. Soviet or socialist law is the body of law with developed in the Soviet Union after the Bolshevik Revolution (November 1917). It was imposed upon the Soviet people by the Communist Party, based on Markist-Lenninst principles as interpreted by Soviet leaders, namely Josef Stalin in the late-1920s. It was essentially the reversal of the evolution of Western law. While the Soviet state presented itself as the complete reversal pf the Tsarist state, it was in reality similar in many ways to the Tsarist state. Just as the Tsar was an absolute ruler, Lennin and even more so Stalin became absolute rulers in their own rights without legal constraints. Rather than protecting an individuals rights and property, Soviet law was used by the state to impose its will on Soviet citizens. While the Soviet Union crafted a Constitution with seemingly liberal principles, it actially was a virtually meaningless document. There were no real limits on state power and the operations of the Secret police--the Chekka/NKVD. There was no independent judiciary. NKVD arrests always resulted in convictions. Often there were not even trials, but execultions or long commitment to the Gulag. The issue of private property became moot. Essentially individuals no longer had property. Collectivization settled the land issue by eliminating millions of peasant land owners. And without property, Soviet citizens essentially became serfs of the Soviet state.

Economic Development

The importance of law is often forgotten in our modern world, but there is a strong correlation between economic prosperity and the rule of law. It is no accident that capitalism developed in the Netherlands and England and the Indurtial Revolution first occurred in England where both individual and property rights were protected by the rule of law.

Race and Law in America

Law can be a doubled-edged sword. It can be used to both oppress and to seek justice. The arc of Anglo-American legal history has been to protect individual rights and property, elements that are inextrcably linked. The most conscipuous failure fr an extended period in American this prudence was race. This was an issue not touch on by English common law at the tome of the foundation of the merican colonies, but slave laws based on race were adopted in each of the American colonies and were especially important in the South where most Aficans were impted and where the aboliionist Movement made little progress after the foundation of the United States (1776). Even during the skave era, there wre some legal victories for Africans, nost notably the decesion in the Constitution to abolish the save trade (1809) and the Amistad trial (1839-40). The overwealming legal novement in the North was toward freedom and in the South toward strenthening slavery. This division led to the Fugative Save Law (1850) and perhaps the worst decision in Suprme Court history --the Dread Scott decsion (1857). Ultiately the savery issue privedc beyond the capacity of law and politics to reslobe. The only the Civil War resolved the issue. And ultimately three amendmets to the Constitution resolvd the issue. Most black Americams who at the time lived in the south were unable to fully realize the benefits of emancipation because of the Black Codes passed by Southern Lehisatures tablishing the Jim Crow system. This was confirmed by the Supreme Court in Plessy vs. Fergusson estabkishing the seoarate but equal doctrine (1898). This did not change until the Supreme Court strucj down raial segregation in the Brown vs, Topeka decision (1954). The 14th and 15th amendments were used to undo the Jim Crow system of the South. Congression passage of two civil rights (1964-65) furtheredthat process. The American jury system was a further impediment to racial justic, at least unil racila minorities achieved the right to vote in the South and thus behan to appear in the jury pool.

Sources







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Created: 4:19 AM 1/6/2009
Last updated: 5:20 PM 12/6/2016