Law and Society
CJUS/POLS 102
Chapter 2: History and the Law
Early History of Law
1.
Developed over thousands of years
- first known written law
- Code of Hammurabi
- King of Babylon, 2000 BC
a. Advanced society
- unique laws to control / guide
- derived from the Gods
- directing Hammurabi
(1) Dealt with:
Early History
- administrative / domestic / criminal issues
- laws directed towards children
(2) Egyptian law
- highly developed society also
(a) Pharaoh descendent of gods
- word was law
(b) Egypt: first court system
- overseers: aristocracy / priests
Early History
(3) Ancient laws
- came from gods
- power bestowed on ruler
(a) Religious influence today?
(b) Church vs. state
b. Influence: centuries of different beliefs
(1) Hebrew law
Early History
- god is source of all law
(a) Old Testament:
- ‘eye for an eye’
(b) New Testament:
- ‘turn the other cheek’
(2) Greek law (4th / 5th centuries)
- highly sophisticated
- Plato / Aristotle / Sophocles
History
(a) Criminal acts: crimes against society
(b) Serious crime: crime against the state
(c) King relied on gods
c. Roman law
- dominant force
- “natural law”
(1) Transformed into “civil law” / “canon law”
History
(a) Civil law
- state law
- government takes action
(b) Canon law
- church law
- catholic church takes action in
domestic matters
(2) Defined 3 elements of law:
- legislative / administrative / judicial
History
(a) Developed into English justice system
- Rome established legal system
- developed into US system
(b) Laws passed by Roman senate
(c) Enforced by the Emperor
(d) Ruled on by Roman courts
- judges or priests
History
(3) Justinian Code
- Roman Emperor Justinian (528 AD)
- collection of all laws
(a) Civil laws
- enforced by government
- soldiers
(b) Canon laws
- enforced by soldiers
- judges were priests
History
(c) Term “justice”
- came from Justinian
(4) Code included 4 parts:
(a) The Institutes
- text for law students / lawyers
(b) The Digest
- casebook covering trials / decisions
History
(c) The Codex
- statutes / principles
(d) The Novels
- proposed laws
d. Laws influenced European continent
- Roman-Germanic law
- Napoleonic Code
- Laws of Islam (Constantinople)
- the four dominant legal systems:
History
(a) Common law – England
(b) Civil law – Romano-Germanic
(c) Socialist law – security / economics
(d) Religious law – beliefs / conduct
2.
Development of common law
- Danes conquered Northern France
- Normans
History
a. William the Conqueror (1066)
- developed Anglo-Saxon law
(1) Reeve of the Shire (12th century)
- King’s enforcement officer
- police / judge / executioner
(2) Developed an accusatory system
- 12 freemen appointed
- made accusations
- became our jury of 12
History
b. Roman civil law
- integrated with English traditions
(1) King’s court
- dealt with common law
- criminal and civil matters
(2) Church courts
- dealt with canon law
- family and church matters
History
(3) England: canon law / civil law
- developed into ‘common law’
- King Henry VIII
(a) Judges replaced sheriff as court official
- traveled throughout a Shire
(b) Judges made law
- decisions became common
- followed each other’s rulings
- became known as “common law”
History
c. Landowners / aristocrats
- based rules on king’s law
- nobility revolted
(1) Magna Carta – 1215
- Great Charter (Latin)
(2) Established laws of England
(3) US Constitution
- modeled after Magna Carta
History
(4) 18th century England
- becoming an industrialized society
- new business / technology
- new laws to manage
(a) United States of America
- struggling
- to form a new government
3.
Law in the new America
History
- common law of England
- adapted to Continental United States
a. Principles of common law
- still in effect
- left intact where did not interfere with state /
federal law (1990s)
(1) Never legislated
- accepted practice by the courts
- have codified common law
History
b. Federalism
- federalist form of government
(1) Union of states
- under a federal government
(2) Two or more levels
(a) Federal
- provides certain services
- protection / taxes / representation
History
(b) State
- provides certain services
- highways / schools / taxes
(c) Local
- provides certain services
- garbage / fire / taxes
(3) Based on common law
- unwritten law
- follow precedent / make up new law
History
(a) Doctrine of Stare Decisis
- “let the decision stand”
(b) Unwritten laws that were appealed
- became “case law”
- which is written law
4.
Articles of Confederation
- first governing document
- combined 13 colonies
- into a loose confederation
History
a. Ratified
- March 1, 1781
b. Replaced by the Constitution
- June 21, 1788