1.1 – Law in History
1.2 – From Hammurabi to Napoleonic Code
1.3 – The Law of England
1.4 – How we do it in America
Objective: Students will understand the role of law in
history, the development of Anglo-American law, the
adversary system of justice, and the function of law in
the United States
1.1 – Law in History
In the beginning…
1.1 – Law in History
 the history of law is connected to the
development of civilization
 law is only one aspect of the social fabric of a
civilization but often acts as the glue that
holds a society together
 Legal institutions (like the courts) interact
with society to change, adapt, resist, or
promote aspects of civil society
1.1 – Law in History
Development of law
 The modern legal system (at least in
Western Civilization) can be traced back
as far as 3000 BC
 Early law codes  Hammurabi, Torah
(Old Testament)
 Link to modern law codes  Roman law
(imperial to Justinian’s Corpus Juris Civilis)
1.1 – Law in History
Development of law
 Birth of common law system 
medieval England
 Commercial law  lex mercatoria
(Middle Ages)
 Modern civil codes  Napoleonic
Code, German Civil Code
1.2 – Continental Law
From Hammurabi to the
Napoleonic Code
1.2 – Continental Law
 The most widespread system of law in the
world is called civil law
 this is NOT to be confused with the branch of
law with the same name (i.e. criminal and
civil law)
 As a system, civil law refers to the source of
the law as codes or statutes
 The civil law of today derives primarily from
Roman times
1.2 – Continental Law
 The existence of a “civil” law (codified law)
dates back even farther to Hammurabi and
even the Egyptians
 The Roman civil law sought to establish
rules governing all aspects of society
 Decisions of courts were not considered
legally binding and only the legislative body
could enact binding law
1.2 – Continental Law
 The Corpus Juris Civilis was a monumental
achievement by the emperor Justinian in the
6th century
 All of the previous law codes as well as
various interpretations and decisions of
courts were consolidated into one massive
book of civil law
1.2 – Continental Law
 Roman law would continue to influence the
countries of Europe throughout the middle
ages
 However, in England, a different system of
law was being developed (common law)
 During the reign of Napoleon, the civil law
of Europe was once again refined
1.2 – Continental Law
 The law of Europe, based on the civil law
descended from the Romans, is often called
“continental” law (the continent of Europe)
 Much of the civil law used around the world
is based on this European system and
ultimately on the Napoleonic Code
1.3 – English Common Law
The Law of England
1.3 – English Common Law
 The system of law in England and the U.S.
developed differently that the civil law of
the Europe
 Although not lacking codes or statutes, the
“common law” system incorporates the
concept of stare decisis (precedent by
courts)
 This system has its roots in England during
the middle ages
1.3 – English Common Law
 Beginning with William I, the king
established courts around the country and
the judges were charged with enforcing the
laws of the king
 The decisions of these judges were binding
as proper interpretation and application of
the law
 A decision on a particular matter would
then serve as precedent for one later
1.3 – English Common Law
 In total, the various decisions of all of the
courts combined formed a “body” of
interpretative law which came to be known
as the common law
 the judges do not actually “make” law but
create rules to follow for future decisions
 Not all decisions are binding in the same
way (one court may not have to follow
another)
1.4 – The American Approach
How we do it in America
Federalism
 The U.S. came into existence not as a unitary
nation, but rather as a union of thirteen
separate colonies
 The U.S. has a federal system of government
 In a federal system, government power is
constitutionally divided between a central,
national authority and smaller political units
(like states or provinces)
 Power to govern is shared between the
national government and state governments
1.4 – The American Approach
 The American system of law owes it origins
to the English common law
 In the U.S., the state courts are primarily
responsible for creating and using the
common law
 Federal courts, on the other hand, primarily
interpret and apply federal statutes and do
not create or rely upon common law
The Supremacy Clause
 Found in Article VI of the U.S.
Constitution
 Establishes the U.S. Constitution as the
“supreme law of the land”
 The U.S. Constitution is therefore the
highest legal authority in the U.S.
 All other legal authorities in the U.S. are
subordinate to the U.S. Constitution
1.4 – The American Approach
 In the U.S., we use an adversarial approach
to trying cases where the English (and other
courts based English law) use an
inquisitorial system)
 The adversarial system reasons that the fact
finders will be better able to find the “truth”
if evidence is presented by competing
parties
1.4 – The American Approach
 Each side presents their version of the facts
through real and testimonial evidence
 By allowing the jury to consider two
arguments over presumably the same facts
the correct decision will be reached
 In the American legal system an accused is
presumed innocent
1.4 – The American Approach
 The state has the burden of proof to prove
every element of the crime beyond a
reasonable doubt
 The defendant has to prove NOTHING!
 Failure of the state to prove even one
element BRD will result in an acquittal
 The accused is afforded rights guaranteed by
the U.S. Constitution
1.4 – The American Approach
 In the U.S., if the government wants to take
away your life, liberty, or property then the
Constitution guarantees due process of law
 The primary example of due process in
action is the jury trial where the accused is
entitled to many other rights
 The rights of an accused are found primarily
in the Fourth, Fifth, Sixth, and Eighth
Amendments
Classifications of Law
Criminal
Law
Criminal law is the branch of
substantive law that establishes
punishments for certain actions.
The government is responsible for
enforcing the criminal law
Civil Law
Civil law involves private parties
and affect provide a means for
enforcing legal obligations
between individuals.
Classifications of Law
Substantive
Law
Substantive law creates legal
obligations. Tort, contract, and
domestic relations are examples
of substantive civil law. Murder,
robbery, and burglary are
examples of substantive criminal
law
Procedural
Law
Establishes the methods of
enforcing the substantive law.
Trials are the best-known
example of procedural law.
Classifications of Law
Felony
Felonies are crimes for which the
government has established a
potential punishment of
imprisonment for one year or
greater
Misdemeanor
Misdemeanors are crimes for
which the potential punishment is
imprisonment for less than one
year